ITEMID: 001-88887
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: DICKINSON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Thomas Dickinson, is a British national who was born in 1940 and lives in Shevington. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant's wife died on 14 February 1993. His claim for widows' benefits was made in January 2001 and was rejected on 2 February 2001 on the ground that he was not entitled to widows' benefits because he was not a woman. The applicant appealed and on 8 March 2001 reconsideration took place and the previous decision was upheld. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-67475
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF SELISTO v. FINLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The applicant was born in 1941 and lives in Vaasa, Finland.
8. The applicant is a journalist at the regional daily Pohjalainen which is published in Vaasa. In two articles published in January and February 1996 she described the allegedly unprofessional behaviour of an unnamed surgeon, “X”, which allegedly had caused the death of a patient in the Seinäjoki Central Hospital on 7 December 1992. The patient's top rib had been pressing on her artery, thereby hampering the blood flow in her left arm which would occasionally go numb. The surgery had consisted of shortening the top rib by 5-8 centimetres. Complications had arisen after the rib had been shortened and the patient was established to have died from the bursting of her subclavian vein and the blood flow into her pleural cavity.
9. The patient's widower, Mr Haapalainen, had filed a criminal complaint against X and another surgeon who had assisted during the operation. The National Medico-Legal Board (terveydenhuollon oikeusturvakeskus, rättsskyddscentralen för hälsovården) had not found it possible to establish at what stage of her operation Mrs Haapalainen had suffered the injury leading to her death. Consequently, no causal link could be established between the injury and the conduct of either of the two surgeons.
10. The Central Criminal Police had conducted a pre-trial investigation into the death. In April 1994 the Vaasa County Prosecutor had decided not to press charges against X, as there was no evidence that he was guilty either of an offence in office caused by negligence or of involuntary manslaughter. The prosecutor had reasoned, inter alia, as follows:
“... From the point of view of criminal law it must be examined whether the subclavian vein burst as a result of conduct of which someone may be held guilty and whether errors were committed during the after-care. ... The [expert] opinions have not found that the subclavian vein burst as a result of maltreatment or negligence attributable to [X] or the other operating surgeon. ... [The pre-trial record contains] a number of statements concerning [X's] possible alcohol consumption. ... In respect of the day of the operation the information is contradictory. ... Therefore there is insufficient evidence to find that [X] was under the influence of alcohol while operating on Mrs Haapalainen and that such influence affected his ability to carry out his duties. ... Nor has it been possible to determine whether [X's] shaking hands impacted in any significant way on the conduct of his surgery. ...”
11. The applicant's first article of 4 January 1996 bore the title “If only I could get a good grip on life again” (Kun saisi vielä joskus elämästä kunnolla kiinni). It contained an interview with Mr Haapalainen. The text accompanying his picture read as follows:
“How is it possible that a surgeon is allowed to conduct surgery with alcohol in his blood – is it not a fact that pilots only get to manoeuvre a plane when they are absolutely sober, wonders Jorma Haapalainen, who lost his wife.”
The introductory text on the front page bore the title: “How to survive all of this? (Miten tästä kaikesta selviää?). It read as follows:
“Jorma Haapalainen, a father of two in Old Vaasa is trying to get a grip on his life again. Three years ago the wet Independence Day of a Seinäjoki surgeon cost the life of [Mr Haapalainen's] wife.
– Whose is the responsibility, asks Jorma.”
The front page also carried a picture of the couple.
12. On 9 January 1996 Pohjalainen published a second article by the applicant entitled: “A position of responsibility never goes with alcohol” (Vastuullinen työ ja alkoholi eivät koskaan sovi yhteen). It contained interviews with the Chief Physician of the Helsinki University Hospital and a Chief Controller of Finnair and discussed the need for surgeons and pilots to be sober and also otherwise in an appropriate condition in order to perform their tasks. The article made no reference to the previous article, nor did it mention Mr or Mrs Haapalainen or X
13. A third article by the applicant – published on 27 February 1996 – was entitled “The case of Eeva did teach us something” (Jotakin Eevan tapaus sentään opetti) and made reference to her article of 4 January 1996. It read, inter alia, as follows:
“[The article of 4 January] raised the question of patient safety: how was it possible that a relatively young woman in good shape died from routine surgery. The pre-trial records speak, among other things, of the wrong form of collegiality. ...”
Under the subheadings “We were concerned for our patients” and “Complications arose after the surgeries” the article cited four extracts from statements by hospital staff heard during the pre-trial investigation. The extracts read, inter alia as follows:
“'Surgeon X has been the specialist doctor on the ward for two years and a half. Soon after he came to work here alcohol-related problems occurred. Often he had a visible hangover, which showed in his not being neatly dressed, in his reddish and swollen face, in his shaking hands and in his breath which smelled freshly of alcohol.'
'We were concerned for the patients on whom surgeon X was operating. The Monday mornings were the worst, when [his] hands were also shaking the most. We would inform the other doctors on the ward of our observations, mainly Dr Y and Dr Z. In particular before a more important surgery we would ask another doctor to attend it. On many occasions Dr Y and Dr Z would attend because we had so requested.'
'The patients operated on by surgeon X have suffered from more post-operative complications. The patients have had bleeding. ...'
'Apparently patients have also made their own observations: I remember the case of a patient – due to arrive for an operation – who enquired who was going to operate on him. Since no surgeon had yet been designated, the patient informed us he would not come at all, unless Dr Z would perform the surgery. After the incident on 7 December 1992 we have been receiving many telephone calls like this one ...'
These unpolished statements can be found in the pre-trial record drawn up by the Vaasa branch of the Central Criminal Police. [The record] is a public document and may therefore be cited in this newspaper. ...”
Under a subheading entitled “Dubious appointment” (Valinta hiersi) the article described certain hesitations which had preceded X's appointment in 1990.
Under a subheading entitled “The best interests of the patient seem to have been forgotten” (Potilaan paras taisi unohtua) the article continued as follows:
“The pre-trial records clearly reflect the collegiality within the medical team, as shown in a wish to cover up a colleague's clear problem. ...
A nurse who attended the round [preceding Mrs Haapalainen's operation] attempted to remedy the situation:
'During the round surgeon X came over to my left side. Then I noticed that he was clearly drunk. ...
I tried to establish eye contact with the other doctors in order to indicate [my concern] to them. I got no such opportunity. I even tried to have one of the two other doctors stay behind after the round but they had already gone off to the coffee room.'
... The pre-trial record gives the impression that the memory of either of the two [surgeons] is failing. Even the Board for Patient Injuries arrive[d] at the conclusion that no one [could] be considered guilty, though, sadly, the patient died. Judging from [an X-ray] picture, the piece of bone [osteophyte] which remained inside [Mrs Haapalainen] after the operation was at any rate so sharp that it could have been fatal in itself even at a later stage. ...”
The article of 27 February 1996 then continued with statements by chief physicians and chief surgeons of four central university hospitals, essentially reassuring the reader that a surgeon who was drunk, ill or just tired would not be allowed to operate.
Finally, the article contained a statement by the Chief Physician of the Seinäjoki Hospital “who at the time took a rather humane, even though strict approach”:
“When more serious problems started occurring in surgeon X's work, we established another parallel position for a surgeon specialised in the same field, and things started working well. After [Mrs Haapalainen's] death, surgeon X was prohibited from operating for two years. In the beginning when he came to work he had to perform a breathalyser test.
– Now surgeon X is the physician responsible for one of the wards and occasionally assists during surgery. Everything has been going well: even his hands are no longer shaking.”
The article was illustrated with a drawing depicting a seemingly intoxicated surgeon using a pen to mark where to cut open the patient's stomach.
14. The public prosecutor, joined by X, charged the applicant before the Vaasa District Court (käräjäoikeus, tingsrätt) on two counts of intentional defamation. In the article of 4 January 1996 she had defamed X “without better knowledge” (ei vastoin parempaa tietoa, icke emot bättre vetande). In the article of 27 February 1996 she had defamed X “despite better knowledge” (vastoin parempaa tietoa, emot bättre vetande), that is to say by imputing an offence to him whilst knowing that he had not committed one.
