ITEMID: 001-67606
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: BEZGIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Sergey Vasilyevich Bezgin, is a Russian national, who was born in 1971 and is currently imprisoned in Orel. He was represented before the Court by Mr B. K. Kurbanov, a lawyer practising in Orel. The respondent Government were represented by Mr P. A. Laptev, the representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 December 1999 the police instituted criminal proceedings in connection with a theft of horses committed the night before. The police allegedly had information about the applicant's belonging to the crime and one of the thieves being at his home. At about 10 p.m. on the same day three police officers came to the applicant's house in Orel. They entered his property through a gate and a front door which were unlocked. Two of them produced their service identification cards to the applicant's sister who was in a kitchen. The applicant was not at home. One police officer left the house while the other two decided to remain inside and await the applicant's return. Some time later the applicant arrived. One of the policemen produced his service identity card. As the applicant had doubts about the lawfulness of their visit he sent his sister to call the police. Then a quarrel and a fight ensued between the applicant, who was supported by his relatives, and the two policemen. A squad of police officers arrived soon afterwards. The police left the applicant's home that night at an unspecified time.
Early in the morning of 2 December 1999 the applicant was arrested pursuant to Article 122 of the Code of Criminal Procedure as a suspect on a count of horses' theft and escorted to the police station. On 3 December 1999 the applicant was detained on remand pursuant to Article 90 of the Code of Criminal Procedure.
According to the applicant, on 8 and 9 December 1999 he was beaten up by police officers who tried to force him to confess.
As the three other suspects changed subsequently their original statements and testified that the applicant had not participated in the crime, in the absence of any other evidence, the police discontinued the criminal proceedings against the applicant and released him on 12 December 1999.
On the same day, at 11:45 p.m., the applicant was examined in the Orel traumatology centre. According to their certificate of 28 August 2001, the applicant had a closed head injury, concussion, a broken nose and bruises on his chest and waist. The applicant was forwarded for a further examination and an in-patient treatment to the Orel hospital where he underwent treatment from 17 to 31 December 1999. The hospital's certificate of 31 December 1999 confirmed the applicant's diagnosis of a closed head injury and concussion.
On an unspecified date in December 1999 the applicant lodged a request with the Orel Region Prosecutor's Office to investigate the incident of 1 December 1999 and his beating by police officers during his remand in custody from 2 to 12 December 1999. On 30 December 1999 the regional prosecutor forwarded his application to the Sverdlovskiy District Prosecutor's Office. After an inquiry into the applicant's allegations the Sverdlovskiy District Prosecutor's Office refused, on 17 February 2000, to institute criminal proceedings. Upon the applicant's complaint to a higher prosecutor, on 28 April 2000, the Orel Region Prosecutor's Office upheld the district prosecutor's decision.
On numerous occasions subsequently the applicant unsuccessfully lodged, with various levels of the prosecuting authorities, requests to reopen the investigation and institute criminal proceedings against the alleged perpetrators.
By a letter of 2 June 2000 the regional prosecutor stated that the previous decisions of the prosecuting authorities were not to be reconsidered. The entry of the police into the applicant's home was compatible with Article 8 of the Federal Law 144-FZ and Article 122 of the Code of Criminal Procedure. The investigation into the alleged ill-treatment was discontinued for the lack of evidence.
According to the Government, at some point the Orel Region Prosecutor's Office re-opened the investigation and following the additional inquiry into the applicant's allegations again, on 2 September 2001, refused to institute criminal proceedings against the police officers having examined statements of witnesses and an expert opinion. The witnesses (police officers, the applicant's lawyer and two other suspects in the proceedings concerning the theft of horses who saw the applicant at a confrontation two days after the alleged ill-treatment) did not confirm the applicant's allegations. The expert questioned the applicant's diagnosis of concussion and the fracture of nose, pointing out that medical documents did not specify supporting clinical data, and concluded that it was impossible to determine the time the injuries on the applicant's face and waist had been caused.
According to the applicant, the Orel Regional Court did not examine his applications challenging the prosecutor's refusal to institute criminal proceedings, which were lodged on 16 December 2000 and 13 February 2001.
On 23 April 2001 the Zheleznodorozhniy District Court of Orel convicted the applicant of assaulting police officers on 1 December 1999. On 7 August 2001, upon the applicant's appeal, the Orel Regional Court quashed the judgment of 23 April 2001 and remitted the case for a fresh examination at first instance, referring in this connection to the unlawful composition of the first instance court.
On 27 March 2002 the applicant was convicted by the Zheleznodorozhniy District Court. He received a suspended sentence of two years' imprisonment. The sentence was revoked in view of an amnesty law.
Regarding the events of 1 December 1999, the court found that the police officers had arrived at the applicant's home, acting in accordance with the law on police, in order to arrest a suspect and collect evidence about the applicant's belonging to the crime. Upon the applicant's arrival the police officers were attacked by the applicant and his relatives. As a result of assault one police officer sustained injuries to his arm, waist, nose and ear. The other policeman was diagnosed with concussion.
On 29 June 2001 the Orel Regional Court convicted the applicant of murder and robbery and sentenced him to twelve years' imprisonment.


ITEMID: 001-79618
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ERDEL v. GERMANY
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Eike Erdel, is a German national who was born in 1971 and lives in Homberg.
The applicant is a practising lawyer and a member of the political party called the Republicans (Partei der Republikaner – hereafter referred to as Die Republikaner). As the party is generally considered to be populist and right-wing, it has been under scrutiny by the offices for the protection of the Constitution (Verfassungsschutzämter) in various German States (Länder). In the general elections in September 2005 Die Republikaner won less than one percent of the votes. The party has not been declared unconstitutional by the Federal Constitutional Court pursuant to Article 21(2) of the German Basic Law.
The applicant held the position of lieutenant on the reserve list (Oberleutnant der Reserve) and was called up for service in the German army (Bundeswehr) in a tank battalion (Panzerbatallion) on 5 May 1997. By order of the Ministry of Defence, the Wetzlar District Recruiting Office (Kreiswehrersatzamt) revoked the applicant’s call-up order (Einberufung) on 6 November 1997. An objection by the applicant was dismissed on 16 March 1998 by the Defence Area Command (Wehrbereichsverwaltung). It reasoned that the revocation of the call-up order released the applicant from an obligation and therefore constituted an administrative act which resulted in a benefit (begünstigender Verwaltungsakt). Moreover, the revocation did not mean that the applicant was generally excluded from all future military exercises, but that he would no longer be considered for regular reserve trainings. The applicant would however keep his rank as a reserve officer. Because of incidents that had occurred against an extremist background, which had remained few but were taken seriously, the German army currently used its discretion regarding call-ups (Einberufungsermessen) in such way that it would only choose command personnel (Führungspersonal) for army reserve trainings (Reserveübungen) who were not only free from any suspicion of supporting anti-constitutional movements, but were also expected to take immediate action against such movements. Even though it could not be presumed that every member of Die Republikaner opposed the free democratic order, the 1996 annual report of the Federal Office for the Protection of the Constitution (Verfassungsschutz) had concluded that certain groups and wings within the party did so.
On 29 October 2002 the Giessen Administrative Court dismissed an action brought by the applicant, finding that the revocation was permissible under Article 49 of the Code of Administrative Procedure (Verwaltungsverfahrensgesetz). It considered the revocation to be an administrative act which resulted in a disadvantage (belastender Verwaltungsakt) as the applicant considered the revocation discriminatory. The Giessen Administrative Court further held that the Defence Area Command had not overstepped its discretion when asserting that the German army, as an institution which relied heavily on security, expected its personnel not only to step in to protect the free democratic order but also to take immediate action against anti-democratic activities. The Defence Area Command’s conclusion that the applicant did not fulfil those requirements was not subject to legal challenge. Even though the applicant had never given cause for complaint while serving in the German army, the authorities had acted reasonably in basing their decisions on the fact that, since offences attributable to right-wing elements had been committed in the German army attracting publicity and severely harming the army’s reputation, reserve officers who had a right-wing background would no longer be chosen for army reserve training in order to prevent further offences.
