ITEMID: 001-61333
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2003
DOCNAME: CASE OF EZEH AND CONNORS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 15. The first applicant, born in the United Kingdom in 1967, lived in London until he was 4 years old. He then resided in Nigeria until he was 22 years old, after which he returned to the United Kingdom.
16. In 1991 he was convicted of rape, possessing an imitation firearm and attempted murder. He was sentenced to three concurrent terms of imprisonment, the longest term being twelve years.
17. On 14 October 1996 the first applicant attended a meeting in the “C Wing interview room” with his probation officer for the preparation of his parole assessment report. The probation officer later alleged that the first applicant had threatened to kill her if she did not write down what he said. The first applicant was charged with an offence contrary to Rule 47(17) of the Prison Rules 1964 (“the Prison Rules”).
18. He was “put on report” and an adjudication hearing before the prison governor was convened for 15 October 1996. The first applicant requested legal representation in a form submitted to the governor dated 15 October 1996 and also during the hearing on that day before the governor. His reasons for such a request were not considered sufficient by the governor, but the hearing was adjourned to allow him to obtain legal advice. The first applicant's representative then advised him about the nature and format of the adjudication proceedings and about the questions he should raise.
19. In his detailed reply to the complaint lodged against him and written after the hearing on 15 October 1996, the first applicant stated that he required legal representation to put his points clearly to the authorities.
20. The hearing resumed on 21 October 1996. The record of the hearing indicates that the first applicant was asked whether he had had time to speak to his solicitor and whether he was ready to proceed. The relevant part of the record was ticked to indicate that this was the case. The hearing went ahead. The first applicant disputed that he had used threatening words against the probation officer. He submitted that the probation officer had misunderstood the actual words he had used, because of either his accent or language, and that the impugned remarks were about his life in Nigeria. Evidence was heard from the first applicant and the probation officer, to whom questions were put by the governor and the first applicant.
21. The first applicant was found guilty and awarded 40 additional days' custody (pursuant to section 42 of the Criminal Justice Act 1991 – “the 1991 Act”) together with 14 days' cellular confinement, 14 days' exclusion from associated work and 14 days' forfeiture of privileges. This was the applicant's twenty-second offence against discipline and his seventh offence of threatening to kill or injure a member of the prison staff.
22. On 22 October 1996 and 11 February 1997 the applicant unsuccessfully petitioned the Secretary of State about the conduct of his adjudication proceedings. In a letter dated 1 May 1997, it was confirmed that the Secretary of State had reviewed the adjudication procedure as a whole and found it to have been satisfactory.
23. The second applicant was born in 1954.
24. In January 1988 he was convicted on two counts of rape and of robbery and was sentenced to four concurrent terms of imprisonment, the longest being eighteen years.
25. On 23 March 1997 the second applicant was jogging around a track in the prison exercise yard when he collided with a prison officer. The officer alleged that the second applicant had run into him deliberately and he was charged with the offence of assault, contrary to Rule 47(1) of the Prison Rules.
26. The adjudication hearing before the governor commenced on 24 March 1997, when the second applicant requested legal representation (or, in the alternative, representation by his probation officer) at the hearing. This was refused but the hearing was adjourned to allow him to obtain legal advice, which he did on 27 March 1997. The second applicant's representative then advised him about the nature and format of the adjudication proceedings and about the questions he should raise. He was also advised to request legal representation again for the adjudication hearing, which he did on 31 March 1997.
27. The adjudication hearing was reconvened on 11 April 1997. The governor rejected the application for legal representation. He heard evidence from the relevant prison officer and another prison officer, from the second applicant and from two prisoners called by the second applicant. The second applicant's case was that the collision had been accidental.
28. The second applicant was found guilty of assault and awarded 7 additional days' custody (pursuant to section 42 of the 1991 Act). Three days' cellular confinement were also awarded and he was fined GBP 8. It was his thirty-seventh offence against discipline.
29. On 16 June and 7 July 1997 respectively, the applicants requested leave to apply for judicial review of the governor's refusal of legal representation. Mr Ezeh also applied for an extension of time in which to do so. The applicants argued that the various statutory and regulatory changes since Hone and McCartan v. Maze Prison Board of Visitors ([1988] 1 Appeal Cases 379) had made adjudication of prison disciplinary matters indistinguishable from matters of summary jurisdiction and, therefore, legal representation ought to have been allowed as of right. On 1 August 1997 a single judge of the High Court refused leave to both applicants. He observed that there was no right to legal representation in adjudication hearings and that the governor's exercise of his discretion not to allow such representation was not irrational or perverse given the facts of the cases. In Mr Ezeh's case he added that there was therefore no good reason for extending time.
30. On 10 August 1997 the applicants' counsel advised that a renewed application for leave had no realistic prospect of success, given the views expressed by the single judge of the High Court.
31. Control over, and responsibility for, prisons and prisoners in England and Wales is vested by the Prison Act 1952 in the Home Secretary. He is empowered by section 47(1) of that Act to make rules “for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein”. Such rules are contained in statutory instruments.
32. The rules in force at the time of the present applicants' disciplinary hearings were the Prison Rules 1964 as amended (“the Prison Rules”). Those have since been replaced by the Prison Rules 1999 (as amended pursuant to the Chamber's judgment in this case – see paragraphs 54-55 below).
33. Rule 47(17) of the Prison Rules provided that a prisoner was guilty of an offence against discipline if he used threatening, abusive or insulting words or behaviour.
The Prison Discipline Manual (section 6.63) provided as follows:
“It is important that it is shown how the action was threatening, abusive or insulting, but it may not always be necessary to establish at whom the action was aimed and it is not necessary to name an individual in every charge.”
Section 6.64 further provided that the impugned matter could be a specific act or word or a general pattern of behaviour; that “threatening, abusive or insulting” words should be given their ordinary meaning and that it was only necessary to find that a reasonable person at the scene would consider the words or behaviour threatening, abusive or insulting; and that the accused intended to be, or was reckless as to whether he was, threatening, abusive or insulting.
34. Section 4 of the Public Order Act 1986 (“the 1986 Act”) is entitled “Fear or provocation of violence” and provides:
“(1) A person is guilty of an offence if he –
(a) uses towards another person threatening, abusive or insulting words or behaviour, or
(b) distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting,
with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.
(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is distributed or displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.
...
(4) A person guilty of an offence under this section is liable ... to imprisonment for a term not exceeding 6 months or a fine ... or both.”
Section 5 of the 1986 Act is entitled “Harassment, alarm or distress” and section 5(1) provides:
“A person is guilty of an offence if he –
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.”
Section 5(3) provides that it is a defence for the accused to prove that there was no person within hearing or sight likely to be caused such harassment, alarm or distress, or that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or to prove that his conduct was reasonable.
“Dwelling” is defined for the purposes of sections 4 and 5 of the 1986 Act as being any structure or part of a structure occupied as a person's home or as other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose “structure” includes a tent, caravan, vehicle, vessel or other temporary moveable structure.
35. A prisoner was guilty of an offence against discipline if he committed an assault (Rule 47(1) of the Prison Rules). Section 39 of the Criminal Justice Act 1988 makes provision for the criminal offence of common assault.
36. Rule 48(1) of the Prison Rules provided that a charge of an offence against discipline should be laid, save in exceptional circumstances, within forty-eight hours of the offence and, in general, inquired into by the governor of the prison the day after it was laid.
37. Rule 50 of the Prison Rules provided as follows:
“(1) If he finds a prisoner guilty of an offence against discipline the Governor may ... impose one or more of the following punishments:
(a) caution;
(b) forfeiture for a period not exceeding 42 days of any of the privileges under Rule 4 of these Rules;
(c) exclusion from associated work for a period not exceeding 21 days;
(d) stoppage of or deduction from earnings for a period not exceeding 84 days and of an amount not exceeding 42 days' earnings;
(e) cellular confinement for a period not exceeding 14 days;
(f) in the case of a short-term or long-term prisoner, an award of additional days not exceeding 42 days;
(g) in the case of a prisoner otherwise entitled to them, forfeiture for any period of the right, under Rule 41(1) of these Rules, to have the articles there mentioned.
(2) If a prisoner is found guilty of more than one charge arising out of an incident, punishments under this rule may be ordered to run consecutively but, in the case of an award of additional days, the total period added shall not exceed 42 days.”
