ITEMID: 001-61174
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF DOWSETT v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1+6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1946 and is currently detained in HM Prison Kingston, Portsmouth.
10. On 22 March 1989 at Norwich Crown Court the applicant was convicted of the murder of Christopher Nugent and sentenced to life imprisonment.
11. Mr Nugent had been the applicant’s business partner. He was shot and killed at their business premises on 15 December 1987 by Stephen Gray, who left the scene of the crime in a car driven by Gary Runham.
12. Runham and Gray were arrested in January 1988 and the applicant was arrested in February 1988. He was charged with murder jointly with Runham, Gray and two other men who had allegedly provided money to pay for the killing of Christopher Nugent.
13. The Crown’s case was that the applicant had paid Runham and Gray 20,000 pounds sterling (GBP) to kill Nugent, because Nugent knew too much about the applicant’s involvement in mortgage fraud.
14. The applicant’s defence was that he had hired Runham and Gray to break one of Nugent’s limbs in order to put him out of action for a few weeks while the applicant effected his own transfer to another branch of the firm. He alleged that he had paid Runham and Gray GBP 7,500 for the assault, but that after Gray had killed Nugent, Gray blackmailed the applicant into paying him more money. The applicant claimed that he would have had no motive for killing Nugent, since the latter was himself involved in the fraudulent activities being perpetrated through the business. The applicant submitted, however, that his representatives felt unable to pursue this line of argument satisfactorily because of lack of evidence of Nugent’s dishonesty; the jury were asked to accept the applicant’s word alone on this issue.
15. Runham and Gray pleaded guilty to murder. Gray gave evidence for the prosecution against the applicant concerning the alleged murder conspiracy. The two alleged co-conspirators, who according to the prosecution had, together with the applicant, paid for Nugent to be murdered, were acquitted.
16. Following his conviction, the applicant complained to the Police Complaints Authority (PCA) about Suffolk Constabulary’s refusal to disclose material evidence. After investigation, in a letter of 30 October 1992 to the applicant, the PCA reported that it could not support any allegation of perversion of the course of justice but had found various instances of negligence.
17. According to the applicant, in July 1993 he was informed that there were seventeen boxes of hitherto undisclosed material. The applicant contended that some of this evidence would have supported his defence that he had had no need to murder Nugent to ensure his silence since it showed that the latter was also deeply involved in the fraudulent activities perpetrated through the business. The applicant claimed that some of the material from the seventeen boxes was disclosed to him in the week prior to his appeal hearing, while other material from the boxes remained undisclosed.
18. According to the Government, the evidence which was not disclosed at first instance, but which was disclosed prior to the applicant’s appeal, fell into two categories. The first type of evidence derived from the Holmes computer system used by the police officers conducting the murder inquiry to store and cross-reference all the information obtained in the course of the inquiry. The computer data included documents known as “messages” which recorded information when first received by an officer, and documents known as “actions” which recorded the steps to be taken by an officer in response to a message and the result of any such further inquiry. At the time of the trial, the prosecution took the view that the computer system was being used as a tool for the police investigation and that the data contained in it was not subject to disclosure under the Attorney-General’s Guidelines (see “Relevant domestic law and practice” below), although any witness statements or exhibits obtained in response to a message or action should be, and were, disclosed as “unused material”.
19. The Government submitted that, following the applicant’s conviction, and in the light of developments in the common-law duty of disclosure (see below), the prosecution reviewed their position and decided that the data stored on the computer system did amount to disclosable material. Prior to the applicant’s appeal, therefore, the prosecution disclosed the messages and actions held by the police. Some 4,000 actions had been disclosed, one of which was referred to by the applicant in support of his appeal.
20. In the Government’s submission, the second category of evidence undisclosed at first instance related to the parallel investigation into mortgage fraud by a number of people, including the applicant and Nugent. At an early stage, the prosecution decided to keep the murder and fraud investigations separate and that there was no duty under the Attorney-General’s Guidelines to disclose the material gathered in the fraud inquiry to the defendant charged with murder. Following the applicant’s conviction and the development of the common law, the prosecution reconsidered their decision and, prior to the applicant’s appeal, made full disclosure of the material obtained in the fraud inquiry.
21. Prior to the hearing before the Court of Appeal, the prosecution served on the applicant a schedule indicating what material was still being withheld following the review of the prosecution’s duty of disclosure. In respect of some of the items in the schedule, the reason given for non-disclosure was “legal and professional privilege”; in respect of other items it was “public interest immunity”; and in respect of certain other items, for example document no. 580, no reason was given to explain the decision to include the document in the list of withheld evidence. Counsel for the defence was in contact with the prosecution concerning possible further disclosure. A letter dated 23 March 1994 from the Branch Crown Prosecutor indicated that a number of documents, including document no. 580, were on the list of withheld material.
22. Document no. 580 subsequently came into the applicant’s possession. It is a letter, dated 12 April 1988, from a firm of solicitors acting for Gray addressed to Detective Chief Inspector Baldry of the Suffolk Constabulary, and reads as follows:
“...
Further to our several discussions concerning Mr Gray, you will of course be aware that I did visit him in Leicester Prison on 26 March.
He has requested a transfer either to Brixton Prison or Wormwood Scrubs if this is at all possible and I should be grateful if you would let me know whether there is any possibility of Mr Gray receiving a transfer.
Secondly I now understand that apparently Mr Gray understands that you would be willing to support him receiving a straight term of life imprisonment and an application for early parole.
Obviously I have explained to Mr Gray the position concerning sentencing but perhaps you would set out your position so far as possible concerning these matters.
Thirdly I understand that Mr Gray’s wife is to be produced at fortnightly intervals to Leicester Prison for visits and perhaps again you could clarify the position.
I look forward to hearing from you ...”
23. The hearing of the applicant’s appeal took place on 28 and 29 March 1994. Non-disclosure of evidence at trial, particularly evidence discovered in the parallel mortgage fraud investigation, was one of the applicant’s grounds of appeal to the Court of Appeal, but no mention was made of document no. 580 or of the other documents which continued to be withheld by the prosecution. The applicant also relied on the fact that the trial judge had omitted to direct the jury that a person may lie for reasons unconnected with his guilt in relation to the offence with which he is charged (a “Lucas” direction), and that the fact that, during interviews with the police the applicant had denied all knowledge of any plot to harm Nugent, did not mean that he had been involved in his murder.
24. Dismissing his appeal on 29 March 1994, the Court of Appeal remarked that in the course of his summing-up the judge had not suggested that the applicant’s lies could amount to corroboration of the other evidence, and had reminded the jury of defence counsel’s submissions in relation to the applicant’s lies. Although the summing-up should have included a “Lucas” direction, no miscarriage of justice had occurred. On the question of non-disclosure the court observed:
“... As the trial was conducted, Nugent’s dishonesty was made perfectly plain to the jury. The appellant himself had admitted being dishonest, and had said in the course of his evidence that Nugent was party to all the dishonest resorts to which he had lent himself in making false representations and forging documents. Accordingly it was fully before the jury that Mr Nugent was dishonest. ...
We have been taken through various parts of the evidence ... and we are quite satisfied that ... Mr Nugent’s involvement in the deep dishonesty of this business was fully canvassed before the jury. ... Accordingly, although ... the stricter regime of prosecution disclosure which now prevails might well have required further disclosure than was actually made, we do not consider that this ground is one which has any substance in regard to the outcome of the case. ...”
The Court of Appeal concluded:
“There was overwhelming evidence that the appellant initiated a plot against the victim Nugent. There was likewise strong evidence that he had indicated what he wanted was to get rid of Nugent. The money actually paid, and indeed even the sum mentioned by the appellant was in our view out of proportion to a plot simply to ‘duff up’ the victim. Moreover, on analysis such a plot made no sense. Each member of this Court is of the clear opinion, despite the blemishes in an otherwise impeccable summing-up, that no miscarriage of justice has actually occurred. ...”
