ITEMID: 001-22774
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: JANCOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms Ružena Jančová, is a Slovakian national, who was born in 1947 and lives in Považská Bystrica.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant’s real property situated in Lekárovce was damaged on several occasions. The applicant considers that this was due to the fact that she had sold one of her houses to a Romany family and that the local inhabitants were opposed to that family settling down in the village. In the beginning of 1998 proceedings under the Minor Offences Act were brought against a person on the ground that he had used electric power from the connection to the applicant’s house in Lekárovce.
On 4 June 1998 a masked man wearing gloves attacked the applicant with a club in her apartment in Veľké Kapušany. The applicant was seriously injured. Immediately after the attack she telephoned the police and asked for assistance.
Subsequently the applicant was brought to a hospital. The doctors diagnosed fractures of her jaw, forearm and shinbone as well as numerous contusions. The applicant had to undergo several operations. As a result of the injuries, the applicant had to stop working and she was granted a disability pension.
While she was treated in the hospital in Košice, the applicant twice telephoned the police and requested them to hear her.
The police in Veľké Kapušany heard the applicant for the first time on 28 September 1998, after her release from the hospital.
On 3 November 1998 the police department in Veľké Kapušany adjourned the investigation of the case pursuant to Article 159(4) of the Code of Criminal Procedure. The decision stated that it had not been possible to identify the perpetrator of the assault or to establish any facts permitting criminal proceedings to be brought against a specific person.
On 10 November 1998 the applicant filed a complaint. She submitted that the police had failed to explain the reasons for their decision and that they had refused to record a part of her statement relating to the assault.
On 13 November 1998 the Michalovce District Prosecutor quashed the police decision as being unlawful. The public prosecutor established, in particular, that the case should have been dealt with by the District Office of Investigation in Michalovce. The case was transferred to the latter.
In a letter of 17 December 1998 the Control Department of the Ministry of the Interior admitted that the police had taken too long to hear the applicant for the first time.
On 19 January 1999 the investigator adjourned the case pursuant to Article 159(4) of the Code of Criminal Procedure as the perpetrator of the assault could not be identified.
On 17 February 1999 the applicant challenged this decision. She argued that the investigator had failed to hear her and to establish the relevant facts. The applicant also complained that the investigator had failed to give reasons for his decision.
On 16 March 1999 the Michalovce District Prosecutor’s Office dismissed the complaint on the ground that the applicant lacked standing to file it. The decision stated that the investigator had proceeded in accordance with the law and that he had considered all available information.
On 10 May 1999 the Inspection Service of the police acknowledged that the police in Veľké Kapušany had acted erroneously in that they had failed to transmit the case to the District Office of Investigation in Michalovce immediately after having examined the applicant’s flat.
On 24 September 1999 the Košice Regional Prosecutor’s Office dismissed the applicant’s complaint against the decision to adjourn the case. The letter stated that there existed no evidence permitting identification of the perpetrator of the offence.
The applicant filed complaints with different authorities. She alleged that the offence had not been investigated properly in that, inter alia, the case had not been handed over to the criminal police immediately after the incident as required by the relevant regulations, that the police and the investigator had not had regard to all relevant facts, and that they had disregarded her request that three persons indicated by her should be thoroughly questioned in her presence.
On 1 March 2000 the applicant filed a criminal complaint against three persons whom she suspected of having been involved in the assault.
On 24 September 2000 the District Office of Investigation suspended the proceedings concerning the assault on the applicant pursuant to Article 173(1)(e) of the Code of Criminal Procedure. Prior to that the investigator had heard the applicant. Two of the three persons indicated by the applicant had also been examined. According to their statements, they knew the applicant and had had no conflicts with her. They denied any involvement in the offence and stated that they had no recollection of their whereabouts at the time when it had been committed. The whereabouts of the third person against whom the applicant had filed a criminal complaint could not be established.
On 19 October 2000 the Michalovce District Prosecutor dismissed the applicant’s complaint against the decision to suspend the proceedings.
In the meantime, on 30 August 2000, the applicant filed a criminal complaint against two policemen alleging that they had failed to deal with her case in an appropriate manner as a result of which the perpetrator of the offence could not be identified.
On 27 October 2000 the Inspection Service of the Police Corps informed the applicant that no action would be taken on her complaint as there was no indication that an offence had been committed by members of the police.
