ITEMID: 001-61206
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF LORENZA CONTI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1966 and lives in Florence.
5. She is the owner of a flat, which she had let to P.M.
6. In a registered letter of 30 March 1987, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1987 and asked him to vacate the premises by that date.
7. In a writ served on the tenant on 3 February 1988, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.
8. By a decision of 29 February 1988, which was made enforceable on the same day, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 1 March 1989.
9. On 5 April 1989, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.
10. On 15 April 1989, the applicant served notice on the tenant requiring him to vacate the premises.
11. On 8 May 1989 she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 7 June 1989.
12. Between 7 June 1989 and 9 June 1998 the bailiff made eighteen 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.
13. On 30 June 1999 the applicant recovered possession of the flat.
14. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
15. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
16. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
17. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
18. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
19. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages”.
20. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law n. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
21. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
22. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111524
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KURIER ZEITUNGSVERLAG UND DRUCKEREI GMBH v. AUSTRIA (No. 2)
IMPORTANCE: 3
CONCLUSION: No violation of Article 10 - Freedom of expression -{General}
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant company is the owner and publisher of the daily newspaper Kurier.
6. In 1999 E.R. and U.W., the parents of Christian W., dissolved their common household and concluded a provisional agreement on the custody of Christian under which sole custody was granted to E.R., while his brother stayed with U.W. On 13 February 2001 U.W. asked for custody to be withdrawn from E.R. and transferred to him.
7. On 22 February 2001 E.R. and U.W. agreed that pending the outcome of an expert report custody be provisionally transferred to U.W. (vorläufige Obsorge) and that for the time being Christian should live with U.W., his father.
8. It appears that subsequently U.W. hindered contact between Christian and E.R. and, in June 2002, moved to Sweden. Thereupon, by an interlocutory decision (einstweilige Verfügung) of 26 July 2002, custody of Christian was transferred back to E.R.
9. U.W. was ordered to hand Christian over to E.R. immediately or to take him back to Austria before 5 August 2002. That order was confirmed on appeal on 12 September 2002 and became final.
10. Thereupon E.R. travelled to Sweden to have that decision enforced. U.W. proposed to E.R. that they enter into an agreement on custody of Christian, and E.R. also agreed to staying in Sweden. However, no such agreement was finally reached. After E.R. had settled in Sweden and found employment there, U.W., together with Christian, left Sweden for Austria.
11. On 4 November 2002, pending the outcome of the custody proceedings, custody was temporarily transferred to the Salzburg Youth Welfare Office. On 23 December 2003 the court dismissed U.W.’s request for custody to be withdrawn from E.R. and transferred to him. The decision was declared immediately enforceable.
12. Subsequently, various attempts to enforce that decision were undertaken. The Austrian newspapers reported on these events because U.W. kept them regularly informed and sought publicity.
13. The first attempt at enforcement, on 23 December 2003, failed because U.W. and Christian went into hiding. U.W. had informed the media of this step in advance. Some time later they returned. In order to enforce the custody decision the competent court scheduled a hearing for 15 January 2004 in the course of which Christian was to be handed over to E.R. U.W. failed to appear at the hearing.
14. Thereupon the judge ordered that Christian be brought before the court by force (zwangsweise Vorführung).
15. When that decision had to be enforced by court officers Christian barricaded himself in his elementary school and, since the police officers who intervened decided not to use physical force on the premises of the school, this attempt also failed. These events were also widely covered by the media because U.W. had informed them in advance.
16. After further unsuccessful attempts the rural police (Gendarmerie) were informed on 26 January 2004 that Christian was at his father’s house. Court officers sent to the house noted, however, that Christian was not in the house but, together with a babysitter, in a car in front of it. The officers tried to take hold of Christian but he cried and resisted. These scenes were again the subject of widespread media coverage because they were observed and photographed by several journalists, who had been informed and had hurried to the spot.
17. In order to establish whether Christian had suffered injuries during the attempt to enforce the court order, U.W. took him to the Salzburg hospital. On 28 January 2004, by means of a diversion manoeuvre, U.W. and Christian were separated and on the same day Christian was handed over to his mother, E.R., on the premises of the hospital. E.R. and Christian have been living in Sweden since that time. This final phase of the events was widely reported on in the media.
18. On 29 January 2004 an article was published in the applicant company’s newspaper under the title “Mother flees hospital with Christian” (“Mutter flüchtete mit Christian aus Spital”), which read as follows.
“On Wednesday evening the child-care proceedings concerning 8-year-old Christian from Salzburg took a very surprising turn: Whilst father, mother and son where still talking together over the sick bed in the afternoon, the mother suddenly snatched the boy ..., left the hospital via an underground passage, took a car that had been left at her disposal and disappeared. “She is being taken care of on neutral ground and the boy is getting psychological support” said Hadmar Hufnagel from the Salzburg District Court. The father suspects the whole affair of being rigged.
At lunch-time 33-year-old mother E.R. had arrived at the hospital, hidden from the public. “The boy was not afraid of his mother” says children’s advocate Andrea Holz-Dahrenstaedt. Whereas the father claims that Christian clung to him and tried to defend himself against his mother.
PLANNED After talks lasting an hour, the bombshell: E.R. snatched her son when he was left unattended for a moment, and fled the hospital. “The operation was authorised by the family judge” explained Hufnagel. Beforehand the older son, Christoffer, had been taken to a psychologist and afterwards to the partner of the children’s father.
U.W. suspects the operation of being a conspiracy: “It was planned. They were only waiting for a good opportunity.” He claims to have heard his son crying and then there had been a sudden silence. The father had sat for minutes next to Christian’s empty sickbed.
Friends and relatives of the father have announced a demonstration for today in front of the justice buildings in Salzburg.
The whole country is now shocked about this family dispute. It was triggered by an attempt to take Christian away from his father on Monday. Two bailiffs tried to pull the boy into a car. However, he defended himself, screamed, bit and clung to the car. Since this incident Christian has remained in the children’s hospital.
Opinions in this dispute are very divergent. The Salzburg District Court tries to justify the conduct of the officers. “In this case the Court has acted in the interest of the child”, explained the President of the Regional Court, Walter Grafinger. The bailiffs had been ordered to seize the child without bodily harming him. This order was carried out accordingly.
However, the Linz Court of Appeal has a different view on the matter. ‘The conduct of the officers was unacceptable and excessive’, declares press officer Günther Wiensauer. ‘This was practically ill-treatment of a child’, said the Vienna child and juvenile advocate Monika Pinterits.
SPECIAL TRAINING The president of the Judges’ Association, Barbara Helige, suggests special training for bailiffs. She is a family judge and has never in her 20-year career seen such a case. Helige does not consider it helpful for a judge to be present when children are taken away from their parents: “This would even reinforce the impression of State intervention.”
A report from the Ministry of Justice will be handed over to the disciplinary commission. The Minister of Justice, Dieter Böhmdorfer (FP), announced that an expert commission would be established in order to avoid escalations. And in the future he wants a judge to be present when compulsory measures are carried out.
According to the Minister, the Court in Salzburg acted in an appropriate manner; however, the father had breached his obligation of discretion. Disputes in childcare proceedings should not be fought on the backs of the children.”
19. A second article was published in the applicant company’s newspaper under the title “A dispute might now arise about Christian’s brother” (Nun droht Streit um Christians Bruder) on 30 January 2004. It read as follows.
“After the tumultuous events on Friday the dispute over 8-year-old Christian from Salzburg has for the time being calmed down. According to information from the Court, the mother and the boy are at present accommodated and looked after in municipal housing in Salzburg.
However, the future of little Christian, and whether and when he will leave with his mother for Sweden, is still unclear. A tug of war might also take place over the older brother Christoffer: The Youth Welfare Office has custody over him for the time being in view of the current child-care proceedings initiated by the father. An investigation procedure is planned for the summer.
U.W. had applied for custody of all three children. In December 2003 his custody applications for Alexander, 11, and Christian were refused. The decision concerning Christoffer had been postponed. Christoffer is for the time being staying with his father.
U.W. is, however, still at loss about the fact that his ex-wife fled the hospital with Christian. ‘I cannot talk about it’, he stuttered on Thursday, his voice trembling with tears.
Eva Weissenbacher, a friend of the family who was present when the father and mother met at the hospital, said: ‘I saw the mother slap the boy in the face’.
IGNORED The fact that bothered the lady from Salzburg most was that the mother was only focussing on Christian: ‘She has cold-shouldered Christoffer. I don’t know why she is behaving like that and what her goal is.’
Neither the mother nor her lawyer want to answer Kurier’s queries about this incident. Hadmar Hufnagel, Chairman of the Salzburg District Court, considers the ‘Christian case’ closed as far as the courts are concerned: ‘The judicial authorities are no longer involved. It does not concern the judge anymore. It is the parents’ responsibility to take the next steps. The court has issued a decision and fulfilled its obligations.’