25. The applicant believed that an inducement was promised to Gray by the prosecuting authorities in exchange for his testifying against him. In addition to the above letter, which the applicant claimed supported his hypothesis, he referred to the fact that his tariff of imprisonment (that is, the period to be served before review by the Parole Board) under the life sentence had been set at twenty-five years, but was subsequently reduced to twenty-one years. Runham, who had provided the murder weapon and drove the get-away car, received a tariff of sixteen years. Gray, who had shot and killed Nugent, had his tariff set at eleven years and was released in 1999. In April 1999 the Home Office wrote to Runham, refusing to reduce his tariff:
“The Secretary of State holds Stephen Gray to be as culpable as you are, even though he fired the murder weapon and you did not. When the tariff was set for Stephen Gray, the then Secretary of State took into account that he had, like you, pleaded guilty to murder but had in addition been ‘... a very important witness for the prosecution’. ...”
26. The Government denied that any inducement was offered to Gray. Under cover of a letter dated 27 June 2001, they sent to the Court undated statements from three senior officers in the Suffolk Constabulary who had been involved in the murder investigation.
(a) The statement of Chief Superintendent Green reads:
“I have seen a copy of the letter dated 12 April 1988 from Ennions, Solicitors ... to my then colleague, Mr Baldry. I can confirm that this letter is genuine and was recorded as Document D-580 during the course of the investigation into the murder of Mr Nugent.
I have no recollection of this letter after thirteen years and I cannot remember ever discussing it with Mr Baldry. At no time was I ever involved in any debate regarding the issue of Mr Gray receiving a ‘straight term of life imprisonment and an application for early parole’.
I can confirm that I did not offer Mr Gray any form of inducement to give evidence against Mr Dowsett or other defendants. To the best of my recollection, Gray’s motives were that he was simply attempting to ‘clear his plate’
I would like to emphasise that I spent six days with Mr Gray at Winchester Prison during the preparation of his statement and can categorically state that all one hundred and one pages of the document were written with Mr Gray’s consent and without any form of inducement.”
(b) The statement of Detective Chief Inspector Baldry, now retired, reads:
“This murder happened in 1987 and is not now fresh in my memory.
However I do remember clearly that I gave no indications to interviewing officers or to Gray himself that in return for his support we would aid an application for a shorter sentence. Gray was a very dangerous murderer who I considered enjoyed carrying out his ‘murder’ contract with Mr Dowsett. This matter was so grave that no such undertaking could honestly have been given.
I do remember that Gray at one time was on hunger strike in prison and that we helped his wife to visit him in prison. How this help was given I do not remember - it may have been in the role of carrying messages to and from.”
(c) Detective Chief Inspector Abrahams, also now retired, said in his statement:
“Concerning the letter Document D-580 I can categorically state that I did not personally offer Gray any inducement or arrangement relating to his sentence. Nor did I have any discussions with his legal representative with regard to his sentence. Equally, I did not instruct any of my subordinate officers including the interview team questioning Gray so to do.
As far as I am aware Gray throughout his detention and taped questioning was dealt with in accord with the Police and Criminal Evidence Act.
I have been unaware of this letter until now but I am sure Chief Inspector Mike Baldry (now retired) may be of some help to you.
I would point out that Gray was arrested at Mildenhall Police Station on 23 January 1988 after which the murder management team was joined by Mr Christopher Yule of the Crown Prosecution Service, Ipswich, who advised on all legal aspects of the case. He was later joined by Mr (now Sir and a High Court Judge) David Penry-Davey QC and Mr David Lamming of Counsel, who advised on what was to be a complex case not only involving murder, conspiracy to murder but also large scale mortgage fraud.
I am not aware that any representations were made to the trial judge concerning any reduction in Gray’s tariff. If this had been the case then the application would have had to be made through prosecuting counsel.
For your information I include below some relevant dates and points that you may already be aware of in relation to the murder, but I think they are worth emphasising:
15 December 1987: Christopher Nugent found murdered at his business premises that he owned with his partner Dowsett.
23 January 1988: Gray gave himself up at Mildenhall Police Station and admits the offence naming Dowsett, Runham and others as part of a murder conspiracy.
26 January 1988: Gary Runham arrested for the murder. He admits the offence naming Dowsett, Gray and others. Runham did the groundwork in planning Nugent’s murder and propositioned Gray at a later stage to do the actual killing.
1 February 1988: Dowsett and others arrested for the murder.
17 February 1988: I was withdrawn from the everyday management of the inquiry and returned to Force Headquarters. DCI Baldry took over this role.
December 1988: Gray and Runham appear at Crown Court, plead guilty to the murder and are sentenced to life imprisonment.
January 1989: Gray agrees to become a witness for the prosecution and Detective Inspector Green (now Chief Superintendent) obtains a witness statement.
30 January 1989: Trial of Dowsett and others commences. ...
Gray appeared as a prosecution witness. Runham did not. The jury unanimously found Dowsett guilty of murder and he was sentenced to life imprisonment.
Prosecution witness O’Dowd gave evidence to the fact that Dowsett admitted the murder to him and stated that Dowsett had said that ‘if Abrahams gets too close then he’ll get the same’ (or words to that effect).
16 December 1990 Dowsett made a formal complaint against me, other officers and Mr Yule [Crown Prosecution Service] that we perverted the course of justice in relation to his trial. The matter was investigated by an outside Police Force and was found by the DPP [Director of Public Prosecutions] and the PCA to be totally unsubstantiated.
Dowsett latter appealed against his conviction to the Court of Appeal but the Judges were unanimous in their judgment to disallow his application.
The above is to the best of my recollection. I do not know what tariffs were set by the Judge in his sentencing of all three defendants but I assume credit was given for Gray and Runham’s guilty pleas.”
27. At common law, the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial. The duty also extends to statements of any witnesses potentially favourable to the defence.
28. In December 1981 the Attorney-General issued guidelines, which did not have the force of law, concerning exceptions to the common-law duty to disclose to the defence certain evidence of potential assistance to it ((1982) 74 Criminal Appeal Reports 302 – “the Guidelines”). According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive” material which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as follows:
“... (a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier – e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife.”
29. Subsequent to the applicant’s trial in 1989 but before the appeal proceedings in March 1994, the Guidelines were superseded by the common law.
30. In R. v. Ward ([1993] 1 Weekly Law Reports 619), the Court of Appeal dealt with the duty of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity. It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case:
“... [When] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings. Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned.”
The Court of Appeal described the balancing exercise to be performed by the judge as follows:
“... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed.”
31. The Court of Appeal’s judgment in R. v. Davis, Johnson and Rowe ([1993] 97 Criminal Appeal Reports 110) set out the procedures to be followed if the prosecution wished to withhold unused material from disclosure on grounds of public interest immunity including, where appropriate, making an application to the court ex parte.
32. In R. v. Keane ([1994] 1 Weekly Law Reports 747), the Court of Appeal emphasised that, since the ex parte procedure outlined in R. v. Davis, Johnson and Rowe was “contrary to the general principle of open justice in criminal trials”, it should be used only in exceptional cases. It would, however, be an abdication of the prosecution’s duty if, out of an abundance of caution, it were simply “to dump all its unused material in the court’s lap and leave it to the judge to sort through it regardless of its materiality to the issues present or potential”. Thus, the prosecution should put before the court only those documents which it regarded as material but wished to withhold. The test of “materiality” was that an item should be considered as disclosable if
“[it] can be seen on a sensible appraisal by the prosecution:
(i) to be relevant or possibly relevant to an issue in the case;
(ii) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; or
(iii) to hold out a real, as opposed to fanciful, prospect of providing a lead on evidence which goes to (i) or (ii)”.
If the prosecution was in any doubt as to the materiality of any such evidence it should ask the court to rule on the question.
33. In 1996 a new statutory scheme covering disclosure by the prosecution came into force in England and Wales. Under the Criminal Procedures and Investigations Act 1996, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor’s view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused’s defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b


ITEMID: 001-110944
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF DAMAYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to 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 - Inhuman treatment) (Substantive aspect)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1961 and lives in the village of Rigakhoy, in the Shatoy District of the Chechen Republic.
6. The applicant was married to Ms Maydat Tsintsayeva, born in 1975. The couple were the parents of six children: Mr Umar Damayev, born in 1994; Ms Zharadat Damayeva, born in 2000; Ms Dzhaneta Damayeva, born in 2000; Mr Umar-Khadzhi Damayev, born in 2002; Ms Zura Damayeva, born in 2003; and Ms Zara Damayeva, born in 2003.