On 6 November 2000 the director of the District Office of Investigation in Michalovce dismissed the applicant’s request for exclusion of the investigators of that Office. On 22 December 2000 the Regional Office of Investigation in Košice dismissed the applicant’s complaint against this decision.
On 3 January 2001 the District Office of Investigation in Michalovce resumed the criminal proceedings concerning the assault on the applicant on the ground that the police had established the whereabouts of the third person whom the applicant had indicated as a possible perpetrator of the offence.
On 1 March 2001 the investigator again suspended the proceedings pursuant to Article 173(1)(e) of the Code of Criminal Procedure. The decision stated that the third person indicated by the applicant as a suspect had denied any involvement in the assault, and that that person had no recollection of his whereabouts at the time when the offence had been committed. On 2 April 2001 the Michalovce District Prosecutor’s Office dismissed the applicant’s complaint against this decision.
In the meantime, on 21 February 2001, the Košice Regional Prosecutor’s Office dismissed the applicant’s complaint about the conduct of the investigation. As regards the conduct of the police in Veľké Kapušany, the public prosecutor stated that they had photographed the applicant’s flat and examined it for fingerprints and any other relevant evidence. A record was drawn up which indicates that the police did not use a dog with a view to tracing the scent of the perpetrator as the traces had been destroyed, in the meantime, by the other inhabitants of the house. Furthermore, the police had heard sixty-two persons before they adjourned the case. The public prosecutor admitted, however, that the police in Veľké Kapušany had acted erroneously in that they had failed to transfer the case to an investigator of the District Office of Investigation in Michalovce immediately after the examination of the flat.
The letter by the public prosecutor further stated that the delay in hearing the applicant was due to a mistake by the Košice-Juh police who had been asked to do so while the applicant had been in a hospital.
The public prosecutor informed the applicant that in the proceedings there had been no substantial shortcomings which would affect the lawfulness of the decisions taken.
On 5 March 2001 the applicant challenged the above conclusions before the General Prosecutor’s Office.
In a letter of 28 May 2001 the General Prosecutor’s Office dismissed the applicant’s complaint with reference to the documents included in the case file. The letter stated, in particular, that the police department in Veľké Kapušany had called an ambulance and had sent a patrol to the applicant’s flat immediately after her call on 4 June 1998. The police had examined the place of the assault and also taken all evidence available on the spot. No fingerprints which could be used had been discovered. On the same day the police had heard the applicant’s son and two other persons. On 10 June 1998 the police had heard another person whom the applicant’s son had indicated as a possible perpetrator of the offence. A number of the applicant’s acquaintances, neighbours and colleagues had been heard subsequently, however to no avail.
The letter further stated that the applicant could not be heard immediately after the incident due to the state of her health. Following her transfer to the hospital in Košice the police in Veľké Kapušany had asked the Košice-Juh police department, on 15 June 1998, to hear her in the hospital. On 17 June 1998 the latter had replied that the applicant had had an operation on her jaw and that, according to doctors, she could be examined in six weeks at the earliest. Following her release from the hospital the applicant had been heard by policemen from the Veľké Kapušany police department in her flat on 28 September 1989. The applicant had stated that she had had no conflicts with other persons and that she could not indicate who could be interested in causing injuries to her. There was no indication that the decision to adjourn the case had been arbitrary or erroneous.
The General Prosecutor’s office noted that the case had been proceeded with following the applicant’s criminal complaint against three persons filed on 1 March 2000. In that context the police investigator had heard the applicant and the persons concerned. However, no facts permitting the prosecution of a specific person had been established. The letter concluded that the proceedings would be resumed should such facts be subsequently established.
On 7 June 2001 the applicant sent a letter to the General Prosecutor’s Office in which she alleged that the police and public prosecutors dealing with the case had intentionally kept secret the identity of the perpertrators of the offence. She complained that her flat had not been examined by the criminal police immediately after the assault and that the latter had failed to hear her. The applicant further complained that the police had examined her for the first time four months after the assault had taken place and that she had not been confronted with the three persons against whom she had filed a criminal complaint. Finally, the applicant alleged that the police in Veľké Kapušany had refused to come to her flat and to draw up a record of her statement that an unknown person had asked her on the telephone, on 11 February 1999, whether she wanted to know the identity of the perpetrator.