On 17 September 2003 the Federal Administrative Court dismissed an appeal by the applicant on points of law. It found that the revocation had been lawfully based on Article 49 of the Code of Administrative Procedure in conjunction with section 8 of the Soldiers Act which provided that a soldier must recognise the free democratic order within the meaning of the Basic Law and act at all times in such a way as to uphold it. The German army was not prevented from taking into account the applicant’s membership of Die Republikaner when deciding upon his status as a reserve officer despite the fact that the Federal Constitutional Court had not itself declared the party unconstitutional pursuant to Article 21 of the Basic Law. The Federal Administrative Court referred to the Federal Constitutional Court’s settled case-law in that connection. Until the Federal Constitutional Court declared a political party unconstitutional pursuant to Article 21 of the Basic Law, a party and its members and functionaries could not be hampered in their political activities. While that provision would therefore protect a reserve officer’s political activities for his party independently of his military status, it could not prevent the German army from drawing consequences from his membership of that party for his status in the army. Moreover, the above decisions had not violated the applicant’s fundamental rights. The German army was conceived as an army in a democratic State. It could only serve its purpose if its integrity as a part of the democratic order was beyond doubt. Consequently, it could not allow this order to be undermined by its soldiers or tolerate any criminal offences with an extremist background. Section 8 of the Soldiers Act provided that every soldier had to defend the free democratic order. It was therefore compatible with the Basic Law for a reserve officer to have his call-up order revoked on grounds of his party membership provided that there were sufficient reasons to believe that the party’s loyalty to the Constitution was in doubt. The Federal Administrative Court stated that such reasons were made out if a party was under scrutiny by the offices for the protection of the Constitution. However, both the authorities and the administrative courts had to satisfy themselves that such reasons really existed. As the respective decisions in the present case had referred to the 1996 report of the Federal Office for the Protection of the Constitution, this had been the case. As the German army enjoyed a certain margin of appreciation with regard to decisions concerning its human resources, it was sufficient to establish an initial suspicion (Anfangsverdacht) that the party was disloyal to the Constitution.
On 5 May 2004 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant. It reasoned that the assertion that the applicant’s membership of Die Republikaner precluded him from being called up for service in the Germany army could not be challenged from a constitutional point of view. The Federal Constitutional Court took note of the fact that the Defence Area Command had had regard to the 1996 report of the Federal Office for the Protection of the Constitution which had stated concerns about some of the party members’ loyalty to the Constitution. At the same time several criminal offences with a right-wing extremist background which had been committed by members of the German army had attracted widespread publicity and had considerably damaged the German army’s reputation. The Federal Constitutional Court found these considerations reasonable and not extraneous. It had therefore not been necessary to determine whether or not the applicant himself was attracted to right-wing ideas or had participated in anti-constitutional activities.
The relevant provision of the Basic Law is worded as follows:-
“2. Parties which, through their aims or the conduct of their members, seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of the Federal Republic of Germany shall be held to be anti-constitutional. The Federal Constitutional Court shall determine the question of anti-constitutionality.”
The relevant provisions of the Code of Administrative Procedure (Verwaltungsverfahrensgesetz) read as follows:-
“1. A lawful, non-beneficial administrative act may, even after it has become non-appealable, be revoked wholly or in part with effect for the future, except when an administrative act of like content would have to be issued or when revocation is not permissible for other reasons.
2. A lawful, beneficial administrative act may, even when it has become non-appealable, be revoked wholly or in part with effect for the future only when: ...
...
3. the authority would be entitled, as a result of a subsequent change in circumstances, not to issue the administrative act and if failure to revoke it would be contrary to the public interest. ...”
The relevant provisions of the Soldiers Act (Soldatengesetz) read as follows:-
“Soldiers shall be appointed and employed on the basis of their suitability, qualification and capabilities regardless of sex, origin, race, religious or political beliefs or relationships.”
“A soldier must recognise the free democratic order within the meaning of the Basic Law and must act at all times in such a way as to uphold it.”


ITEMID: 001-108681
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: BUTAN AND DRAGOMIR v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Mihai Poalelungi;Nona Tsotsoria
TEXT: The applicants, Mr Traian Nicolae Butan and Mrs Constanţa Dragomir, are Romanian nationals who were born in 1977 and 1946 respectively and live in Bucuresti. The first applicant is the son of the second applicant. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs.
1. On 15 May 2006 the applicants lodged an application with the Court (application no. 40067/06) against Romania under Article 34 of the Convention. They alleged that Articles 3, 6 § 1, 8, 13, 14 and Article 1 of Protocol No. 1 to the Convention had been violated as a result of the non-enforcement of a final judgment of 22 November 2005 obliging the local water supply company to conclude a contract for water supply with the second applicant, distinctive than the one concluded with the association of all landlords living in the same building.
2. In a judgment of 14 February 2008 the Court analysed all the complaints raised by the applicants only under Article 6 § 1 and held that there had been a violation of this article due to the non-enforcement of the final judgment in the applicants’ favour. As to the application of Article 41, the Court ordered the Romanian Government to pay the applicants jointly 10,000 euros in respect of pecuniary and non-pecuniary damages.
On 21 August 2008 the Romanian Government paid the damages as ordered by the Court.
At their 1100th meeting held on 30 November 2010, the Deputies decided to postpone the examination of this case at their next meeting in view of the fact that bilateral contacts were under way in order to assess new information received from the Government on the issue of the continuing non-enforcement of the domestic court judgment of 22 November 2005. The adoption of a resolution is still pending in this case.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. Following the adoption of the Court’s judgment of 14 February 2008, the water supply company sent several letters to the applicants expressing its willingness to conclude a contract with them. Hence, by letters sent on 21 February, 3 March, 14 April and 3 June 2008, the company informed the applicants that in order to conclude a distinctive water supply contract a new branching was necessary with the purpose to separate the supply to their apartment from the common supply of the entire building. On two occasions, on 28 February and 9 April 2008, representatives of the water supply company came to the applicants’ building in order to perform the necessary works but did not find them at home.
6. By a letter of 7 March 2008 addressed to the water supply company the applicants expressed their disagreement for the construction of a separate branching invoking both the domestic judgment as well as the Court’s judgment which made no express order in this respect.
7. According to the parties’ submissions, the judgment of 22 November 2005 remained non-enforced to date.
8. The relevant domestic law concerning the execution of final judgments, namely excerpts of the Civil Procedure Code and Law no. 188/2000 on the powers and functions of bailiffs, is summed up in the Court’s judgment in the case of Topciov v. Romania ((dec.), no. 17369/02, 15 June 2006).


ITEMID: 001-101859
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF J.V. AND OTHERS v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Reasonable time)
JUDGES: Ján Šikuta;Lech Garlicki
TEXT: 4. The applicants were born in 1947, 1986 and 1986 respectively and live in Bratislava.
5. On 7 April 1995 the applicants claimed compensation for damage to their health (infection with Hepatitis C).
6. On 6 November 2007 the Bratislava I District Court dismissed their action.
7. On 29 May 2009 the Bratislava Regional Court, upon the applicants' appeal, quashed the first-instance judgment and remitted the case file for further examination to the district court.
8. On 18 January 2010 the applicants complained to the President of the district court about undue delays. On 2 February 2010 the President of the court concerned acknowledged that there had been delays in the proceedings.
9. On 4 March, 18 May and 1 July 2010 the district court held hearings.
10. The proceedings are pending.
11. On 8 June 2004 the Constitutional Court found that the Bratislava I District Court had violated the applicants' right to a hearing without unjustified delay. The Constitutional Court awarded 30,000 Slovakian Korunas (SKK) to each applicant as just satisfaction in respect of non-pecuniary damage, ordered the district court to avoid further delays and to reimburse the applicants' legal costs.
3. Second set of constitutional proceedings
12. On 15 March 2007 the Constitutional Court found that, in the period after its previous ruling, the Bratislava I District Court had violated the applicants' right to a hearing without unjustified delay. The Constitutional Court awarded SKK 50,000 to each applicant as just satisfaction in respect of non-pecuniary damage, ordered the district court to avoid further delays and to reimburse the applicants' legal costs.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70069
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: GRABAN v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Andrzej Graban, is a Polish national who was born in 1957 and lives in Gdynia, Poland. He is represented before the Court by Mr P. Rybiński, a lawyer practising in Gdańsk. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 November 1996 the applicant was arrested by the police and on the following day he was charged with homicide. On 9 November 1996 the Gdynia District Court (Sąd Rejonowy) ordered that he be detained on remand in view of the reasonable suspicion that he had committed the offence in question, the grave nature of that offence and the need to obtain and secure evidence. Furthermore, the District Court considered that there was a risk that the applicant could induce witnesses to give false testimonies. That decision was upheld on appeal on 25 November 1996.
On 28 January 1997 the Gdańsk Regional Court (Sąd Okręgowy) prolonged the applicant’s detention until 6 May 1997. It invoked the same grounds as originally given for his detention. In addition, the Regional Court referred to the necessity to hear witnesses and obtain various expert opinions in the investigation.