38. Rule 54(1) of those Prison Rules also provided:
“Subject to paragraph (2), where an offence against discipline is committed by a prisoner who is detained only on remand, additional days may be awarded notwithstanding that the prisoner has not (or had not at the time of the offence) been sentenced.”
39. The Prison Rules (Rules 43, 45 and 46) provided other means of special control of prisoners, including removal from association and temporary confinement. The Prison Rules 1999 provided that removal from association could lead to placement in a close-supervision centre (Rule 46).
40. The Incentives and Earned Privileges scheme has been operating in prisons since mid-1996, with each prison adapting it to meet their particular needs and resources. It aims to encourage responsible behaviour, participation in constructive activity, prisoners' progress through the prison system and a more disciplined, controlled and safer environment for prisoners and staff.
The scheme operates a “basic” regime, offering the least earnings and privileges, and “standard” and “enhanced” regimes, offering progressively more privileges. Such privileges can include, inter alia, earnings for work, visiting rights, family events within the prison, association, gym, personal cash, phone cards, tobacco, education facilities, in-cell radio and television, computer access and hobby materials.
41. Prior to 1989 disciplinary offences were adjudicated upon by governors who could award a maximum of 28 days' “loss of remission” (together with 3 days' solitary confinement). Grave or especially grave offences were adjudicated on by a Board of Visitors which could order forfeiture of a maximum of 180 days' remission for a grave offence (together with 56 days' solitary confinement) or an unlimited forfeiture of remission for an especially grave offence.
42. Loss of remission was initially considered in domestic law to amount to nothing more than the loss of a privilege (see, for example, Morris v. Winter [1930] 1 King's Bench 243). By at least the 1970s, however, the English courts had rejected that idea: whether or not it could be said, under the prevailing statutory framework, that remission was a privilege or a right, prisoners were told their earliest release date on arrival in prison and could expect, subject to forfeiture being ordered, release on that date. Forfeiture of remission had the effect of causing the detention to continue beyond the period corresponding to that legitimate expectation (see R. v. Hull Prison Board of Visitors, ex parte St Germain and Others [1979] 1 All England Law Reports 701, and Livingstone and Owen, Prison Law (second edition, 1999)).
43. In 1983 the power of the Board of Visitors to award unlimited forfeiture of remission was removed.
44. The Prior Report on the Disciplinary System (October 1985) recommended that there should be an effective appeal process where issues of personal liberty were at stake and that there should be a right of appeal to a manifestly independent tribunal where there was any significant forfeiture of remission.
45. In 1989 the distinction between offences, grave offences and especially grave offences was removed and the maximum loss of remission was reduced to 120 days for any one offence.
46. Lord Woolf's report on prison disturbances (April 1990) recommended that governors (as opposed to Boards of Visitors) should continue to adjudicate on disciplinary offences and that criminal offences should be referred to the criminal courts. The report recommended that the governor's order be limited to a maximum of 28 days' loss of remission and that there should be more recourse to alternative punishments such as the loss of facilities and privileges. It was suggested that the initial decision should be taken by a governor, with a right of review by an area manager, and with an appeal thereafter to a complaints adjudicator.
47. The Criminal Justice Act 1991 (“the 1991 Act”) took away the disciplinary jurisdiction of the Boards of Visitors, allocating it to prison governors. It also introduced a new framework for determining the period of a sentence which would be served in custody. The concept of remission which would result in early release of prisoners prior to the expiry of their sentence was abolished. In its place, a new regime was created which distinguished between those prisoners sentenced to less or more than four years' imprisonment (short and long-term prisoners respectively).
48. Section 33(2) of the 1991 Act provides that, as soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence. Section 33(1) puts the same obligation of release on the Secretary of State as regards short-term prisoners who have served half of their sentences: release of the latter category of prisoner is unconditional if the original sentence was for a term of less than twelve months and is on licence if the original sentence was for between one and four years' imprisonment.
49. In addition, section 42 of the 1991 Act provided as follows for the award of “additional days” to a prisoner found guilty by the governor of disciplinary offences:
“(1) Prison rules, that is to say, rules made under section 47 of the 1952 Act, may include provision for the award of additional days –
(a) to short-term or long-term prisoners; or
(b) conditionally on their subsequently becoming such prisoners, to persons on remand,
who (in either case) are guilty of disciplinary offences.
(2) Where additional days are awarded to a short-term or long-term prisoner, or to a person on remand who subsequently becomes such a prisoner, and are not remitted in accordance with prison rules –
(a) any period which he must serve before becoming entitled to or eligible for release under this Part; and
(b) any period for which a licence granted to him under this Part remains in force,
shall be extended by the aggregate of those additional days.”
50. The highest number of additional days which could be awarded by the governor was 28, the same maximum period as recommended by Lord Woolf's report in 1990.
However, the Prison (Amendment) Rules 1995 (Statutory Instrument no. 983/1995, which came into force on 25 April 1995) increased the maximum award of additional days to 42 for each offence; the maximum cellular confinement was increased to 14 days and the maximum forfeiture of privileges was increased to 21 days (Rule 50(1) of the Prison Rules). An award of additional days could never extend beyond the length of the original sentence imposed by the trial court.
51. R. v. Governor of Brockhill Prison, ex parte Evans (no. 2) ([1999] 2 Weekly Law Reports 103) concerned a short-term prisoner's detention beyond the statutory release date because of an erroneous calculation of the release date. The Court of Appeal found detention beyond that statutory release date to be unlawful and awarded damages for false imprisonment. Lord Justice Roch noted that, under section 42 of the 1991 Act, additional days could be added on to the core period foreseen by section 33(1) so that the date therein envisaged was not absolute, but was a date that could be affected by decisions made by the governor under section 42 of the 1991 Act. Lord Justice Judge pointed out that:
“The discretionary aspects of earlier arrangements for remission and parole were altered by the [1991 Act]. As a 'short-term' prisoner within section 33(5) of the [1991 Act], subject to an award of additional days in custody for disciplinary offences, the appellant was entitled to be released on licence as soon as she had served one half of the sentence imposed by the court. Therefore authorities such as Morris and Winter [1930] 1 KB 243, based on the principle that there was no entitlement to remission, cease to be relevant ...
The order of the court justifies the detention. Nevertheless, the prisoner is entitled to be released immediately the sentence has been completed. The method of calculating the date of release depends on statutory provisions which must be applied correctly, that is, correctly in law.”
The House of Lords ([2000] 3 Weekly Law Reports 843) later dismissed an appeal and confirmed the finding of false imprisonment and the award of damages.
52. In R. v. the Secretary of State for the Home Department, ex parte Carroll, Al-Hasan and Greenfield (judgment of the Court of Appeal of 19 July 2001), the appellants argued that Article 6 of the Convention should apply to prison disciplinary proceedings, referring, inter alia, to the changes brought about by the 1991 Act. The Court of Appeal, in a judgment delivered by Lord Chief Justice Woolf, held, in particular, as follows:
“Section 42(1) of the 1991 Act provided a power to make prison rules which included provision for the award of additional days but section 42(2) makes it clear that where additional days are awarded to a prisoner the additional days are aggregated with the period which would otherwise have to be served before the prisoner is released on licence. ...
The new statutory framework properly understood is not fatal to the cases advanced by the appellants. Section 42 merely gives their case its proper perspective. The awards of additional days to be served by each of the appellants did not have the effect of adding to their sentence. It was not a fresh sentence of imprisonment. Their effect was to postpone the appellant's release on licence. The awards clearly had a practical effect so far as the appellants were concerned and that practical effect was to postpone their release. But there was no question of their sentence being increased as a matter of law. Additional days could not be imposed so that they extended the actual sentence, which the appellants were serving, and the sentence passed by the court was the justification for the appellant's detention for the purposes of Article 5(1) [of the European Convention on Human Rights].”
The judgment went on to apply “the Engel criteria” (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22). It noted that the domestic categorisation of the relevant offences was not criminal but disciplinary. It was held, inter alia, that Article 6 did not apply to proceedings concerning a penalty of 21 additional days for self-administration of a controlled drug or failure to prevent the administration of a controlled drug by another person contrary to Rule 51(9) of the Prison Rules 1999. It was found that the offence of which the prisoner was found guilty did not precisely replicate any offence contrary to the criminal law and that “the power of punishment” was not disproportionate for a disciplinary offence, although it was considered close to the borderline.