On 18 June 2001 the General Prosecutor’s Office replied to the applicant that her above letter contained no new relevant information.
The following provisions of the Code of Criminal Procedure are relevant in the present case.
Pursuant to Article 159(4), as in force until 30 October 1999, the police or investigator shall adjourn proceedings when the facts established by them do not suffice for criminal proceedings to be brought. Prior to such a decision all necessary action should be taken with a view to proceeding with the case effectively. Once the reasons for adjourning the case have ceased to exist, it should be proceeded with in accordance with the relevant provisions of the Code of Criminal Procedure.
Article 173(1)(e) provides that a police investigator shall suspend the proceedings when it has not been possible to establish facts permitting the prosecution of a particular person.


ITEMID: 001-57674
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF CRUZ VARAS AND OTHERS v. SWEDEN
IMPORTANCE: 2
CONCLUSION: No violation of Art. 3;No violation of Art. 8;No violation of Art. 25-1
JUDGES: C. Russo;Gaukur Jörundsson;N. Valticos
TEXT: 12. The applicants are Mr Hector Cruz Varas (the first applicant), his wife Mrs Magaly Maritza Bustamento Lazo (the second applicant) and their son Richard Cruz, born in 1985 (the third applicant). All of the applicants are Chilean citizens.
13. The first applicant came to Sweden on 28 January 1987 and applied the following day for political asylum. He was joined there by the second and third applicants on 5 June 1987.
14. On 22 June 1987 the first applicant was interrogated by the Police Authority (polismyndigheten) of Växjö as to his reasons for requesting political asylum. As regards his background in Chile he provided the following information. In 1968 he became a member of the Radical Party’s Youth Federation. He joined the Socialist Party in 1970 and remained a member after the coup d’état in 1973 as a result of which the coalition Government of President Allende was replaced by the regime under the Presidency of General Pinochet. In 1971 he also became a member of the FDR Party (the Revolutionary Workers Front) of which he was the secretary until 1973 and worked to create opposition against the Pinochet régime. In 1976 he was arrested and taken to a military camp where he was detained for two days. He joined the Mormons in 1976. From 1976 to 1982 he remained passive politically. In 1982 he moved to Villa Alemana and became involved in distributing leaflets for the Democratic Front. He participated in many demonstrations and two general strikes (August 1985 and 4 June 1986). He was arrested in 1973 and 1974 for breaking a curfew. He was also arrested in August 1985 by agents of the CNI (Central Nacional de Investigaciones de Chile) for having entered a prohibited area on a bicycle. He was released after four hours. Apart from these incidents he had been left alone by the Chilean police and military. He gave as his reasons for leaving Chile the fact that he could not keep his house in Villa Alemana where he lived with his family and his poor financial situation resulting from lengthy periods of unemployment. He was not able to pay his mortgage and chose to sell the house to avoid an enforced sale.
15. In a memorial to the National Immigration Board (statens invandrarverk - "the Board") dated 27 July 1987 the first applicant, through his legal counsel, commented upon the above interrogation. He stated that in 1976 he had been arrested with four friends and ill-treated. They were not allowed to sleep and were obliged to stand naked. One of his friends was beaten on this occasion.
16. On 21 April 1988 the Board decided to expel the applicants and prohibited them from returning to Sweden before 1 May 1990 without the Board’s permission. It also rejected the applicants’ requests for declarations of refugee status and travel documents. The Board considered that the applicants had not invoked sufficiently strong political reasons to be considered as refugees under Section 3 of the Aliens Act (utlänningslagen, 1980 : 376) or the 1951 Geneva Convention relating to the Status of Refugees.
17. The applicants appealed to the Government. The first applicant did not invoke any new circumstances. He pointed out that he did not receive all of the letters sent to him from Chile and could not therefore submit any documents from Chile in support of the appeal.
18. The appeal was rejected by the Government (Ministry of Labour) on 29 September 1988.
19.The applicants then alleged to the Police Authority of Varberg that there were impediments to the enforcement of the expulsion order and requested that their case be referred to the Board. The first applicant was interrogated by the Police Authority of Varberg on 19 October 1988. He stated that he had new reasons to invoke in support of his application for asylum. He considered that he ran the risk of political persecution, torture and possibly death, if he returned to Chile, because of his continued involvement in Sweden with a political group known as the Frente Patriótico Manuel Rodriguez (FPMR) - a radical organisation that had tried to kill General Pinochet. He had started to work for this group after his arrival in Sweden. He feared that his activities in Sweden which began in February 1988 and included the distribution of leaflets to support political prisoners in Chile would be known to the CNI.