7. On 8 April 2004 the applicant went to a cemetery located outside the village of Rigakhoy. Umar Damayev was at school. The applicant’s wife and five younger children were at home.
8. At about 1.30 p.m. on 8 April 2004 two military aircraft approached the village of Rigakhoy and started bombing it. The attack lasted for some twenty or thirty minutes. At about 2 or 2.30 p.m. two other military aircraft bombed the outskirts of the village.
9. The applicant heard the sound of explosions while he was at the cemetery. He rushed back to the village. On arrival he saw that his house had been completely destroyed. The applicant then found the dead bodies of his wife and five children. Umar Damayev, who had not been at home at the time of the aerial attack, survived.
10. Later the same day the applicant’s six dead family members were buried.
11. In 1983 Mr M. built a house in the village of Rigakhoy without obtaining any construction permit. He did not register his title to ownership of the house.
12. In 2000 Mr M. left his house and the Damayev family unlawfully moved into it.
13. In the beginning of April 2004 a State agency in charge of the counterterrorism campaign in the Chechen Republic obtained information that a group of thirty insurgents planning to perform terrorist attacks had been hiding in the vicinity of the villages of Rigakhoy and Tersenaul. Both villages were unpopulated at that time.
14. In order to protect the civilian population and in view of the impossibility of carrying out military ground operations in the area, the headquarters in charge of the counter-terrorism campaign decided to carry out targeted aerial bombing of the insurgents’ base.
15. At 2.30 p.m. on 8 April 2004 four SU-25 airplanes fired missiles at the location of the insurgents’ base. The insurgents were killed.
16. Inhabited villages and dwellings, including the house occupied by the Damayevs, were not hit by the missiles.
17. On 8 April 2004 an artillery shell kept in the applicant’s house detonated. The applicant’s wife and five children were killed by the explosion.
18. On 8 April 2004 residents of Rigakhoy reported the bombings and the applicant’s relatives’ deaths to the office of the military commander for the Shatoy District.
19. On 12 April 2004 the applicant complained about his relatives’ deaths to the Shatoy District Department of the Interior.
20. At about 11 a.m. on 13 April 2004 a group of servicemen visited the village. They did not identify themselves; however, one serviceman said that he belonged to a military prosecutor’s office. The servicemen told the applicant that, according to their sources, there had been an attack on rebel fighters in the Rigakhoy area. They also said that there were no grounds for instituting a criminal investigation, as the house had exploded because of a gas cylinder or a landmine. The servicemen examined the ruins of the applicant’s house. The applicant requested that his relatives’ bodies be exhumed. The servicemen replied that they had no forensic expert with them and promised to carry out an exhumation later.
21. On 13 April 2004 a Memorial employee arrived in Rigakhoy and filmed the scene of incident. The residents of Rigakhoy searched the ruins of the applicant’s house and found a fragment of a numbered bomb in a shell hole. They also disinterred the bodies of the applicant’s relatives and the Memorial employee filmed them. That same day the villagers saw another aircraft flying in the Rigakhoy area.
22. On an unspecified date the applicant requested that the prosecutor’s office of the Chechen Republic institute criminal proceedings in relation to his relatives’ deaths and to grant him victim status.
23. On 24 September 2005 the applicant’s brother, Mr Mutalip Damayev, requested that the Vedenskiy District Prosecutor’s Office inform him of the progress of the investigation into the deaths in Rigakhoy. He received no reply.
24. On 23 August 2007 the applicant’s representatives asked the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”) to provide them with information on the progress of the investigation into the deaths of the applicant’s relatives.
25. On 12 April 2004 the UGA prosecutor’s office received a phone call from the Prime Minister of the Chechen Republic, informing them that at 2.30 p.m. on 8 April 2004 Mrs Damayeva and her five children had been killed as a result of an aerial bombardment.
26. On 13 April 2004 the UGA prosecutor’s office’s officials inspected the scene of the incident. According to the inspection report drawn up on the same day, there was a demolished stone building with no roof. One wall of the building was completely demolished, two were partially destroyed and one wall remained intact. Among the debris of the building there were two pillows, a blanket and metal kitchenware. There also were two consumer gas cylinders, one of which had a hole in it. The investigators took samples of the soil and collected metal fragments. There were also utility structures next to the building, some of them unfinished. In one of those there was a horse standing. In another one thirty-five cartridges of 5.45 mm calibre were found hidden in a plastic bottle. In a third structure the investigators found seventeen blank cartridges of 7.62 mm calibre. There was a cattle stable which was not damaged. There was a shell hole located within the distance of some 1.5 – 2 kilometres from the building.
27. On 16 April 2004 the UGA prosecutor’s office instituted an investigation in case no. 34/00/0015-04d under Article 109 § 3 of the Russian Criminal Code (manslaughter).
28. The investigators questioned the applicant and three other people, Ms E., Mr Kh. and Mr A., as witnesses.
29. On 23 April 2004 the scene of incident was again inspected in the presence of Mr Mutalip Damayev. According to the additional inspection report, in front of the demolished building’s façade there was a cone-shaped hole 3.20 metres long, 2.20 metres wide and 0.90 metres deep. The distance from the centre of the hole to the foundation of the façade wall was two metres. Mutalip Damayev explained that the hole had been a shell hole left on 8 April 2004. The investigators found eight metal fragments in the hole and twenty fragments around the building. There was a metal fragment found 6.7 metres from the epicentre of the hole. According to a specialist, it was a fragment of an artillery shell’s stabiliser. Mutalip Damayev explained that his brother had brought that fragment home long before 8 April 2004. The investigators also found three other shell holes within 49, 131 and 158 metres from the epicentre of the first hole, respectively. In each of those holes there were metal fragments.
30. On unspecified dates expert explosive, aviation and forensic examinations were carried out.
31. The examination of the explosion established that the shell hole at the site of the Damayevs’ house had emerged as the result of an explosion of an artillery shrapnel fougasse shell («артиллерийский осколочно-фугасный снаряд»), a type of a shell that is smaller than a generalpurpose bomb («авиационная бомба»). The results of the explosion did not correspond to those of a general-purpose bomb explosion. The fragments of the shell found at the scene of the incident had not been fired from a cannon barrel, which proved that the shell had detonated because of its heating by an external object. Gas cylinders and a burner had been found at the scene of the incident, which corresponded with the hypothesis of the shell having been subjected to an external impact.
32. On 23 April 2004 the UGA prosecutor’s office exhumed the bodies of the applicant’s family members.
33. The forensic examination established that the deaths of Maydat Tsintsayeva, Zharadat Damayeva, Dzhaneta Damayeva, UmarKhadzhi Damayev, Zura Damayeva and Zara Damayeva had been caused by bodily injuries inflicted as a result of the house collapsing, by their respiratory tracts becoming blocked by loose soil or by crushing of their bodies because of the weight of solid objects. There was no data showing that the injuries could have been caused by an explosion. It was impossible to establish the exact time and causes of their deaths, owing to their relatives’ refusal to authorise an autopsy.
34. The clothing of the dead persons was undamaged, which proved that their deaths had not been caused by the detonation of a generalpurpose bomb.
35. The aviation expert report established that the pilots who had carried out the aerial attack and the officials in charge of its planning had not breached any rules or regulations.
36. The investigation established that the decision by the military superiors to bomb the area had been lawful and well-founded. The pilots who had performed the task had not violated any laws. The Damayevs’ house had been destroyed because of an explosion, which had been caused by the victims, of an artillery shell that had been kept inside the house. There had been no causal link between the actions of the pilots and the Damayevs’ deaths.
37. On 16 August 2005 the investigation was closed for lack of evidence of a crime in the actions of the servicemen.
38. Despite specific requests from the Court, the Government refrained from disclosing the documents in the investigation file, except for a record of an inspection of the scene of the incident dated 13 April 2004 and a record of an additional inspection of the scene of the incident dated 23 April 2004. The record of 13 April 2004 included a number of photographs presumably showing the remains of the applicant’s house. However, the poor quality of the faxed photographs did not allow for study of the scene of the incident or for identification of the objects shown in them. Relying on information obtained from the Prosecutor General’s Office, the Government stated that disclosure of the information collected in the course of the preliminary investigation would breach the rights of the parties to the criminal proceedings and thus violate Article 161 of the Code of Criminal Procedure.