In the evening friends of the father started demonstrating in front of the Salzburg Regional Court. ‘Without wanting to get involved in the case in question, we would like to point out that children have a right to be heard and have their wishes and opinions respected’, says Anita Gerhardter.”
20. Finally, the applicant company published a third article in its newspaper under the title “The Christian case: ‘Judicial authorities have to become more sensitive’ (Fall Christian: Die Justiz muss sensibler werden) on 13 February 2004. It read as follows.
“A Salzburg judge has given the order to use ‘force’. ‘Appropriate force’ in order to take a child away from his father and to take him to his mother in Sweden. 8-year old Christian from G. The boy had fought against two bailiffs on 26 January. Alarming pictures show the end of the child-care proceedings.
As reported, the results of the investigations of the Linz Court of Appeal are now available. Court of Appeal President Helmut Hubner says: ‘This case is also a wake-up call for the judicial authorities. We have to become more sensitive.’
FORCE In his interview with KURIER Hubner defends the judge who ordered the officers, who are bound by his instructions, ‘to summon the minor with due tact, but without considering his wishes, and if necessary with due force’. He says: ‘That is the wording of the law’.
This is not quite true. The word ‘force’ is not to be found in the non-contentious act. ‘Means of coercion’ are allowed by the law; however, they have to be directed against the parent not respecting the judgment.
But Hubner also says: ‘This matter should never have been dealt with in such a way’. He wants the officers to be trained how to deal with children and how to talk to them. A disciplinary procedure against the District Court judge is going to be initiated: the bailiffs contacted him four times during that mission, should he have ended it earlier?
Judges are discussing the matter. Judge Barbara Helige: ‘This case brings us to the limits of judicial activities, it is a tightrope walk’.
Means of coercion have to be allowed for at least in cases where severely mistreated children have to be saved from an abusing parent ‘even when they still love their parents and don’t want to be taken away’. However, Christian was definitely not in such a situation.
Linz University professor Astrid Deixler-Hübner (Institute for Civil Law) says that this law will be changed, taking effect from 1 January 2005, and she further states: ‘The well-being of the child is the top priority. The new ruling stipulates that the judge has to discontinue the execution of his orders when the well-being of the child is in danger’.
President Huber thinks, on the other hand, that this is already the case today. ‘Even if this is not clearly written in the text of the law, there is such a thing as common sense!’
He does not only hope that the judicial authorities will act with common sense but the parents as well. They can fight their wars of the roses anywhere, but not on the back of their children.
He considers that Christian’s development is positive: ‘He was examined by a psychologist before leaving with his mother for Sweden. The child has calmed down. He was curious about Sweden and he was not unhappy’.”
21. All articles were accompanied by photos of Christian. The first article was accompanied by a picture of Christian showing him with a distressed expression, clinging to his brother, and a similar picture accompanied the third article.
22. With regard to the articles published by the applicant company on 29 and 30 January and 13 February 2004, and the above events, Christian W., represented by his mother, brought proceedings under Section 7 and 8a of the Media Act against the applicant company, seeking damages and publication of the ensuing judgment. He argued that the reporting on him had interfered with the intimate sphere of his life in a manner which was likely to expose and compromise him in public. Moreover, the articles constituted a breach of section 7a of the Media Act, which prohibited reporting on the victim of crime in a manner which made him or her recognisable in public, which was only allowed if the importance of the offence or the persons implicated meant that there was a preponderant interest of the public in the information. Both applications were filed with the Vienna Regional Court for Criminal Affairs (Landesgericht für Strafsachen Wien).
23. On 19 October 2004 the Regional Court allowed the action and ordered the applicant company to pay damages in the amount of 20,000 euros (EUR), to publish the judgment in its periodical, and to bear the costs of the proceedings. The court found that the publishing of the above articles containing details of the custody dispute over eight-year old Christian W. had caused the intimate sphere of his personal life to be exposed in a manner likely to compromise him in public, in breach of section 7 of the Media Act. Moreover, the article published on 29 January 2004 had made the full name of Christian W. public and had been accompanied by a photograph of him. Thereby the identity of a person who had been the victim of a criminal offence had been disclosed to a large and not directly informed circle of people without any justification. This was in breach of Section 7a of the Media Act. The Regional Court observed further that all the articles had been accompanied by pictures of Christian W. in which he, with a highly perturbed facial expression, was seen clinging to his brother.
24. The Regional Court accepted that there existed a direct link between the events reported on and the public interest because of the harsh criticism voiced of the conduct of the court officials who had attempted to enforce the custody order. However, the person having custody of Christian had not agreed to the publication and the public interest in the events could have been satisfied without giving the child’s full name and publishing pictures of him.
25. On 25 February 2005 the applicant company appealed. Relying on Article 10 of the Convention it argued, inter alia, that the Regional Court had failed to take into account that on the issue of enforcement of custody orders there was an ongoing discussion in which presidents of various courts and the President of the Association of Judges were participating. Moreover, the Federal Minister of Justice had set up a working group of experts to draw up a report on the events of 26 January 2004. The press had been addressed not only by Christian’s father but also by representatives of the Federal Ministry of Justice, the courts and the Linz Court of Appeal, which had even held a press conference. In such circumstances it had been necessary to inform the public of the identity of the persons involved, and against the background of the public discussion the custody dispute and the preliminary events leading to the incident on 26 January 2004 had also been of legitimate interest to the public.
26. On 5 April 2005 the plaintiff commented on the appeal. He argued that the applicant company could not rely in its defence on the fact that organs of the judiciary had also commented in public on the events, because they had neither made public the full name of the victim and details from his intimate life nor published photos of him. Had the applicant company acted in the same way, its reporting would have been fully acceptable.
27. On 22 June 2005 the Vienna Court of Appeal partly allowed the appeal. It found that there was no breach of Section 7a of the Media Act, because under that provision a compensation claim only existed if a media outlet had described acts by which someone had become the victim of a crime and if the description violated the victim’s protected interests. In the present case, however, it was not the description of a criminal act that had breached Christian’s protected interests. It reduced the compensation to EUR 3,000 per article, altogether EUR 9,000.
28. The Court of Appeal dismissed the applicant company’s criticism that the Regional Court had not taken sufficiently into account that representatives of the judiciary themselves had made public statements. The Regional Court had accepted that there was a direct link between the events reported on and the public interest. However, giving details from the plaintiff’s intimate family life, giving his full name, and adding pictures of the plaintiff had transgressed into his intimate sphere as these details had been given merely in order to satisfy the lust for sensation and the curiosity of its readers.
29. Even if there was a link to public life, the media could only report on a person’s intimate sphere to the extent necessary for adequately satisfying the need for information relating to those elements which were of relevance to the public interest. Reporting on events within the intimate sphere of a person must therefore be adequate to the occasion and proportional. In the present case it had not been necessary for the purpose of informing the public on alleged shortcomings within the judiciary, and it had not been necessary to expose in such an intense and striking way the severe strain being suffered by the juvenile plaintiff through the insertion of photographs showing his distress and despair, through mentioning his full name, and through setting out the details of his seizure.
30. Section 7 of the Media Act, which has the title “Interference with a person’s most intimate personal sphere” (Verletzung des höchstpersönlichen Lebensbereiches), reads as follows:
“(1) If a person’s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public, the person concerned may claim compensation from the owner of the media for the injury suffered. The amount of compensation shall not exceed EUR 20,000 ...
(2) No compensation claim under paragraph 1 exists if
1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies;
2. the publication is true and has a direct connection to public life;
3. in the circumstances it could have been assumed that the person concerned had agreed to the publication;
4. it is a direct broadcast on radio or television (live programme) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence;
5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.”
31. Section 7a of the Media Act which has the title “Protection against divulging a person’s identity in special cases” (Schutz vor Bekanntgabe der Identität in besonderen Fällen), reads as follows:
“(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who
1. has been the victim of an offence punishable by the courts, or
2. is suspected of having committed, or has been convicted of, a punishable offence,
and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person’s position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 20,000 euros; additionally, section 6(1), second sentence, shall apply.
(2) Legitimate interests of the victim shall in any event be injured if the publication
1. in the case of subsection (1)1, is such as to give rise to an interference with the victim’s strictly private life or to his or her exposure,
2. in the case of subsection (1)2, relates to a juvenile or merely to a lesser indictable offence (Vergehen) or may disproportionately prejudice the advancement of the person concerned.
(3) No compensation claim under paragraph 1 exists if
1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies;
2. the publication of the information on the person has been decided officially, in particular for the purposes of criminal justice or public security;
3. the person concerned has agreed to the publication or if the publication is based on information given by that person to the media;
4. it is a direct broadcast on radio or television (live programme) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence;
5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.”