53. This document, entitled “Prison discipline and the European Convention on Human Rights: Guidance on the use of additional days”, provided guidance in England and Wales on the implications of the Human Rights Act 1998 for the conduct of adjudications and for awards of additional days. In its relevant parts, it provided as follows:
“5. Disciplinary proceedings in prisons require swift hearings and a speedy process to maintain discipline and order. They are not adversarial and the nature of the decision is an administrative public law decision rather than one which resolves a dispute between two parties. Domestic English law has distinguished prison disciplinary proceedings from criminal proceedings when deciding the procedural standards necessary for fairness. [European Court of Human Rights] case-law confirms this view.
6. However, the fact that the [European Convention on Human Rights] will not in general apply to disciplinary proceedings does not mean that there is not, in theory, a risk it could apply in certain circumstances. ...
's release and the length of the prisoner's sentence may all be material to the proportionality of the punishment. ...
...
13. The imposition of additional days is generally the heaviest of the range of punishments available to adjudicators and should be used accordingly, in targeted fashion. It is not possible to give an exhaustive list of the types of offence where additional days might be appropriate; much will depend upon the circumstances of the individual case. The following, however, are examples where additional days may be particularly appropriate following a finding of guilt at adjudication.
(a) Cases which would have been referred to the police but for the wishes of the victim.
(b) Serious assaults and assaults on staff.
(c) Escapes, attempted escapes and absconds.
(d) Drug offences, particularly involving Class A drugs.
(e) Concerted or persistent acts of indiscipline.
14. ... the number of additional days imposed must be proportionate to the aim of securing good order and discipline in the prison. In making this decision, the governor will consider the same factors as those set out in paragraph 7.
15. Adjudicators should be particularly careful before imposing a large number of additional days. Overall, it should be extremely rare for punishments of more than 28 days to be made. As a guide, in 1998, only 3% of punishments of additional days were for more than 28 days.
16. For more serious cases, adjudicators must ensure that they have fully considered the alternative of referring the matter to [the] police ... Only if this is not possible in the circumstances or there are very good reasons where a disciplinary punishment is more appropriate ... should adjudicators use the disciplinary procedure instead.”
54. Introduced following the delivery of the Chamber's judgment in the present case, this statutory instrument came into force on 15 August 2002 to amend the Prison Rules 1999. Its explanatory note reads as follows:
“These Rules amend the Prison Rules 1999 by providing for an adjudicator, approved by the Secretary of State, to inquire into charges of serious offences against discipline set out in those Rules. Where the governor determines that a charge is sufficiently serious, he must refer it to the adjudicator, who is to inquire into the offence no later than 28 days after it has been referred. At an inquiry into a charge that has been referred to the adjudicator, the prisoner who has been charged is given the opportunity to be legally represented. If the adjudicator finds a prisoner guilty, he has the power to impose upon him any punishment which the governor can impose, and can also impose an award of up to 42 additional days to be served in prison. These Rules also remove from the governor the power to impose any additional days as a punishment on a prisoner found guilty by him, and add to his powers in certain other respects.”
In practice, adjudicators are district judges who visit prisons on a regular basis.
55. This statutory instrument also increased the maximum cellular confinement which could be awarded by governors to a period not exceeding 21 days and added “removal from his wing or living unit for a period of 28 days” as a further punishment available to them.
56. The instruction referred to advice received by the Scottish Prison Service to the effect that when additional days were imposed the proceedings arguably amounted to the determination of a criminal charge so that they should be held before an independent person rather than a Prison Service employee. The Prison Service had been recently advised that the risk of a successful challenge under the Convention to the use of additional days was greater than previously thought.
57. Accordingly, governors and others acting as adjudicators in disciplinary proceedings against prisoners in Scottish prisons were required to, inter alia, suspend awarding additional days as from 11 June 2001. The relevant ministers had taken into account legal advice and advice from the Prison Service, the latter based on consultation with governors, to the effect that ceasing to impose additional days' detention should not have significant operational or management implications for establishments. It was noted, in this respect, that the awards of additional days' detention had declined significantly in recent years. The judgment of the Court in the present case would be examined when delivered and it would be of relevance to the ministers and the Prison Service in deciding whether the suspension should be permanent.
58. The instruction attached a series of questions and answers. In response to the question whether the changes would increase indiscipline, the document noted:
“Figures show that the use of ADAs [additional days' awards] has been falling steadily in recent years, Also, ADAs and LOR [loss of remission] have never been available for life prisoners, yet this does not seem to have caused any disciplinary problems. There is a wide range of other punishments and of management measures available to deal with indiscipline. In the most serious cases, that is where potentially criminal activity is involved, there also remains the option of referring the matter to the police for possible criminal charges.”
59. Section 49(2) of the Prison Act 1952 provides:
“Rules made under this section shall make provision for ensuring that a person who is charged with any offence under the rules shall be given a proper opportunity of presenting his case.”
60. The above provision is implemented through Rule 49(2) of the Prison Rules:
“At an inquiry into a charge against a prisoner, he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case.”
61. The courts have interpreted Rule 49(2) as conferring a power on the governor to grant, or to refuse, a prisoner legal representation at an adjudication hearing. In R. v. the Home Secretary, ex parte Tarrant and Others ([1985] 1 Queen's Bench 251), the High Court pointed out that there is no right to legal representation for prison adjudications and that its grant in a particular case should be determined by reference to certain factors. Those factors were stated to include the seriousness of the charge and of the potential penalty; whether any points of law are likely to arise; the capacity of the particular prisoner to present his own case; procedural difficulties; the need of the prison authorities for reasonable speed in making their adjudications; and the need for fairness as between prisoners and as between prisoners and prison officers.
62. The House of Lords endorsed the factors outlined in Tarrant and Others in Hone and McCartan v. Maze Prison Board of Visitors ([1998] Appeal Cases 379). Lord Bridge found it difficult to imagine that “the rules of natural justice would ever require legal representation before the governor”. Lord Goff considered that:
“... it is easy to envisage circumstances in which the rules of natural justice do not call for representation, even though the disciplinary charge relates to a matter which constitutes in law a crime, as may well happen in the case of a simple assault where no question of law arises, and where the prisoner charged is capable of presenting his own case. To hold otherwise would result in wholly unnecessary delays in many cases, to the detriment of all concerned including the prisoner charged, and to a wholly unnecessary waste of time and money, contrary to public interest. Indeed to hold otherwise would not only cause injustice to prisoners: it would also lead to an adventitious distinction being drawn between disciplinary offences which happen also to be crimes and those which happen not to be so, for the punishments liable to be imposed do not depend on any such distinction.”
63. In a letter dated 12 November 1999, the Home Office supplied the numbers of prison adjudications which took place between 1996 and 1998, those in which the charges were considered proved and those where additional days were awarded. The approximate figures are set out below:
64. That letter also pointed out that between 1994 and 1998 there were about 250 requests for legal or other representation, of which approximately two-thirds were granted.
65. The judgment in R. v. Carroll, Al-Hasan and Greenfield, cited above, noted that 118,860 adjudications had taken place in 1999, in which the charges were proved in 104,384 cases and a total of 70,625 additional days were awarded.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-84365
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF R. KAČAPOR AND OTHERS v. SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Art.6-1;Violation of P1-1
JUDGES: András Baka;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky
TEXT: 5. The applicants, Ms Remka Kačapor (“the first applicant”), Ms Huljka Kačapor (“the second applicant”), Ms Aziza Elezović (“the third applicant”), Ms Senada Dolovac (“the fourth applicant”), Ms Šaha Rizović (“the fifth applicant”) and Ms Muška Crnovršanin (“the sixth applicant”) are all citizens of Serbia who were born in 1972, 1956, 1967, 1969, 1951 and 1950, respectively, and currently live in the Municipality of Novi Pazar.
6. Between 1993 and 2002 the applicants, at that time employed with a “socially-owned company” (društveno preduzeće; see paragraphs 71-76 below), Vojin Popović-Domaća radinost, were all “placed” by their employer on a “compulsory” paid leave scheme “until such time” when this company’s business performance could be “improved sufficiently”.
7. Whilst on leave, in accordance with the relevant domestic legislation, the applicants were entitled to a significantly reduced monthly income, as well as the payment by their employer of their pension, disability and other social security contributions.
8. By 11 November 2002 all applicants had been dismissed. At the same time, however, their employer apparently agreed to pay them 10,000 Dinars (“RSD”) each, as well as to cover their respective social security contributions in exchange for their undertaking not to seek their monthly paid leave benefits.