20. The Police Authority of Varberg decided on 21 October 1988 to reject the applicants’ request and to enforce the expulsion decision by sending them by plane to Chile on 28 October 1988 at 16.00 hours from Landvetter Airport in Gothenburg. An appeal against this decision was rejected by the Board on 26 October 1988. On 27 October 1988 the applicants again requested that their case be transferred to the Board. On 28 October 1988 the Police Authority refused this request, and the applicants’ appeal against refusal was rejected by the Board on the same day. In his letter of appeal Mr Cruz Varas, through a new legal counsel, stated that he had contributed signed articles in the FPMR newspaper (El Rodriguista) and had expressed himself critically about the regime in Chile. He also submitted a certificate by Juan Marchant of the Varberg FPMR support group dated 23 October 1988 in which it was said that he and his family were politically active in the group. He further submitted copies of two newspaper articles dated 21 and 24 October 1988 concerning a demonstration in Varberg against the expulsion of the applicants. In these articles it was stated that Mr Cruz Varas had hidden friends sought by the police in his house in Chile and that he was active for FPMR in Sweden.
21. The expulsion decision could not be enforced as planned since the applicants did not appear in time for the scheduled departure.
22. In a letter dated 30 December 1988 to the Police Authority of Varberg the applicants again alleged that there were impediments to the enforcement of the expulsion order. On 13 January 1989 Mr Cruz Varas was interrogated by the Police Authority of Varberg in the presence of a new counsel. The official record of the interrogation contains the following passage (translation from Swedish):
"Cruz wishes especially to add to his statements the following information with regard to the punishments he has been subjected to in connection with his being held prisoner in Chile. Asked about the times and places of these imprisonments Cruz states that he was imprisoned the first time in Santiago in 1973. He was arrested with all the others who were at the Codelco office (a large mining company) on an occasion soon after the coup. They were taken to a military centre and badly treated. Cruz has not talked about this earlier because he was of the opinion that the police in Sweden co-operate with the Chilean police. He no longer holds this view.
Since the above-mentioned event lies far back in time Cruz was encouraged to begin his account by relating the most recent occasion on which he was subjected to persecution. He then stated that in January 1987 he was stopped when he was walking along a street called Calle Troncal. It was then that two men stepped out of a car and pulled him into a car which then drove to some sort of security building. During the journey he was hit in the ribs. He was taken down a long stairway and into some kind of investigation room. He was photographed after he had removed his clothes. He was hit, mainly on the head. He was hung up by his feet and photographed in this position. He was asked the whereabouts of Luis Herrera but was unable to answer. Luis Herrera was chairman of the free humanist thinkers. Cruz did not wish to relate more about the treatment on this occasion. He did however add that they told him that they were going to shoot him later the same day. He was blindfolded and after that he felt that someone was pressing the barrel of a weapon against his body but no shot was fired. Asked why they did this Cruz said that they gave as a reason that he was a communist, which he has never been. After Cruz had been scared by the incident with the weapon he was released and after that was treated kindly by a man who was also present. The man told Cruz that things would be much better if he co-operated with the police. When asked if they were in a police station Cruz said that they were in a security building. They also mentioned to Cruz the names of the members of his family. At 4 a.m. he was driven away and was released after being held in custody for about 14 hours. Cruz has not mentioned this incident earlier. Asked why he had not done so in spite of a number of police interrogations, numerous contacts with counsel and in spite of the fact that many documents with information about him had been submitted to the authorities, he replied that he had been betrayed many times earlier and he could not therefore trust anyone.