15. The editor-in-chief of Pohjalainen, Mr Elenius, was charged with negligent abuse of the freedom of the press (painovapauden tuottamuksellinen väärinkäyttö, vållande till missbruk av yttrandefriheten) within the meaning of section 32 of the Freedom of the Press Act (painovapauslaki, tryckfrihetslag 1/1919). The prosecution argued that, regardless of the fact that he had become aware of the possibility that the applicant's article of 4 January 1996 might have defamed X and of the fact that the applicant was intending to write a further article, he had failed to supervise the publication of the applicant's article of 27 February 1996 by demanding that the article be approved by him.
16. The applicant denied both charges, arguing that X could not have been identified on the basis of her articles and that she had not even been aware of his identity when writing her first article. That article had concentrated on describing Mr Haapalainen's feelings as the surviving widower, whereas the article of 27 February 1996 had discussed patient safety. She had quoted from official documents and her articles had not forced X to close his private practice, as alleged by him.
Mr Elenius also denied the charges against him, stating inter alia that after the first article had been published he had offered to publish a response by X. No such response had been forthcoming. The articles had been based on various sources and official documents accessible to the public. Moreover, the press was entitled to deal with the activities of a public hospital and patient security within such institutions.
17. On 14 September 1998 the District Court, relying on chapter 27, section 1, of the Penal Code (rikoslaki, strafflag) as in force at the relevant time, convicted the applicant of defamation committed “despite better knowledge” and by using a printed matter (painotuotteen kautta vastoin parempaa tietoa tehty herjaus, smädelse genom tryckalster emot bättre vetande). The conviction was grounded only on her article of 27 February 1996, whereas she was acquitted of defamation committed “without better knowledge” by means of her article of 4 January 1996. She was sentenced to 25 daily income-based fines at the rate of 166 Finnish Marks (FIM) (corresponding to 27.90 euros (EUR)), totalling FIM 4.150 (EUR 698).
18. Mr Elenius was convicted as charged and sentenced to 12 daily fines at the rate of FIM 333 (EUR 56), totalling FIM 3,996 (EUR 672).
19. The defendants were ordered to reimburse jointly a witness fee in the amount of FIM 685.90 (EUR 115.36) as well as the complainant's legal costs in the amount of FIM 20,276 (EUR 3,410.20).
20. In examining the charges against the applicant as based on her article of 4 January 1996, the District Court took note of the banner headline and picture texts as well as of a third statement appearing in the text and which found it strange that nobody had intervened to prevent the surgeon from conducting the operation, even though everyone must have seen in what condition he was. The last-mentioned statement and the picture text had to be understood as having been expressed by Mr Haapalainen. The article had contained an allegation that the surgeon had been drunk or had been suffering from a hangover while operating on Mrs Haapalainen and that this had led to her death, without specifying in any detail why.
The District Court further found that as the article of 4 January 1996 had contained a statement to the effect that the surgeon had been prohibited from conducting further operations, it had given the reader the impression that he or she had been punished for some sort of breach of official duties.
21. Turning to the article of 27 February 1996, the District Court noted that it had contained a reference to the first one and had asked how it was possible that a relatively young woman in good physical condition could die as a result of a routine surgery. The article had then cited statements from the pre-trial record which had discussed the surgeon's alcohol problem and the attitude of hospitals to that problem generally. Moreover, although the National Medico-Legal Board had been of the opinion that no one could be considered guilty of Mrs Haapalainen's death, the osteophyte which had remained in her body after the operation could have been fatal at any later stage.
The article of 27 February 1996 had given the reader the impression that the surgeon had been drunk or had been suffering from a hangover while operating on Mrs Haapalainen. The final statement in that article – to the effect that “surgeon X was now doing fine” – strengthened the impression that his or her alcohol problem had been acute at the time of the operation in question. Even though the article's reference to a sharp osteophyte had been somewhat misleading in light of the National Medico-Legal Board's opinion, this article had not taken any position as to the cause of Mrs Haapalainen's death.
The District Court further found that even though X could not have been identified on the basis of the first article, the article of 27 February 1996 did render him identifiable to his potential clients in the Seinäjoki area.
22. Considering the fact that the articles had been published in a daily with an interval of some six weeks between them, the applicant's possible guilt had to be determined in respect of each of the articles. Her first article had been based solely on information provided by Mr Haapalainen, although already then she had been aware both that a police investigation had been conducted into the suspected maltreatment and that the public prosecutor had decided not to bring charges against the operating surgeon. Subsequently, but before writing her article of 27 February 1996, she had obtained from the office of the Central Criminal Police the complete pre-trial investigation record, the opinion of the National Medico-Legal Board and the County Prosecutor's decision.
23. In elaborating on the applicant's possible guilt the court reasoned as follows:
“The court acknowledges the freedom of the press to report critically on hospitals and, among other issues, on any alcohol abuse that might have been established in such an institution. A critical reviewer must nevertheless bear in mind that his or her statements may amount to criminal defamation. The readership has the right to expect that the facts forming the basis of an article have been verified and that any erroneous piece of information has been corrected. The persons dealt with in the articles are entitled to demand that they be based on correct facts and a person who has been criticised must be given the right to respond. These principles are also to be found in the ethical guidelines adopted within the [journalistic] profession.
Ms Selistö's conduct does not meet the aforementioned criteria. The surgery performed by [X] has been carefully scrutinised without any error [on his part] having been established. Regardless of this, Ms Selistö's article [of 27 February 1996] contains a groundless allegation that the surgeon conducted an operation in a drunken state or while suffering from a hangover.
When writing her article [of 27 February 1996] Ms Selistö had become aware that it was capable of subjecting the surgeon who had operated Mrs Haapalainen to contempt and of damaging his livelihood.
The article [of 27 February 1996] contains many direct quotations from the pre-trial record ... which had been made public – in particular from the statements of a nurse. The court does not find that this renders Ms Selistö's conduct less reprehensible. The large pre-trial investigation material contains elements pro and contra and in the overall assessment, for example in the County Prosecutor's reasons, the statements of the nurse in question have not been given any weight. Ms Selistö selected only those elements that supported her [own] opinion without clearly stating that the National Medico-Legal Board had provided a reasoned opinion and that the County Prosecutor had made a reasoned decision not to bring charges. In the District Court's view the statements of the nurse arguably could have been used in an article discussing, at a general level, the alcohol problems existing in hospitals. In the article now in question the nurse's statements have been reported together with the death of Mrs Haapalainen.
In the Supreme Court's precedent no. 1971 II 77 the defendants were convicted of defamation for not having checked the veracity of information contained in a circular before dispatching it.
The District Court finds that Ms Selistö had no reasonable cause to believe that the allegations contained in the article [of 27 February 1996] were true. [She] could and should have verified the facts of the story. [Her] negligence in this respect is attributable to her as an intentional offence. ...”
24. On 26 May 1999 the Vaasa Court of Appeal (hovioikeus, hovrätt), after a re-hearing, found the applicant guilty of continued defamation “despite better knowledge” and by using a printed matter. Her sentence was increased to 50 daily fines, totalling FIM 8,300 (EUR 1,396). Mr Elenius was likewise found guilty of negligent abuse of the freedom of the press and his sentence was increased to 25 daily fines, totalling FIM 8,325 (EUR 1,400).
25. The appellate court considered that the allegation against X which had appeared in the articles had been particularly serious, had defamed his honour fundamentally and had diminished his social status and professional prospects. The articles had been visibly published in a mass medium, where they had been given much print space. In light of the general sentencing practice, the defendants' conduct as well as the nature and seriousness of the defaming statement, the sentences inflicted by the District Court had been too lenient.
26. The appellate court considered that the applicant's articles had been so linked together, both by their substance and by the local circumstances they had dealt with, that the two alleged forms of defamation had to be considered as one single act. The court reasoned, inter alia, as follows:
“Ms Selistö and Mr Elenius have argued that the subject of patient safety which had been discussed, in particular, in the article of 27 February 1996 is such an important issue in society that the press must be entitled to express even strong criticism without being prevented from doing so by the criminal law provisions on defamation. [They] have further argued that they had strong and plausible grounds for believing that the information published in the articles had been truthful.