9. It would appear that the applicants’ employer honoured its former commitment but failed to fulfil the latter. The applicants, therefore, brought six separate civil claims before the Municipal Court (Opštinski sud) in Novi Pazar.
10. On 16 April 2003 the Municipal Court in Novi Pazar (hereinafter “the Municipal Court”) ruled in favour of the applicant and ordered her former employer to pay her:
i. the monthly paid leave benefits (naknadu za vreme plaćenog odsustva) due from 1 May 1993 to 16 June 1996 and 25 June 1998 to 31 May 2001, indexed in accordance with the relevant domestic regulations, plus statutory interest; and
ii. RSD 8,650 (approximately 140 euros [EUR]) for her legal costs; as well as
iii. coverage of her pension and disability insurance contributions (doprinosi za penzijsko i invalidsko osiguranje) due for that period.
11. This judgment became final on 23 June 2003.
12. On 5 February 2004 the applicant filed a request for the enforcement of the above judgment, proposing that it be carried out by means of a bank transfer and the auctioning of the debtor’s specified movable and immovable assets.
13. On 28 April 2004 the Municipal Court accepted the applicant’s request and issued an enforcement order.
14. On 7 February 2005 the Municipal Court ruled in favour of the applicant and ordered her former employer to pay her:
i. the monthly paid leave benefits due from 1 April 2000 to 11 November 2002 (RSD 59,672 in all - approximately EUR 745), plus statutory interest; and
ii. RSD 20,250 (approximately EUR 252) for her legal costs.
15. This judgment became final on 10 March 2005.
16. On 9 May 2005 the applicant filed a request for the enforcement of the above judgment, proposing that it be carried out by means of a bank transfer and the auctioning of the debtor’s specified movable and immovable assets.
17. On 6 September 2005 the Municipal Court accepted the applicant’s request and issued an enforcement order.
18. On 27 January 2005 and 26 May 2005 the Municipal Court ruled in favour of the applicant and ordered her former employer to pay her:
i. the monthly paid leave benefits due from 30 August 2001 to 1 November 2002 (RSD 49,714 in all - approximately EUR 600), plus statutory interest; and
ii. RSD 9,750 (approximately EUR 117) for her legal costs; as well as
iii. coverage of her pension and disability insurance contributions due from 1 January 1995 to 1 November 2002.
19. This judgment became final on 29 June 2005.
20. On 14 July 2005 applicant filed a request for the enforcement of the above judgment, proposing that it be carried out by means of a bank transfer and the auctioning of the debtor’s specified movable and immovable assets.
21. On 26 September 2005 the Municipal Court accepted the applicant’s request and issued an enforcement order.
22. On 9 December 2004 the Municipal Court ruled in favour of the applicant and ordered her former employer to pay her:
i. the monthly paid leave benefits due from 1 June 1994 to 19 August 2002 (RSD 64,711 in all - approximately EUR 837), plus statutory interest; and
ii. RSD 7,800 (approximately EUR 100) for her legal costs; as well as
iii coverage of her pension and disability insurance contributions due from 1 June 1994 to 11 November 2002.
23. This judgment became final on 28 March 2005.
24. On 19 April 2005 the applicant filed a request for the enforcement of the above judgment, proposing that it be carried out by means of a bank transfer and the auctioning of the debtor’s specified movable and immovable assets.
25. On 26 September 2005 the Municipal Court accepted the applicant’s request and issued an enforcement order.
26. On 24 September 2003 the Municipal Court ruled in favour of the applicant and ordered her former employer to pay her:
i. the monthly paid leave benefits due from 1 June 1994 to 31 May 2001, as well as those from 1 June 2001 to 11 November 2002 (RSD 101,887 in all - approximately EUR 1,625, as regards the latter period), plus statutory interest; and
ii. RSD 7,800 (approximately EUR 125) for her legal costs; as well as
iii. coverage of her pension and disability insurance contributions due for the above periods.
27. This judgment became final on 9 December 2003.
28. On 26 February 2004 the applicant filed a request for the enforcement of the above judgment, proposing that it be carried out by means of a bank transfer and the auctioning of the debtor’s specified movable and immovable assets.
29. On 15 March 2004 the Municipal Court accepted the applicant’s request and issued an enforcement order.
30. On 17 May 2004 the Municipal Court ruled in favour of the applicant and ordered her former employer to pay her:
i. the monthly paid leave benefits due from 1 June 1994 to 11 November 2002 (RSD 74,850 in all - approximately EUR 1,050), plus statutory interest; and
ii. RSD 16,200 (approximately EUR 227) for her legal costs; as well as
iii. coverage of her pension and disability insurance contributions due for that period.
31. This judgment became final on 8 November 2004.
32. On 29 November 2004 the applicant filed a request for the enforcement of the above judgment, proposing that it be carried out by means of a bank transfer and the auctioning of the debtor’s specified movable and immovable assets.
33. On 6 December 2004 the Municipal Court accepted the applicant’s request and issued an enforcement order.
34. On 30 November 2004 and 21 February 2005, respectively, the applicants sent two separate letters to the Ministry of Finance, stating, inter alia, that their former employer (hereinafter “the debtor”):
i. had, for the past ten years, deliberately avoided doing business through its official bank accounts;
ii. had instead, apparently, engaged in cash transactions or even used other “secret” bank accounts, unknown to the tax authorities; and
iii. that, as a result, judicial enforcement by means of a bank transfer had been rendered impossible.
Finally, the applicants requested that urgent action be taken to secure the enforcement of their final judgments.
35. On 23 December 2004 the Ministry of Finance (hereinafter “the Ministry”) found that the debtor had failed to pay the total amount of the taxes and social security contributions due.
36. On 12 January 2005 the Ministry ordered the debtor to pay the outstanding sum.
37. On 25 January 2005 the Ministry filed a request for the formal institution of misdemeanour proceedings, stating that the debtor had failed to comply with this order.
38. On 21 March 2005 the Ministry sent a letter to the applicants, noting that their submissions had been duly considered but that, in view of the confidential nature of the information obtained, no details could be disclosed.
39. On 6 June 2005 the applicants sent another complaint to the Ministry, stating that the situation concerning the bank accounts had remained unchanged.
40. On 28 October 2005 the Commercial Court (Trgovinski sud) in Kraljevo (hereinafter “the CCK”) opened insolvency proceedings in respect of the debtor. The effect of this was that the ongoing enforcement proceedings before the Municipal Court were stayed ex lege, in accordance with Article 73 of the Insolvency Procedure Act (see paragraph 70 below).
41. This decision was published in the Official Gazette of the Republic of Serbia on 28 November 2005.
42. In December 2005 the applicants duly submitted their respective claims.
43. On 22 December 2005 the insolvency proceedings conducted against the debtor were joined with the insolvency proceedings pending in respect of Vojin Popović-Holding AD, hereinafter “the VPH Company” (see paragraph 56 below).
44. On 23 March 2006 and 8 June 2006, the CCK confirmed the applicant’s paid leave claims, but held that a part of their social security claims were dubious, which is why they were informed that they could bring a separate civil lawsuit in this regard.
45. On 20 July 2006 the High Commercial Court (Viši trgovinski sud) ordered that the insolvency case in question be transferred to the Commercial Court in Užice (hereinafter “the CCU”), the reason apparently being that the CCK had been put under increasing pressure locally.
46. On 8 September 2006 the CCU quashed the decisions adopted by the CCK on 23 March 2006 and 8 June 2006, respectively. It also disjoined the proceedings in respect of the debtor from those pending against the VPH Company.
47. On 26 January 2007, by means of a faxed note, an official involved in the insolvency proceedings informed the applicants that their claims were dubious in view of their “prior undertakings” (see paragraph 8 above).
48. On the same date the applicants informed this official that the final judgments adopted in their favour had already taken these issues into account, but had dismissed them on their merits (see paragraph 9 above).
49. Several days later, the applicants filed a request with the CCU, seeking the confirmation of their claims.
50. On 14 January 2007 the State apparently adopted a formal decision accepting to cover the applicants’ social security contributions. This decision, however, has apparently yet to be served on the applicants.
51. On 20 March 2007 the CCU ordered the valuation of the debtor’s assets as well as their subsequent sale.
52. On 20 April 2007, however, the CCU rejected the applicants’ claims in their entirety.
53. On 14 May 2007 the applicants filed a separate civil suit with the same court, seeking confirmation of their claims as recognised in the final judgments rendered in their favour.