39. For a summary of relevant domestic law see Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, §§ 108-26, 24 February 2005.
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-88802
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ROGOZHIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Valeriy Ivanovich Rogozhin, is a Russian national who was born in 1946 and lives in Vilnus, Lithuania. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, 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.
On 18 April 1992 the applicant was dismissed from work at construction department No. 3 of a joint stock company Yamburggazdobycha (ООО “Ямбурггаздобыча”). Contrary to the requirements of the domestic law the applicant's “work record card” – a history of one's working life used for calculating pensions – was kept by the employer and was not returned to the applicant until 27 March 1998.
On 10 May 1992 the applicant brought proceedings against his former employer seeking to be reinstated. However, since none of the parties appeared for the hearing, on 22 December 1992 the Nadym Town Court of the Yamalo-Nenets Autonomous Region left the applicant's claims unexamined. It appears that the applicant did not attempt to appeal against the above decision.
Six years later, on 3 April 1998, the applicant brought proceedings against his former employer seeking to have the entry on his work record card as regards the date of his dismissal changed to 27 March 1998 and to recover salary arrears. On 15 April 1998 the Nadym Town Court returned the applicant's writ, because he had failed to sign it.
On 3 April 1998 the applicant also brought similar proceedings against his former employer before the Noviy Urengoy Town Court.
Eventually, on 22 October 1998 the Noviy Urengoy Town Court refused to examine the applicant's claims as it had no territorial jurisdiction over the matter. The applicant did not appeal against this decision.
On 15 May 1999 the applicant returned his writ, duly signed, to the Nadym Town Court. On 17 May 1999 the Nadym Town Court asked the applicant to clarify the name and the location of the defendant. Since the applicant did not do so within the prescribed time-limit, on 26 July 1999 the Nadym Town Court returned the writ to the applicant.
Eventually, following a new attempt by the applicant, on 16 October 2000 the Nadym Town Court refused to accept the applicant's writ for lack of territorial jurisdiction over the matter.
On 21 December 2000 the applicant submitted his claims concerning the date of his dismissal and the payment of salary arrears to the Noviy Urengoy Town Court.
On 23 July 2001 the Noviy Urengoy Town Court dismissed the applicant's claims. On 22 November 2001 the Yamalo-Nenets Autonomous Regional Court quashed the judgment on appeal and remitted the case for fresh examination.
Following the fresh examination of the case, on 17 January 2002 the Noviy Urengoy Town Court granted the applicant's claims in part, obliged the defendant to change the date of the applicant's dismissal and to pay certain salary arrears.
On 18 March 2002 the Yamalo-Nenets Autonomous Regional Court upheld the judgment with regard to changing the date of the applicant's dismissal, quashed the rest of the judgment and remitted it for fresh examination.
On 1 April 2002 the hearing of the applicant's case in the part quashed on appeal by the decision of 18 March 2002 was fixed for 20 May 2002.
During the hearing on 20 May 2002 the applicant added to his claims, and the defendant brought a counterclaim.
The next hearing was fixed for 31 May 2002.
Following the applicant's request, on 31 May 2002 the case was assigned to another judge.
On 26 September 2002 the date of dismissal on the applicant's work record card was changed in compliance with the judgment of 17 January 2002, as upheld on 18 March 2002, and the enforcement proceedings in this respect were terminated.
On 5 December 2002 the Presidium of the Yamalo-Nenets Autonomous Regional Court quashed the judgment of 17 January 2002 and the appeal decision of 18 March 2002 by way of supervisory review and remitted the matter for fresh examination.
On 22 January 2003 the Noviy Urengoy Town Court set the hearing for 3 February 2003.
As regards the eleven hearings scheduled between 3 February 2003 and 18 August 2004, they were adjourned either on the applicant's requests or in view of the necessity to examine his petitions (i.e. to clarify the decision of 22 January 2003, to obtain additional evidence, to examine some of the applicant's claims in separate proceedings, to suspend the proceedings, to appoint expert examinations, to involve third parties to the proceedings, etc.). However, the Noviy Urengoy Town Court dismissed those requests and petitions, having concluded that they were aimed at delaying the proceedings.
On 18 August 2004 the Noviy Urengoy Town Court dismissed the applicant's claims in full.
On 2 December 2004 the Yamalo-Nenets Autonomous Regional Court upheld the judgment on appeal.
Although the judgment of 17 January 2002 and the appeal decision of 18 March 2002 were quashed by way of supervisory review, the date of the applicant's dismissal as recorded on his work record card in compliance with the above judgments on 26 September 2002 remained unchanged.
Under Article 99 of the Code of Civil Procedure of 1964 in force until 1 February 2003, a case must be prepared for trial seven days after the writ is lodged. If litigants are from the same town or territory, disputes between them relating to labour issues must be examined by a court of first instance within ten days. Otherwise such disputes must be examined within twenty days.
Under Article 284-1 of the Code of Civil Procedure of 1964, an appeal court must examine an appeal ten days after it is filed.
Under Article 154 of the Code of Civil Procedure of the Russian Federation of 2002, effective as from 1 February 2003, disputes relating to labour issues must be examined within one month after the writ is lodged.
Under Article 348-1 of the Code of Civil Procedure of the Russian Federation of 2002 an appeal court must examine an appeal one month after it is filed.


ITEMID: 001-107278
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: ALOYAN AND NADRYAN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: The applicants are Mr Otar Shirinovich Aloyan, who is a Russian national born in 1936, and Ms Zadina Chachikoevna Nadryan, who is an Armenian national born in 1940. The applicants live in Yerevan. They were represented before the Court by Mr R.B. Ahues, a lawyer practising in Bremen. The Russian 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.
On 11 May 1995 the applicants’ son, Mr Armen Aloyan, born in 1974, left his apartment in Moscow, drove away and was not seen again.
On 15 May 1995 officers from Moscow no. 111 police station found the applicant’s son’s car in a car park in Moscow. According to the Government, the officers then unlawfully used the car from that date until 18 May 1995, when Armen Aloyan’s relatives found and identified the car as belonging to him.
On 26 May 1995 the burned remains of a man with a gunshot entry wound to the back of the head were found in Istra District in the Moscow region.
On 29 May 1995 a medical forensic examination was carried out on the remains in the context of criminal proceedings opened on the same date (see below). The experts stated that the death could have been caused by a gunshot wound to the head. Also, a ring made from yellow metal with a white metal setting with two rows of white precious stones was found on the little finger of the right hand of the body. A fragment of a black shoe with a leather sole was found on the left foot, a fragment of cotton fabric of a yellow-brown colour, a fragment from a grey sweater and a crucifix made of white metal were found on the neck and chest of the body.
During a witness interview of 30 June 1995, one of Armen Aloyan’s brothers, Mr M. A., stated that his missing brother had been wearing a gold ring with white diamonds on the little finger of his right hand. Later that day he identified the ring and the fragments of clothes and shoe which had been on the dead body found on 26 May 1995 as belonging to his brother, Armen Aloyan. The body was then handed over to the applicants, who buried it in Armenia.
On 29 May 1995 two sets of criminal proceedings were instituted, in connection respectively with the disappearance of the applicants’ son and the discovery of the dead body in Istra District. The cases were later joined under the number 12528; the investigation was carried out under Article 103 (premeditated murder) of the RSFSR Criminal Code then in force.
It appears that the applicants retained doubts as to the identity of the body found in Istra District on 26 May 1995. In late 2000 they met a certain Mr S., who, according to him, had been held in division no. 9 of psychiatric hospital no. 5 in the town of Chekhov in the Moscow Region (“the Chekhov psychiatric hospital”) and had seen the applicants’ son there in 1996-98. The applicants insisted that Armen Aloyan could have been abducted by officers of police station no. 111 of Moscow, or by officers of the Moscow Region department of the fight against organised crime, who had carried out a special operation in the Golden Palace casino in Moscow on 11 May 1995. In this latter respect, the applicant alleged that on the date of his disappearance their son had telephoned them on his mobile phone and stated that he was in that casino. The applicants also insisted that officers of the Istra town prosecutor’s office, acting with medical experts, showed them their son’s personal belongings for identification – a ring and a crucifix – and then delivered to them another man’s body which had been burned to an extent which made identification impossible. The applicants further claimed that after he was abducted their son had been placed in the Chekhov psychiatric hospital.