On 5 May 1997 the Gdańsk Court of Appeal (Sąd Apelacyjny) ordered that the applicant be kept in custody until 6 August 1997. It relied on the reasonable suspicion that the applicant had committed the offence in question and the need to take further evidence.
On 1 August 1997 the applicant was indicted on the charge of homicide before the Gdańsk Regional Court. The bill of indictment comprised several charges of homicide brought against 3 accused.
On 18 December 1997 the Gdańsk Regional Court ordered that the applicant be held in custody until the first-instance judgment had been given, but not longer than 7 November 1998. It relied on the grounds previously given for the applicant’s detention and added that, given the severity of the anticipated sentence, that measure was also justified by the need to secure the proper course of the trial. That decision was upheld on appeal on 19 January 1998.
On 6 November 1998 the Gdańsk Regional Court convicted the applicant as charged and sentenced him to 8 years’ imprisonment. The applicant and the prosecutor appealed.
On 19 January 1999 the Regional Court ordered that the applicant’s detention be continued pending his appeal against the conviction until 31 May 1999. It considered that the severity of the imposed sentence fully justified the continuation of that measure.
On 5 May 1999 the Court of Appeal quashed the first-instance judgment and remitted the case.
On 26 May 1999 the Court of Appeal prolonged the applicant’s detention until 30 June 1999. It relied on the reasonable suspicion that the applicant had committed the offence in question and the severity of the anticipated penalty. That decision was upheld on appeal on 24 June 1999.
On 29 June 1999 the Court of Appeal ordered that the applicant be kept in custody until 30 September 1999. It reiterated the grounds given for its earlier decision of 26 May 1999.
On 14 September 1999 the Regional Court ordered further prolongation of the applicant’s detention until 31 December 1999.
The Regional Court opened the retrial on 29 December 1999. On the same date it prolonged the applicant’s detention until 1 April 2000. On 19 June 2000 it ordered that the applicant be held in custody until 30 September 2000.
On 18 September 2000 the Regional Court prolonged the applicant’s detention until 31 December 2000. It reiterated the grounds given previously for his detention. It also observed that there was a risk of pressure being brought to bear on witnesses if the applicant was released. That decision was upheld on appeal on 4 October 2000.
On 29 December 2000 the Regional Court ordered that the applicant be held in custody until 29 March 2001, considering that it was the only measure capable of securing the proper conduct of the trial. On 17 January 2001 that decision was upheld on appeal. The applicant’s detention was subsequently prolonged on an unspecified later date.
Since the beginning of the proceedings the applicant had made numerous, unsuccessful applications for release. He appealed, likewise unsuccessfully, against the refusals to release him and the decisions prolonging his detention.
On 26 July 2001 the Gdańsk Regional Court convicted the applicant of homicide and sentenced him to 10 years’ imprisonment. Following the applicant’s appeal, the conviction was upheld by the Gdańsk Court of Appeal on 23 May 2002. On 27 June 2003 the Supreme Court dismissed the applicant’s cassation appeal against the judgment of the Court of Appeal.


ITEMID: 001-61228
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF PERRY v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - financial award
JUDGES: Georg Ress;Mark Villiger;Nicolas Bratza
TEXT: 7. The applicant was born in 1964 and is currently detained in HM Prison Brixton.
8. In 1997, there were a series of armed robberies of mini-cab drivers in and around Wolverhampton. Each robbery was carried out in the same way by a person posing as a passenger at night. Each involved violence. The first robbery was committed on 15 April 1997 (for which the applicant was later acquitted). On 17 April 1997, the applicant was arrested and agreed to an identification parade on 15 May 1997. He was released pending the parade.
9. On 30 April 1997, a second robbery, later alleged in count 2 of the indictment against the applicant, was committed. On 1 May 1997, the applicant was arrested in relation to that offence. The applicant again agreed to participate in an identification parade to be held on 15 May and was then released. However, on that date, the applicant did not appear for the identification parade but instead sent a doctor's note stating that he was too ill to go to work. A subsequent identification parade was set for 5 June 1997. Notice to that effect was sent to the applicant's residence. He did not appear for identification on the specified date, stating later that he did not receive such notification as he had changed address.
10. On 27 June 1997, the applicant was arrested on an unrelated matter at which time he gave the address to which the previous notification was sent.
11. On 21 July 1997, a robbery, for which the applicant was charged in count 3 of his indictment, occurred. The applicant was arrested on 1 August 1997 and later acquitted on this count. The applicant agreed to stand on an identification parade scheduled to take place on 11 September. On 3 September, the applicant was interviewed with respect to another unconnected matter and said that he would attend the parade on 11 September. On that date, he did not in fact attend.
12. On the 17 September 1997, the robbery alleged in count 4 occurred, while a further robbery alleged in count 5 took place on 24 October 1997.
13. An important part of the prosecution's case rested almost entirely on the ability of the witnesses to visually identify the perpetrator. For this reason, submitting the applicant to an identification parade was of great importance for the prosecution. Given the failure of the applicant to attend the arranged identification parades, the police decided to arrange a video identification parade. Permission to covertly video the applicant for identification purposes was sought from the Deputy Chief Constable for the West Midlands Police Force under the Home Office Guidelines on the Use of Equipment in Police Surveillance Operations 1984.
14. On 19 November 1997, the applicant was taken from Strangeways Prison (where he was being detained on another matter) to the Bilston Street police station. The prison, and the applicant, had been informed that this was for identification purposes and further interviews concerning the armed robberies. On arrival at the police station, he was asked to participate in an identification parade. He refused.
15. Meanwhile, on his arrival at the police station, he was filmed by the custody suite camera which was kept running at all times and was in an area through which police personnel and other suspects came and went. An engineer had adjusted the camera to ensure that it took clear pictures during his visit. A compilation tape was prepared in which eleven volunteers imitated the actions of the applicant as captured on the covert video. This video was shown to various witnesses of the armed robberies, of whom two positively identified the applicant as involved in the second and fourth robberies. Neither the applicant nor his solicitor were informed that a tape had been made or used for identification parade purposes or given an opportunity to view it prior to its use.
16. The applicant's trial commenced in January 1999.
17. At the outset, the applicant's counsel made an application pursuant to section 78 of the Police and Criminal Evidence Act 1984 that evidence of the video identification should not be admitted. The judge heard submissions from the prosecution and defence during a preliminary hearing (“voir dire”) on 11 and 12 January 1999. On 14 January 1999, the trial judge ruled that the evidence should be admitted. When shortly afterwards this judge became unable to sit, the new trial judge heard the matter afresh. In his ruling of 26 February 1999, he found that the police had failed to comply with paragraphs D.2.11, D.2.15 and D.2.16 of the Code of Practice, inter alia with regard to their failure to ask the applicant for his consent to the video, to inform him of its creation, to inform him of its use in an identification parade, and of his own rights in that respect (namely, to give him an opportunity to view the video, object to its contents and to inform him of the right for his solicitor to be present when witnesses saw the videotape). However, the judge concluded that there had been no unfairness arising from the use of the video. Eleven persons had been filmed for comparison purposes rather than the required eight and were all within comparative height, age and appearance. Even though the applicant's solicitor was not present to verify the procedures adopted when the witnesses were shown the videos, the entire process had been recorded on video and this had been shown to the court which had the opportunity of seeing exactly how the entire video identification process had been operated. The judge ruled that the evidence was therefore admissible.
18. The trial lasted 17 days, the applicant and 31 witnesses giving live evidence. During the course of it, the applicant discharged all his legal representatives (leading and junior counsel and solicitors) and conducted his own defence as he was dissatisfied with the way his defence was being conducted. In his summing-up to the jury, the trial judge warned the jury at considerable length about the “special need for caution” before convicting any defendant in a case turning partly on identification evidence and told the jury to ask themselves whether the video was a fair test of the ability of the witnesses to pick out their attacker, telling them that if it was not a fair test they should not give much, if any weight, to the identifications and also that if there was any possibility that the police planned a video identification rather than a live identification to put the applicant at a disadvantage, they could not rely safely on the video identification evidence. The jury were also made aware of the applicant's complaints about the honesty and fairness of his treatment by the police and the alleged breaches of the code.
19. On 17 March 1999, the jury convicted the applicant of three counts of robbery and acquitted him of two others. The judge sentenced him to five years' imprisonment.
20. The applicant applied for leave to appeal against conviction, inter alia, alleging that the trial judge had erred in not excluding the evidence obtained as a result of the covert identification video and that the conviction was unsafe due to significant and substantial breaches of the code of practice relating to identification parades. Leave was granted by a single judge of the Court of Appeal.