54. On 18 May 2007 the CCU accepted to reconsider the applicants’ claims within the insolvency proceedings.
55. On 28 June 2007 the same court suspended the separate civil suit, pending the imminent re-examination of the applicants’ claims within the insolvency proceedings.
56. As of September 2007, the debtor was incorporated as a limited liability company (društvo sa ograničenom odgovornošću). It was, however, owned solely by the VPH Company, approximately 87% of which was itself socially-owned (u društvenoj svojini; see also paragraph 75 below).
57. Article 4 § 1 provided that all enforcement proceedings were to be conducted urgently.
58. Article 30 § 2, inter alia, provided that it was up to the enforcement court, ex officio, to choose the appropriate means of enforcement, whenever a creditor proposed more than one avenue, whilst taking into account the funds needed in order to cover the claims in question.
59. Articles 63-84, 134-176 and 180-188 contained details as regards enforcement by means of a bank transfer, as well as through the auctioning of the debtor’s movable and immovable assets. Under Article 184 § 4, in particular, the Central Bank (Narodna banka) was obliged to respond to a creditor’s request and inform him about the priority of his bank transfer compared to any others.
60. The Enforcement Procedure Act of 2004 (“the 2004 Act”) entered into force on 23 February 2005, thereby repealing the Enforcement Procedure Act of 2000 (“the 2000 Act”).
61. Article 5 § 1 of the 2004 Act provides that all enforcement proceedings are to be conducted urgently.
62. Article 8 § 2, in the relevant part, corresponds to the provisions of Article 30 § 2 of the 2000 Act. In addition, it provides that the court may choose the appropriate means of enforcement ex officio or at the request of the parties.
63. Articles 69-153 and 196-204 set out the relevant details as regards enforcement by means of a bank transfer as well as enforcement through the auctioning of the debtor’s movable and immovable assets. Article 199, in particular, provides that the enforcement order shall be forwarded to the Central Bank which shall then instruct the debtor’s bank to proceed with a wire transfer or a cash payment, as appropriate.
64. In accordance with Article 304 of the 2004 Act, all enforcement proceedings instituted prior to 23 February 2005 are to be carried out pursuant to the previous 2000 Act.
65. These internal decisions provide that the Central Bank shall be obliged to respond to a creditor’s request for an update as regards the current status of a court-ordered bank transfer.
66. Articles 47-49 and 57, inter alia, regulate technical details as regards the process of enforcement by means of a bank transfer. They do not, however, specifically provide for an obligation on the part of the Central Bank to inform the enforcement court about the current status of the transfer in question.
67. Under Article 54 § 1, inter alia, the Central Bank shall monitor the solvency of all corporate entities and initiate judicial insolvency proceedings in respect of those whose bank accounts have been “blocked” due to outstanding debts for a period of 60 days consecutively, or for 60 days intermittently, within the last 75 days.
68. Article 6 provides that insolvency proceedings cannot be instituted in respect of State bodies, foundations and agencies and the Central Bank, as well as legal entities established and exclusively or predominantly funded by the State.
69. Article 19 states the conditions under which an insolvency administrator (stečajni upravnik) can be sued for damages in a separate civil suit.
70. Article 73 §§ 1 and 2 provides that “as of the day of institution of the insolvency proceedings” the debtor cannot simultaneously be subjected to a separate enforcement procedure. Any ongoing enforcement proceedings shall thus be stayed, while new enforcement proceedings cannot be instituted as long as the insolvency proceedings are still pending.
71. Socially-owned companies, hereinafter “SOC”, as well as “social capital”, are a relict of the former Yugoslav brand of communism and “self-management”.
72. Their current legal status in Serbia is primarily defined by: (i) Articles 392-400v and Article 421a of the Corporations Act 1996 (Zakon o preduzećima; published in OG FRY nos. 29/96, 33/96, 29/97, 59/98, 74/99, 9/01 and 36/02); (ii) Articles 1, 3, 14 and 41b of the Privatisation Act (Zakon o privatizaciji; published in OG RS nos. 38/01, 18/03 and 45/05); and (iii) Article 456 of the Corporations Act 2004 (Zakon o privrednim društvima; published in OG RS no. 125/04).
73. Based on this legislation, SOC are only those companies which are entirely comprised of social capital (preduzeća koja u celini posluju društvenim kapitalom). They are also independent legal entities which are both owned and run by their own employees and can be subjected to regular insolvency proceedings (see paragraph 68 above). Social capital, however, was to be privatised by March 2007 and the funds thus obtained paid into the State’s budget.
74. Once privatisation formally commences in respect of a given SOC, any and all of its decisions amounting to an obstruction of the privatisation process shall be deemed null and void. The Government shall also have the right to appoint their own representatives to sit in the governing bodies of the SOC in question, whenever the Privatisation Agency finds that such obstruction has indeed taken place (see, in particular, Article 400a of the Corporations Act 1996).
75. Further, as of 2002, companies whose capital is predominantly socially-owned (preduzeća koja posluju većinskim društvenim kapitalom), but which are not formally being privatised, cannot, without prior approval by the Privatisation Agency (Agencija za privatizaciju), itself a State body, adopt their own decisions concerning their: capital, reorganisation, restructuring and investment, the partial sale or mortgage of their assets, the settlement of their outstanding claims and the taking or giving of loans and guarantees outside the scope of their “regular business operations” (van toka redovnog poslovanja). Any decisions adopted in the absence of such approval shall be declared null and void by the Privatisation Agency (see, in particular, Article 398a of the Corporations Act 1996). Finally, no decisions concerning the status and organisation of such companies (odluke o statusnim promenama i promenama oblika preduzeća) can be adopted without the Government’s prior approval (see, in particular, Article 421a of the Corporations Act 1996).
76. The above-described regime was in force until March 2007 (see Article 456 of the Corporations Act 2004 and Article 14 of the Privatisation Act), the competent ministries having announced that its extension was imminent.
77. Under Articles 2 and 3 the State accepted to cover the minimum pension and disability insurance contributions due from 1 January 1991 to 31 December 2003 in respect of certain categories of registered workers whose employers had themselves failed to do so.
78. In accordance with Articles 4-6 the employers, as well as the workers in question, could have filed a request to this effect with the State Pension and Disability Fund (Republički fond za penzijsko i invalidsko osiguranje zaposlenih), the deadline for so doing having expired in January 2006.
79. Pursuant to Articles 7-9 the timing of the actual settlement of an applicant’s recognised claim would depend on the “liquidity of the State’s budget”
80. Under Article 12 all workers whose claims had been accepted could not seek any additional payments on the same grounds from their employers, including by means of litigation.
81. The relevant provisions of this legislation are set out in the V.A.M. v. Serbia judgment (no. 39177/05, §§ 68, 71 and 72, 13 March 2007).
82. The relevant provisions concerning the status of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 22-25, 19 September 2006).


ITEMID: 001-88716
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: RAYEVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Ms Galina Nikolayevna Rayeva, is a Russian national who was born in 1940 and lives in Moscow. The respondent Government were represented by Mr P. Laptev, a former 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.
In 1993 the applicant married Mr M. and they started living together at the applicant’s flat on the Menjinsky Street in Moscow. In 1997 they moved into a two-room flat on the Tkatskaya Street in Moscow (“the flat”). The flat was owned by the district council; M. and his son D., born in 1974, had their “registered place of residence” in the flat. In 1998 D.’s wife gave birth to a son and D. moved with his family to his wife’s flat. As D. never consented to privatisation of the flat, it remained in the ownership of the district council. The applicant contributed to payment of rent and maintenance charges.
In 2001 D. asked his father and the applicant either to repay him one half of the flat’s value, or to exchange it for two smaller ones. The applicant and M. had no money, so D. sought a court order for exchange.
On 17 January 2002 the Izmaylovskiy District Court of Moscow refused to issue the order as the terms of exchange offered by D. were not satisfactory.
On 27 November 2002 the applicant brought separate proceedings against D., seeking a court declaration upholding her right of residence in the flat.
On 6 February 2003 the District Court granted D.’s claim and ordered that M. move to a 17-square-metre room in a two-room “communal” flat. It dismissed M.’s objections to the move relating to the applicant’s frail health, finding as follows:
“M.’s wife [the applicant] has not acquired the right of residence in the contested flat in accordance with the established procedure, her right to reside [in the flat] has not been confirmed, whereas the plaintiff [D.] does not recognise that she should have such a right.”