According to the Government, the investigating authorities thoroughly checked all aspects of the version put forward by the applicants and did not find any evidence to support it. The applicants on their part had been highly uncooperative and had obstructed the course of the investigation by numerous refusals to take part in investigative actions. In support of their submissions, the Government referred to the documents from the criminal investigation file in case no. 12528. These documents reveal the following.
On 29 May 1995 the body found in the Istra District on 26 May 1995 was examined by medical experts (see above).
On 30 June 1995 Mr M. A. identified the remains as those of his brother, Armen Aloyan (see above).
According to an expert report of 14 December 1995, pieces of fabric collected during the inspection of the scene where the corpse was found, represented a piece of a sweater of a blue-grey colour and a piece of cotton denim fabric.
During their interviews, witnesses who had seen Armen Aloyan on the day of his disappearance stated that he had been wearing a blue-grey sweater and jeans.
In a witness interview of 25 February 2003, Mr M. S., one of Armen Aloyan’s brothers, stated that he had no doubts that the body found on 26 May 1995 in the Istra District was that of Armen Aloyan. He added that he had been in conflict with his parents, the applicants, after Armen Aloyan’s death, because they insisted that the latter was alive. Mr M. S. also stated that he could not explain why his parents believed his deceased brother was alive.
Between 7 April and 30 May 2003 a medical forensic molecular-genetic (DNA) examination of the remains found in Istra District was carried out on the basis of blood samples provided by Mr M. A., one of Armen Aloyan’s brothers. It was thus confirmed that the remains were those of Armen Aloyan.
In a witness interview of 13 September 2002 Mr S., born in 1929, stated that between 18 November 1996 and 19 July 2001 he had undergone treatment in the Chekhov psychiatric hospital. According to him, from the date of his admission to hospital until winter 1998 he had been held in division no. 9 of that hospital, and afterwards he had been transferred to another division. Mr S. further stated that in 2000 his wife, who had come to see him in hospital, had shown him a newspaper article with Armen Aloyan’s photograph stating that his parents were looking for him and that he had been abducted by the police and placed in the Chekhov psychiatric hospital. In Mr S.’s submission, having looked at the photograph, he had recognised Armen Aloyan, as he had seen the latter in division no. 9 during the three years Mr S. said he had spent there.
According to a report of 20 March 2003 on Mr S.’s psychiatric forensic examination, at the relevant time the latter had been suffering from a mental disorder of a kind which made him mentally incompetent and incapable of adequately perceiving and understanding reality. Moreover, Mr S’s mental state at present made it impossible for him to participate in the investigation. The investigation also established that Mr S. had spent four and a half months in division no. 9 of the Chekhov psychiatric hospital rather than three years as had been alleged by him. Moreover, only elderly patients were admitted to that division, therefore under no circumstances could a person of Armen Aloyan’s age be held there.
The materials of the criminal investigation file further reveal that enquiries had been made of the Chekhov psychiatric hospital by various authorities, including the Russian Representative for Human Rights, and that medical personnel were questioned in the course of the investigation; however, no evidence that Armen Aloyan had ever been in that hospital was ever obtained.
It is clear from the submitted materials that a number of other investigative actions were also taken. In particular, a number of expert examinations of various kinds were conducted, with a view to establishing the time and cause of Armen Aloyan’s death, and numerous witnesses were interviewed. Some witnesses indicated by the applicants as those who had certain information concerning their son had been questioned on several occasions, and confrontations between them and the applicants were held. All the witnesses were consistent in their statements and denied having any meaningful information concerning Armen Aloyan, or having given the applicants any information concerning his fate, as the latter alleged.
In particular, as regards the applicants’ version of events, that their son had been abducted by police during a special operation in the Golden Palace casino on 11 May 1995, several witnesses who had been in the casino on that date, including one of Armen Aloyan’s brothers, denied having seen Armen Aloyan there at any time on the date in question. Also, a number of witnesses were interviewed in connection with the applicants’ version that their son had been abducted by officers from police station no. 111 who had then used his car. It was established that the officers in question had found Armen Aloyan’s car abandoned in a car park and used it, in breach of their duties, instead of reporting the finding of an unidentified car to their superiors; however, no evidence of their involvement in Armen Aloyan’s abduction and/or murder had ever been found.
The materials of the investigation file in case no. 12528 also contain numerous reports by the investigators in charge of the case at various times, indicating that throughout the investigation the applicants had repeatedly refused to take part in it, and in particular to participate in witness interviews and confrontations, to submit the remains found on 26 May 1995 and the items found along with the remains for additional expert examinations, to provide blood samples for DNA analysis of the remains, and so on.
A decision of 8 June 2003, by which the criminal proceedings in case no. 12528 were terminated on the latest occasion for failure to establish the identities of those responsible, stated, inter alia, that in their complaints against the investigating authorities the applicants had mainly alleged that those authorities were biased and had not been diligent in carrying out the investigation. According to the decision, the applicants had proposed various versions as regards the involvement of various people in abducting their son and putting him in the Chekhov psychiatric hospital, and had insisted that those people had information concerning their son’s whereabouts. The decision went on to say that, once all those versions had been thoroughly checked, by, inter alia, confrontations between the applicants and the individuals to whom they had referred, and had been rejected, the applicants would accuse the investigating authorities of incompetence and bias and would advance other versions, which, in their turn, would prove to be unfounded. The decision also stated that in the course of the investigation the authorities had investigated versions according to which Armen Aloyan might have been killed as a member of a criminal group in a territorial struggle with other criminal groups.
On 11 October 2001 the first applicant lodged with the Basmanniy District Court, Moscow (“the District Court”) a complaint against the head of the Chekhov psychiatric hospital. The first applicant alleged that he had information that his son, Armen Aloyan, was being unlawfully kept in that hospital. He further complained that the hospital authorities had consistently refused to provide him with information concerning his son’s state of health and location, and requested the court to order that he be provided with the information.
On 17 July 2002 the District Court dismissed the first applicant’s complaint with reference to the absence of any evidence that Armen Aloyan had ever been held in the Chekhov psychiatric hospital. It had rejected as unreliable the testimony given by Mr S., who had been summoned and examined by the court at the first applicant’s request, to the effect that he had seen Armen Aloyan in the Chekhov psychiatric hospital. The court referred to the results of the enquiries made of the hospital by various authorities, and to the list of patients admitted to the hospital in May and June 1995 which did not include Armen Aloyan’s name. It appears that during the proceedings the first applicant requested the District Court to call and examine some other witnesses on his behalf, however failed to indicate their full names and addresses, as was required by domestic law then in force.
On 2 October 2002 the Moscow City Court upheld the above judgment on appeal.


ITEMID: 001-75567
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ANTOLIC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1942 and lives in Naklo.
6. On 12 August 1993 the applicant was dismissed by his employer MC due to economic reasons.
On 17 September 1993 the MC’s Complaints Commission rejected his complaint concerning the dismissal.
7. On 15 October 1993 the applicant instituted proceedings against MC in the Ljubljana Court of Associated Labour (Sodišče združenega dela v Ljubljani) seeking the annulment of the MC’s first and second instance decisions concerning his dismissal.
On 28 June 1994 the Convention entered into force with respect to Slovenia.
According to the information supplied by the Government, five hearings were held between 23 September 1994 and 29 November 1995. The hearing held on 15 March 1995 was adjourned due to the absence of parties and the court subsequently decided to suspend the proceedings. At the request of the applicant, the proceedings continued after 17 July 1995.
At the last hearing, the (renamed) Ljubljana Labour and Social Court (Delovno in socialno sodišče v Ljubljani) decided to deliver a written judgment. The judgment, rejecting the applicant’s claim, was served on the applicant on 22 December 1995.
8. On 28 December 1995 the applicant appealed to the Higher Labour and Social Court (Višje delovno in socialno sodišče).
On 26 June 1996 and 11 March 1997 the applicant urged the court to decide on his appeal.