21. On 3 April 2000, after a hearing at which the applicant was represented by counsel, the Court of Appeal rejected his appeal, finding that the trial judge had dealt with the matter in a full and careful ruling, that he had been entitled to reach the conclusion that the evidence was admissible and that he had directed the jury to give the evidence little or no weight if it was in any way unfair. It refused leave to appeal to the House of Lords.
22. On 14 April 2000, the applicant applied to the House of Lords. It rejected the application. The solicitors claimed that they were informed on 7 July 2000.
23. Guidelines on the use of equipment in police surveillance operations (the Home Office Guidelines of 1984) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices. The Guidelines are available in the library of the House of Commons and are disclosed by the Home Office on application.
24. In each case, the authorising officer should satisfy himself that the following criteria are met: (a) the investigation concerns serious crime; (b) normal methods of investigation must have been tried and failed, or must from the nature of things, be unlikely to succeed if tried; (c) there must be good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism and (d) the use of equipment must be operationally feasible. The authorising officer should also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence.
25. Section 78(1) of PACE provides as follows:
“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
26. In R. v. Khan [1996] 3 All ER 289, the House of Lords held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of Article 8 of the Convention was relevant to, but not determinative of, the judge's discretion to admit or exclude such evidence under section 78 of PACE. The evidence obtained by attaching a listening device to a private house without the knowledge of the occupants in breach of Article 8 of the Convention was admitted in that case.
27. The Code of Practice was issued under sections 66-67 of PACE, laid before Parliament and then made a statutory instrument. It provided as relevant:
“D:2.6
The police may hold a parade other than an identification parade if the suspect refuses, or having agreed to attend, fails to attend an identification parade.
D:2.10
The identification officer may show a witness a video film of a suspect if the investigating officer considers, whether because of the refusal of the suspect to take part in an identification parade or group identification or other reasons, that this would in the circumstances be the most satisfactory course of action.
D:2.11
The suspect should be asked for his consent to a video identification and advised in accordance with paragraphs 2.15 and 2.16. However, where such consent is refused the identification officer has the discretion to proceed with a video identification if it is practicable to do so.
D:2.12
A video identification must be carried out in accordance with Annex B. ...
D:2.15
Before a parade takes place or a group identification or video identification is arranged, the identification officer shall explain to the suspect:
(i) the purposes of the parade or group identification or video identification;
(ii) that he is entitled to free legal advice (see paragraph 6.5 of Code C);
(iii) the procedures for holding it (including the right to have a solicitor or friend present); ...
(vi) that he does not have to take part in a parade, or co-operate in a group identification, or with the making of a video film and, if it is proposed to hold a group identification or video identification, his entitlement to a parade if this can practicably be arranged;
(vii) if he does not consent to take part in a parade or co-operate in a group identification or with the making of a video film, his refusal may be given in evidence in any subsequent trial and police may proceed covertly without his consent or make other arrangements to test whether a witness identifies him; ...
D:2.16
This information must also be contained in a written notice which must be handed to the suspect. The identification officer shall give the suspect a reasonable opportunity to read the notice, after which he shall be asked to sign a second copy of the notice to indicate whether or not he is willing to take part in the parade or group identification or co-operate with the making of a video film. The signed copy shall be retained by the identification officer.”
28. Annex B set out the details for arranging a video identification, including how, the number and appearance of participants etc.
VIOLATED_ARTICLES: 8


ITEMID: 001-69618
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ÜNER v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8
TEXT: 9. The applicant was born in 1969 and is currently residing in Eskişehir, Turkey.
10. The applicant came to the Netherlands with his mother and two brothers in 1981, when he was 12 years old, in order to join his father who had already been living there for ten years. He was granted a residence permit (vergunning tot verblijf) which was valid for one year at a time, and, in 1988, he obtained a permanent residence permit (vestigingsvergunning).
11. On 18 January 1989 the applicant was convicted by the single-judge chamber of the Almelo Regional Court (arrondissementsrechtbank) of the offence of breach of the peace (lokaalvredebreuk), and fined 200 Netherlands guilders (NLG – 90 Euros (EUR)). The same court convicted him on 30 May 1990 of a violent offence against persons, committed in public (openlijke geweldpleging), and sentenced him to a fine of NLG 350 (EUR 159) and a suspended term of imprisonment of two weeks.
12. In 1991 the applicant entered into a relationship with a Netherlands national. They started living together in or around June 1991. A son was born to the couple on 4 February 1992.
13. On 30 June 1992 the applicant was convicted by the Arnhem Court of Appeal (gerechtshof) of a violent offence against persons, committed in public, and sentenced to eighty hours of community service (in lieu of six months’ imprisonment).
14. During the second pregnancy of the applicant’s partner, the relationship began to suffer tensions. In order to alleviate the situation, the applicant moved out in November 1992, but he remained in close contact with both his partner and his son. The pregnancy ended in a miscarriage.
15. On 16 May 1993 the applicant got involved in a dispute in a café. He pulled a gun, which was loaded, and shot and hit a man in the leg. Outside the café he then got into a fight with a second man, a friend of his first victim. He pulled a second loaded gun and shot this man in the head. The man died. The applicant was convicted of manslaughter (doodslag) and assault (zware mishandeling) by the Arnhem Court of Appeal on 21 January 1994 and sentenced to seven years’ imprisonment.
16. Whilst serving his prison sentence, from 17 May 1993 until 14 January 1998, the applicant took courses in computer skills, administration and accounting, and he also obtained a retailer’s certificate (middenstandsdiploma). He further took courses in order to qualify as a sports instructor. His partner and son visited him in prison at least once a week and regularly more often. A second son was born to the applicant and his partner on 26 June 1996, whom he also saw every week. Both his children have Netherlands nationality and have been recognised (erkend) by the applicant. Neither his partner nor his children speak Turkish.
17. By decision of 30 January 1997, the Deputy Minister of Justice (Staatssecretaris van Justitie) withdrew the applicant’s permanent residence permit and imposed a ten-year exclusion order (ongewenstverklaring) on him in view of his conviction of 21 January 1994 whereby he had been sentenced to seven years’ imprisonment. The Deputy Minister considered that the interests of public safety and the prevention of disorder and crime outweighed the interest of the applicant in being able to continue his family life with his partner, children, parents and brothers in the Netherlands.
18. The applicant lodged an objection (bezwaarschrift) against this decision, arguing that the offence in question had been committed long ago in May 1993, that he had not reoffended, that there was no indication that he would reoffend, and that his partner and children could not be expected to follow him to Turkey. Following a hearing before the Advisory Board on Matters Concerning Aliens (Adviescommissie voor vreemdelingenzaken) on 1 July 1997, on which occasion the applicant was assisted by an interpreter, the Deputy Minister rejected the objection on 4 September 1997 and ordered the applicant to leave the Netherlands as soon as he was released from detention.
19. The applicant appealed to the Regional Court of The Hague, sitting in Zwolle, submitting that, as there was no risk of him reoffending, there was no necessity to impose an exclusion order on him and that, to do so, amounted to the imposition of a second penalty.
20. The applicant was released from prison on 14 January 1998 and subsequently placed in aliens’ detention (vreemdelingenbewaring) with a view to his deportation.
21. Following a hearing on 28 January 1998, the Regional Court rejected the applicant’s appeal on 4 February 1998. The Regional Court did not accept the applicant’s argument that such a long period of time had elapsed between the date on which his criminal conviction had become irrevocable and the date on which the exclusion order had been imposed, that the Deputy Minister should be deemed to have acquiesced in the applicant’s continued residence in the Netherlands. Furthermore, the court did not discern any facts or circumstances capable of justifying a reduction of the period during which the applicant would be excluded from Netherlands territory. The applicant’s claim that there was no risk of him reoffending was only based on his own statements and was not supported by the facts, given that he had also been convicted of violent offences in 1990 and 1992. In addition, it did not appear that the applicant had put down roots in the Netherlands and had become dissociated from Turkish society to such an extent that he would be unable to return to his country of origin. Finally, the Regional Court considered that the interference with the applicant’s family life was justified for the prevention of disorder and crime.
22. The applicant was deported to Turkey on 11 February 1998. However, it appears that he returned to the Netherlands soon afterwards, as he was apprehended there on 29 May 1998. He was again deported to Turkey on 4 June 1998, and the request for a provisional measure, which he had lodged with the Regional Court of The Hague in order to suspend his deportation, was declared inadmissible on 24 August 1998.