The court concluded that in these circumstances the move would not impair M.’s rights and interests.
On 31 March 2003 the District Court refused the applicant’s claim for recognition of her right of residence. M. joined the proceedings as a third party and supported the applicant’s claim. The court found as follows:
“It has been established at the hearing that in November 1997 the plaintiff [the applicant] moved into the contested flat as the tenant M.’s family member and that she has lived in the flat up to the present day. The defendant [D.] has not contested these circumstances.
However, the plaintiff’s claim... cannot be granted because... there is no evidence that [D.] had contented to her moving-in and residing in the contested flat and [D.] denies that he has ever consented...
Moreover, the plaintiff is a registered tenant of a flat on the Menjinsky Street, she is on the waiting list for improvement of her housing conditions and contributes to payment of maintenance charges at her registered place of residence.”
On 2 June 2003 the Moscow City Court upheld that judgment on appeal.
On 20 October 2003 the Moscow City Court also upheld the judgment of 6 February 2003.
The RSFSR Housing Code of 24 June 1983 (as amended on 28 March 1998, effective at the material time) provided:
“The tenant’s family members shall include the tenant’s spouse, children and parents. Other relatives, disabled dependants, and – in exceptional circumstances – other persons may be recognised as the tenant’s family members if they live together with the tenant and maintain a joint household.”
“The tenant shall be entitled to accommodate in his living premises, in accordance with the established procedure, his spouse, children, parents, other relatives, disabled dependants and other persons, subject to written consent of all adult members of his family...
The persons accommodated by the tenant in accordance with the rules of the present article shall have the same right to use the living premises as the tenant or other members of his family provided that such persons are, or have been recognised as, members of the tenant’s family (Article 53) and that no other agreement on the use of the premises has been signed between these persons, the tenant and his family members.”
“If family members fail to agree to an exchange, any family member may seek a court order for a forced exchange of the flat occupied by them for living premises in different blocks of flats. In these proceedings regard must be had to meritorious arguments and interests of the residents of the exchanged flat.”


ITEMID: 001-103586
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: N.M. AND M.M. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The present applicants are both nationals of Uzbekistan. The first applicant, Ms N.M., was born in 1950 and lives in Port Talbot. Her son, the second applicant, Mr M.M., was born in 1983 and also lives in Port Talbot. They are represented before the Court by Duncan Moghal Solicitors, lawyers practising in Gwent. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Moynihan of the Foreign and Commonwealth Office.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The first applicant entered the United Kingdom on 22 August 2004 on a six month visitor’s visa valid until 13 January 2005.
4. On 9 September 2004, she claimed asylum on the basis of her Russian ethnicity, Orthodox Christianity, and the threats to and attacks upon her family by the mafia because of her British son-in-law who, it was assumed, must be sending money to the family in Uzbekistan. In particular, she claimed that, while in Uzbekistan, three men had held a knife to her ribs demanding money in 2003 and that her family home had been subjected to an attempted arson attack in August 2004.
5. On 14 October 2004, her application was refused by the Secretary of State who considered her claim to be incredible because, inter alia, there were discrepancies in her account of when she had started to receive demands of money from the mafia; she had failed to claim asylum on previous visits to the United Kingdom in 1998, 2000, and 2001; there were inconsistencies in the date that she claimed to have been attacked with a knife; it was implausible that the mafia would have known when her British family had sent her money in Uzbekistan; and her son-in-law would not have returned to Uzbekistan after 1996 if his life was genuinely in danger there. In addition, the Secretary of State considered that she had failed to demonstrate that there would be insufficient protection from the Uzbek authorities from the mafia or that she would be unable to relocate internally within Uzbekistan. Finally, the problems and discrimination that she claimed to have suffered due to her ethnicity and religion were not considered to amount to persecution.
6. Her appeal against this refusal was dismissed by the then Immigration Appellate Authority (“the IAA”) on 2 February 2005. The Adjudicator upheld the majority of the Secretary of State’s findings and also found that the first applicant’s credibility was undermined by her delay in claiming asylum until 9 September 2004. Furthermore, the Adjudicator found nothing in the objective evidence to suggest that the first applicant would be at risk in Uzbekistan by virtue of her status as a returning failed asylum seeker.
7. On 26 May 2005, the then Asylum and Immigration Tribunal (“the AIT”) dismissed an application for reconsideration of that determination.
8. On 27 July 2005, the High Court granted an application for reconsideration of that determination for unknown reasons.
9. In a decision promulgated on 23 April 2008, the AIT dismissed her appeal upon reconsideration, finding that the IAA’s decision had to stand as her representatives had conceded that it did not disclose any arguable error of law.
10. The second applicant also entered the United Kingdom on 22 August 2004 on a six month visitor’s visa valid until 13 January 2005.
11. He also made an application for asylum on 9 September 2004, on the basis of his Russian ethnicity, Orthodox Christianity, the multiple attacks upon him by the mafia because of his British brother-in-law (which had led to the second applicant’s hospitalisation for ten days), and an attempted arson attack upon the family home in August 2004.
12. On 22 October 2004, his application was also refused by the Secretary of State who considered his claim to be incredible because, inter alia, he had not been physically attacked until four years after his brother-in-law had left Uzbekistan; there were discrepancies in his account of when he had been attacked; it was implausible that the mafia would have been aware of when his brother-in-law had sent the family money; and he had failed to claim asylum on previous visits to the United Kingdom in 2000 and 2003. The Secretary of State also considered that the second applicant had not established that the police had failed to assist him or that he would be unable to relocate within Uzbekistan. It was noted that the second applicant claimed not to practise his religion and therefore it was not accepted that he would be at risk of persecution on that account. The problems that he claimed to have suffered due to his ethnicity and religion were not considered to amount to persecution.
13. His appeal against this refusal was dismissed by the IAA on 19 January 2005. The Adjudicator upheld the findings of the Secretary of State and found that the second applicant’s account of past events was not credible. Furthermore, the Adjudicator did not accept that Christians or ethnic Russians were persecuted in Uzbekistan. Whilst the Adjudicator was satisfied that the second applicant had an existing private and family life in the United Kingdom, it was found to be proportionate to remove him to Uzbekistan in the lawful and legitimate interests of immigration control.
14. On 30 March 2005, the second applicant was granted permission to appeal to the then Immigration Appeal Tribunal (“the IAT”). On 3 February 2006, further to reforms of the IAA (see paragraphs 23–26 below), the appeal was dismissed by the AIT. It found that the second applicant had not submitted any objective evidence with regards to the situation of ethnic Russians or Christians in Uzbekistan and therefore could not make out his contention that the Adjudicator had failed to take into account any such evidence.
15. On 14 March 2006, the second applicant submitted further representations in relation to the increased risk upon return of ethnic Russians to Uzbekistan, which were rejected by the Secretary of State on 21 September 2007 as not amounting to a fresh claim. It was accepted that Russians may face discrimination in Uzbekistan, but not that such treatment would amount to persecution. It was considered that the documents that the second applicant had submitted were generic and did not specifically relate to his own experience.
16. On 25 February 2008 and 6 May 2008, further representations were submitted to the United Kingdom Border Agency on both the first and second applicants’ behalf, which were rejected on 25 June 2009 as not amounting to a fresh claim. Given the previous findings upon appeal, the United Kingdom Border Agency did not accept that there was any objective evidence to suggest that they would be at real risk on account of their ethnicity or religion on return to Uzbekistan. It was accepted that discrimination against ethnic Russians might be perpetrated by random individuals, but considered that the applicants could seek protection from the authorities or move to another part of the country to avoid the same. It was also considered that the applicants could decide to join their extended family that had already moved to the Russian Federation from Uzbekistan. In relation to their claims under Article 8 of the Convention, it was accepted that the first applicant had both family life with her British daughter, son-in-law and grandson and private life in the United Kingdom after having integrated into the community over a period of five years. Similarly, it was accepted that the second applicant had both family life with his British sister, brother-in-law, and nephew and private life in the United Kingdom. Nevertheless, it was not considered that their removal would be disproportionate under Article 8 as they had remained in the United Kingdom unlawfully and would be removed together.