On 25 September1997 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 14 October 1997.
9. On 14 November 1997 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 24 February 1998 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 16 March 1998.
10. On 13 May 1998 the applicant lodged a constitutional appeal.
On 3 June 1998 the Constitutional Court (Ustavno sodišče) requested the applicant to supplement his appeal, which he did on 16 June and 23 December 1998.
On 11 September 2000 the Constitutional Court dismissed the applicant’s appeal. The decision was served on the applicant on 29 September 2000.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57800
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF VIJAYANATHAN AND PUSPARAJAH v. FRANCE
IMPORTANCE: 2
CONCLUSION: Preliminary objection allowed (victim)
TEXT: 8. The first applicant, Mr Ampalam Vijayanathan, is a Sri Lankan citizen of Tamil ethnic origin. He left Sri Lanka on 27 November 1989 and entered France clandestinely in December, using a false passport. On 27 February 1990 he submitted to the French Office for the Protection of Refugees and Stateless Persons (Office français de protection des réfugiés et apatrides, "OFPRA") a request for recognition of his refugee status. In accordance with a circular of 17 May 1985 concerning asylum seekers, he obtained provisional leave to reside in France "with a view to dealings with the OFPRA", and this was renewed on several occasions.
On 18 July 1990 the director of the OFPRA refused the request, on the grounds that Mr Vijayanathan’s statements were "vague in places" and not "such as to establish the truth of the facts alleged or prove that his personal fears of persecution were well-founded for the purposes of the Geneva Convention" of 28 July 1951 relating to the Status of Refugees ("the 1951 Convention").
9. On 28 August 1990 Mr Vijayanathan appealed against this decision to the Refugee Appeals Board (Commission des recours des réfugiés, "the Appeals Board"), which on 30 November 1990 dismissed the appeal for the following reasons:
"... By virtue of paragraph A, sub-paragraph 2, of Article 1 of the Geneva Convention of 28 July 1951 and the Protocol signed in New York on 31 January 1967, a refugee is considered to be any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country;
... In order to claim the benefit of the above provisions, Mr Vijayanathan, who is of Sri Lankan nationality, maintains that because of his Tamil origin he defended the cause of his people and was arrested on 11 May 1983 for distributing leaflets; that between 1984 and 1988 he was searched for three times and arrested twice, following attacks on Sri Lankan and Indian military camps; that because he had taken part in the election campaign of a candidate of the EROS movement [Eelam Revolutionary Organisation of Students], he was arrested on 12 March 1989 by Indian troops; that following another attack on two members of the EPRLF [Eelam People’s Revolutionary Liberation Front] he was under suspicion and decided to leave Sri Lanka; that he fears for his safety and liberty if he has to return to his country;
... However, the documents in the case-file do not make it possible to regard the facts alleged as having been proved or the fears expressed as being well-founded. The appeal can thus not be upheld."
10. On 10 December 1990 the prefecture of Seine-et-Marne directed the first applicant to leave French territory within one month, and informed him that if he failed to comply he would be liable to expulsion (reconduite à la frontière) or a prison sentence and fine.
11. Mr Vijayanathan immediately applied to the European Commission of Human Rights.
He has been unlawfully resident in France since 10 January 1991. He claimed that if returned to Sri Lanka he would run the risk of treatment which was not compatible with Article 3 (art. 3) of the Convention. In support of this claim he produced a number of certificates, which are in the Court’s file of the case.
12. The second applicant, Mr Nagalingam Pusparajah, who is also a Sri Lankan of Tamil origin, entered France clandestinely in 1989. On 29 December 1989 he submitted a request for recognition of refugee status to the OFPRA. His request was rejected on 15 May 1990 for the following reasons:
"Mr Pusparajah has not adduced even prima facie evidence that his personal case is one of those covered by Article 1, paragraph A, sub-paragraph 2, of the Geneva Convention.
The applicant maintains that he was a leading member of the LTTE movement; that during a search for him carried out by the Indian army his father was killed in his place; and that he was eventually found and arrested on 4 May 1989 when on his way to visit his sick mother. On being released a month later, he decided to leave the country. However, his declarations do not provide proof of the facts alleged."
13. He appealed to the Appeals Board on 26 June 1990. His appeal was dismissed on 25 October 1990, on the grounds that:
"... Pusparajah, who is a Sri Lankan national of Tamil origin, maintains that his family is being persecuted in his country and that he himself, a militant member of the LTTE, saw his home bombed in 1987 and searched in 1988; and that he cannot return without danger to his country, where he was imprisoned for a month in 1989, on account of his militant activities;
... However, neither the documents in the case-file nor the statements made at the public hearing before the Board make it possible to regard the facts alleged as established or the fears expressed as well-founded; and, in particular, the documents produced and submitted such as a medical certificate issued in Paris on 2 October 1990 and the statement by a priest dated 17 May 1990 are not sufficient in this respect ..."
14. In a letter of 8 January 1991 to the director of the OFPRA the second applicant requested that his case be re- examined. He stated that he had arrived in France in May 1990, that his younger brother had lost his life on 17 November 1990 in fighting between the LTTE and the Sri Lankan army, and that his mother had been seriously injured.
15. On 22 January 1991, the Paris Commissioner of Police (préfet de police) directed him to leave French territory before 22 February 1991, failing which an order for his expulsion could be issued.
Mr Pusparajah did not comply.
His case was re-examined, however, in the context of an application for exceptional leave to remain submitted in July 1991. On 10 October the Commissioner of Police dismissed that application on the grounds that Mr Pusparajah’s lawful stay had been of very short duration and that he had not shown that he had had stable employment since entering France or that he had sufficient family ties. He again directed him to leave French territory before 10 November 1991, on pain of the penalties provided for in section 19 of Order no. 45-2658 of 2 November 1945 as amended (see paragraph 23 below).
16. Mr Pusparajah claimed that if returned to Sri Lanka he would be exposed to treatment which was not compatible with Article 3 (art. 3) of the Convention. In support of this claim he produced a number of certificates, which are in the Court’s file of the case.
17. In France, recognition of refugee status as defined by the 1951 Convention and attribution of such status are the exclusive responsibility of the OFPRA and the Appeals Board, which were set up by Law no. 52-893 of 25 July 1952.
18. According to a circular from the Prime Minister, dated 17 May 1985 and relating to asylum seekers, the provisional admission to France of aliens who are seeking asylum requires the issue of two documents in turn: a provisional residence authorisation "with a view to dealings with the OFPRA.", valid for one month, and a receipt bearing the words "Has requested asylum", issued for a period of three months and renewable, and equivalent to a provisional residence and work permit.
If the OFPRA refuses to grant refugee status, it notifies the person concerned of its decision and sends a copy to the relevant prefecture. The decision is regarded as definitive if the alien does not appeal to the Appeals Board within one month from the date when he actually received notification (ministerial circular of 5 August 1987).
19. The Appeals Board is presided over by a judge from the Conseil d’État and consists of a representative of the OFPRA’s board of management and the French delegate of the Office of the United Nations High Commissioner for Refugees ("the UNHCR").
A refusal by the Board can be appealed against to the Conseil d’État. The appeal has no suspensive effect, in that it does not provide grounds for extension of the provisional residence documents (Pizarro Cid judgment of 12 March 1990, unreported). Requests to the OFPRA to re-examine the case and appeals against the rejection of such requests are likewise no grounds for the issue or extension of the receipt marked "Has requested asylum" (circular of 5 August 1987).
20. Where a request for recognition of refugee status has been definitively rejected, the circular of 17 May 1985 requires prefects of departments and the Paris Commissioner of Police, when the person concerned attends at the prefecture, to communicate to him a direction to leave French territory within one month, on pain of court proceedings. After fifteen days he must report to the proper authorities and inform them of the arrangements he has made for organising his departure; the time-limit can be extended if the alien puts forward valid reasons and shows that he has made real preparations for departure, in particular a definite date for departure. On expiry of the last provisional residence authorisation, the relevant authorities must refer to the public prosecutor the offence defined in section 19 of the Order of 2 November 1945 as amended (see paragraph 23 below).