In August 1986, he was somewhat uncertain about the exact date, Cruz was walking along a street in Valparaiso after having attended a neighbourhood committee meeting. Cruz was on his way to catch a bus to Viña del Mar. Four men came in a car, threatened him with a knife against his throat and apprehended him. They were civilians in a civilian vehicle. They travelled in the direction of Viña del Mar. A black blindfold was placed over his eyes and then they took him out of the car and kicked him. Cruz protected himself as well as he could by putting his hands over his head and crotch. They insulted him too. They told him he should give up struggling against the Government. They said they knew of Cruz and that he ought to stop; otherwise this could be the last day of his life. Even his family was threatened. These events took place in a building Cruz was taken to but he knows nothing about it because he was blindfolded. On this occasion he was subjected to torture through electric shocks against his testicles. He was even subjected to shocks by electrodes in the anus and testicles. After having been subjected to the above Cruz was driven a bit along the road between Valparaiso and Viña del Mar before he was set free on this road. He was also near to being knocked down by a bus in connection with his being released from the car. The whole sequence of events took place within a period of 15 hours. About a month later Cruz found his dog, three years old, dead under such circumstances that he suspected that it was the CNI or ACHA [Accíon Chilena Anticomunista] that lay behind it. The dog had been impaled on a metal fence that surrounded the house where Cruz lived. The conclusion Cruz drew was that he was subjected to this as a result of his activity in youth groups and friendship committees. Cruz had worked for a democratic development of Chile. Every time Cruz was arrested the ‘police’ knew what he had been working for. The interrogation so far has been translated to Cruz who subsequently wished to point out that the committees were neighbourhood committees and not friendship committees and he also wanted to say that the reason why he did not trust anyone was just because the police knew so much about him when they held him in custody.
Without the presence of the interpreter or counsel, in accordance with Cruz’s wishes, he stated that on the occasion when he was arrested by persons he thought were from the CNI in 1986 he was also subjected to something else that he tried to suppress and which he finds very painful to talk about. After he had been tortured among other ways by electrodes in his anus and testicles, he was placed on a bed lying face down and his hands and feet were tied to bedposts. In this position one or more men attacked him sexually. Cruz was at that point dazed from the previous treatment and cannot therefore say with certainty if there was more than one person. (This section without the presence of the interpreter or counsel. Cruz can make himself understood in Swedish.)
In addition Cruz has not been able to express the problems he has had as a probable result of the treatment he was subjected to. He has difficulties eating with cutlery made of metal. These problems manifest themselves with pains in his teeth on every occasion that his teeth come in contact with a metal object. This problem has become less intense but has been very intense earlier. It has thus been a question of two different types of complaints. Firstly Cruz has experienced general pain in his teeth and secondly he has had problems with metal objects. Cruz first experienced the problem with his teeth after electric shock torture in 1973. He was subjected to this form of torture on a total of 4 or 5 occasions. After the torture in 1973 Cruz also had many headaches. He has also noticed that since then he has had lapses of memory.
Otherwise Cruz has nothing more that he personally wishes to relate other than the above. When asked if he had anything to add on his political involvement he stated that he had already accounted for it but that he could now present new documents which support the previous statements. Three certificates were handed over. One from Nicolas Reyes Armijo, President of the Cultural Centre for Freedom in Belloto, one from Ricardo Poblete Muñoz, co-ordinator in the organisation of neighbourhood committees, as well as a certificate from the Commission on the Rights of Young People.
The above was translated to Cruz who thereafter had no wish to refer to further details in the case. He has no objection to the above description ... ."
23. The first certificate referred to in the record was dated 1 November 1988 and consisted of a statement by the President of the Centro Cultural "Libertad" (Cultural Centre for Freedom) in El Belloto. It stated that Mr Cruz Varas took part in the activities of that institution until he left Chile and that his psychological and physical integrity would be threatened if he were to stay in his home country. It further indicated that he was obliged to leave the country for political reasons. A second certificate of 23 November 1988 by an official of the Comisión de Derechos Poblacionales (Peoples’ Rights Commission) in Valparaiso stated that he was persecuted by the dictatorship from November 1983 to August 1986. He was active in the socialist youth group where he was the representative and leader of the revolutionary society for Libres Pensadores Humanistas "Artesanos de las Letras" (Writers and Humanist Free Thinkers) in Villa Alemana. The certificate also stated that he had been arrested in Santiago in 1973 and twice in La Serena in November 1974 and September 1977; that he was threatened with death in Viña del Mar in 1983; that in 1986 and January 1987 he was arrested by civilians and severely beaten. A third certificate dated 20 November 1988 by the Comisión de Derechos Juveniles (Commission on the Rights of Young People) in Quilpue contained similar statements.