32. Section 6(1) second sentence of the Media Act, to which reference has been made above, reads as follows:
“The amount of compensation shall be fixed according to the extent of the publication, its impact and, in particular, the type of media and how broadly it is disseminated; the compensation must not endanger the economic existence of the media owner.”
33. Section 8a of the Media Act which has the title “Separate compensation proceedings” (Selbständiges Entschädigungsverfahren), insofar as relevant, reads as follows:
“In a judgment by which compensation under Section 6, 7, 7b or 7c has been awarded on the basis of a separate compensation request, the court must also order the publication of the judgment if the person concerned so requests so ...”
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-69636
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF MALINOVSKIY v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Non-pecuniary damage - award
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1962 and lives in Staryy Oskol, Belgorod Region.
5. In 1986 the applicant was engaged in emergency operations at the site of the Chernobyl nuclear plant disaster. The applicant’s entitlement to certain State benefits is linked to the category of disability assigned to him as a result of the deterioration in his health arising from that event.
6. In 1999 the applicant applied for free accommodation from the State. His housing conditions were recognised as substandard and he was placed on a waiting list.
7. In 2001 the applicant brought proceedings against the Belgorod Regional Administration, contesting its failure to make accommodation available to him within three months of placing him on a waiting list.
8. On 10 December 2001 the Starooskolskiy Town Court of the Belgorod Region ruled in the applicant’s favour. It referred to the Law On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Nuclear Power Station Explosion, noted that the applicant's accommodation was substandard and ordered the Belgorod Regional Administration to provide the applicant with a flat “in accordance with the applicable standard conditions and with the order of precedence on the waiting list”. This judgment was not appealed against, and enforcement proceedings were instituted on 6 February 2002.
9. On 28 June 2002 the bailiffs’ service informed the applicant about a lack of progress in the enforcement proceedings, due to an insufficient number of flats allocated to the waiting list. It advised the applicant to apply to the Starooskolskiy Town Court for replacement of the inkind award, conferred by the judgment of 10 December 2001, with an equivalent amount of money.
10. On 9 October 2002 the bailiffs’ service informed the applicant that it had sought instructions from the Starooskolskiy Town Court concerning enforcement of the judgment of 10 December 2001. In particular, it asked that a time-limit be imposed, within which the authorities were to provide the applicant with a flat.
11. On 2 December 2002 the Oktyabrskiy District Court of Belgorod examined the applicant’s complaint about the failure of the bailiffs’ service to enforce the judgment of 10 December 2001. It found no fault on the part of the service because the judgment had not included a time-limit for enforcement.
12. On 31 July 2003 the Presidium of the Belgorod Regional Court conducted supervisory review of the judgment of 10 December 2001. It held that the statutory time-limit of three months was applicable and not amenable to further extensions. It removed the condition that the flat was to be provided in accordance with the order of precedence on the waiting list and upheld the remainder of the judgment.
13. The applicant was still waiting for accommodation in March 2004.
14. According to the applicant, on 5 March 2004 a group of five people, including the applicant, began a hunger strike to protest against the poor level of welfare protection provided for the Chernobyl victims. The mayor of Staryy Oskol launched a public call for donations in support of the protestors and collected the amount necessary to provide all of them with housing. The applicant submitted a statement signed by four other protesters in support of his version of events.
15. According to the Government, on 2 July 2004 the mayor of Staryy Oskol decided, pursuant to the judgment of 10 December 2001, to provide the applicant with a flat measuring 86.39 m², valued at 834,960 Russian roubles.
16. On 8 July 2004 the applicant received from the mayor an occupancy voucher in respect of the flat assigned to him. He found the flat satisfactory.
17. No decision appears to have been taken as to the pending enforcement proceedings.
18. The Law On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Nuclear Power Station Explosion (no. 1224-I of 15 May 1991, as amended at the material time) set out that disabled victims of the Chernobyl explosion were to be granted social housing within three months of submitting an appropriate application, provided that their existing accommodation did not comply with the minimum housing standards (section 14 (3)).
19. Section 9 of the Enforcement Proceedings Act (Law no. 119-FZ of 21 July 1997) provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow should the defendant fail to comply with the time-limit. Pursuant to section 13, the enforcement proceedings must be completed within two months of the receipt of the writ of execution by the bailiff.
20. The RSFSR Housing Code (Law of 24 June 1983, effective until 1 March 2005) provided that Russian citizens were entitled to possess flats owned by the State or municipal authorities or other public bodies, under the terms of a tenancy agreement (section 10). Certain “protected” categories of individuals (disabled persons, war veterans, Chernobyl victims, police officers, judges, etc.) had a right to priority treatment in the allocation of flats.
21. Decisions on granting flats were to be implemented by way of issuing the citizens concerned with an occupancy voucher (ордер на жилое помещение) from the local municipal authority (section 47). The voucher served as the legal basis for taking possession of the flat designated therein and for the signing of a tenancy agreement between the landlord, the tenant and the housing maintenance authority (section 51, and also Articles 672 and 674 of the Civil Code).
22. Members of the tenant’s family (including his or her spouse, children, parents, disabled dependants and other persons) had the same rights and obligations under the tenancy agreement as the tenant (section 53). The tenant had the right to accommodate other persons in the flat (section 54). In the event of the tenant’s death, an adult member of the tenant’s family succeeded him or her as a party to the tenancy agreement (section 88).
23. Flats were granted for permanent use (section 10). The tenant could terminate the tenancy agreement at any moment, with the consent of his or her family members (section 89). The landlord could terminate the agreement on the grounds provided for by law and on the basis of a court decision (sections 89-90). If the agreement was terminated because the house was no longer fit for residence, the tenant and family were to receive a substitute flat with full amenities (section 91). Tenants or members of their family could be evicted without provision of substitute accommodation only if they “systematically destroyed or damaged the flat”, “used it for purposes other than residence” or “systematically breached the [generally accepted rules of conduct] making life with others impossible” (section 98).
24. Tenants had the right to exchange their flat for another flat from the State or municipal housing stock, including one in another region (section 67). Exchanges involved reciprocal transfer of rights and obligations under the respective tenancy agreements and became final from the moment of issuing new occupancy vouchers (section 71). “Speculative” or sham exchanges were prohibited (section 73(2)).
25. The Federal Housing Policy Act (Law no. 4218-I of 24 December 1992) provides that the payments for a flat comprise (i) a housing maintenance charge, (ii) a housing repair charge, and, in the case of tenants only, (iii) rent (section 15). Maintenance and repair charges are payable irrespective of whether the flat is in private ownership or owned by the State. Rent is fixed by regional authorities, taking into account the surface area and quality of the housing. It is usually considerably lower than free-market rent. For example, the highest monthly rent for municipal housing in Moscow is 80 kopecks (0.02 euro) per square metre (Resolution of the Moscow Government no. 863-PP of 7 December 2004).
26. In 1991, the Privatisation of Housing Act (Law no. 1541-I of 4 July 1991) was adopted (and will remain effective until 31 December 2006). It grants Russian citizens the right to acquire title to State and municipal-owned flats of which they have taken possession on the basis of a social tenancy agreement (section 2). The acquisition of title does not require any payment or fee (section 7). The right to privatisation can be exercised once in a lifetime (section 11) and requires the consent of all adult family members.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-77782
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF RADOSLAV POPOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5
JUDGES: Peer Lorenzen
TEXT: 5. The applicant was born in 1977 and lives in the village of Nedelevo.
6. Two burglaries were committed in the home of an old lady on 13 and 31 May 1998 as a result of which the burglar, through use of force and coercion, stole a total of 10,000 old Bulgarian levs (BGL – approximately 5.13 euros (EUR)). On the latter occasion, the burglar was also armed.
7. A preliminary investigation in respect of the second burglary was opened against an unknown offender on 2 June 1998.
8. On 24 September 1998 the applicant was charged with the two burglaries and was detained on remand. He was questioned on the same day and confessed to having committed the burglaries.
9. On 10 November 1998 the Plovdiv District Prosecutor's Office filed an indictment against the applicant with the Plovdiv District Court accusing him of having committed the two burglaries through use of force and coercion, having stolen a total of BGL 10,000 (approximately EUR 5.13) and for having been armed on the second occasion (Articles 198 § 1 and 170 § 2 of the Criminal Code).
10. The Plovdiv District Court conducted five hearings between 4 May 1999 and 10 April 2000.
11. In a judgment of 10 April 2000 the Plovdiv District Court found the applicant guilty as charged and imposed a cumulative sentence of four and a half years' imprisonment. The applicant appealed against the judgment on 21 April 2000.