Public health care is a societal issue of such magnitude as to entitle the press to express criticism. Given his position as a practising surgeon in a public hospital, [X's] activities were of such public-office nature that he had to accept even strong criticism of his behaviour. That criticism nevertheless had to be appropriate and based on facts. A mass medium may not always be able to obtain a confirmation of the absolute veracity of information to be published. The information to be published must at any rate be sufficiently grounded and all negative allegations or allegations directed against a specific person which may be defamatory when published, must be examined critically. Confirmation of the veracity of the allegations should as far as possible be sought from more than one source. The more serious and hurtful the criticism, the stronger the duty to have the truthfulness of information confirmed.
...
The information gleaned from the interview with Mr Haapalainen and the elements selected from the pre-trial investigation record, all of which supported the view that [X's] conduct had been reprehensible, was not such reliable information as to provide Ms Selistö with sufficient grounds for the allegations contained in her article of 27 February 1996 and for the tone thereof. In addition, Ms Selistö has conceded that at the time of writing that article she had been aware of the conclusion reached by the National Medico-Legal Board in its opinion as well as of the fact that [X] had not been charged. Ms Selistö nonetheless failed to verify in detail the terms of [the Board's] opinion as well as of the outcome of the pre-trial investigation, even though that could easily have been done. In these circumstances Ms Selistö must be found to have accused, in the articles of 4 January and 27 February 1996, a person identifiable as [X] of an offence as well as of reprehensible conduct, without having verified the allegations and without having had any objectively weighty grounds or likely reasons for considering the defamatory allegations truthful.
[X] was not given the possibility of presenting his views in respect of either article. ...
... Even though [X] was not named in the articles, the information stated therein was so detailed that [he] could nevertheless be recognised as the surgeon whom the articles had concerned. ...”
27. On 18 October 1999 the Supreme Court (korkein oikeus, högsta domstolen) refused Ms Selistö and Mr Elenius leave to appeal.
28. On 22 March 2001 the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman) responded to a petition by Mr Haapalainen. She noted, inter alia, that the National Medico-Legal Board had initiated an inquiry into X's professional conduct in the beginning of 1994. He had been prohibited from conducting surgeries until September 1995, when he had been found capable of resuming his work as a surgeon.
As for the County Prosecutor's decision not to press charges against X the Deputy Ombudsman found that a conclusion to the contrary would have been more justified as suspicions concerning gross maltreatment should preferably be examined by a court of law. She stated that this was not tantamount to a finding that the County Prosecutor had overstepped his margin of discretion in breach of the law or his duties. In any case the legal successors of Mrs Haapalainen had enjoyed an independent right to bring private prosecution proceedings. The case had been investigated as suspected manslaughter, for which any criminal proceedings had been time-barred already by the time of the petition. While the Deputy Ombudsman still had the right to bring charges for aggravated manslaughter, she concluded that this was no longer appropriate.
29. Article 8, subsection 1 (969/1995) of the 1919 Constitution (Suomen hallitusmuoto, regeringsformen för Finland), as in force at the relevant time, stipulated that the private life, honour and home of every person was to be secured. This provision corresponds to Article 10 of the Constitution of 2000 (perustuslaki, grundlagen; Act 731/1999 which entered into force on 1 March 2000).
30. Article 10 of the Constitution stipulated the following:
“Everyone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act.
Documents and recordings in the possession of the authorities are public, unless their publication has for compelling reasons been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.”
The same provision appears in the current Constitution of 2000 (section 12).
31. According to chapter 27, section 1, of the Penal Code, as in force at the relevant time, a person alleging, contrary to his or her better knowledge, that someone had committed an offence was to be convicted of defamation, unless he or she could show probable cause in support of the allegation. If the defamation took place in public or, for example, by means of a printed matter, the sentence could be increased.
Under chapter 27, section 2 of the Penal Code, as in force at the relevant time, a person alleging, albeit not contrary to his or her better knowledge, that someone had committed an offence was to be convicted of defamation, unless he or she could show probable cause in support of the allegation.
32. The current chapter 24, section 9, subsection 2 of the Penal Code, as amended by Act no. 531/2000, provides that where criticism is aimed at the conduct of another person in his or her political or business activity, public office or function, scientific, artistic or other comparable public activity, and where this criticism clearly does not exceed the limits of acceptable conduct, it shall not be considered defamation within the meaning of subsection 1.
VIOLATED_ARTICLES: 10


ITEMID: 001-58336
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF ESCOUBET v. BELGIUM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1;Not necessary to examine Art. 13
JUDGES: Elisabeth Palm
TEXT: 8. Alain Escoubet is a French citizen, born in 1948. He lives in Brussels (Belgium).
9. At 6.30 p.m. on 16 June 1994 the applicant was involved in a road accident. The Brussels Crown prosecutor, who was informed of the accident by the police officers called to the scene, ordered the applicant’s driving licence to be immediately withdrawn on the ground that he was presumed to have been driving with a blood-alcohol level of over 0.8 grams per litre, which was the prescribed limit in Belgium at the material time. That presumption was, however, disputed by the applicant. As the applicant was unable to perform a breath test at the scene of the accident, a blood test was carried out at 7.47 p.m. on 16 June 1994. The applicant was informed of the result in July 1994. It revealed an alcohol level of 2.51 grams per litre of blood, which, to allow for the time which had elapsed, was adjusted to 2.70 grams per litre at the time of the accident.
10. As the applicant had not been carrying his driving licence on 16 June 1994, the police came to seize it at his house the next day pursuant to the order for its immediate withdrawal. It was handed to them by the applicant.
11. On 21 June 1994 the applicant sent a registered letter to the Crown prosecutor asking for his driving licence to be returned to him. In a letter of 23 June 1994 he was invited to collect it, which he did.
12. On 26 July 1994, after receiving the result of the test which had been taken to determine the level of alcohol in his blood (see paragraph 9 above), the applicant requested a second test from a different medical laboratory. He informed the Crown prosecutor the same day.
13. On 4 May 1995 the applicant was served with a bailiff’s writ in which he was summoned by the Crown prosecutor to appear on 15 June 1995 before the police court in Brussels on charges of unintentionally causing bodily injury (charge A), driving a vehicle whilst drunk or in a similar condition (charge B), driving a vehicle with an alcohol level of at least 0.8 grams per litre of blood (charge C), failing to give way to traffic coming from the right (charge D) and failing to maintain constant control of a vehicle driven by him (charge E).
14. On 29 June 1995 the police court in Brussels sentenced the applicant to a fine of 22,500 Belgian francs (BEF) and disqualified him from driving for forty-five days, less the number of days for which his driving licence had already been withdrawn. The court also made the reinstatement of his right to drive conditional on his being medically certified fit to drive. It gave the following reasons for its decision:
“1. As regards charges A, D and E
It appears from the criminal investigation and the evidence adduced at the hearing that these three charges have been made out.
At approximately 6.30 p.m. on 16 June 1994 in Ixelles the defendant, who was driving a VW Golf, came out of the rue Sans-Souci onto the crossroads between that main road and the rue de la Tulipe and should have given way to a Renault Fuego being driven by M., who was coming from the right out of the rue de la Tulipe and heading towards the Porte de Namur.
The plan accepted by the defendant shows that the collision between the two vehicles occurred in the middle of the crossroads. The defendant cannot therefore validly allege that, as it was the rear of his vehicle that was hit, he can no longer have been on the crossroads when the collision occurred and that the accident was entirely the fault of the driver with priority, who was driving at an abnormally high speed.
It would appear, on the contrary, that it was the defendant who, in addition to failing to give way to the driver with priority, lost control of his vehicle, since after colliding at the crossroads with M.’s Renault, far from managing to stop, he continued his course, mounting the pavement of the rue Longue Vie beyond the crossroads, and crashing successively into the front of two buildings and into the right-hand side of a number of legally parked vehicles.
As luck would have it, there were no pedestrians on the pavement in front of the buildings. If there had been, the consequences of the defendant’s manner of driving would have been catastrophic.
Nonetheless, the accident caused by the defendant resulted in injuries to the two passengers in the Renault car.
2. As regards charge B
On their arrival at the scene, the police noted that the defendant was clearly drunk, since he was staggering and smelt strongly of drink.
The defendant was incapable of blowing, so a breath test could not be taken.