If, however, it appears that there are particular circumstances which would expose the person concerned to serious risks if he returned to his country of origin, the authorities must immediately refer the case for a decision to the Minister of the Interior, by sending him a telegram giving precise details of the person concerned and the facts alleged.
21. In this respect a circular of 5 August 1987 of the Minister of the Interior restates the obligation to refer the matter to the central authorities in cases where there is an objection to repatriation based on the situation in the country of origin and the alien fears that he will be exposed there to serious risks to his safety or liberty. The decision is taken as soon as information has been received from the French delegation of the UNHCR. The person concerned is then granted a provisional residence authorisation, valid for one month and renewable, during which period he must be requested to find a third country which might be prepared to receive him. If there is a risk of flight, the authorities can ask the Minister of the Interior to issue a compulsory residence order (section 28 of the Order of 2 November 1945).
22. A direction to leave French territory is not served on the alien if he submits or manifests the intention of submitting a request for exceptional admission on the grounds of risks to his safety in the event of his return to his country of origin. In such cases the prefect takes the decision. If no such request is made, the alien is informed of the possibility of submitting written observations on his possible expulsion (in accordance with section 8 of the Decree of 28 November 1983 on relations between the authorities and persons dealing with them), and of the possibility of appealing for the case to be reconsidered, appealing to a higher authority or appealing to the court within two months from service of the direction. However, such an appeal does not have suspensive effect and, on expiry of the period granted to him to prepare his departure, the person concerned becomes liable to an administrative measure of expulsion or a fine and imprisonment for unlawful residence (sections 19 and 22 of the Order of 2 November 1945 and circular of 5 June 1990 of the Minister of the Interior).
23. The Order of 2 November 1945 relating to the conditions of entry and residence of aliens in France, as amended by Law no. 86-1025 of 9 September 1986, Law no. 89-548 of 2 August 1989 and Law no. 90-34 of 10 January 1990, provides that:
"An alien who enters or resides in France without complying with the provisions of sections 5 and 6 shall be punished by imprisonment for at least one month but not more than one year and a fine of at least 2,000 but not more than 20,000 francs.
The court may also prohibit the person convicted from entering or residing on French territory for a period not exceeding three years. The prohibition automatically entails the expulsion of the convicted person, where appropriate after his prison sentence has been served."
"The State’s representative in a department, or in Paris the Commissioner of Police, may issue a reasoned decision ordering an alien’s expulsion in the following cases:
1. If the alien cannot prove that he entered French territory lawfully, unless his position has been regularised subsequent to his entry;
2. If the alien has remained on French territory on expiry of a period of three months from his entry into France without holding a lawfully issued first residence permit;
3. If an alien who has been refused issue or renewal of a temporary residence permit has remained on French territory for more than one month from the date of notification of the refusal;
4. If the alien has been convicted by a final judgment of counterfeiting, forgery, residence under an assumed name or non-possession of residence permit. Once the alien has been served with the expulsion order, he shall immediately be permitted to inform a lawyer, his consulate or a person of his choice."
"An order for the deportation of an alien shall be automatically enforceable by the authorities. The same applies to an expulsion order which has not been challenged before the president of the administrative court or his deputy within the period laid down in section 22 bis of the present Order or which has not been set aside at first instance or on appeal under the conditions laid down in that section."
"An alien subject to a deportation order or who is to be expelled, who shows that he is unable to leave French territory by proving that he can neither return to his country of origin nor enter any other country, may by derogation from section 35 bis be compelled by an order of the Minister of the Interior to reside in a specified place where he must report periodically to the police or gendarmerie."
"An alien who is to be expelled and is unable to leave French territory immediately may be detained, if this is absolutely necessary, in premises other than penal institutions by a reasoned written decision of a prefect for the time strictly necessary to arrange his departure.
The public prosecutor shall be informed of this immediately.
The alien shall immediately be informed of his rights through an interpreter if he does not understand French.
On expiry of a period of twenty-four hours from the detention decision, the case shall be referred to the president of the tribunal de grande instance or a judge designated by him, who shall then give a ruling by means of an order, after hearing the person concerned in the presence of his legal representative, if any, or after having duly informed the said legal representative, on one or more of the surveillance and supervision measures necessary to ensure his departure listed below:
Surrender to the police or gendarmerie of all identity documents, in particular his passport, in exchange for a receipt serving as proof of identity;
A compulsory residence order;
In exceptional cases, extension of detention in the premises mentioned in the first sub-paragraph of this section.
The order extending detention shall run from expiry of the period of twenty-four hours laid down in this sub-paragraph.
Application of these measures shall end not later than the expiry of a period of six days from the issue of the order mentioned above."
24. These various provisions have not been applied, or at least have not yet been applied, in the cases of Mr Vijayanathan and Mr Pusparajah.
25. The circular of the Minister of the Interior dated 5 June 1990 requires the police to serve the prefectoral expulsion order on the person concerned.
An order which it has not been possible to enforce is recorded in the list of wanted persons.
Neither the model forms for service of such orders, annexed to the various circulars, nor the circulars themselves require the alien to be notified of the country of destination when he is served with the expulsion order.
26. Section 22 bis of the Order of 2 November 1945 (as amended by Law no. 90-34 of 10 January 1990) provides that:
"An alien who is the subject of a prefectoral expulsion order may within twenty-four hours from service thereof apply to the president of the administrative court for the order to be set aside.
The president or his deputy shall take a decision within a period of forty-eight hours from such application. He may proceed to the seat of the ordinary court nearest to the place of detention of an alien who is being detained pursuant to section 35 bis of this Order.
I. The alien may ask the president of the court or his deputy for the assistance of an interpreter and to be shown the case-file containing the documents on the basis of which the challenged decision has been taken.
The hearing shall be in public. It shall take place without submissions from the Government Commissioner (commissaire du Gouvernement) and in the presence of the alien, unless the latter has been duly summoned and fails to attend. The alien shall be assisted by his legal representative if he has one. He may ask the president or his deputy for counsel to be appointed for him.
II. The provisions of section 35 bis of this Order may be applied as soon as the expulsion order has been issued.
That order may not be enforced until the expiry of a period of twenty-four hours from its service or, if the case has been referred to the president of the administrative court or his deputy, until he has taken his decision.
III. If the expulsion order is set aside, the surveillance measures provided for in section 35 bis shall be discontinued immediately and the alien shall be issued with a provisional residence authorisation until the prefect has taken a fresh decision on the matter."
27. Proceedings in respect of prefectoral expulsion orders are governed by Decree no. 90-93 of 25 January 1990 inserting additional provisions after Article R.241 of the Code of Administrative Courts and Administrative Courts of Appeal, and providing inter alia:
"The following provisions only shall apply to the submission, investigation and adjudication of applications for the setting aside of prefectoral orders for the expulsion of foreign nationals."
"Decisions on applications brought against prefectoral orders for the expulsion of aliens shall be taken by the president of the administrative court or a judge appointed by him, without submissions from the Government Commissioner."
"The administrative court with territorial jurisdiction shall be the court in whose district is the office of the prefect who has issued the expulsion order."
"The application must include the name and address of the applicant and a statement of the facts and the grounds on which setting aside is requested. It shall be presented in a single copy."
"The applications mentioned in Article R.241-1 may be submitted without representation by counsel.
Once his application has been lodged, the alien may request counsel to be appointed for him; the president of the administrative court shall immediately give notice thereof to the president of the bar association for the tribunal de grande instance within whose district the hearing is to be held. The president of the bar association shall make the appointment without delay."
"The application must be registered with the registry of the administrative court within twenty-four hours from service of the prefectoral expulsion order.
However, if at the time of service of the order the alien is being detained by the administrative authorities, his application may be validly lodged, within the same twenty-four hour period, either with the said administrative authorities or with the registry of the court before which he appears for the extension of his administrative detention."
"The period of forty-eight hours within which the president of the administrative court or his deputy must take a decision shall run from the time when the application is registered with the registry of the court."
"If an alien who does not speak French sufficiently well so requests, the president shall appoint an interpreter ... . Such a request may be made as soon as the application to the court is lodged."
"The parties may submit pleadings or written observations up to the moment when the case is called."