12. The Plovdiv Regional Court conducted three hearings on 17 May, 13 June and 14 September 2000.
13. In a judgment of 21 September 2000 the Plovdiv Regional Court partly quashed the lower court's judgment as it found that the applicant had not used force during the burglary of 13 May 1998. It upheld the remainder of the judgment against the applicant.
14. No appeal was filed against the judgment of the Plovdiv Regional Court and it entered into force.
15. On 24 September 1998 the applicant was detained on remand upon a decision of an investigator which was confirmed by the Prosecutor's Office later on the same day. The grounds for detaining the applicant were that he may abscond, re-offend or obstruct the investigation but no specific facts or evidence in support of the said assessment were cited or relied on in the decision for his detention. On 10 April 2000 the Plovdiv District Court sentenced the applicant to four and a half years' imprisonment.
16. At the trial stage of the proceedings the applicant filed six appeals against his detention, dated 2 and 15 July 1999, 8 and 28 September 1999, 20 December 1999 and 12 January 2000. On each occasion, the applicant argued that he had no criminal record and that there was no risk that he would abscond because he had a permanent address and his wife needed his assistance after the birth of their child.
17. None of the applicant's appeals were examined or ruled on by the courts despite of the hearings conducted by the Plovdiv District Court in the meantime.
18. The relevant provisions of the Code of Criminal Procedure (the “CCP”) and the Bulgarian courts' practice before 1 January 2000 are summarised in the Court's judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)).
19. As of 1 January 2000 the legal regime of detention under the CCP was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation). The effected amendments and the resulting practice of the Bulgarian courts are summarised in the recent Court judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 32-35, 10 August 2006) and Yordanov v. Bulgaria (no. 56856/00, §§ 21-24, 10 August 2006).
20. The State Responsibility for Damage Act of 1988 (the “SRDA”) provides that the State is liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts for unlawful pretrial detention, if the detention order has been set aside for lack of lawful grounds (sections 1-2).
The relevant domestic law and practice under sections 1 and 2 of the SRDA has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 7680, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 56-60, 8 April 2004).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4
5-5


ITEMID: 001-76890
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KABASAKAL AND ATAR v. TURKEY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1 (composition of state security court);Violation of Art. 6-1 (non-communication of prosecutor's observations);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicants were born in 1979 and 1977 respectively and were serving their prison sentences in Ordu prison at the time of their applications to the Court.
9. On 11 November 1998 the applicants were arrested and taken into custody by police officers at the Anti-terror branch of the Sivas Security Directorate on suspicion of membership of an illegal organisation, namely the TDP.
10. On 18 November 1998 they were brought before a judge who ordered their remand in custody.
11. On 31 December 1998 the public prosecutor at the Erzurum State Security Court filed a bill of indictment with the latter charging the applicants under Article 168 § 2 of the Criminal Code with membership of an illegal organisation.
12. The first hearing, held before the Erzurum State Security Court on 12 January 1999, in the applicants’ absence, was taken up with procedural matters, such as the measures to be taken for securing the presence of the accused.
13. On 5 February 1999 the court heard the applicants. The first applicant stated that he accepted in part the accusations against him. In this respect he maintained, inter alia, that he had wanted to join the armed forces of the TDP and that he was apprehended, together with the coaccused, on his way to the rural area. The second applicant also stated, inter alia, that he was apprehended, together with the coaccused, before he had joined the rural cadre of the organisation. He maintained that he was a sympathiser of the organisation and not a member. Both applicants also repudiated the statements they had given to the police, claiming that they had been made under duress.
14. In the next hearing held on 2 March 1999 the applicants stated that they had nothing to say. On 23 March 1999 the court heard a witness and one of the coaccused. The witness stated that he knew only one of the accused and that he had loaned his car to him. The applicants maintained that, in view of the judgment of the European Court on Human Rights concerning State Security Courts, they were boycotting the court and were not going to give any statements.
15. In the next hearing held on 20 April 1999, the first applicant submitted that he was neither a member nor a participant in any activity of the organisation in question and that he had been apprehended prior to attending a meeting with members of the organisation.
16. In the hearings held on 18 May 1999 and 15 June 1999 the second applicant stated that he had nothing to say. The first applicant requested the rectification of some of his words contained in the previous minutes of the hearings.
17. In a hearing held on 13 July 1999 the civilian judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. At this hearing and the next one held on 10 August 1999, the court took some procedural decisions and heard several of the co-accused, including the second applicant who maintained that he had nothing to say.
18. In a hearing held on 8 September 1999 the applicants submitted their written submissions in which they challenged, in particular, the veracity of their statements given in police custody.
19. On 5 October 1999 before the court two persons filed petitions to intervene as third-parties in the proceedings. The applicants reiterated their previous submissions.
20. At a hearing held on 12 October 1999 the court accepted the request for the third-party intervention of two persons. On the same day, the public prosecutor read out his observations on the merits. The public prosecutor, relying on the submissions of the applicants, the co-accused and the materials found during the applicants’ arrest, requested that the applicants be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713. The applicants’ request for an extension of time to submit their observations on the merits was granted by the court.
21. At each hearing, the court examined and dismissed the requests of the applicants to be released.
22. On 26 October 1999 the court heard the submissions of the applicants on the merits. The applicants also submitted four pages of written submissions. On the same day the Erzurum State Security Court convicted the applicants as charged and sentenced them to twelve years and six months’ imprisonment.
23. On 6 December 1999 the applicants appealed to the Court of Cassation against the judgment of the State Security Court. In their petition the applicants submitted arguments based on domestic law and, in particular, challenged the veracity of their statements to the police.
24. Following a hearing held on 5 June 2000, the Court of Cassation dismissed the applicants’ appeal and upheld the judgment of the firstinstance court. This decision was pronounced, in the absence of the applicants’ representative, on 14 June 2000.
25. On an unspecified date, the applicants were released from prison.
26. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey, no. 42739/98, §§ 20-21, 7 November 2002; Öcalan v. Turkey [GC], no. 46221/99, §§ 54, ECHR 2005-...; and Göç v. Turkey [GC], no. 36590/97, § 34, ECHR 2002V.
27. On 2 January 2003 Article 316 of the Code of Criminal Procedure Law was amended to provide that the written opinion of the principal public prosecutor at the Court of Cassation be notified to the parties.
28. By Law no. 5190 of 16 June 2004, published in the Official journal on 30 June 2004, State Security Courts were abolished.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108355
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: RENGIFO ALVAREZ v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Ms Diana Rengifo Alvarez, is a Colombian national who was born in 1979 and, as far as the Court is aware, lives in Luttelgeest. She was represented before the Court by Ms M.L. van Riel, a lawyer practising in Alkmaar. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs.
2.
3. The applicant travelled to the Netherlands via Aruba from Bogotá, Colombia, on 22 and 23 February 2004. She applied for asylum upon her arrival at Amsterdam (Schiphol) Airport. At the first interview (eerste gehoor), held to determine the applicant’s identity and itinerary, it emerged that she was in possession of a boarding pass for an onward flight from Amsterdam to Tel Aviv.
4. A further interview (nader gehoor) was held on 26 February 2004 to enable the applicant to state grounds in support of her claim for asylum. The applicant stated that she had been active in the department of Valle del Cauca as a member of the youth movement of the political party MPU (Movimiento Popular Unido), visiting towns and villages in the countryside in order to spread political propaganda. Disappointed with the lax and accommodating attitude of her political leaders towards the guerrilla movements active in the country including FARC (Fuerzas Armadas Revolucionarias de Colombia, Revolutionary Armed Forces of Colombia), she had transferred her allegiance and support to the independent presidential candidate Mr Alvaro Uribe, who was campaigning on a platform of robust action against the guerrilla movements. Because of her political activity, she had received crudely-worded death threats by telephone and letter from members of FARC.
5. The applicant was subjected to a supplementary interview (aanvullend gehoor) on 7 May 2004 in which she was questioned about her stated political activities. She gave details of these, and of the death threats about which she had spoken earlier. She had sought and been granted police protection: police officers had come to visit her from time to time, and one had given her a mobile telephone number to call. She had nonetheless decided to leave her country when the threats failed to diminish. She had obtained a ticket to Tel Aviv because, unlike the Netherlands, Israel was accessible to her without a visa.
6. The applicant’s representative submitted corrections and additions to the report of the supplementary interview on 10 June 2004, and again on 29 June, for addition to the file.
7. On 22 July 2004 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie, “the Minister”) gave reasoned notice of her intention (voornemen) to deny the applicant asylum.
8. Written comments (zienswijze) were submitted on the applicant’s behalf on 17 September 2004.
9. The Minister gave her decision on 7 October 2004, finding that the applicant had actually enjoyed effective protection from the Colombian authorities but had given it up to travel to the Netherlands.