17. On 20 July 2009, the applicants submitted further representations through their legal representatives, in which they relied upon compassionate and discretionary grounds which focussed on their family life in the United Kingdom. Those representations also clarified that they were not pursuing their asylum claims and stated:
“... it is not contended that there is any continuing asylum, or Humanitarian Protection claim. Although anti-Russian and Government harassment are running at high levels in Uzbekistan, there is insufficient evidence to counter the judicial (and [Home Office]) conclusion, in each of these cases, that those threats do not amount to ‘persecution’ or any risk of ‘serious harm’ upon return. For both mother and son, their claims are compassionate, derived from their family situation in Port Talbot.”
18. On 23 July 2009, those representations were rejected by the United Kingdom Border Agency as not amounting to a fresh human rights claim as it was considered that the applicants’ claim to have established family life in the United Kingdom had already been fully considered both on appeal and in responses to earlier representations. It was not accepted that the relationship between the first applicant and her adult daughter, or the second applicant and his adult sister constituted family life for the purposes of Article 8 of the Convention as they had not submitted any evidence of dependency. Furthermore, it was considered that the applicants could maintain contact with family members in the United Kingdom by the usual methods of communication from overseas. It was considered that the applicants’ removal was necessary and proportionate to the wider interests of maintaining an effective immigration control.
19. On 24 July 2009, the applicants submitted further representations which they claimed raised new and serious concerns about the likelihood of torture of failed asylum seekers forcibly returned to Uzbekistan. Those representations were supported by a letter dated 23 July 2009 from Mr Murray, the former British Ambassador to Uzbekistan from 2002 to 2004, which set out concerns about the fate of anybody deported to Uzbekistan whose exit visa had expired. Mr Murray stated that:
“The notoriously cruel Uzbek security service – the SNB – have a permanent presence behind the immigration officers at Tashkent airport and at all points of entry. They would pick up anybody with an expired exit visa and subject them to ferocious questioning.
In February 2003, the UN Special Rapporteur on torture, Prof Theo Van Boven, published a report that said that torture in Uzbekistan was a ‘routine investigative technique’. I can absolutely confirm that from experience of hundreds of cases. Any hint that [the applicants] had claimed political asylum in the UK – and the Uzbek SNB are a massive, very efficient and well-equipped intelligence service – and [the applicants] will almost to a certainty be subjected to treatment that well exceed the bar for torture.”
20. Later the same day, the United Kingdom Border Agency refused those representations concluding that they did not amount to a fresh claim. It was noted that Mr Murray had been reprimanded by the Foreign and Commonwealth Office on several occasions in 2003 and 2004, and subsequently dismissed from his post in October 2004 at which point he had been charged with gross misconduct and an investigation had been commenced. Given Mr Murray’s outspoken public views on the human rights situation in Uzbekistan, it was not considered that he could be accepted as an independent source of evidence which would add weight to their claims.
21. Simultaneously, the applicants lodged applications with the Court and requested interim measures under Rule 39 of the Rules of Court to stop their removal to Uzbekistan later that day.
22. On 24 July 2009, the Acting President of the Section to which the application was allocated decided to apply Rule 39 of the Rules of Court and indicate to the Government of the United Kingdom that the applicants should not be expelled until further notice.
23. Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the NIA Act 2002”), provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department.
24. Until 4 April 2005, appeals in asylum, immigration and nationality matters were heard by the IAA. Section 101 of the NIA Act 2002 provided that, with the permission of the IAT, a party to an appeal could apply to the IAT against an Adjudicator’s determination on a point of law. Section 103 of the NIA Act 2002 provided that where the IAT had determined an appeal under section 101, a party to the appeal could bring a further appeal on a point of law to the Court of Appeal. It also provided that, in the event that the Court of Appeal upheld any error of law in the determination, it had the power to make any decision which the IAA could have made or to remit the case to the IAA.
25. From 4 April 2005, the then AIT replaced the former system of Adjudicators and the IAT. This in turn has been replaced by the Immigration and Asylum Chambers.
26. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
27. Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides as follows:
“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
28. As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v. Secretary of State for the Home Department [2006] EWCA Civ 1495 (paragraphs 10-11) has held:
“Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”
29. Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Home Office, will nonetheless generate a fresh right of appeal to be considered on the merits.
30. Country guidance determinations of both the former AIT and IAT are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence.
31. In the country guidance determination of OM (Returning citizens – minorities – religion) Uzbekistan CG [2007] UKAIT 00045, the AIT considered a large amount of objective evidence in relation to the general human rights situation in Uzbekistan and heard evidence from Mr Murray (see paragraph 19 above).
32. In relation to Mr Murray’s evidence, the AIT commented as follows:
“We have some concern about Mr Murray’s evidence. He is in an unusual position and it has given us cause to reflect on the weight which we should give to his opinion. We say that for this reason. Mr Murray has produced a short statement which is entirely unsourced. He has given evidence during the course of which he gave an indication in general terms as to some of the sources which he relies upon. In one aspect, the return of the German failed asylum seekers, there was express source, namely the German Ambassador. Having said that his report was unsourced, we acknowledge that he is not an expert of an academic nature who relies upon the reports of others for their information. Rather, he had been the United Kingdom’s Ambassador in Uzbekistan for two years or so and is therefore a person who has had an exceptional opportunity to observe and obtain information. We also acknowledge that, the Uzbekistan Government having ejected much of the foreign press, and many NGOs, there is limited opportunity for obtaining information about what is going on there.
...
We are left with the impression that although Mr Murray is in a unique position to assist us about Uzbekistan, he also has interests of his own which may effect, consciously or otherwise, the interpretation which he puts on facts and events. We have therefore decided that although the factual incidents of which he speaks are likely to be reliable, we should treat with some circumspection his interpretation of them. That is not to say that we reject his interpretation out of hand. We are fortunate in this case that there is also a great deal of background evidence from other sources.”
33. In light of the above and other considerations, the AIT then held as follows:
“We are not satisfied that it is not possible to obtain a passport renewal outside Uzbekistan. We say that because the appellant’s husband has recently returned there and he will in all probability have had to obtain some form of travel document. He arrived with the appellant in 1996. We have not been told of any difficulty on his part.
...
The fact that he has returned undermines Mr Murray’s assertion that it is not possible to get documentation. We accept he may not have been issued with an actual passport but that does not matter. It is the fact he was in possession of an official document that enabled him to return, apparently without difficulty, which is important. His return also detracts very considerably from Mr Murray’s evidence, and the appellant’s mother-in-law’s assertion, that there is severe punishment for those who do return, having stayed away beyond the end of their exit visa. The appellant is still in communication with her mother-in-law and we have no doubt that if her former husband had been charged, or even imprisoned, as a result of returning after a long absence, she would have heard about it and we would have been told. We find there is no satisfactory evidence that it is not possible to obtain a travel document (whether it be a renewed passport or some other form of documentation). Nor is there any satisfactory evidence to show that a returnee is likely to be punished for having been out of the country longer than permitted.”
34. The AIT further held that there was no satisfactory evidence that non-Uzbeks faced discrimination of such a nature as to amount to persecution, or serious harm, or a breach of their Article 3 rights. Furthermore, it held that, whilst followers of all religions, save for Muslims who attend registered mosques, were subject to a degree of harassment, it did not in general amount to persecution, serious harm or a breach of a worshippers’ human rights. Finally, it held that ministers of religion, those who practise religion in unregistered premises, particularly active members of evangelical Christian congregations, and proselytising or fundamentalist denominations of any religion could be at risk depending on the facts in every case.
35. In his report of 3 February 2003, the Special Rapporteur concluded that torture or ill-treatment was “systematic” in Uzbekistan. He also stated that “the pervasive and persistent nature of torture” throughout the criminal investigative process in Uzbekistan could not be denied. Uzbekistan has not extended a further invitation to the Special Rapporteur on Torture to visit the country, despite repeated requests.
36. In its Concluding Observations upon Uzbekistan of 26 February 2008, the Committee against Torture set out its concerns about, inter alia, “numerous, ongoing and consistent” allegations concerning the routine use of torture and other cruel, inhuman or degrading treatment or punishment committed by law enforcement and investigative officials or with their instigation or consent, often to extract confessions or information to be used in criminal proceedings.
37. Furthermore, after setting out information about the numerous allegations of excessive use of force and ill-treatment by Uzbek military and security forces during the May 2005 events at Andijan (when at least several hundred protesters were killed by the Uzbek authorities), the Committee reported that it had received credible reports that some persons who had sought refuge abroad and had been returned to the country had been kept in detention in unknown places and possibly subjected to breaches of the Convention.