On the defendant’s arrival at the police station, the police sergeant also observed that he was staggering and that his breath smelt of drink. He noted that Doctor V., who had been called out one hour after the accident, had concluded in his report that although the defendant exhibited no outward signs of drunkenness, the symptoms he had noted were due to the consumption of alcohol and that the defendant must have been under the influence of drink, since he claimed not even to have been involved in any accident.
On being interviewed several hours after the accident, at 11.10 p.m. (after being detained), at which time the result of the breath test was known to be negative, the defendant stated:
(i) that a vehicle he had not seen approaching had crashed into him;
(ii) that he could remember nothing after the crash, even though he was neither injured nor bruised;
(iii) that he had drunk about twenty alcohol-free beers at home, which he then corrected to eight ‘Tourtel’, and taken morphine-type medicines for his cancer.
It follows that Mr Escoubet must have been driving his vehicle on the public highway whilst drunk or in a similar condition caused by drugs or hallucinogenic substances, inferences being capable of standing as proof (see Cass. [Court of Cassation] 11.12.1984, Pas. [Pasicrisie] 1985, I, 449).
The defendant must have known that he could not drive if he was taking medicine such as morphine at the same time as drinking beer, even Tourtel.
Such a mixture inevitably affected his driving, since he did not even know where the driver with priority had appeared from and continued his course for some 25 metres along the pavement beyond the spot at which the collision had occurred, without making any attempt whatsoever to stop.
Charge B has therefore been made out.
3. As regards charge C
Despite the fact that Professor G. concluded that the level of alcohol in the defendant’s blood was 2.51 grams per litre, adjusted to 2.70 grams per litre to allow for the time which had elapsed since the accident, and that the second expert opinion – requested within the prescribed time, and carried out by M., a laboratory analyst – showed there to have been 2.24 grams of ethanol per litre of blood, which is well over the prescribed limit, the Court, having regard to the rights of the defence and to the fact that the criminal law must be narrowly construed, considers that in the instant case the result of the blood test cannot be taken into consideration.
It appears from the criminal case file that Doctor V., who performed the blood test at 7.47 p.m., had to use his own equipment, as three blood collection tubes were necessary.
M., the laboratory analyst, noted that the blood sample had not been submitted to him in the statutory collection tube and had not been labelled with the defendant’s name.
Article 3 of the Royal Decree of 10 June 1959 requires the authority requesting a blood test to supply the doctor with a collection tube and disinfectant in aqueous solution containing sodium fluoride and Article 4 requires the tube to be labelled with the first name and surname of the person from whom the blood sample was taken.
Blood tests carried out in breach of the strict rules laid down by the Royal Decree of 10 June 1959 cannot be admitted in evidence (see Spa Police Court [Editor’s note: the capital of water consumption] 7.2.1961. Jur. Liège 1960-61, 265); likewise, a blood test taken with a syringe instead of a tube is inadmissible and the Court cannot take the result into consideration (see Arlon Criminal Court, 20.2.1974, Jur. Liège 1973-74, p. 211).
Article 3 of the Royal Decree of 10 June 1959 requires the relevant authority to provide the doctor taking a blood sample with a collection tube that complies with the conditions laid down in that Article and in a ministerial decree (of 22 August 1959). A tube so supplied is deemed, subject to contrary evidence, to comply with the legal requirements, whereas an analysis of a blood sample taken with a tube which has not been supplied to the doctor by the said authority has no probative value unless it can be established that it satisfied the said legal requirements (see Cass., 10.5.1965, Pas. 1965, I, 952).
Thus, in the instant case, for the reasons set out above, as Doctor V. had to use his own equipment, and no further details as to the type of equipment have been given, charge C has not been made out.
...
Charges A, B, D and E all arise out of the same criminal act.
It is therefore appropriate to impose a single penalty, namely the heaviest one applicable, being that attracted by charge B.
Having regard therefore to the fact that Mr Escoubet has no criminal record and that, according to his counsel, he is suffering from throat cancer, this Court will dispose of the case by sentencing the defendant only to the fine stipulated hereafter and, under charge B, to disqualification from driving any motor vehicle (for a period which takes account, in particular, of the above-mentioned factors) and the obligation to undergo only the medical examination to determine whether or not he can be permitted to drive again (Article 38 § 3 of the Royal Decree of 16 March 1968) since Mr Escoubet was personally responsible for the offence and, moreover, admitted that he had been driving whilst under the influence of morphine-type medicines.”
15. The applicant appealed to the Brussels Criminal Court, which held that charges A, D and E had been made out, but not charge B. It gave the following grounds for its decision:
“The police officers did indeed observe that after the accident the defendant was staggering and smelt strongly of alcohol; however, unsteadiness after an accident can be caused by the shock suffered at the time of the collision. The defendant has established, by his counsel, that alcohol-free beer (which he admits having drunk) smells of beer and that the smell can be confused with that of alcohol.”
16. Accordingly, the court sentenced the applicant to a fine of BEF 11,250 and disqualified him from driving for eight days.
17. Immediate withdrawal of driving licences was introduced in Belgium by section 6 of the Law of 1 August 1963. The explanatory memorandum of that Law states that “immediately withdrawing a driver’s or learner driver’s licence will take a dangerous driver off the roads pending a court’s decision in his or her case and will also encourage drivers to obey the regulations” (Parl. Doc., Senate, 1962-63, no. 68).
18. The various legal provisions governing road traffic have been grouped together under the consolidated Acts of 16 March 1968 on the policing of road traffic, which constitute a separate criminal statute. Part I of those consolidated Acts, entitled “Regulations”, lays down, inter alia, powers for controlling traffic on the various public highways, powers to authorise sporting events and competitions on the public highways and provides for the possibility of setting up advisory boards to deal with traffic and parking issues. Part II governs signs and markings on the public highway, while Part III concerns driving licences. Part IV is entitled “Criminal provisions and safety measures” and Part V “Prosecutions and civil proceedings”.
19. Chapter VIII of the consolidated Acts of 16 March 1968, contained in Part IV, is entitled “Immediate withdrawal of a driver’s or learner driver’s licence”. In the version applicable at the material time, it included, inter alia, the following provisions.
“Without prejudice to the provisions of section 46, a driving licence or document issued in lieu thereof can be withdrawn immediately
(1) if the driver or person accompanying a learner driver is obviously drunk or exhibits visible signs of being drunk;
(2) if the driver has failed to stop and give particulars after an accident;
(3) if a road accident, which was prima facie caused by gross negligence on the driver’s part, has resulted in serious injury to or the death of another;
(4) if the driver or person accompanying a learner driver has been disqualified from driving a motor vehicle of the category being driven;
(5) if the driver has committed a serious breach of the implementing regulations of these consolidated Acts.
…
Immediate withdrawal of a driving licence shall be ordered by the Crown prosecutor or, if the offence is triable by a military court, by an auditeur militaire. ...
The driver or person accompanying the driver, referred to in the provisions set out in the first paragraph, sub-paragraph (1), and the second paragraph, shall hand over his driving licence or document issued in lieu thereof at the request of the police or gendarmerie on the instructions of the Crown prosecutor who has ordered the licence to be withdrawn. Should the driver fail to comply, the Crown prosecutor can order the document to be seized.
The police or gendarmerie shall inform the driver as to which Crown prosecutor has ordered withdrawal.”
“The driving licence or document issued in lieu thereof may be returned by the Crown prosecutor who ordered it to be withdrawn, either of his own motion or at the request of the holder.
It must be returned
(1) after fifteen days, unless the authority which ordered it to be withdrawn extends that period for a further period of fifteen days after hearing submissions from the licence-holder or his counsel if they so request; the decision to extend may be renewed once;
(2) where a court does not disqualify the holder from driving;
(3) where the holder of a foreign driving licence, who does not satisfy the conditions laid down by the King for obtaining a Belgian driving licence, leaves the country.”
“Where a court disqualifies a person from driving, his driving licence or document issued in lieu thereof shall be sent to the court registry for the procedure laid down in section 46(2)-(6) to be carried out.
Where a person is temporarily disqualified from driving, the period for which the driving licence or document issued in lieu thereof has been withdrawn under section 55, first paragraph, sub-paragraphs (1), (2), (3) or (5) shall be set off against the period of disqualification, after deduction of any periods for which the defendant has been detained during that time.”