10. An appeal was lodged on behalf of the applicant with the Regional Court (rechtbank) of The Hague, sitting in ‘s-Hertogenbosch, on 27 December 2004. On various dates in the following months various supporting information was submitted. The Minister lodged a written statement of defence on 12 September 2005. The applicant’s representative afterwards submitted further documents.
11. The Regional Court held a hearing on 2 October 2005. It delivered its decision on 16 March 2006. It held the applicant’s appeal well-founded, as the protection admittedly offered by the Colombian authorities had been limited to brief visits by the police to the applicant’s home and could not, in the light of the applicant’s involvement in politics as a political party activist, be considered sufficiently effective to reduce any risk to her to acceptable proportions.
12. The Minister lodged an appeal on 14 April 2006 to the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State).
13. A written response was lodged on the applicant’s behalf on 1 May 2006.
14. Following a hearing on 31 August 2006, the Administrative Jurisdiction Division gave judgment on 12 October 2006 accepting the Minister’s appeal and, deciding anew, retrospectively rejecting the applicant’s appeal to the Regional Court as ill-founded. It held that the protection offered by the Colombian authorities could not be dismissed as ineffective, as the applicant had fled Colombia after receiving a new death threat but without giving the protection a chance to be effective.
15. The applicant lodged a second asylum application on 15 March 2007. She was interviewed in connection with new facts and circumstances (gehoor nieuwe feiten en omstandigheden) on the same day. She alleged, among other things, that a family of Colombian would-be refugees whom she had met in the Netherlands in February 2004 had been murdered, apparently by FARC, after having been returned to Colombia.
16. On 20 March 2007 the Head of the Immigration and Naturalisation Service (Immigratie- en naturalisatiedienst) gave reasoned notice of the intention to reject this second asylum request also, given that it remained the case that the Colombian authorities had shown themselves willing and able to offer the applicant protection against the FARC.
17. On 21 March 2007 the Deputy Minister of Justice (Staatssecretaris van Justitie, “the Deputy Minister”), who by this time had replaced the Minister for Immigration and Integration as the minister responsible for the implementation of aliens law, gave a decision rejecting the applicant’s second asylum request as unfounded on the ground that, whatever the value of the new facts stated by the applicant, and even if they could be lawfully established, it remained the case that the Colombian authorities had been prepared to offer her protection.
18. Under section 29 of the 2000 Aliens Act (Vreemdelingenwet 2000), an alien is eligible for a residence permit for the purposes of asylum if, inter alia,
- he or she is a refugee within the meaning of the Convention relating to the Status of Refugees of 28 July 1951, or
- he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin.
On 25 September 2009 the Deputy Minister of Justice adopted a new paragraph of the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000) setting out the policy to be followed with regard to asylum seekers from Colombia (Staatscourant (Official Bulletin) 2009, no. 15037, published 5 October 2009). As relevant to the present case, it reads:
“6.6 Protection by the authorities
Within Colombia there exist a number of protection programmes for persons fearing persecution by one of the warring parties. Admission to one of these programmes is, however, not possible for everyone. In addition, in a number of cases effective protection will not be possible.
Asylum seekers who claim to fear persecution by one of the warring parties will have to make out a case that they cannot qualify for protection or that effective protection is not possible in their case.
In principle, asylum seekers who report their problems to the authorities can be expected to await the reaction of the authorities. Persons who report to the authorities and leave Colombia immediately without awaiting any reaction will have to provide a satisfactory explanation why it was not possible for them to await the authorities’ reaction.
If asylum seekers cannot satisfy us that in their case protection cannot be provided, then there is no reason to grant them a residence permit for asylum purposes based on section 29 of the Aliens Act.”
19. Mr Alvaro Uribe, the presidential candidate supported by the applicant, was elected president of Colombia for the first time in May 2002. He won a second term in May 2006. In June 2010 Mr Juan Manuel Santos, who had been minister of defence under President Uribe, was elected president.
20. According to the official country report (ambtsbericht) on Colombia published by the Netherlands Ministry for Foreign Affairs in September 2008, the presidency of Mr Uribe was characterised by the expansion and strengthening of the Colombian armed forces and police. The guerrilla movements had largely been forced back into rural areas, although they were still predominant in certain areas including parts of the department of Valle del Cauca. However, protection programmes existed; one of these, operated by the Ministry of Internal Affairs and Justice, was available for trade union leaders, human rights activists, mayors and former mayors, journalists, witnesses of human rights violations, leaders of social organisations in general, members of the left-wing Union Patriótica party (now defunct) and the Communist Party, elected members of local government bodies and local ombudsmen. This programme, for which 40 million United States dollars had been reserved in 2008, protected 9,500 individuals at that time.
21. In 2010 the Netherlands Ministry for Foreign Affairs published the following advice to Netherlands nationals travelling to Colombia:
“...
Terrorism
In the rural areas confrontations still occur between guerrilla groups, new illegally armed groups, drugs cartels and Colombian armed forces. Attacks occur regularly in the country, sometimes also in urban areas. Colombia is one of the countries with the highest numbers of landmine victims in the world. In rural areas, in particular those to which non-essential travel is to be avoided, you are therefore advised always to follow local advice about the possible presence of landmines.
Serious crime
Serious crime and terrorism go hand in hand in Colombia. The terrorist organisations FARC and ELN [Ejército de Liberación Nacional, National Liberation Army], as well as drugs cartels and so-called new illegally armed groups are involved in drugs manufacturing and trading, abductions, extortion, smuggling and other serious criminal activity.
You are advised to be vigilant in connection with possible attacks in busy areas and in the vicinity of government and military buildings.
...
Unsafe areas
Owing to the presence and activity of illegally armed groups such as FARC and ELN you are advised not to travel at all to the regions of Putumayo, Nariño (not including Pasto), Norte de Santander (not including Cucuta), Caqueta (not including Florencia, provided that one travels there by air), Aurauca and La Macarena National Park and surrounding area.
You are advised to avoid non-essential journeys to Colombia’s rural border areas, rural areas in Caqueta, Guaviare, the south and west of Meta, Huila, Cauca, the south and west of Valle del Cauca, Chocó, Bolivar, Sucre, Cesar, Antioquia and the Sierra Nevada de Santa Marta.
Visits to the tourist spots, such as the coffee-growing area (‘Eje cafetero’), Cartagena, Santa Marta, San Andrés, Provincia and Leticia, involve no security risk as long as normal precautions are taken. This also applies to the more affluent quarters in the major cities Bogotá, Medellín, Cali, Barranquilla, Popayán, Pasto and Villavicencio and the departments of Cundinamarca and Boyaca.”
22. The applicant has submitted a list, taken from Wikipedia, of attacks which she states were carried out by FARC in the department of Valle del Cauca between 15 May and 20 September 2011. Almost all of the 108 attacks listed are directed against military and police targets, money transports and infrastructure (e.g. roads, pylons). The victims are mostly soldiers, sometimes police officers; on two occasions “politicians”; on two occasions oil workers. Unidentified civilians are listed as victims of three attacks.
23. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Colombia (27 May 2010, HCR/EG/COL/10/2) contain the following information (page 4, footnote references omitted):
“Following decades of intense fighting, a negotiated peace process with the FARC took place between 1998 and 2002. The negotiations eventually broke down in February 2002 and the conflict resumed, creating large population displacement. Since 2003, President Alvaro Uribe committed to defeat the guerrillas pursuant to the ‘Democratic Security and Defence Policy’. The current military efforts, such as the killing of FARC’s chief commanders and the dismantling of its military structure, have significantly weakened the FARC.”
It describes eleven categories at risk, namely “Present and Former Members and Supporters of one of the Parties to the Conflict”, “Local and Regional Government Authorities”, “Judges and Other Persons Involved in the Administration of Justice”, “Civil Society and Human Rights Activists”, “Journalists and Other Media Professionals”, “Trade Union Leaders”, “Teachers, University Professors and College Students”, “Indigenous Peoples and Afro-Colombians”, “Women with Certain Profiles”, “Children with Certain Profiles” and “Marginalized Social Groups”. The category “Women with Certain Profiles” includes women victims of forced displacement, women victims of violence (sexual abuse and sexual violence, torture, mutilation, forced prostitution, forced public nudity) at the hands of illegal armed groups, forcibly recruited women (i.e. for purposes such as sexual servitude), indigenous women or women of Afro-Colombian descent, and women who are victims of domestic violence (pages 20-22).


ITEMID: 001-60944
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF TIMAR v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Gaukur Jörundsson
TEXT: 8. The applicant was born in 1937 and lives in Budapest. His previous applications (nos. 23209/94 and 27313/95) to the European Commission of Human Rights (“the Commission”) were joined and declared inadmissible by the Plenary Commission on 13 January 1997.