"After the report presented by the president of the administrative court or his deputy, the parties may submit oral observations in person or through counsel. They may also produce documents in support of their pleadings. If these documents provide new evidence, the judge shall ask the other party to examine them and submit his observations thereon to him at the hearing."
"The decision shall be pronounced at the hearing."
"The operative provisions of the decision, together with the enforcement formula provided for in Article R.209, shall be served there and then on the parties present at the hearing, who shall immediately acknowledge receipt thereof.
If it has not been served there and then, the decision shall be served without delay and by any means on the parties, who shall acknowledge receipt thereof. Service shall include notification of the possibility of appealing and the time-limit within which an appeal can be brought."
"The prefect who signed the challenged order and the alien may appeal against the decision to the president of the Judicial Division of the Conseil d’État or a judge of the Conseil d’État appointed by him."
"The period for appealing shall be one month. It shall run against any party to the proceedings from the date on which service was made on that party under the conditions laid down in Article R.241-17, second sub- paragraph."
28. It should be noted that an appeal to the Conseil d’État has no suspensive effect, but the appellant may request the president of the Judicial Division to order a stay of execution of the order (Conseil d’État, Engin judgment of 29 June 1990, Recueil Lebon 1990, p. 190). Such a request becomes devoid of purpose, however, if the order has been enforced before the Conseil d’État gives judgment (Conseil d’État, Hablami judgment of 29 June 1990, Recueil Lebon 1990, p. 191).
29. The ministerial circulars of 25 January and 5 June 1990 state that service of a prefectoral expulsion order shall mention the possibility of bringing the appeal provided for in section 22 bis of the Order of 2 November 1945 and the rights which appellants have in the context of such proceedings. Forms of service have been drawn up in several languages, in order to put aliens in a position to exercise their rights effectively.
30. Finally, in its Ouedjedi judgment of 17 December 1990 (Recueil Lebon 1990, p. 362), the Conseil d’État distinguished between the decision to remove an alien from French territory and the decision as to his country of destination:
"... The argument based on the fact that Mr Ouedjedi would be seriously at risk if he had to return to Algeria cannot be validly relied on in support of an appeal against the impugned [expulsion] order which does not specify the country to which the appellant is to be expelled;
...
... In a separate decision, served on Mr Ouedjedi at the same time as that ordering his detention, the Commissioner of Police decided that the country to which he was to be expelled would be Algeria; ... having regard to the arguments in his application, the appellant must be regarded as having also made submissions for the setting aside of that decision, which was separate from the expulsion order; ... the judgment appealed against must be quashed for failure to reply to those submissions, and this aspect of the case must be examined;
... Although Mr Ouedjedi, in asking for that decision to be set aside, maintains without giving any further details that his return to Algeria would place him at serious risk because of his religious beliefs, he has not shown any particular circumstance such as to constitute a legal impediment to his expulsion to his country of origin; ... he is therefore unable to maintain that the decision contained in the record of service of 20 July 1990 was ultra vires and invalid;"
31. A ministerial circular of 25 October 1991, specifically intended to take into account the recent case-law of the Conseil d’État and the European Commission of Human Rights and to ensure compliance with Articles 3 and 8 (art. 3, art. 8) of the Convention, strengthened the system for the protection of aliens who were the subject of measures of removal from French territory. Its aim was to improve both the supply of information to them before such measures were taken and also the relevant administrative procedures.
32. A direction to leave French territory, served on an alien after the right of residence has been refused or after his request for granting of refugee status has been definitively rejected, must now inform him that he may leave voluntarily for the country of his choice; if he does not do so, the expulsion measure will normally be enforced by sending him to the country of which he is a national or which has issued him with a currently valid travel document, or to any other country to which he proves that he may lawfully be admitted. In addition, prefects must notify the alien that he has the possibility of submitting, within a period of fifteen days from service, written observations with reference to the risks he would be exposed to if he were to return to his country of origin.
The circular states that the choice of country of destination is a decision which is distinct from the expulsion, and must in no way affect the lawfulness of the expulsion order. It provides that a note of it must be indicated on the record of the order. Such a decision can be the subject of an appeal, made parallel to the application for the order to be set aside; it will be examined under the same conditions and within the same time-limits, and with the benefit of the safeguards which follow from the suspensive nature of the proceedings.
If the administrative court finds that the order is lawful but annuls the decision as to the country of destination, the prefect must immediately refer the matter to the Minister of the Interior, so that the minister can make a compulsory residence order against the person concerned for a period of one month, generally not renewable, under section 28 of the Order of 2 November 1945 (see paragraph 23 above), in order to give him an opportunity of finding a third country which will admit him.
33. A circular of the Minister of Social Affairs and the Minister of the Interior dated 25 September 1991 lays down the conditions for examination of applications for exceptional leave to remain submitted by unsuccessful asylum seekers, including Sri Lankans of Tamil origin. It instructs prefects to invite the alien to submit to them in writing, in French, the arguments put forward by him alleging that his safety or liberty would be at risk if he returned to his country of origin. These arguments must be precise, detailed and different from those put forward before the OFPRA or the Appeals Board, so as to allow the OFPRA to re-examine the case. Finally, if the alien shows that in the event of return he would risk being subjected to punishment or treatment contrary to Article 3 (art. 3) of the Convention, or if the arguments adduced appear to be serious and to deserve detailed consideration by the central authorities, prefects are to send the Minister of the Interior a highly detailed report on the person in question and the arguments relied on.
The Minister of the Interior then examines the case in conjunction with the Minister of Foreign Affairs (who may in some cases consult the French diplomatic representatives in the country of origin) and, if appropriate, the UNHCR delegate for France. As stated in the circular of 5 August 1987, the reason militating against the return to his country of origin of an asylum seeker whose request has been dismissed may be connected with the general situation in that country - armed conflict, civil war, or state of emergency, bringing about the suspension of air links, etc.
In such circumstances, measures of removal to the country in question may be provisionally suspended.
34. According to information provided by the Government, the OFPRA examines the cases of asylum seekers from Sri Lanka on the basis of a number of criteria:
- geographical origin of the asylum seeker, which makes it possible to determine the seriousness of the alleged fears, according to the movement over time of the scene of fighting;
- political commitment of the person concerned, placing him in opposition to those currently in power;
- membership of certain categories, making the authorities suspicious of the asylum seeker.
35. In addition, the OFPRA works together with the Ministry of the Interior and the Ministry of Foreign Affairs in order to assess whether persons in fear of persecution because of rivalries between Tamil separatist groups run a real risk from the point of view of Article 3 (art. 3) of the Convention. This assessment takes place on the basis of information received not only from Government representatives (the French Embassy in Colombo) but also from outside sources (publications, the media, expert reports, analyses, etc.). The OFPRA is also in contact with non-governmental organisations (Médecins sans frontières) who are present on the ground and in appropriate cases supply invaluable details and testimony on the development of the local situation. To this may be added the experience built up by the French authorities responsible for processing requests for asylum.
36. According to the Government, the OFPRA and the Appeals Board took 4,760 final decisions in 1990 on requests for asylum by Sri Lankan nationals, 2,617 of whom were granted refugee status. The applicants disputed this before the Commission.
The Government also pointed out that an expulsion order could not be made against such an asylum seeker unless the central authorities had first been consulted.
37. In 1990 only 83 of the 2,400 Sri Lankans whose requests for asylum had been unsuccessful had such orders issued against them. Moreover, 46% of persons whose situation had been regularised within the fifteen months to 1 June 1991 in the Paris region were Sri Lankans.
38. The applicants for their part produced a copy of a decision of the Paris Administrative Court of 4 May 1991, dismissing an appeal which had been brought both against an expulsion order and against the prefect’s decision to return the appellant to his country of origin. The court found that:
"... neither the content of the case-file nor the evidence adduced at the hearing is such as to show that the decision to repatriate Mr Neil Nimalaraj to Sri Lanka, his country of origin, would contravene the provisions of Article 3 (art. 3) of the European Convention on Human Rights and Articles 31 and 33 of the Geneva Convention of 28 July 1951; further, the argument based on a violation of Article 3 of the New York Convention on the Prevention of Torture is inadmissible, for want of sufficient information to assess the scope of that argument."