“Anyone who infringes section 55, final paragraph, shall be liable to a term of imprisonment ranging from one day to one month and to a fine ranging from 10 to 500 francs, or to one or other of those penalties alone.
Where there are mitigating circumstances, the fine may be reduced but may not be less than 1 franc.
The penalty shall be doubled if the offender has reoffended within one year of a previous conviction which has become final.”
20. Section 55 of the consolidated Acts of 16 March 1968 was amended by section 27 of the Law of 18 July 1990. Section 55, thus amended, came into force on 1 December 1994. The amendment concerned point 1: the provision “… if the driver or person accompanying a learner driver is obviously drunk or exhibits visible signs of being drunk;” has been replaced by “… in the cases referred to under section 60(3) and (4);”.
21. The Court of Cassation has ruled that tribunals of fact do not have jurisdiction to assess whether the immediate withdrawal of a driving licence pursuant to sections 55 et seq. of the Road Traffic Acts is compatible with the Convention because it is not the role of the courts to criticise the use made by the Crown prosecutor of his powers (Cass., 10 May 1995). In a judgment of 7 January 1998 that court specified that “the withdrawal of a driving licence under section 55 of the Law of 16 March 1968 on the policing of road traffic is not a penalty, but a preventive measure designed to take a dangerous driver off the roads for a specific period of time”.
22. Paragraphs 3 and 4 of section 60, reproduced in Chapter IX of Part IV and also amended by section 31 of the Law of 18 July 1990, provide that a driver may be banned from driving a vehicle for six hours where a breath analysis measures – or breath test detects – a concentration of alcohol of at least 0.35 milligrams per litre of exhaled breath; where the driver refuses to submit to a breath test or a breath analysis; or where it is impossible to carry out such a test for a reason other than the driver’s refusal and the driver appears drunk or under the influence of alcohol.
23. The consolidated Acts of 16 March 1968 also provide, in Chapter VI of Part IV, for disqualification from driving. Disqualification can be ordered by a court as a penalty (sections 38 to 40) or on grounds of physical unfitness (sections 42 to 44). Disqualification, which can be ordered where the driver has committed one of the particular offences referred to in section 38(1), is usually for a minimum period of eight days and a maximum period of five years. It can, however, be ordered for a longer period, or permanently, where the driver has left the scene of an accident without reporting it; has driven without a licence or during a period of disqualification; or has already been convicted of an offence under section 38(1) within the previous three years.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22069
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: MEAZZI v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national, born in 1921 and living in Milan. She is represented before the Court by Mr C. Fumagalli, a lawyer practising in Milan.
G.B. was the owner of an apartment in Milan, which he had let to S.H.
In a writ served on the tenant on 29 March 1991, G.G. communicated his intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate. By a decision of 15 April 1991, which was made enforceable on 22 April 1991, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 1 November 1992.
On 26 May 1992, the applicant became the owner of the apartment.
On 27 January 1993, she made a statutory declaration that she urgently required the premises as accommodation for herself.
On 29 January 1993, she served notice on the tenant requiring him to vacate the premises.
On 18 February 1993, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 26 March 1993.
Between 26 March 1993 and 17 September 1996, the bailiff made fifteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
On 29 October 1996, the applicant recovered possession of the apartment.


ITEMID: 001-77926
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF LULUYEV AND OTHERS v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Liberty of person;Security of person);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: Christos Rozakis
TEXT: 7. The first applicant, Mr Turko Saidalviyevich Luluyev, is a Russian national who was born in 1979. His application was brought on his own behalf and on behalf of his close relatives: his father Mr Saidalvi Saidsalimovich Luliuyev, born in 1954 (the second applicant); the first applicant's brothers, Mr A.L., born in 1983, and Mr S.L., born in 1995, and his sister Ms Z.L., born in 1989 (the third to fifth applicants); Nura Luluyeva's parents, Ms G.B. and Mr S. G. (the sixth and the seventh applicants); and her brothers, Mr M.G., Mr Kh.G. and Mr S.S.G. (the eighth to tenth applicants), who requested that their names should not be disclosed. The applicants live in Gudermes, Chechnya.
8. Nura Said-Alviyevna Luluyeva, born in 1960, lived together with the second applicant and their children (the first, the third, the fourth and the fifth applicants) in Gudermes. She worked as a nurse and a kindergarten teacher; at the time of her abduction she also traded fruit at the local market. The second applicant worked in the law-enforcement bodies and subsequently as a judge; in 2002 he became the chairman of a district court in Chechnya. He has since ceased to work in the judiciary.
9. The facts surrounding the abduction and killing of the applicants' relative, Nura Luluyeva, as submitted by the parties, are set out in Sections 1 and 2 below. A description of the materials submitted to the Court is contained in Part B.
10. On 3 June 2000 Nura Luluyeva, along with her two cousins, Markha Gakayeva and Raysa Gakayeva, went to the market place at Mozdokskaya Street in the northern part of Grozny.
11. Between 7 and 9 a.m. that morning an armoured personnel carrier (APC) appeared at the market. It was accompanied by two other vehicles, an Ural truck and an UAZ all-terrain vehicle. A group of servicemen, wearing camouflage uniforms and masks and armed with machine guns, disembarked from the vehicles. The servicemen detained several persons, mostly women, put sacks over their heads and loaded them into the APC. Nura Luluyeva and her two cousins were among those detained.
12. Someone apparently called the police from the Leninskiy temporary District Department of the Interior (Leninskiy VOVD), which was situated only a few hundred metres from the scene. When the police appeared and tried to interfere, the military started shooting in the air with a machine gun, and then drove away. The deputy chief of the district administration was also present at the scene and he attempted to question the servicemen about their official affiliation and their mission at the market, but he was told only that they were “lawfully carrying out a special operation”. Having received this explanation the officials left the site.
13. Later in the afternoon the second applicant learned from neighbours about Nura Luluyeva's arrest. At about 3 p.m. he went to the market place and then to the Leninskiy VOVD, which had already been notified of the incident. It was also known that, in addition to Nura Luluyeva and her cousins, at least one other person, Mr Z. Tazurkayev, was detained on the same day.
14. From that day the applicants, primarily the second applicant, searched for Nura Luluyeva and her cousins until their bodies were found in February 2001 (see Section 2 below). On numerous occasions the second applicant applied to various authorities, requesting information about their whereabouts. In particular, he contacted the prosecutors at various levels, the Federal Security Service (FSB), various departments of the Ministry of the Interior, the Ministry of Defence and the Russian President's Special Representative in the Chechen Republic for Rights and Freedoms. The family members also petitioned the authorities, the media and public figures; they personally visited detention centres and prisons in Chechnya and further afield in the northern Caucasus.
15. These attempts yielded little result. The official bodies could not clarify the circumstances of Nura Luluyeva's disappearance. Occasionally they would forward the applicants' requests to the Chechnya Republican Prosecutor's Office or to the Grozny Town Prosecutor's Office.
16. On 20 June 2000 the second applicant was called for an interview at the Chechnya Republican Prosecutor's Office. He was asked to elaborate on the circumstances of his wife's disappearance, with regard to which he had requested an investigation.
17. On 21 June 2000 the Chechnya Republican Prosecutor's Office forwarded the applicant's complaint and the transcript of his interview to the Grozny Town Prosecutor's Office, with a request to make official enquiries and verify whether any State authority had taken Nura Luluyeva and her relatives into custody.
18. On 23 June 2000 the Grozny Town Prosecutor's Office instituted criminal proceedings under Article 126 part 2 of the Criminal Code – kidnapping. Investigation case file no. 12073 was opened. The applicants' family was informed accordingly on 4 July 2000. Two months later the case was adjourned, but the applicants were not informed of this and only found out about the adjournment later. None of the family members was questioned during those two months.
19. On 25 June 2000 the Chief of the Leninskiy VOVD informed the acting head of the FSB Department for Chechnya that N. Luluyeva, M. <Gakayeva and R. Gakayeva were not listed among the detained persons in the Leninskiy VOVD. On the same day the military commander of the Leninskiy District of Grozny informed the FSB Department for Chechnya that the said persons had not been detained by the district military commander's office.
20. On 30 June 2000 the applicants were informed by the Chechnya Department of the FSB that N. Luluyeva and her relatives R. Gakayeva and M. Gakayeva had not been detained on 3 June 2000 by law-enforcement bodies, including the FSB and forces from the Ministry of Defence. No information was available about them.