9. On 18 November 1965 the Budapest Regional Court, in the context of criminal proceedings with certain political connotations, convicted the applicant of espionage and sentenced him to six and a half years’ imprisonment. The Court also ordered the confiscation of his property. On 23 February 1966 the Supreme Court, upon the applicant’s appeal, amended the first-instance judgment in that the criminal offence was characterised as attempted sedition and the prison term was reduced to five years. The remainder of the appeal was dismissed. Subsequently the applicant served his sentence. His property, namely his villa and garden as well as his car and money in a bank, was confiscated.
10. On 25 October 1989 the Attorney General lodged an appeal on legal grounds with the Supreme Court against the judgments of 1965 and 1966, proposing that the applicant’s conviction be quashed as being unlawful and that the applicant be acquitted. On 12 December 1989 the Supreme Court followed this proposal.
11. On 6 February 1990 the applicant instituted proceedings before the Budapest Regional Court claiming restitution of his property. He further claimed compensation as a victim of a miscarriage of justice. On 19 February 1993 the Regional Court awarded him four million Hungarian forints (HUF) as compensation for damage suffered as a consequence of his imprisonment.
12. In the restitution proceedings, between September 1990 and February 1992 the Regional Court held several hearings. Moreover, given that both the confiscated car and real estate had been sold and that, therefore, only compensation was feasible, the court took expert evidence as to the value of this property. The Technical Institute of Judicial Experts prepared an opinion on that question.
13. On 24 February 1992 the Regional Court, following a further hearing, issued an order awarding the applicant HUF 50,000 for the car, plus HUF 6,200,000 in compensation for his losses. The remainder of his claims was dismissed. The applicant lodged an appeal with the Supreme Court sitting as a second instance, claiming higher compensation.
14. On 10 December 1992 the Supreme Court considered the case by way of a written procedure and dismissed the applicant’s appeal.
15. On 12 February 1993 the Attorney General, reacting to the applicant’s request to seek review of the Supreme Court’s decision, informed him that restitution proceedings were governed by the Code of Criminal Procedure, which excluded such a review.
16. On 19 February 1993 the applicant nevertheless lodged a petition for review with the Supreme Court, complaining of the Budapest Regional Court’s decision, as well as of the second-instance decision taken by the Supreme Court.
17. On 22 June 1993 the Supreme Court rejected his petition.
18. On 5 April 1995 the Constitutional Court decided that the application of procedural rules assigning restitution cases to the criminal courts – and excluding a review by the Supreme Court – amounted to arbitrary discrimination. The Constitutional Court amended the said rules to the effect that the files should be forwarded to the civil courts with a view to conducting the proceedings. Concerning the applicant’s particular case, it decided that he should be entitled to institute civil review proceedings before the Supreme Court.
19. The applicant’s renewed petition for review dated 8 April 1995 was received at the Supreme Court on 10 April 1995. He filed further submissions on 10 and 13 May 1995.
20. On 19 October 1995 the Supreme Court rejected the renewed petition. It noted the background to the applicant’s case, including its rejection of the applicant’s previous petition. However, as the Code of Criminal Procedure only envisaged the possibility of one such petition, the Supreme Court had to reject any further petition brought by the same person.
21. On 12 February 1996 the Constitutional Court dismissed the applicant’s further constitutional complaint. It considered that the applicant’s submissions did not raise any questions of constitutionality within the meaning of the relevant provisions of the Constitutional Court Act, but were limited to complaining that the Supreme Court had failed to implement properly the Constitutional Court’s earlier decision. To the extent that the applicant, in his submissions, pursued his petition for review, the Constitutional Court referred the case to the Budapest Regional Court for further action, the latter being the competent court for the civil procedure.
22. On 7 March 1996 the Budapest Regional Court forwarded the files to the Supreme Court for a decision on the applicant’s petition for review.
23. On 12 November 1996 the Supreme Court again rejected the applicant’s petition for review. It explained that, according to the relevant provisions of the Code of Civil Procedure, no review could take place in proceedings of the present kind. Subsequently the applicant brought a further complaint before the Constitutional Court with a view to the annulment of that decision.
24. On 9 June 1998 the Constitutional Court declared unconstitutional the procedural situation governing the examination of criminal restitution claims in civil review proceedings.
25. Following the ensuing change in legislation, on 15 February 2000 the Supreme Court annulled its decision of 12 November 1996 and ordered a review of the merits of the applicant’s restitution claims.
26. On 25 June 2001 the Supreme Court’s review bench considered the case by way of a written procedure and dismissed the applicant’s petition on its merits. It held that the lower courts’ procedure, and in particular the manner of taking evidence – although it had been governed by the rules of criminal procedure concerning restitution – had complied with the Code of Civil Procedure. That decision was served on 6 August 2001.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69266
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF CHMELIR v. THE CZECH REPUBLIC
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings
JUDGES: Jean-Paul Costa
TEXT: 8. Criminal proceedings had been pending since 1997 against the applicant, who had absconded. On 12 February 1998 he was arrested by the police and remanded in custody by the Tábor District Court (Okresní soud).
9. By a judgment of 3 March 1999, the České Budĕjovice Regional Court (Krajský soud) convicted the applicant on several counts, including theft, trespass and illegal possession of weapons, and sentenced him to eight years' imprisonment. It also imposed a fine and disqualified him from driving for five years. The judgment also concerned a number of co-defendants, including V.Š. senior and V.Š. junior.
10. The applicant and the prosecutor lodged appeals before the Prague High Court (Vrchní soud) .
11. On 27 April 1999, R.T., a judge at the High Court, was allowed to withdraw from the criminal case V.Š. and Others on the ground that he was acquainted with V.Š.'s family.
12. Mr Chmelíř's appeal was subsequently severed from those of his co-defendants. According to the Government, the severance was necessary because of the applicant's numerous obstruction tactics. The applicant disputed that allegation in his observations, contending that his case had been severed no later than at the second hearing in November 1999, the first having taken place at the end of the previous summer.
13. Appeals by the applicant's co-defendants were dismissed by the High Court on 22 November 1999.
14. On 1 September 2000 the High Court division, in which Judge R.T. was sitting, dismissed the applicant's appeal as ill-founded.
15. On 4 December 2000 Mr Chmelíř lodged a constitutional appeal against the decisions of the lower courts. He complained in particular of the lack of impartiality of two of the High Court judges, observing that one of them knew the family of one of his co-defendants – and had, on that ground, been ordered to stand down from hearing the appeal lodged by the co-defendants, but not the applicant's severed appeal – and that the other was the defendant in an action he had brought for the protection of personality rights.
16. On 30 January 2001 the Constitutional Court dismissed the applicant's appeal as manifestly ill-founded, as it had found no indication that the applicant's guaranteed rights had been violated.
17. On 9 July 2004 the applicant was released on licence.
18. On 3 December 1999 the applicant applied for the withdrawal of M.V., President of the High Court division to which his appeal had been referred, alleging that they had had an intimate relationship in 1996.
19. On 20 December 1999 the High Court decided at a private sitting not to require M.V. to stand down from the applicant's case. Noting that M.V. had stated on 17 December 1999 that he had not been acquainted with the applicant before the criminal case against the latter was referred to him, the court considered that the applicant was simply using dilatory tactics.
20. On 5 January 2000 Mr Chmelíř appealed against that decision through counsel, contending that the High Court had failed to bring together the requisite documents. In his view, even if the objection of bias was lacking in justification, its subject matter was so serious that Judge M.V. should objectively have been excluded from hearing the case.
21. On 25 January 2000 the applicant's appeal was dismissed by the Supreme Court (Nejvyšší soud) as ill-founded.
22. By a decision of 15 February 2000 given by the President of the High Court division (M.V.) under Article 66 § 1 of the Code of Criminal Procedure, the applicant was fined 50,000 Czech korunas (CZK) (approximately 1,674 euros) for contempt of court, on the grounds that he had made false allegations in his application of 3 December 1999 and that those allegations represented an insolent and unprecedented attack on M.V. and were intended to delay the proceedings. The applicant was warned that another similar attack could in the future be classified as a criminal offence.
23. On 24 August 2000 the applicant's appeal was declared inadmissible by the Supreme Court, which considered that the impugned decision had been rendered at second instance.
24. On 7 February 2000 the applicant submitted a fresh application for the withdrawal of M.V. from the case, on the ground that he had brought an action against the judge for the protection of personality rights. He considered that this action in itself cast doubt on M.V.'s impartiality.
25. At the High Court hearing on 3 March 2000, the applicant learnt that his application for the judge's withdrawal had been rejected at a private sitting of that court on 1 March 2000. The division presided over by M.V. considered that the applicant's request simply represented a provocative obstruction and a fresh attack on the judge's moral integrity. In the decision of 1 March 2000, the court stated that, in reaching its finding, it had referred to the content of the application for the judge's withdrawal, to the statement made by M.V. on 17 December 1999 (during the proceedings concerning the first application for withdrawal) and to the applicant's previous attempts to obstruct the criminal proceedings.