23. On 17 September 1998 the applicant requested that the exclusion order be revoked. The Deputy Minister of Justice denied the request on 26 October 1998, as well as, on 13 April 2000, the objection which the applicant had filed against that denial. The applicant subsequently lodged an appeal, which was declared inadmissible by the Regional Court of The Hague, sitting in Zwolle, on 2 August 2000. No appeal lay against this decision.
24. The applicant submitted that, prior to his deportation in 1998, he had only been back to Turkey once in order to attend the funeral of his grandmother, and that he does not speak the Turkish language apart from understanding certain expressions. He only had one uncle in Turkey with whom he had no contact.
25. According to a report drawn up by a psychiatrist in Turkey on 9 June 1998, the applicant was suffering from psychological problems due to the fact that he was living apart from his family. In particular, the fact that he was missing his children was making him depressed. Treatment began in March 1998 and was continuing even though some improvement had been noted.
26. At the relevant time, the decision to withdraw a residence permit and to impose an exclusion order was taken pursuant to sections 14 and 21 of the 1965 Aliens Act (Vreemdelingenwet 1965) as well as the policy laid down in Chapters A4 and A5 of the “1994 Aliens Act Implementation Guidelines” (Vreemdelingencirculaire – a body of directives drawn up and published by the Ministry of Justice). Underlying this policy is the principle that the longer an alien has lawfully resided in the Netherlands – and the stronger, therefore, his or her ties with the Netherlands are assumed to be –, the more serious an offence must be before it may justify withdrawing a residence permit and excluding the alien from Netherlands territory; the authorities thus apply a sliding scale (glijdende schaal).
27. In accordance with this policy, a residence permit may be withdrawn and an exclusion order imposed on an alien who, at the time of committing the offence, has been lawfully residing in the Netherlands for more than ten but less than fifteen years – like the applicant in the present case – if he or she is sentenced to an unsuspended prison sentence of more than sixty months following a conviction for a serious violent crime or drug trafficking.
28. If an exclusion order is imposed on the basis of a conviction for a serious violent crime or drug trafficking, this order will in any event be repealed, upon request, if the alien concerned has been residing outside the Netherlands for a period of ten years.
29. A person upon whom an exclusion order has been imposed is not allowed either to reside in the Netherlands or to visit it.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-72404
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KOLK AND KISLYIY v. ESTONIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant, Mr August Kolk, is an Estonian national who was born in 1924. The second applicant, Mr Petr Kislyiy, is a Russian national who was born in 1921. Both of the applicants live in Tallinn. They were represented before the Court by Mr A. Kustov, a lawyer practising in Tallinn.
On 10 October 2003 the applicants were convicted of crimes against humanity under Article 61-1 § 1 of the Criminal Code (Kriminaalkoodeks) by the Saare County Court (Saare Maakohus). They were sentenced to eight years’ suspended imprisonment with a probation period of three years. It was stated in the judgment that the applicants had, in March 1949, participated in the deportation of the civilian population from the occupied Republic of Estonia to remote areas of the Soviet Union.
– The first applicant had served at the relevant time as an investigator in the Ministry of National Security of the Estonian Soviet Socialist Republic (SSR). He had participated in the preparation of the deportation operation “Priboi” and drawn up documents concerning the deportation of ten families. He had made proposals for the deportation of 27 persons. After the deportation operation had been carried out on 25 March 1949, he had drawn up further documents concerning the deportation.
– The second applicant had served at the relevant time as an inspector in the Ministry of the Interior of the Estonian SSR. On 25 March 1949 he had participated, in his capacity as head of a task force, in the deportation of a family and had filled out a questionnaire concerning the family and organised the deportation of four persons.
The County Court referred in its judgment to Article 6 § 4 of the Criminal Code and Article 5 § 4 of the Penal Code (Karistusseadustik), under which crimes against humanity were punishable irrespective of the time of commission of the offence. It noted that, since crimes against humanity were punishable also under the Penal Code, which had replaced the old Criminal Code as of 1 September 2002, the charges against the applicants had been brought correctly under Article 61-1 § 1 of the Criminal Code. In this context, reference was made to section 3(2) of the Penal Code (Implementing Regulations) Act (Karistusseadustiku rakendamise seadus), pursuant to which the Criminal Code had to be applied in such cases. Furthermore, the County Court relied on the Supreme Court’s judgment of 21 March 2000 in the Paulov case and referred to Article 6 of the Charter of the International Military Tribunal (Nuremberg Tribunal), Article 5 of the Statute of the International Criminal Tribunal for the Former Yugoslavia and the United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (the “Convention”).
The applicants’ lawyer lodged appeals against the County Court’s judgment with the Tallinn Court of Appeal (Tallinna Ringkonnakohus). He alleged, inter alia, that at the material time the Criminal Code of 1946 of the Russian Soviet Federative Socialist Republic (SFSR) had been applicable in the territory of Estonia. That Code had not provided for punishment of crimes against humanity. Criminal responsibility for crimes against humanity had been established only in 1994 by amendments to the Estonian Criminal Code of 1992. With reference to Article 7 of the Convention, the applicants’ lawyer argued that the County Court had not established whether the deportation had been a crime against humanity under international and domestic law in 1949 or whether the applicants had had the possibility of foreseeing, at that time, that they were committing an offence.
On 27 January 2004 the Tallinn Court of Appeal upheld the judgment of the County Court. It noted that crimes against humanity were punishable, irrespective of the time of the commission of the offence, pursuant to both the Criminal Code and the Penal Code. It made reference to the Supreme Court’s judgment in the Paulov case and referred to Article 3 of the Constitution, under which generally recognised principles and rules of international law were an inseparable part of the Estonian legal system. It relied on the same provisions of the Criminal Code and the Penal Code as the County Court. It further noted that Article 7 § 2 of the Convention did not prevent punishment of a person for an act which, at the time of its commission, had been criminal according to the general principles of law recognised by civilised nations. Deportations perpetrated by the applicants had been considered crimes against humanity by civilised nations in 1949. Such acts had been defined as criminal in Article 6 (c) of the Charter of the International Military Tribunal (Nuremberg Tribunal) and affirmed as principles of international law by the General Assembly of the United Nations on 11 December 1946 in its resolution 95. The court was of the opinion that the Charter of the Nuremberg Tribunal and also the Statute of the International Criminal Tribunal for the Former Yugoslavia enshrined norms of customary international law which were binding irrespective of whether a particular State had acceded to an international human rights treaty. The Court of Appeal found that by filling out the documents concerning deportation, removing people from their homes and handing them over to a ship assigned for deportation, the applicants had participated in a widespread attack against the civilian population in the context of the deportation operation “Priboi”.
On 21 April 2004 the Supreme Court (Riigikohus) refused the applicants leave to appeal.
Article 3 § 1 of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) stipulates that generally recognised principles and rules of international law are an inseparable part of the Estonian legal system.
Article 23 § 1 of the Constitution reads as follows:
“No one shall be convicted of an act which did not constitute a criminal offence under the law in force at the time the act was committed.”
The relevant provisions of the Criminal Code (Kriminaalkoodeks), as in force at the material time, provided:
“Crimes against humanity and war crimes (Articles 61-1 to 61-4) shall be punishable regardless of the time of commission of the crime.”
“Crimes against humanity, including genocide, as these offences are defined in international law, that is, the intentional commission of acts with the aim of full or partial extermination of a national, ethnic, racial or religious group, a group resisting an occupation regime, or other social group, the murder of, or the inflicting of extremely serious or serious bodily or mental harm or acts of torture on a member of such group, the forcible taking of children, armed attack, the deportation or expulsion of the native population in the case of occupation or annexation and the deprivation or restriction of economic, political or social human rights, shall be punished by 8 to 15 years’ imprisonment or life imprisonment.”
The Penal Code (Karistusseadustik), which entered into force on 1 September 2002, provides:
“No one shall be convicted or punished for an act which was not an offence pursuant to the law applicable at the time of the commission of the act.”
“Crimes against humanity and war crimes shall be punishable regardless of the time of commission of the offence.”
“Systematic or large-scale deprivation or restriction of human rights and freedoms, instigated or directed by a state, organisation or group, or the killing, torture, rape, causing of health damage, forced displacement, expulsion, subjection to prostitution, unfounded deprivation of liberty, or other abuse of civilians, shall be punishable by 8 to 20 years’ imprisonment or life imprisonment.”
Section 3(2) of the Penal Code (Implementing Regulations) Act (Karistusseadustiku rakendamise seadus) reads as follows:
“If, after entry into force of the Penal Code, a punishment is imposed for a criminal offence committed prior to the entry into force of the Penal Code, the punishment shall be based on the punishment provided for in the corresponding article of the Criminal Code in force at the time of the commission of the offence, in the event that the said article prescribes a lesser punishment.”