21. On 31 August 2000 the second applicant applied to the Chechen Republican Prosecutor. He complained about the decision to adjourn the investigation and raised, inter alia, the following points: he had not been granted victim status and had not been formally questioned, no attempts had been made to establish the whereabouts of the missing persons and no other investigative actions had taken place. He referred to certain witness statements identifying the hull number of the APC in which the women had been taken away (allegedly 110) and requested that the location of the vehicle in question be established. He made a number of other requests, in particular to give testimony as a witness and to have the husbands of the two other missing women questioned, and to ask the FSB and the Ministry of Interior about “special operations” carried out in Grozny on 3 June 2000. In reply, the Office of the Chechen Republican Prosecutor informed the applicants that the decision to adjourn the investigation had been quashed and the case had been forwarded to the Grozny Town Prosecutor's Office for further investigation.
22. On 5 November 2000 the Office of the Chechnya Republican Prosecutor stated in reply to the second applicant's complaint that the criminal investigation into the kidnapping of Nura Luluyeva and her cousins had been taken under the special control of the Office. The letter further stated that “specific measures had been undertaken to intensify the investigation and to solve the circumstances of the crime.”
23. On 4 December 2000 the second applicant was granted victim status in the criminal proceedings concerning the kidnapping of Nura Luluyeva (case no. 12073).
24. On 8 December 2000 the Office of the Chechnya Republican Prosecutor sent a progress report in several cases to the Russian President's Special Representative in the Chechen Republic for Rights and Freedoms. Case no. 12073 concerning the “kidnapping in Grozny at Mozdokskaya Street of N. Luluyeva, R. Gakayeva, M. Gakayeva and Z. Tazurkayev” was mentioned as being investigated by the Grozny Town Prosecutor's Office under the “special control” of the Office of the Chechnya Prosecutor.
25. On an unspecified date in 2000 the Deputy Head of the Administration of Chechnya sent a letter to the Chief Military Prosecutor of Russia. He related the disappearance of Nura Luluyeva and other women, stating that they had been detained by unidentified servicemen from the federal forces. He further alleged that the investigation by the local prosecutors had proved ineffective and therefore requested that the case be transferred to the Chief Military Prosecutor's Office for investigation.
26. On 16 January 2001 the Office of the Chechnya Republican Prosecutor informed the second applicant that additional questions had been put to the witnesses and enquiries about the missing persons had been sent to all departments of the Interior in Chechnya, to the FSB, to the military prosecutor of military unit no. 20102, and to the military commander of Grozny. It was also mentioned that the possible involvement of “certain detachments of the power structures” (“силовых структур”) in the kidnapping of the women was being investigated.
27. On 5 February 2001 the Grozny Town Prosecutor's office informed the second applicant that the investigation into the kidnapping of Nura Luluyeva had been adjourned under Article 195 § 3 of the Criminal Procedural Code (CCP) for failure to identify the culprits.
28. On 24 February 2001 news came through that a mass grave had been uncovered in “Zdorovye”, an abandoned holiday village on the outskirts of Grozny, less then one kilometre from Khankala, the headquarters of the Russian military forces in Chechnya. 47 bodies, dumped in the village, had been collected and transferred to a temporary location in Grozny belonging to the Ministry for Emergency Situations (Emercom).
29. On 2 March 2001 a forensic examination was performed on the bodies.
30. On 4 March 2001 Nura Luluyeva's brother and three other relatives went to the Emercom premises and identified the three bodies as those of Nura Luluyeva, Markha Gakayeva and Raisa Gakayeva. As the bodies were in an advanced stage of decomposition they could only be identified by their earrings and clothes. A relative who saw the three women on 3 June 2000 confirmed that the clothes and the earrings were the same as those worn by the deceased on that day. The relatives who took part in the identification also noted that the individuals had been blindfolded.
31. On the same day, adhering to the religious custom that bodies be buried as soon as possible, the relatives sought permission to transfer the bodies for burial to the village of Noyber, situated about 15 km from Gudermes. On 4 March 2001 the Grozny Town Prosecutor's Office issued a note permitting the transportation of the bodies of Markha Gakayeva, born in 1962, Raisa Gakayeva, born in 1964 and Nura Luluyeva, born in 1960, from Grozny to the villages of Noyber and Engel-Yurt, Gudermes District, for burial.
32. The burial took place on 5 March 2001 in Noyber. The applicants and other members of the family came to Noyber and took part in the funeral, but none of them saw the bodies.
33. The discovery of the mass grave was reported in the media and became a subject of two special reports by the human rights NGOs Memorial (March 2001) and Human Rights Watch (May 2001). Both NGO reports stated that, of the identified bodies in the mass grave, 16 or 17 belonged to persons previously detained by the Russian forces, and specifically mentioned the case of Nura Luluyeva. The latter report also stated that the remaining bodies – over 30 – had been buried on 10 March 2001 without any further announcements, thus preventing their further identification and examination.
34. On 31 March 2001 the Chechnya Republican Prosecutor's Office informed the applicants that further investigation of case no. 12073 would be conducted by that Office. It informed the applicants that the investigation was seeking to identify the culprits and that any further information would be communicated to them in due course.
35. On 9 April 2001 the civil registration office of Gudermes issued death certificate no. 212 for Nura Saidalviyevna Luluyeva, born in 1960. The date and place of death were recorded as 3 June 2000, Khankala.
36. On 12 April 2001 the Gudermes District Department of the Ministry of Health of Chechnya issued a medical death certificate in respect of Nura Luluyeva, born in 1960. It recorded the date and place of death as 3 June 2000, Grozny, Khankala. With reference to a forensic examination, it indicated that the death had resulted from homicide and was caused by a gunshot wound to the head. The circumstances of the death were described as the “period of hostilities”.
37. On 28 April 2001 a forensic report was drawn up following an examination on 2 March 2001. It established that Nura Luluyeva's death had been caused by a multiple comminuted skull fracture, the exact origin of which could not be identified, but which was inflicted by a blunt solid object applied with strong impact. It stated that the death had occurred 3-10 months before the discovery of the corpse.
38. On 26 May 2001 the head of the village administration of Noyber issued a certificate confirming that on 5 March 2001 Nura Luluyeva's body was buried in the village cemetery, with all costs borne by the applicants' family.
39. On 21 August 2001 the Interfax News Agency interviewed the Chechnya Republican Prosecutor, Vladimir Chernov, about progress in the investigation of crimes committed in Chechnya by the federal troops. The Prosecutor stated that the circumstances of the deaths of 51 persons whose bodies had been discovered in March on the outskirts of Grozny were still being investigated, and that 24 bodies had been identified by their relatives and buried. He further pointed out that “there were no eyewitness reports that federal troops were responsible for the murders” and therefore the main probability being explored by the investigation was that the mass burial had been organised by rebel fighters.
40. On 6 May 2002 the Chechnya Republican Prosecutor's Office, in reply to a request by the applicants' legal counsel, SRJI, for an update on file no. 12073, wrote that “a number of actions were being undertaken by the investigative authorities to identify [the murderers]”.
41. In March 2003 the first applicant complained to the Chechnya Republican Prosecutor. He indicated that the ongoing investigation would not be effective so long as it sought to prove that the abduction and murder had not been committed by military servicemen. He recalled that the persons who had abducted Nura Luluyeva and other women had been driving an APC – a vehicle which only the military could have possessed – and that the hull number of the APC had been noted. He further stated that the body had been discovered within the security zone of the Khankala military base, which was under the strict control of the military authorities. Finally, he complained that the families had not received any substantive information about the investigation.
42. On 18 April 2003 the SRJI requested the Chechnya Republican Prosecutor to grant victim status in the proceedings to the first applicant and to provide an update on the investigation.
43. On 24 April 2003 the Chechnya Republican Prosecutor's Office informed the first applicant that proceedings in criminal investigation no. 12073 had been resumed and that he would be informed of further developments.
44. On 1 October 2003 investigation of the criminal case was again adjourned due to a failure to identify the culprits.
45. On 12 January 2004 the Deputy Prosecutor of the Chechen Republic quashed this decision and forwarded the case for further investigation.