38. In its Concluding Observations upon Uzbekistan of 7 April 2010, the Human Rights Committee set out various concerns, including, inter alia:
“the continued reported occurrence of torture and ill-treatment, the limited number of convictions of those responsible, and the low sanctions generally imposed, including simple disciplinary measures, as well as indications that individuals responsible for such acts were amnestied and, in general, the inadequate or insufficient nature of investigations on torture/ill-treatment allegations.”
39. The Committee also concluded that it remained “concerned about the need for individuals to receive an exit visa in order to be able to travel abroad”.
4. Reports of non-governmental organisations
40. In its submissions to the United Nations Human Rights Committee dated 28 April 2009 and January 2010, Amnesty International remained seriously concerned about persistent allegations of widespread torture and other ill-treatment of detainees and prisoners by law enforcement personnel and prison guards, reports of which stemmed from all layers of civil society. Allegations had also been made that individuals returned to Uzbekistan from other countries pursuant to extradition requests were held in incommunicado detention, thereby increasing their risk of being tortured or otherwise ill-treated. The submission also set out that illegal exit abroad or illegal entry into Uzbekistan, including overstaying the permission to travel abroad or failure to renew it, are punishable under Article 223 of the Criminal Code with imprisonment from three to five years or in aggravated circumstances by up to ten years’ imprisonment. Returned asylum seekers were considered to be particularly vulnerable to being charged under Article 223, as many would not have renewed their permission to travel abroad.
41. In its submissions to the United Nations Human Rights Committee of June 2009 and February 2010, Human Rights Watch set out its concerns about the “atrocious” human rights record of Uzbekistan. It noted that the Government of Uzbekistan continued to refuse access to the country to no fewer than eight United Nations special procedures (the human rights mechanisms established by the United Nations to address either specific country situations or thematic issues) despite their repeated requests for invitations to visit Uzbekistan. It also reported that torture and ill-treatment remained endemic to the criminal justice system in Uzbekistan, and stated that another distinct concern relating to torture and ill-treatment is that of Uzbek refugees and asylum seekers forcibly returned by neighbouring countries, despite the risk of torture and ill-treatment that they face upon return.


ITEMID: 001-60172
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF UNABHANGIGE INITIATIVE INFORMATIONSVIELFALT v. AUSTRIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicant is a registered association (Verein) in Vienna and the publisher of a periodical called TATblatt. In the 9 December 1992 issue of TATblatt, the following leaflet was published:
“Querformat, a (new) wall-newspaper against the trend towards the right wing ...”
“Racism has a name and address
The FPÖ [Austrian Freedom Party] and its party officials are certainly interested in your opinion! So, let's call them and tell them what we think of them and their policy. Or let's send them small gifts in response to their racist agitation.
We have gathered a small selection of Vienna FPÖ officials, FPÖ offices and of course Jörg Haider in order to facilitate a little the unbureaucratic exchange of opinions.
They will surely enjoy your phone calls, letters and parcels: ...”
The above text was followed by a list of addresses and telephone numbers of members and offices of the Austrian Freedom Party (FPÖ).
10. Between 25 January and 1 February 1993 an opinion poll (Volksbegehren) under the heading “Austria first” (“Österreich zuerst”) took place which had been initiated by the FPÖ several months before. The opinion poll, on the issue of immigration, consisted of twelve proposals, partly to amend legislation and partly to change administrative practices. It proposed, inter alia, the following:
– to amend the Federal Constitution by a provision stating that Austria was not a country of immigration;
– to stop immigration until a satisfactory solution to illegal immigration was found;
– to oblige all foreign workers to carry an identity card at their place of work, showing that they had a valid work permit;
– to increase the police force and create a separate border police;
– to limit the percentage of pupils whose mother tongue was not German to 30 % and, if the percentage were higher, to create separate classes for foreigners;
– to deny foreigners the right to vote; and
– to require the immediate expulsion of and residence prohibition on foreign offenders.
11. On 11 February 1993 Mr Jörg Haider, leader of the FPÖ and at that time a member of Parliament, brought civil proceedings for an injunction under Article 1330 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch) against the applicant before the Vienna Commercial Court (Handelsgericht). He requested that the applicant be prohibited from repeating the statement according to which he had incited people to “racist agitation” (“rassistische Hetze”) and any similar statements. He further requested that the applicant be prohibited from inviting people to “send small gifts in response to their racist agitation”, together with the publication of the names, telephone numbers and addresses of members of the plaintiff's political party.
12. The applicant submitted that it had never identified itself with the leaflet at issue and had merely published it out of journalistic interest and in order to inform the public. Moreover, the words “racist agitation” were not a statement of fact but a value judgment, and were meant as a critical comment of the opinion poll “Austria first” which the plaintiff had initiated and which was directed against “immigration without control”.
13. On 14 April 1994 the Vienna Commercial Court granted the injunction. It found that the impugned statement about “racist agitation” was not a value judgment, but a statement of fact. Such a statement contained a reproach of a criminal offence, namely “incitement to hatred” (Verhetzung) under Article 283 of the Austrian Criminal Code (Strafgesetzbuch), and not only damaged the plaintiff's reputation (Rufschädigung) but also amounted to an insult (Ehrenbeleidigung). In order to avoid the injunction, the applicant therefore needed to prove the truth of its statement. However, it had failed to do so. Even accepting that the plaintiff was, more or less, a right-wing politician, there was no evidence that he had attempted to incite hatred (verhetzen) against aliens or had attacked their human dignity.
14. As regards the invitation to “send small gifts”, the court observed that a part of the applicant's readership was, for political reasons, prepared to use violence and anarchistic methods. In this respect the court noted that in the 9 December 1992 issue of TATblatt a letter to the editor had been published which read as follows:
“... we organised in the night of 29 to 30 November our first action against Haider's referendum and have smashed several windows of the FPÖ headquarters in Salzburg. This was only the beginning. ...”
15. According to another letter to the editor published in the 20 January 1993 issue of TATblatt, an FPÖ party office in Vienna had been “visited”, the words “racism stinks” had been sprayed on the walls, windows smashed and butter acid thrown into the office. The Commercial Court then quoted further letters of this kind which had appeared in various issues of TATblatt. The court found that against this background the invitation to “send small gifts” constituted an attack on the plaintiff's personality rights (Persönlichkeitsrechte) which had to be respected. Accordingly, the court granted the injunction in this respect also.
16. On 29 August 1994 the applicant appealed against the injunction.
17. On 26 January 1995 the Vienna Court of Appeal (Oberlandesgericht) dismissed the appeal. It confirmed the Commercial Court's view that the statement according to which the plaintiff had incited people to “racist agitation” was a statement of fact which the applicant had failed to prove. In this respect the court found as follows:
“But since – as we have already outlined in dealing with the complaint concerning the facts – the meaning of the term 'racist agitation' could be established on the basis of general experience, and since the defendant has failed to submit any concrete allegations to the effect that the plaintiff had shown conduct corresponding to what is generally known as 'racism' and 'agitation', the court of first instance – without there being a mistake of law – rightly concluded that the defendant was unable to prove the truth of its allegations. ...”
18. As regards the applicant's argument that this statement was covered by its right to freedom of expression, the Court of Appeal found that the interests of the applicant and the plaintiff had to be balanced against each other. However, the applicant's statement could not be justified by referring to freedom of expression, because the statement went beyond the limits of acceptable criticism by reproaching the plaintiff with a criminal offence. Moreover, the impugned statement was untrue and therefore not protected by Article 10 of the Convention. The Court of Appeal confirmed the decision of the Commercial Court in respect of both statements.
19. On 13 March 1995 the applicant introduced an extraordinary appeal on points of law (außerordentliche Revision) against the Court of Appeal's decision in so far as it concerned the prohibition to repeat the statement that the plaintiff had incited people to “racist agitation”.
20. On 6 April 1995 the Supreme Court (Oberster Gerichtshof) declared the extraordinary appeal inadmissible as it found that the qualification of the statement at issue as a statement of fact was in accordance with its previous case-law.
21. Article 1330 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch) provides as follows:
“1. Everyone who has suffered material damage or loss of profit because of an insult may claim compensation.
2. The same applies if anyone disseminates statements of fact which jeopardise another person's credit, gain or livelihood and if the untruth of the statement was known or must have been known to him. In such a case the retraction of the statement and the publication thereof may also be requested ...”
VIOLATED_ARTICLES: 10