The Constitutional Review Chamber of the Supreme Court held as follows in its judgment of 21 December 1994 (case no. III-4/A-10/94):
“By virtue of the concept of the supremacy of international law, States have an obligation to comply with the norms of international law, including the norms of customary international law.”
The Criminal Chamber of the Supreme Court has reiterated in several judgments that, pursuant to Article 3 of the Constitution, generally recognised principles and norms of international law are an inseparable part of the Estonian legal system (see, for example, judgment of 7 February 1995 in case no. III-1/3-4/95, judgment of 18 April 1995 in case no. III-1/3-11/95, etc.).
The Criminal Chamber stated in its judgment of 21 March 2000 in the Paulov case concerning the extrajudicial extermination of persons hiding from the repressions of the Soviet occupation regime (case no. 3113100):
“4. ... In case of a crime against humanity, the offender places himself or herself, for various reasons – first and foremost for religious, national or ideological reasons – outside of the system of values. He or she acts in order to achieve other goals (for example ethnic cleansing) and the attacked values – life, health, physical integrity – are, in a given context, worthless to him or her. Here the attack is not directed against a specific victim; any person can become a victim.
...
7. The appeal proceeds from ... the concept of a crime against humanity and it is submitted that the victims hid in the woods as civilians in order to avoid repression. The occupation authorities, however, decided to deprive them of their right to a fair trial and to murder them. It was found that, therefore, there had been a crime against humanity.
8. The Supreme Court subscribes to the latter position and notes that deprivation of a person of his or her right to life and a fair trial may be treated like the other inhumane acts referred to in Article 6 (c) of the Charter of the Nuremberg International Military Tribunal. ...”
The Charter of the International Military Tribunal (Nuremberg Tribunal), annexed to the London Agreement of August 8th 1945 (United Nations Treaty Series, vol. 82), provides as follows:
“...
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.”
Resolution 95 of the United Nations General Assembly, adopted on 11 December 1946, provides:
“The General Assembly ... [a]ffirms the principles of international law recognised by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal ...”
In 1950 the International Law Commission of the United Nations formulated the Principles of the Nuremberg Tribunal, including the following:
“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.”
“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.”
On 26 November 1968 the United Nations General Assembly adopted by resolution 2391 (XXIII) the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (United Nations Treaty Series, vol. 754). The Convention entered into force on 11 November 1970. It was ratified by the Soviet Union on 22 April 1969. Estonia acceded to the Convention on 21 October 1991. The Convention provides, inter alia:
“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, Nuremberg, 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, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.”


ITEMID: 001-68320
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: MAWAJEDI SHIKPOHKT AND MAHKAMAT SHOLE v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants, Mr Mohamed Hashem Mawajedi Shikpokht and Mrs Atefeh Mahkamat Sholeh, are Iranian nationals who were born in 1971 and 1980 respectively and currently live in Culemborg (Netherlands). They are husband and wife. They were represented before the Court by Mr P.P.M. Mol, a lawyer practising in Amersfoort. The respondent Government were represented by Mr R.A.A. Böcker and Ms J. Schukking, both of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The facts regarding Ms Mahkamat Sholeh are stated by the applicants as follows:
Ms Mahkamat Sholeh was born into a family that opposed the Islamic revolution in Iran from the outset. Her father was put to death when she was about one year old. Her mother then married an activist of the Marxist political organisation Rah-e-Kargar (“Path of the Worker”), a Mr Asghar Firouzi (or Firoozi), referred to hereinafter as Ms Mahkamat Sholeh's stepfather.
In the early 1980s Ms Mahkamat Sholeh's stepfather received a twenty-year prison sentence. Her mother too was imprisoned; she and her mother were forced to spend a year in prison.
Ms Mahkamat Sholeh's stepfather was granted conditional release in 1989. He resumed his covert political activities.
In 1999 Ms Mahkamat Sholeh's stepfather went into hiding after learning that his name appeared on a hit list. She then took over his political activities. These included distributing written materials (books and pamphlets) and organising political meetings. She also wrote such materials herself.
At this time Ms Mahkamat Sholeh was living in her parents' house, her husband Mr Mawajedi Shikpokht having been conscripted for military service.
A few months before she eventually left Iran she was beaten unconscious by a group of students.
Ms Mahkamat Sholeh started receiving threats by telephone. On 19 November 1999 she received an anonymous threat, written on a yellow sticky note left on the front door, warning her to cease her activities. She went into hiding.
On 22 November 1999 Ms Mahkamat Sholeh's parents' house was searched. Ms Mahkamat Sholeh, who had been out of the house at the time, was informed of this by her mother who by then had also gone into hiding and who had been informed by a neighbour.
A few weeks later Ms Mahkamat Sholeh left Iran with a “travel agent”.
Ms Mahkamat Sholeh entered the Netherlands on 18 January 2000. On 23 January 2000 she lodged a request for asylum.
On 17 July 2000 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected this request.
On 24 August 2000 Ms Mahkamat Sholeh lodged an objection (bezwaarschrift) against this decision to the Deputy Minister.
A hearing before a board of officials took place on 6 May 2002. On 18 June 2002 the Deputy Minister dismissed the objection. It is stated in the decision that Ms Mahkamat Sholeh had not been able to provide consistent information on the written threat which she had received or the raid on her parents' house. It was also considered inconsistent that students had themselves set a date for an illegal meeting and asked Ms Mahkamat Sholeh whether it was convenient for them to visit her; that she was unable to provide details on most of the books and other written materials which she had kept hidden; and that she was trusted to undertake covert activities for Rah-e-Kargar despite not actually being a member of that movement; and the fact, as stated, that she had had access to the hit list with her stepfather's name on it.
The facts regarding Mr Mawajedi Shikpokht are stated by the applicants as follows:
During his military service Mr Mawajedi Shikpokht worked as a prison officer.
One of the prisoners, one G., was an important member of the Azadibakhshe Baluchistan party, a movement seeking territorial independence for the Iranian province of Baluchistan. G. persuaded Mr Mawajedi Shikpokht to smuggle letters out of prison for him. This Mr Mawajedi Shikpokht did until 19 November 1999, when he learned from another prisoner that G. had been placed in solitary confinement.
On 21 November 1999 Mr Mawajedi Shikpokht learned that G. had revealed certain names under torture. Mr Mawajedi Shikpokht then deserted.
Mr Mawajedi Shikpokht entered the Netherlands on 18 January 2000. On 23 January 2000 he lodged a request for asylum.
On 17 July 2000 the Deputy Minister of Justice rejected this request.
On 24 August 2000 Mr Mawajedi Shikpokht lodged an objection against this decision to the Deputy Minister.
A hearing before a board of officials took place on 6 May 2002. On 18 June 2002 the Deputy Minister dismissed the objection. It is stated in the decision that Mr Mawajedi Shikpokht's story was not worthy of credence, the less so since he apparently knew very little of G. or his activities for the Azadibakhshe Baluchistan party, could not even be certain that G. had divulged his name to the authorities and knew very little of his wife's covert activities. Moreover, he had apparently left Iran by air from Teheran airport, where checks on departing passengers were particularly stringent.
The applicants both lodged appeals with the Regional Court of The Hague on 15 July 2002, at the same time lodging an application for a provisional order restraining the respondent State from deporting them to Iran.
A hearing was held on 26 June 2003.
On 11 September 2003 the Provisional Measures Judge (Voorzieningenrechter) of the Regional Court of The Hague, sitting in Maastricht, dismissed both the application for a provisional measure and the appeals in a single decision. Its reasoning echoed that of the Deputy Minister in each of the two cases, which was found not to be arbitrary or unreasonable.
In the domestic proceedings Ms Mahkamat Sholeh submitted the following documents, copies of which are contained in the Court's file:
“List of the 182 people who became the subject of 'investigation'” (stated to be a hit list). The name of Ms Mahkamat Sholeh's stepfather appears on this list as number 174.
“Statement concerning Atefeh Mahkamat Sholeh” by Zoorchang Pirooz, dated 3 June 2003. This document describes Ms Mahkamat Sholeh's stepfather as a Rah-e-Kargar activist and Ms Mahkamat Sholeh herself as a sympathiser. It asks the Netherlands authorities to take her asylum request seriously.
“Letter of Zoorchang Pirooz” dated 6 June 2003. This is a very short letter in French, on commercial notepaper bearing an address in Brussels, stating that the signatory knew Ms Mahkamat Sholeh's stepfather and was aware of his political activities.