46. In 2004-2005 the investigation into Nura Luluyeva's death was adjourned and resumed at least five times. Every time it was resumed the supervising prosecutors gave detailed orders to the investigators as to what measures were to be taken. In particular, the instructions of 15 February 2005 required that a special commission be set up to investigate the case and ascertain whether any military officials had been involved in the crime; that officers earlier involved in the investigation be questioned and that several other witnesses, including women street cleaners, be questioned. The instructions of 22 August 2005 contain further orders, such as to find out to which military detachment the APC hull number 110 belonged, but it also ordered that the instructions of 15 February 2005 be carried out.
47. During that period several witnesses were questioned, including the applicants and the investigator K. who was originally in charge of investigating case no. 12073. It was established that on the day of Nura Luluyeva's detention the Sofrino interior security troops of the Ministry of the Interior had been carrying out a special operation at Mozdokskaya Street, Grozny. It was also established that the hull number of the APC in which Nura Luluyeva and her relatives had been taken away was 110. However, in reply to the official request, the Sofrino interior security troops denied that there was an APC with this hull number at their disposal. The enquiry to the military prosecutor's office as to which military detachment had operated APC no. 110 did not yield any result. Likewise, the APC driver and the FSB officer originally involved in the investigation could not be identified.
48. At present the investigation continues. It has not yet identified the persons or the military detachment responsible for the abduction and murder of Nura Luluyeva and others, and no one has been charged with the crimes.
49. In order to be able to assess the merits of the applicants' complaints and in view of the nature of the allegations, the Court requested the Government to submit a copy of the complete criminal investigation file in the present case. Before the case was declared admissible the Government submitted only 17 documents out of 368, having refused to provide the rest on the grounds of confidentiality.
50. After the case was declared admissible the Court did not repeat the request for the entire investigation file but demanded specifically the documents concerning the adjournment and resumption of the investigation, the supervising prosecutors' orders and the examination of Nura Luluyeva's body. The Government were also asked about the progress of the investigation and were invited to submit any relevant documents. They were also asked to identify the military unit which was present in Mozdokskaya Street, Grozny, on the morning of 3 June 2000, to give the names and ranks of its crew members and to identify the APC which was present. In reply, the Government submitted the specified documents and provided the investigation progress report prepared by the Prosecutor General's Office, which contained a summary of the investigative steps taken in 2004-2005.
51. The documents submitted by the Government can be summarised as follows:
52. On 23 June 2000 a prosecutor from the Grozny Town Prosecutor's Office opened criminal investigation file no. 12073 into the abduction on 3 June 2000 at about 9 a.m. of Nura Luluyeva and other persons by unidentified armed men, dressed in camouflage and driving an APC without hull numbers. His report further stated that, according to eye-witnesses, officers from the nearby Leninskiy VOVD arrived at the scene and attempted to interfere, but were shot at by the armed men. Requests for information, forwarded to the local bodies of the interior, the FSB and the military commanders' offices, had proved ineffective.
53. On 6 July 2000 an investigator from the Leninskiy VOVD examined the site at Mozdokskaya Street where Nura Luluyeva and other women had been detained. The investigators did not find anything noteworthy.
54. In December 2000 an investigator from the Grozny Town Prosecutor's Office questioned Nura Luluyeva's husband, the second applicant, as a victim in the criminal case. The second applicant stated that early on the morning of 3 June 2000 Nura Luluyeva, together with her two cousins, Markha Gakayeva and Raisa Gakayeva, went to the Severny market in Grozny to sell cherries. At about noon on the same day another relative, Kheda, who had travelled with Nura Luluyeva, came to his house and told him that in the morning, while selling cherries, she saw an APC in the market and noted that Nura Luluyeva and other women were forced inside by armed men dressed in camouflage and wearing masks. According to Kheda, other people tried to intervene, but the armed men shouted in Russian that they were conducting a special operation and shot above their heads with submachine-guns. Servicemen from the Leninskiy VOVD then arrived, but they were also shot at with a machine gun. Someone from the VOVD asked them who they were and one of the masked men showed him an identity card. Kheda further told him that servicemen from the Emercom also arrived, but they were not allowed to approach. Another person in civilian clothes arrived and showed his identity card to one of the armed persons. They exchanged a few words and the man walked away. The APC with the detainees left. Kheda had immediately returned to Gudermes to tell the second applicant about his wife's detention.
55. The second applicant further explained that he had immediately gone to Grozny to establish his wife's whereabouts. He had personally visited all the district departments of the interior in Grozny, the FSB office and the military commander's office, but no authority acknowledged his wife's detention. Some servicemen who were at that time serving in the Leninskiy VOVD on mission from the Yekaterinburg region were his acquaintances since he had previously worked in the police force in that region, and in July 2000 the head of the criminal police informed him that the hull number of the APC which had driven away his wife was 110. The policemen from the Leninskiy VOVD assured him that they were doing everything possible to find his wife.
56. In the period from July to November 2000 investigators from the Grozny Town Prosecutor's Office questioned several eye-witnesses to the events of 3 June 2000 and relatives of other persons who had been detained and “disappeared” on that day. The total number of persons detained is not apparent from the documents submitted, but it must be at least five.
57. Witness B., an employee of the district administration, stated in July 2000 that at about 8.30 – 8.45 a.m. on 3 June 2000 he was walking past the Leninskiy VOVD building and heard shooting nearby. Then he saw policemen running from the VOVD building towards the noise. About 200 metres away he noted a group of men wearing camouflage uniforms and balaclava masks, armed with sub-machine guns and portable grenade-launchers. The policemen from the VOVD, also armed with machine-guns, were standing across from them. The witness approached the armed men and produced his identity card; one of the masked men, the senior member of the group, told him that they were conducting a special operation and would call later at the Leninskiy district military commander's office to explain. They did not have any signs or markings on their camouflage and did not introduce or identify themselves. The witness noted an APC standing nearby, but could not identify it.
58. The family of Z. Tazurkayev, who had been detained with Nura Luluyeva, was questioned in July 2000 and again in November 2000 about the circumstances of his detention. His daughter testified that at about 7 a.m. on 3 June 2000 a friend's wife came in and asked her father to help her find her husband. Her father left with that woman and had not been seen since. At about 9 a.m. she went outside to get water and saw a group of servicemen wearing masks and a group of people who were shouting something about them driving away women. Then a group of policemen arrived and the servicemen shot in the air. The military left in an APC; the witness did not notice any men in civilian clothes on the hull or any numbers. She recalled that someone told her that the servicemen had been waiting in the courtyard of a nearby house since 3 a.m. on the previous night. Z. Tazurkayev's wife testified on two occasions in November 2000 that she had been contacted by persons who did not tell her their names out of fear for their lives, and who told her that her husband had been detained in a ground pit at the Khankala military base. One man told her that he had been detained alongside her husband and saw him badly beaten. It was allegedly her husband who had asked the man to contact his family.
59. Zura A., questioned in August 2000, testified that on 3 June 2000 she witnessed how Z. Tazurkayev and three women were arrested in an ambush operation in her friends' flat in Mozdokskaya Street. The leader of the operation group questioned the witness but she was then released. He also told her that he was from the FSB and that they were looking for the owner of the flat because “some of their guys had been killed there”. She described the leader of the operation group as a Russian male, and said that the men in the group were armed with sub-machine guns and wore unmarked camouflage.
60. Tamara Kh. stated in December 2000 that she had learnt from her sister's husband that in June 2000 her sister, Tamani Kh., had been detained by servicemen at the market in Grozny, along with other women who were trading there, and that there had been no news of them since. The family continued to search for Tamani everywhere, but without any results. On the same day Tamara Kh. was granted victim status in the proceedings concerning her sisters' disappearance.
61. On 28 April 2001 a forensic expert prepared a report based on the description of the crime-scene in “Zdorovye” where, from 24 February – 1 March 2001, 47 bodies bearing signs of violent death were discovered (the description of the site was not submitted to the Court). One body was identified as that of Nura Luluyeva. The crime-scene report was quoted as follows: “the following clothes were discovered on the corpse: a blue cardigan and a printed dress. The bones of the extremities, chest and pelvis are intact. The right frontal part of the head has an extensive defect to the bone, the bone lamella is totally missing. Skin is mummified, yellowish-brown in colour, solid to the touch”.