26. Mr Chmelíř appealed against that decision to the Supreme Court and also lodged a constitutional appeal in which he relied on his right to a fair hearing.
27. On 24 August 2000 the Constitutional Court (Ústavní soud) dismissed that appeal, without examining it on the merits, considering that it was premature.
28. On the same day, the Supreme Court declared the applicant's appeal inadmissible, finding that the impugned decision had been rendered at second instance (by an appeal court) and that it was therefore unappealable.
29. On 7 February 2000 the applicant brought an action for the protection of personality rights before the Prague 4 District Court (Obvodní soud) against Judge M.V. in his capacity as president of the division to which his appeal had been referred. He alleged that he had suffered non-pecuniary damage because M.V. had obliged him to attend a hearing on 23 December 1999 even though the judge had been informed of an anonymous threat concerning the presence of explosives on the court premises.
30. On 20 April 2000 the applicant was requested to submit further particulars of his claims, failing which the proceedings would be discontinued. He complied with the request on 8 May 2000.
31. On 12 July 2000 the court discontinued the proceedings on the ground that the submissions lacked precision.
32. The applicant appealed on 18 August 2000.
33. On 23 March 2001 the Prague City Court (Městský soud) set aside the decision of 12 July 2000, finding that cases concerning the protection of personality rights should be heard by the regional courts (or, in Prague, the City Court).
34. On 12 February 2002 the High Court of Prague settled the dispute as to jurisdiction by referring the case to the Prague City Court.
35. On 10 October 2002 the City Court judge requested the applicant to submit more precise claims.
36. On 26 August 2003 the applicant's case was dismissed because he had failed to provide sufficient particulars of his claims.
37. On 8 March 2004 the High Court, to which the applicant had appealed, set aside the judgment of 26 August 2003 and decided that it was necessary to proceed with the examination of that part of the action which concerned redress for non-pecuniary damage (evaluated by the applicant at CZK 500,000).
38. On 17 September 2004 the City Court rejected that part of the application. The applicant intended to appeal.
39. The relevant provisions of the Code of Criminal Procedure as applicable at the material time are as follows:
“No judge, prosecutor, investigator or police representative may act in criminal proceedings if there is any doubt as to their impartiality, whether because they have a connection with the case concerned, with the persons involved therein, or with the lawyers, statutory representatives or agents of such persons, or because they have a connection with another prosecuting authority. No measure taken by a disqualified person may form the basis of any decision arising from the criminal proceedings.”
“A decision requiring a judge to stand down for the reasons provided for in Article 30 shall be taken, even proprio motu, by the authority concerned. With respect to a judge sitting in a particular division, the decision shall be taken by that division. Such decisions shall be appealable and the matter shall be settled by the higher authority.”
“Anyone who ignores a warning and continues to obstruct the course of the proceedings, or who behaves in an insulting manner towards the court, the prosecutor, the investigator or the police representative, or who fails to comply with an order or formal notice issued under the present law, may be ordered by the president of the division or, during preparatory proceedings, by the prosecutor, investigator or police representative, to pay a disciplinary fine of up to 50,000 Czech korunas.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72580
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF GAPONENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - State to pay outstanding judgment debt;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1953 and lives in the city of Chernigiv, Ukraine.
5. In 1999 the applicant instituted proceedings in the Desnyanskyy District Court against the State Company “Atomspetsbud” to recover unpaid salary. On 5 August 1999 the court awarded him 10,353 Ukrainian hryvnas (UAH) in salary arrears.
6. At the end of 2001, the applicant instituted proceedings in the Pecherskyy District Court of Kyiv against the President of Ukraine, the Cabinet of Ministers of Ukraine, the Ministry of Energy and the Ministry of Justice, for compensation of pecuniary and non-pecuniary damage caused by the non-enforcement of the judgment in his favour. On 29 January 2002 the court found against the applicant, stating that the applicant could have lodged appropriate claims for damages against the State Bailiffs’ Service and not against the above defendants, whose responsibility for the non-enforcement of the judgment had not been proved by the claimant. The applicant did not appeal against this decision under the ordinary appellate and cassation procedures.
7. By an order of 27 June 2002, the debtor company was liquidated and all the writs of execution were forwarded to the liquidation commission which had been established.
8. By a letter dated 4 January 2003 from the Ministry of Justice to other creditors, the applicant became aware that the judgment of 5 August 1999 would not be enforced due to the large number of enforcement proceedings against the debtor. In addition, the Ministry had stated that the enforcement of the judgment by an attachment of property required the special authorisation of the Ministry of Emergencies due to the location of the debtor’s property in the Chernobyl area, contaminated by radioactivity.
9. The judgment apparently remains unexecuted.
10. A description of the relevant domestic law can be found in Mykhaylenky and Others v. Ukraine (nos. 35091/02 and following, §§ 2433, ECHR 2004-XII).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60933
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF RINGVOLD v. NORWAY
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-2
TEXT: 10. The applicant was born in 1965 and lives in Oslo.
11. On 24 June 1993 the applicant was charged under Articles 192 and 195 of the Criminal Code (straffeloven) with the sexual abuse of a minor, G., born in December 1979, during the period from 1986 to 1990. Under these provisions he was charged with having, on one or several occasions, threatened to hit G. if she cried out, and/or having held her tight, whereupon he had introduced his penis into or pointed it towards her sex and/or made her masturbate him. At the time, G.’s father was cohabiting with the applicant’s mother. The alleged offences were said to have occurred in the applicant’s home when the child visited her father.
12. Criminal proceedings were instituted before the Eidsivating High Court (lagmannsrett) which heard the case between 16 and 18 February 1994, including G.’s compensation claim of (up to) 110,000 Norwegian kroner (NOK) for non-pecuniary damage, made under section 3-5 of the Damage Compensation Act 1969 (skadeerstatningsloven), and joined to the trial in accordance with Article 3 of the 1981 Code of Criminal Procedure (straffeprosessloven). By a judgment of 18 February 1994, the High Court, noting that the jury had answered the questions concerning criminal guilt in the negative, acquitted the applicant of the charges. Moreover, it decided to reject G.’s compensation claim.
13. G. subsequently appealed to the Supreme Court (Høyesterett) under the rules of the 1915 Code of Civil Procedure (tvistemålsloven) against the refusal to award compensation. The Supreme Court then ordered the taking of oral evidence by the Oslo City Court (byrett). Evidence was taken between 26 and 30 June 1995, 18 and 20 October 1995, 20 November 1995 and 3 January 1996, during which time more than twenty witnesses were heard.
14. In the appeal proceedings before the Supreme Court, G.’s lawyer requested that documents produced in the context of the criminal case be submitted as evidence to the Supreme Court. These included records of the judicial examination of G., medical certificates, letters and witness statements given to the police in connection with the criminal proceedings. The applicant’s lawyer, relying on Article 6 § 2 of the Convention, objected to this request.
15. By a decision of 29 May 1996, the Supreme Court authorised the documents from the criminal case to be joined to the case file in the compensation proceedings. Its decision included the following reasons:
“In their pleadings, the lawyers for the parties have dealt extensively with the issue under Article 6 § 2 of the Convention. The only question for the Supreme Court to determine is whether the submission of the criminal-case documents in the civil case would as such violate this Convention provision. The question as to the significance of this provision for the decision on the compensation claim falls to be considered in connection with the decision on the merits of the appeal.
The use of documents from the criminal case as evidence in this case does not in my view fall foul of the requirement in Article 6 § 2 ... The submission of the documents does not as such imply that the acquittal in the criminal case is open to doubt.
The statement in the Sekanina case, which the lawyer for the defendant has referred to, must be read in its context. The ruling cannot be perceived as a general procedural bar against the production of the case documents from criminal proceedings in a later case.
Furthermore, I should like to add that, although this is not decisive for my view on the issue under Article 6 § 2, both parties were given the usual opportunity to supply evidence in connection with the taking of evidence by the Supreme Court.
In my view, the request for submission of the criminal-case documents in question must therefore be granted.”
16. The Supreme Court examined the case under the rules of civil procedure. After hearing the parties and a large number of witnesses, the Supreme Court, in a judgment of 5 June 1996, ordered the applicant to pay NOK 75,000 to G. in compensation for non-pecuniary damage, under section 3-5(1)(b) of the Damage Compensation Act.
17. The first voting judge, Mrs Justice Gjølstad, stated on behalf of a unanimous court, inter alia:
“In so far as the appeal concerns the merits, two general questions arise, namely the relationship to the acquittal in the criminal case (see Article 6 § 2 of the Convention) and the requirement of proof in such cases.