“About Atefeh Firoozi” by Dariush Arjmandi and Anoushirvan Sarhaddi, dated 15 June 2003. The signatories of this document state that they are members resident in Sweden of Rah-e-Kargar and Iranian Peoples's Fedai Guerillas (Minority), respectively. They express support for Ms Mahkamat Sholeh's asylum request based on her relationship with her stepfather and her own, unspecified, political activities “both at home and abroad”.
“Statement concerning Atefeh Mahkamat Shole (sic)” by Mr M. Hosseini Abdolabadi, dated 10 June 2003. Mr Hosseini is a Netherlands national of Iranian origin and himself a former member of the Iranian left-wing opposition who knew Ms Mahkamat Sholeh and her family in prison in the 1980s. The statement, in Dutch, expresses fears for Ms Mahkamat Sholeh's life based on her belonging to that particular family.
Letter “regarding the asylum case of Atefeh Firouzi” from Ms Nastaran Negari, representative of Workers Left Unity – Iran, dated 16 June 2003. The letter was sent by fax apparently from the mechanical engineering department of Glasgow University (the sender's imprint reads “Mech Eng Glasgow Uni”). The letterhead of the organisation gives an an address in “Gutenberg” (presumably Gothenburg), Sweden. It is stated that the applicant's stepfather was a Rah-e-Kargar activist and was imprisoned both by the former regime and by the Islamic regime. Ms Mahkamat Sholeh herself spent her early childhood in prison with her mother in the mid-1980s. She is stated to have been active against the Islamic regime, distributing leaflets and pamphlets, and to have been under surveillance and forced to flee Iran on account of her family connections. The letter expresses concern about Ms Mahkamat Sholeh's possible fate if she returns to Iran and supports her asylum request.
Copies of correspondence between Ms Mahkamat Sholeh and her stepfather exchanged when the latter was still in prison.
A letter from University Assistance Fund (UAF) – a private organisation that funds political refugees who wish to pursue higher education – agreeing to give Ms Mahkamat Sholeh financial support for study purposes.


ITEMID: 001-59884
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF IWÁNCZUK v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Georg Ress
TEXT: 8. The applicant, Krzysztof Iwańczuk, is a Polish national, who was born in 1962. He lives in Brzeg, Poland.
9. On 12 September 1991 the Wrocław-Krzyki District Prosecutor charged the applicant with forgery of various documents and use of counterfeit documents. On 14 May 1992 the Wrocław-Krzyki District Prosecutor issued a warrant of arrest against the applicant on suspicion of theft. On 22 May 1992 the Wrocław Regional Court dismissed the applicant’s appeal against the warrant of arrest.
10. On 24 July 1992 the Wrocław Regional Court decided to prolong the applicant’s detention until 15 November 1992. On 21 August 1992 the Wrocław Court of Appeal dismissed the applicant’s appeal against this decision.
11. On 12 September 1992 the Prosecutor charged the applicant with fraud. On 6 November 1992 the Wrocław Regional Court prolonged the applicant’s detention until 31 December 1992. On 18 December 1992 the Wrocław Regional Prosecutor changed the charges laid against the applicant into misappropriation. On 23 December 1992 the Wrocław Regional Court prolonged the applicant’s detention until 28 February 1993.
12. On 23 February 1993 the Wrocław Regional Court prolonged the applicant’s detention until 15 April 1993. On 18 March 1993 the Wrocław Court of Appeal dismissed the applicant’s appeal against this decision.
13. On 8 April 1993 the bill of indictment against the applicant was submitted to the Wrocław Regional Court. On 30 April 1993 that court prolonged the applicant’s detention for another three months. On 12 May 1993 the applicant appealed against that decision, and on 25 May 1993 completed his appeal by a request to be present at the court’s hearing concerning a further prolongation of his detention.
14. On 1 July 1993 the applicant requested the court to fix the date for a first hearing. On the same day the Wrocław Court of Appeal dismissed the applicant’s appeal against the prolongation of detention of 30 April 1993.
15. On 19 September 1993 at 9.30 p.m the applicant requested the prison authorities to allow him to vote in the parliamentary elections, as there were voting facilities for detainees in the Wrocław prison. The prison guard took him to the guards’ room. The applicant was then told by a group of four guards that in order to be allowed to vote he must get undressed and undergo a body search. The applicant took off his clothes except his underwear, whereupon the prison guards allegedly ridiculed him, exchanged humiliating remarks about his body and abused him verbally. The applicant was ordered to strip naked. He refused to do so and repeatedly requested permission to vote without a body search. As this was refused, the applicant was taken back to his cell without being allowed to vote.
16. A group of other prisoners who requested permission to go to the voting room at approximately 9 p.m. on that day, were also ordered to undergo the body search.
17. On 20 and 22 September 1993 the first hearing on the merits was held before the Wrocław Regional Court.
18. On 23 September 1993 the applicant brought an action before the Supreme Court, complaining that his right to vote had been breached in that he had been prevented from voting. He submitted that the requirement to undergo a body search was unjustified as there had not been any indications in his behaviour during the entire period of his detention that he might threaten the safety of other voting prisoners or guards. He complained of humiliation by the prison guards by vulgar comments and verbal abuse in the course of the events complained of. He submitted that there were about ten further guards present in the voting room. It was untenable to claim that he could present any danger to anyone when taken thereto, in particular as it had been ascertained that he could not have had any arms on him.
19. On 27 October 1993 the Supreme Court dismissed the applicant’s action. The court referred to a note concerning a conversation between the principal prison guard on duty on the material date and the president of the election committee in the prison, relating to the events. This note had been prepared upon a request of the Wrocław Regional Court, following the relevant enquiry of the Supreme Court for assistance in establishing the facts of the case. The Supreme Court noted that, according to the note, the prison guards had stated that the applicant could have a razor hidden on him and threaten the members of the election committee therewith. The court considered that the prison guards had been acting in conformity with the Rules of Detention on Remand of 1989, which provided that "if such a need arose, a detainee should undergo a search" and with the 1974 unpublished Ordinance on Prison Security, concerning, inter alia, body search of detainees. It was not certain, noted the court, whether at the material time this regulation had still remained in force, but it could not be held against the guards that they had acted according thereto. Thus it could not be established that on the part of the guards there had been intent to commit an offence, or to abuse their position. The Supreme Court concluded that the events complained of did not violate the applicant’s voting rights.
20. On 21 December 1993 the Wrocław Regional Court decided to release the applicant on bail of 2,000,000,000 (old) zlotys. Upon the applicant’s appeal, the Wrocław Court of Appeal upheld that decision on 5 January 1994, considering that there was no impediment to the bail being deposited in bonds or as a mortgage.
21. On 18 January 1994 the Wrocław Regional Court reduced the bail to 1,500,000,000 (old) zlotys. On 28 January 1994 the applicant requested that bail be accepted in the form of a mortgage on his property, and enclosed an estimate of his property made by an expert and an extract from the land register to the effect that he was the owner of the property concerned.
22. On 17 February 1994 the applicant complained that the Regional Court had failed to take any steps toward implementing its decision of 18 January 1994. He submitted that his detention after this date was unlawful, given that it should have been replaced by bail. He pointed out that he had submitted relevant documents relating to his property.
23. On 23 February 1994 the Wrocław Regional Court ordered that the bail must be deposited in cash or in State obligations. On 7 March 1994 the Wrocław Regional Court upheld this decision. On 31 April 1994 the Wrocław Court of Appeal quashed the decision relating to the sum of bail. On 19 April 1994 the Wrocław Regional Court lowered the sum of bail to 100,000,000 (old) zlotys in cash and mortgage of 750,000,000 (old) zlotys. On 5 May 1994 the applicant was released.
24. Hearings fixed for 30 May 1994, 28 July, 15 September, 1 December 1994 and 22 February 1995 were adjourned for unknown reasons. On 15 and 16 March 1995 the accused were heard by the court.
25. Subsequently, hearings fixed for 6 April, 16 May, 29 June, 7 September and 25 October 1995 were adjourned, also for unknown reasons. Next hearing was held on 14 November 1995 when the court completed the questioning of the accused. Next hearing, fixed for 5 December 1995, was also adjourned. On 16 and 17 January 1996 a hearing was held and certain witnesses were questioned. Hearing fixed for 2 February 1995 was adjourned. At the hearings on 22 February and 13 March 1996 the court questioned further witnesses. Subsequently, further hearings scheduled for 26 March, 11 and 25 April 1996 were adjourned. At the hearing on 20 May 1996 further witnesses were heard. The hearing fixed for 16 July 1996 was adjourned.