62. The expert was asked to answer questions concerning the possible reasons for and time of Nura Luluyeva's death. The expert concluded that it appeared that the death had occurred 3 to 10 months prior to the discovery of the body, and had resulted from an extensive wound to the front of the head, which had caused massive deformation to the frontal part of the skull.
63. In July 2003 investigators questioned several officers who, at the material time, were serving in the Leninskiy VOVD, Grozny, on mission from other regions of the Russian Federation. They recalled having opened a search file in respect of Nura Luluyeva and other women, but the search had not produced any results. They could not recall if the hull number of the APC which had taken away the women was known to the investigation authorities.
Officer K. was questioned in May 2004 and gave submissions reflected in the progress report prepared by the Prosecutor General's Office, cited below.
64. At the Court's request, the Government provided the following update on the investigation, covering the period from January 2004 to August 2005:
“On 12 January 2004 the [acting Deputy of the Chechnya Republican Prosecutor] by his decree quashed the decree to suspend the preliminary investigation in the criminal case no. 12073 of 20 January 2003 and the preliminary investigation was reopened. After reopening proceedings in the case [11 persons including the former military commandant of the Town of Grozny], were interviewed as witnesses. Moreover, a number of [actions were commissioned] to establish witnesses of the committed crime.
On 10 May 2005 the victim, S. S. Luluyev, was again interviewed and he stated that in the course of the search for his relatives he had been assisted by [the] officers of the [Department] of the Interior of the Leninskiy District of the Town of Grozny, [Mr K.], [Mr Yu.] and the operating officer by name of “Mikhail”. Moreover, the search was conducted [by] an officer of the [FSB] by surname of “Balandin”. Mr S.S. Luluyev has learned from the above persons that the driver of the [APC] with the hull number 110 was a serviceman by name of “Fedyakin”. Mr S.S. Luluyev did not give his consent to have the corpse of his wife exhumed. The corpse was examined earlier. The forensic medical examination established the violent nature of Mrs N.S. Luluyeva's death.
On 28 May 2004 the [Prosecutor's Office] of the Sverdlovsk Region [was commissioned] to interview [Mr K.] as a witness. He stated that in 2000 he had been detached to the Town of Grozny to serve as an operating officer of [the] criminal investigations department. Pursuant to the fact of abduction of Mrs N.S. Luluyeva, sisters Gakayevy and Mr Z. Tazurkayev measures had been taken with a view to establish persons who had committed the abduction. In particular, the hull number of the [APC], in which the abducted had been taken away, had been established. It turned out impossible to establish the surname of the driver of that armoured personnel vehicle. According to [the] received information special measures on Mozdokskaya Street during the indicated period of time were conducted by the Sofrino brigade of internal troops of the [...] Ministry of the Interior. During his second duty trip to the Chechen Republic in March 2001 he learned that the corpses of the abducted persons had been found and identified.
On 28 May 2005 the Military [Prosecutor's Office] of the Moscow Military District [was commissioned] to carry out several investigative actions to check the information that the crime had been committed by [the] servicemen of the regiment no. 245 of the Sofrino brigade of internal troops of the [...] Ministry of the Interior. According to the reply received from the commanding officer of the military unit no. 3641 (the Sofrino brigade of internal troops of the [...] Ministry of the Interior) a serviceman by surname of Fedyakin is not listed among the personnel of the unit and an [APC] with the hull number 110 is not listed among the vehicles of the unit. The military unit no. 3641 did not include regiment no. 245. The military unit comprises four operational battalions and not regiments.
On 8 September 2004 an inquiry concerning [the] officer of the [FSB] S. Balandin was sent to the Head of the Chechen Republican Directorate of the [FSB]. The criminal case-file was added with the reply of the Deputy Head of the Chechen Republican Directorate of the [FSB], according to which an officer S. Balandin is not listed among the personnel of the Directorate.
The preliminary investigation in the case was repeatedly suspended. On 15 February 2005 the [Deputy of the Chechnya Republican Prosecutor] by his decree quashed the decree to suspend the preliminary investigation. Pursuant to Section 37 of the Code of Criminal Procedure of the Russian Federation, the directives were issued to eliminate inconsistencies in the testimony of the witness [K.], to establish women who were cleaning the territory near the commandant's office of the Leninskiy District of the Town of Grozny and who allegedly heard shouts coming from [APCs], to interview Mr. Kh.N. Djabrailov again.
On 18 March 2005 the preliminary investigation in the case was suspended pursuant to Section 208 §1(1) of the Code of Criminal Procedure of the Russian Federation (in view of non-establishment of the person to be prosecuted as the accused [of the abduction]).
On 22 August 2005 the Deputy [Prosecutor] of the Leninskiy District of the Town of Grozny by his decree quashed the decree to suspend the preliminary investigation in the criminal case and the preliminary investigation was reopened. On that very day a fresh inquiry requesting the information on whereabouts of Mr S. Balandin was sent to the Head of the Chechen Republican Directorate of the [FSB]. On 24 August 2005 an inquiry requesting the information on whereabouts of [the] officer of the [Department] of the Interior, [Mr Yu], and [an] operating officer by name “Mikhail” was sent to the Head of the Leninskiy District Department of the Interior of the Town of Grozny. On 26 August 2005 a fresh [commission request] was sent to the [Prosecutor's Office] of the Town of Severouralsk of the Sverdlovsk Region to interview [Mr K.]. On 31 August 2005 the military [Prosecutor's Office] of the military unit no. 20102 [was commissioned] to establish a military unit equipped with an [APC] with the hull number 110. At present, the investigation in the case is in progress.”
65. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic. From 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).
66. The 1960 CCP required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed. That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction. The decision whether or not to institute criminal proceedings had to be taken within three days of the first report on the relevant facts (Articles 3, 108-09). Where an investigating body refused to open or terminated a criminal investigation, a reasoned decision was to be provided. Such decisions could be appealed to a higher-ranking prosecutor or to a court (Articles 113 and 209).
67. Criminal investigation is now carried out under the supervision of a prosecutor whose powers include giving detailed instructions to the investigating authorities as to what measures should be taken to investigate the case (Article 37 §2(11) of the new CCP).
68. Under the old CCP, during criminal proceedings persons who had been granted victim status could submit evidence and file applications, have full access to the case file once the investigation was complete, challenge appointments and appeal decisions or judgments in the case. At an inquest, the close relatives of the deceased were to be granted victim status (Article 53). Similar provisions are contained in the new CCP.
69. Article 161 of the new CCP establishes the rule of the impermissibility of disclosure of data from the preliminary investigation. Under part 3 of that Article, information from the investigation file may be divulged with the permission of a prosecutor or investigator and only so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. Divulging information about the private life of participants in criminal proceedings without their permission is prohibited.
70. Article 195 § 3 of the old CCP provided for a criminal investigation to be adjourned if no suspect in a crime could be identified. Similar provisions are set out in Article 208 § 1(1) of the new CCP.
71. Article 214 part 4 of the Code of Civil Procedure (Гражданский процессуальный Кодекс РСФСР), which was in force until 1 February 2003, provided that courts had to suspend consideration of a case if it could not be considered until another set of civil, criminal or administrative proceedings had been completed.
VIOLATED_ARTICLES: 13
2
3
5
VIOLATED_PARAGRAPHS: 2-1
5-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-86899
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF NADEZHKIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1967 and lives in Khabarovsk, the Khabarovsk Region.
5. In 2000 the applicant sued the General Prosecutor’s Office and the Ministry of Finance for an unfounded criminal prosecution. On 15 December 2000 the Yelizovskiy District Court of the Kamchatka Regional Court awarded the applicant damages. This judgment became binding on 22 March 2001, but was not enforced immediately.
6. The applicant mailed enforcement papers to the bailiff’s service having territorial jurisdiction over the Ministry of Finance’s head office. The service returned the papers and explained that they should be mailed to the Treasury.
7. The applicant mailed the papers to the Treasury, but the Treasury returned them because of several defects: the copy of the judgment was not certified, the writ of enforcement contained no time-limit, and the name of the court indicated in the papers mismatched that indicated in the seals.
8. The applicant removed these defects and on 23 May 2002 resubmitted the papers. On 19 November 2002 the judgment was enforced.
9. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1