Under Chapter 29 of the Code of Criminal Procedure, civil compensation claims may ... be made in criminal proceedings by the prosecution or by the injured party. This arrangement is intended to make it easier for the injured party to have a civil compensation claim examined, but it does not preclude the possibility of making such a claim in separate civil proceedings instead.
Contrary to what followed from the old Code of Criminal Procedure, it is not a condition for the examination of civil compensation claims that the accused person should have been convicted in respect of the charge. Thus, it is in principle possible to either reject or uphold a civil compensation claim, irrespective of the decision concerning criminal liability. This has its background in the fact that the injured party, who does not enjoy rights as a party in the criminal case, should not forfeit his or her compensation claim as a result of an acquittal in the criminal case. Although it will hardly be a frequent occurrence that the decision on the civil compensation claim goes in a different direction from that on criminal liability, this may happen for various reasons. Amongst others, the requirement of evidence for the criminal and the civil consequences of an action ... is different.
By Article 6 § 2 of the Convention, a person who is charged with a criminal offence is to be deemed innocent until proved guilty. The presumption of innocence applies even after an acquittal (see in this connection the Sekanina case and the decision reported in Norsk Retstidende 1994, p. 721, dealing with the significance of the presumption of innocence in a case concerning the right of the accused to compensation after an acquittal).
However, in my opinion it must be clear that the said provision cannot constitute an obstacle for a person injured by an act to claim compensation from the alleged perpetrator, even though the latter has been acquitted of a criminal offence, and that the court in such a case can rely on a finding that the defendant has in fact committed the act in relation to which he has been acquitted. Even assuming that the Convention provision applies to the treatment of such claims, it has not been infringed as long as no disagreement or doubt has been expressed with regard to the decision on criminal liability. I cannot see that the arrangement under Norwegian criminal procedural law, whereby it is possible to have civil compensation claims determined after an acquittal, gives rise to any particular problems in relation to Article 6 § 2 [of the Convention]. Moreover, in the case at hand, it is above all the High Court’s decision concerning compensation which has been brought before the Supreme Court under the provisions of the Code of Civil Procedure.”
18. As regards the requirement of evidence, Mrs Justice Gjølstad noted that under the law on compensation the test was normally the balance of probabilities. However, bearing in mind the burden which an allegation of reprehensible conduct might have for the defendant and the serious consequences it might have for his or her reputation, the requirement as to the strength of the evidence had to be stricter than that which applied to the test of the balance of probabilities. Nevertheless, the requirement could not be as strict as that which applied for establishing criminal liability. In a case of the kind under consideration, the test had to be whether on the balance of probabilities it was clearly probable that the alleged abuse had been committed.
19. In dealing with the particular facts of the appeal concerning compensation, the Supreme Court had regard to the video recording of the judicial examination of the alleged victim in the criminal proceedings before the High Court. The Supreme Court did not share the High Court’s view that the evidentiary value of the video recording was diminished by certain misgivings concerning the lack of synchronisation of sound and picture when shown to the High Court. Those shortcomings had been remedied before the Supreme Court. The Supreme Court also had regard to evidence taken by it from this person, which deviated slightly from the judicial examination before the High Court. It further had regard to the statements of an expert witness and the statements of a therapist who had treated the alleged victim. Considering the evidence as a whole, Justice Gjølstad found that the evidence satisfied the standard of proof, establishing that sexual abuse had occurred and that, on the balance of probabilities, it was clear that the applicant was the abuser. Accordingly, there was a basis for awarding the victim compensation under section 3-5(1)(b) of the Damage Compensation Act. However, Justice Gjølstad emphasised that this decision was taken independently of the decision in the criminal case and that it did not undermine the acquittal. Finally, as regards the amount of compensation, she observed, inter alia, that she based her assessment on her finding that several infringements had occurred and that, even though their extent was not possible to ascertain with precision, there had been serious violations involving a certain use of force or threats, as a result of which G. had sustained damage.
20. Under Norwegian criminal law there are four basic conditions that must be met in order to establish criminal liability:
(1) the accused has committed an act or omission (actus reus) which is contrary to a provision of the Criminal Code or to a special statutory criminal provision in force at the time when the act or omission occurred;
(2) there are no exonerating circumstances (for example, self-defence);
(3) the accused has acted with intent (mens rea), unless otherwise expressly stated in the relevant criminal provision; and
(4) the accused was of sound mind at the time of the commission of the offence.
21. As a general rule, the prosecution has to prove these four elements beyond reasonable doubt. Any reasonable doubt must benefit the accused (in dubio pro reo).
22. Under the Norwegian jury system, when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion, and no records are kept which could disclose that a negative answer as to the applicant’s guilt was not unanimous. Only two conclusions are possible in a criminal case – guilt or acquittal (see Articles 365, 366, 372 and 373 of the Code of Criminal Procedure). There is no third alternative, such as that formerly known in some other European countries, where a criminal charge could result in the finding that there was not sufficient evidence to establish guilt.
23. Under the 1981 Code of Criminal Procedure, a civil claim may be pursued in connection with a criminal trial, provided that the claim arises from the same set of facts. The civil claim of a victim may be decided either in connection with a criminal case or in separate proceedings. Article 3 reads:
“Any legal claim that the aggrieved person or any other injured person has against the person charged may, in accordance with the provisions of Chapter 29, be pursued in connection with such cases as are mentioned in Article 1 or Article 2, provided that the said claim arises from the same act that the case is concerned with. On the above conditions the following claims may also be pursued:
...
The claims specified in the first and second paragraphs shall be deemed to be civil claims and shall be dealt with in accordance with the provisions of Chapter 29 ...”
Other provisions concerning civil compensation claims may be found in Chapter 29 of the Code of Criminal Procedure, notably the following:
“In a public prosecution the prosecuting authority may on application pursue such civil legal claims as are specified in Article 3. ...
When civil claims are pursued against a person other than the person charged, the person concerned assumes the position of a party to the case in so far as this issue is concerned. ...”
“Any person who has any such civil claim as is specified in Article 3 may himself pursue it in connection with a public prosecution if a trial hearing is held. ...”
“A separate appeal against a decision on civil claims shall be brought in accordance with the provisions of the Code of Civil Procedure. The same shall apply to a reopening of the case.”
24. Under the Damage Compensation Act 1969, the alleged victim may, regardless of the outcome of the criminal proceedings, claim compensation for pecuniary and non-pecuniary damage.
Section 3-5, as in force at the relevant time, read as follows:
“Anyone who with intent or through gross negligence has
(a) caused personal injury or
(b) committed ... an act of misconduct as mentioned in section 3-3
may ... be obliged to pay the victim such a lump sum as the court deems would constitute reasonable compensation [oppreisning] for the pain and suffering and other non-pecuniary damage caused thereby. ...
A person who with intent or through gross negligence has caused the death of another person may be ordered to pay such compensation to the deceased’s ... parents.”
Section 3-3, referred to in the above provision, expressly applies to misconduct mentioned in, amongst other provisions, Articles 192 and 195 of the Criminal Code.
A claim for compensation for nonpecuniary damage submitted by a victim under section 3-5 of the Act is subject to his or her showing that the alleged perpetrator, with intent or through gross negligence, committed the wrongful act. The test is normally the balance of probabilities and the burden of proof lies with the claimant. This burden may be heavier where liability may have serious consequences for the respondent’s reputation, though it will be less than for criminal liability. The competent court has to determine liability in the light of all the evidence available at the time of the adjudication of the case.
25. The objective constitutive elements of acts which may give rise to both criminal liability and civil liability to pay compensation are not always the same. The subjective constitutive elements in principle differ: normally criminal liability requires intent whereas liability to pay compensation requires gross or simple negligence. There may be exonerating circumstances – such as self-defence, necessity, provocation or ignorance – which exclude criminal liability but which do not exclude liability to pay compensation. A person of unsound mind may be exempted from criminal liability but not necessarily from civil liability to pay compensation (see Norges Offentlige Utredninger (Norwegian Official Reports) 2000:33, “Erstatning til ofrene hvor tiltalte frifinnes for straff” (“Compensation to victims in cases where the accused has been acquitted on the criminal charge”), a study by J.T. Johnsen, Professor of Law, Chapter 1, section 1.3.2).
The purposes of the criminal law and the law on compensation are not identical. While deterrence and restoration are important considerations in both areas of law, the former places emphasis on retribution and the latter on the allocation of financial loss. The two systems also supplement one another in important respects. While criminal-law sanctions are particularly designed to deter actual and potential offenders from committing offences, those of the law of compensation are particularly designed to meet the aggrieved person’s need for economic redress (ibid., Chapter 1, section 1.2.1).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-2