26. At the hearings held on 20 September, 24 October and 7 November 1996 further witnesses gave evidence. Hearings scheduled for 28 November, 19 December 1996, 30 January and 20 February 1997 were adjourned. On 13 March 1997 the court took evidence from further witnesses. Hearing fixed for 3 April 1997 was adjourned.
27. In 1997 hearings were held on the following dates: 24 April, 15 May, 4 and 19 June, 15 July, 2 September.
28. In 1998 hearings were held on 17 March, 7 April, 6 May, 10 June, 3 September, 27 October, 24 November and 22 December.
29. The next hearing was held on 12 January 1999.
30. During the hearings held in 1997 and 1998 the court heard eleven witnesses.
31. On 17 November 1999, at the 71st hearing held during the proceedings, the composition of the court changed, and, consequently, hearings in the case had to be recommenced. On 22 December 1999 and 16 February 2000 the court read out the bill of indictment. The date of the next hearing was fixed for 20 March 2000. The proceedings are still pending.
32. Pursuant to Section 11 of Rules of Detention on Remand of 1989, in force at the material time, body search of detained persons could be ordered at any time if such a need arose. Their clothes, underwear and shoes, as well as their cells, could be searched. This provision allowed for body search in particular when detainees left their cell and upon their return thereto, in particular during the night.
33. This issue was further governed by provisions of the unpublished Ordinance of the Minister of Justice of 6 March 1974 on Prison Security which provided in its Section 59 that detainees were subject to body search when they left their ward and upon their return. The body search was to be carried out in a separate room. A detainee undergoing the search should undress, their clothes, underwear and shoes should be carefully checked.
34. At the relevant time, the authorities competent to decide on detention on remand were set by Articles 210 and 212 of the Code of Criminal Procedure of 1969, which read as follows:
Article 210:
"1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, they shall be ordered by the prosecutor (...)."
35. Article 212:
"1. A decision concerning preventive measures may be appealed [to a higher court] ...
2. A prosecutor’s order on detention on remand may be appealed to the court competent to deal with the merits of the case...."
36. Article 225 of the Code of Criminal Procedure provided that detention on remand should be imposed only when it was mandatory; this measure should not be imposed if bail or police supervision, or both of these measures, were considered adequate.
37. Pursuant to Article 226 of the Code, bail, in form of cash, securities or mortgage, could be deposited by the accused, or by another person. Determination of the sum, form and all relevant modalities of the bail should be made, regard being had to the financial situation of the accused and, as the case may be, another person depositing bail, as well as to the assessed damage which could have been caused by the offence concerned and to the character of the offence.
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-57463
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1982
DOCNAME: CASE OF CORIGLIANO v. ITALY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (substantially the same);Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (victim);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: C. Russo
TEXT: 10. As to the exact dates of the facts, there are uncertainties and gaps in the evidence in the case- file which the efforts of the Court, and in particular the questions it put to the persons appearing before it, have not entirely succeeded in removing. Subject to that reservation, the facts may be summarised as follows:
11. Mr. Clemente Corigliano, an Italian national born in 1921, lives in Reggio Calabria, where he practises as a lawyer.
12. In March 1973, during demonstrations in Reggio, the police arrested Mr. Santo Amodeo in a shop belonging to Mr. Corigliano and in the latter’s presence.
On 29 March, the applicant gave evidence at Mr. Amodeo’s trial before the Reggio Regional Court. His evidence directly contradicted that of the police officers who had made the arrest. The Court upheld their version of the facts.
On 2 April, Mr. Corigliano lodged a complaint with the Reggio public prosecutor’s office (pubblico ministero) against two judicial officers in that town: Mr. Giuseppe Viola, President of the Criminal Chamber of the Regional Court, and Mr. Francesco Colicchia, assistant public prosecutor (sostituto procuratore della Repubblica); he accused them of various offences, in particular of having acted out of personal interest in the exercise of their duties and having deliberately failed to declare that the police report of the arrest was false.
13. Having been informed of the complaint, the public prosecutor (procuratore della Repubblica) decided to commence proceedings (elevava rubrica) against the applicant for aggravated slander (Articles 368 and 81 of the Penal Code). He did not, however, notify Mr. Corigliano of this.
On 21 April 1973, he requested the Court of Cassation to remit the case to another court; he relied on Article 60 - amended by Act no. 879 of 22 December 1980 - of the Code of Criminal Procedure, sub-paragraph 1 of which provided that (translation from the Italian):
"Where criminal proceedings are instituted against, or where an offence has been committed against, a judge or a member of the public prosecutor’s office, and the proceedings fall within the jurisdiction of the judicial institution to which he is attached, the Court of Cassation shall refer the case to another court of similar jurisdiction."
On 8 May, the public prosecutor (procuratore generale) attached to the Catanzaro Court of Appeal sent the case-file to the Court of Cassation, which by order of 2 July 1973 referred the case to the Messina Regional Court.
14. Mr. Corigliano received judicial notification (comunicazione giudiziaria) on 7 December 1973 that criminal proceedings had been brought against him under Articles 368 and 81 of the Penal Code and that he was entitled to appoint a defence lawyer within three days.
15. There were two stages in the investigation of the case : the first ended in a discharge and the second - following an appeal by the public prosecutor’s office - in the applicant’s committal for trial.
16. During the initial stage of the investigation, Mr. Corigliano on three occasions challenged the jurisdiction of the Messina Regional Court before the Court of Cassation.
On 11 January 1974, he alleged that all the procedural acts to date were void. This first appeal on a point of law was held to be inadmissible on 22 March.
On 3 February 1975, the applicant brought a second cassation appeal, alleging a conflict of jurisdiction between the Regional Courts of Messina and Potenza, where other proceedings were pending against him. The Court of Cassation declared the appeal inadmissible on 3 October.
On 5 October 1975, Mr. Corigliano brought a third cassation appeal, seeking to join the proceedings pending against him in Messina and Potenza. On 16 October, he was informed that his appeal had not been registered and that the joinder of proceedings fell within the exclusive jurisdiction of the trial court (Article 48 of the Code of Criminal Procedure).
17. The public prosecutor’s office in Messina originally conducted the investigation of the case itself in accordance with the "summary" procedure (Article 389 of the Code of Criminal Procedure). It heard the applicant, Mr. Viola and Mr. Colicchia on 17 December 1973. Following Mr. Corigliano’s refusal to appoint a defence lawyer, the public prosecutor’s office forwarded the case-file on 18 December to the competent judge so that the latter could carry out a "formal" preliminary investigation.
On 22 April 1975, the case-file was sent back to the Reggio Calabria Regional Court so that evidence could be taken from the applicant on commission. On 5 June, that Court declared that it lacked jurisdiction and returned the case-file to the Messina Regional Court. On 21 June and then on 12 December, Mr. Corigliano was summoned to appear before the Messina investigating judge, who questioned him on 26 June and 22 December 1975.
18. On 19 February 1977, the file was transmitted to the public prosecutor’s office which asked for further investigation to be carried out. On 2 March, it requested a copy of the judgment delivered on 29 March 1973 by the Reggio Calabria Regional Court against Mr. Amodeo; this was received on 31 March. On 9 April, it sought a further hearing of the judicial officers complained of by the applicant; Mr. Colicchia was heard on 16 June. The report of Mr. Amodeo’s arrest, also at the request of the public prosecutor’s office, was forwarded by the Reggio police authorities on 9 January 1978 and entered in the case-file.
Finally, on 11 January, the public prosecutor’s office requested the investigating judge to hear the police officer who had drawn up the report and had gone to live in Caserta in the meantime; he was heard on 20 January.
On the same day, the judge sent the case-file to the public prosecutor’s office so that the latter could present its final submissions. They were presented on 6 February.
The investigating judge issued an order discharging the applicant which was filed at the registry on 2 March; on 13 March 1978, the case-file was sent to the public prosecutor’s office.
19. On 16 March 1978, the public prosecutor’s office appealed against this order (Article 387 of the Code of Criminal Procedure). The applicant was notified on 28 March. The "grounds of appeal" were entered on 4 April and the following day the case-file was forwarded to the investigation chamber of the Messina Court of Appeal. The latter decided on 7 July to commit the accused for trial; its decision was lodged in the registry on 11 July 1978.
20. On 7 August 1978, the file was transmitted to the Messina Regional Court. On 6 February 1979, the applicant received a summons to appear at the hearing on 30 March.
At the conclusion of the hearing, the Regional Court gave him a suspended sentence of eighteen months’ imprisonment.
21. The applicant appealed on the same day. The Appeal Court of Messina, which had received the file on 18 June 1979, acquitted the applicant at a hearing on 19 February 1980.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1