24. On 13 January 1989 the Police Authority referred the question of the enforcement of the expulsion order to the Immigration Board. On the same day the Police Authority decided that Mr Cruz Varas should report to the police twice a week because of the danger that he would evade enforcement of the expulsion. By letter of 2 March 1989 he submitted a medical opinion dated 20 February 1989 to the Board issued by Mr Håkan Ericsson, an assistant researcher at the Institute of Forensic Medicine at the Karolinska Hospital. Mr Ericsson stated that Mr Cruz Varas had declared that he had been ill-treated in prisons in Chile and that he had shown a deformation of his upper left collar-bone, a scar on his left upper arm and a scar on the left of his chest.
25. The Board referred the case to the Government on 8 March 1989, expressing the opinion that there was no impediment to the enforcement of the expulsion order. The Board found that Mr Cruz Varas had the opportunity on several occasions to present his case to the Police Authority and to it. However, on these occasions he had given contradictory information and had now radically changed his story. It concluded that even if it took into account the difficulties that a victim might have to describe what he had been subjected to there was no reason to believe his allegations.
26. On 11 August 1989 Mr Cruz Varas submitted a medical report to the Government which had been prepared by a doctor of forensic medicine, Dr Sten W. Jacobsson. The report dated 9 May 1989 stated, inter alia, as follows (translation from Swedish):
"The patient Cruz Varas Hector born on 9 December 1948 has seen me on account of alleged torture in his home country. He has told a story which has been simultaneously interpreted and which is recorded in Annex I. When examining the patient I have observed marks on the left collar-bone area and on the left upper arm which are referred to in the examination protocol ... .
In view of the above I make the following statement:
That the patient has said that he has been assaulted; that he has, as objective evidence, shown, firstly, the marks of a collar-bone fracture following violence with a blunt instrument and, secondly, a typically rounded and colourless burn-mark on the inside of the left upper arm (the wound has, according to forensic medical practice, the typical appearance of a burn caused by a hot pipe); that he has subjective symptoms of troubles following genital torture, anal torture and sexual abuse in the anus; that, when he describes this, he reacts, in my experience, in such a way (crying, shaking) that it has to be assumed that he has experienced this; that, to summarise, nothing has been established which contradicts the assumption that Hector Cruz Varas has been subjected to such torture and sexual abuse as he alleges."
Annex I gave the following information:
"The patient speaks about himself first and then about his father who was the secretary of the Partido Socialista. They lived in the town of El Salvador in Chile. His father was arrested during the military coup in 1973 and was brutally tortured and released after two months. The patient was then 24 years old. He was also arrested and hit but, as he himself states, he was not directly tortured. They moved to the town of Lazalena. The patient was also a member of the Partido Socialista which is a party prohibited in Chile. The patient was persecuted during the seventies and eighties. His own home was subject to a search in 1981. He was hit by the police and taken to a security building where his eyes were bandaged and he was hit by hands and was burnt on his left arm with a red-hot pipe. He participated in a demonstration against ... a coin which the Government had introduced. He was arrested later and was tortured by electrification. In 1986 he was subjected to such torture on his genitals. He was sodomised with an electrified rod which caused him great pain and one can see on the patient’s face when he speaks of this torture that he was clearly in pain, he is near to tears. He was raped and sodomised several times which caused him to faint. He is very pained by telling this and his upper lip shakes and he perspires profusely. He has never told this to his wife and he now says ‘I cannot take it any more’. The reaction is very typical of self-experienced humiliating sexual torture. Following a question the patient says that he has for a long time after this event had great problems of impotence. He thinks that it has been better in Sweden. He takes vitamin E against these problems.
In November 1987 his dog was found dead, hanged on an iron fence which surrounded his house. There was a note stating that this would happen to all communists. It was signed by ACHA which was the same as if it had been CNI. In 1987 he therefore left Chile. I ask what would happen if he had to return to Chile. The patient is then very upset and says that he cannot return and starts to cry; he is convinced that they will arrest him at the airport and continue persecuting and torturing him."
27. A further medical opinion was produced in evidence prepared by Dr Søndergaard, a specialist in psychiatric diseases at the Karolinska Hospital. That opinion, dated 28 June 1989, stated that, from the manner in which he presented his story and his reactions while telling it, there were strong indications that he suffered from a post-traumatic stress syndrome. Dr Søndergaard found him to be considerably shaken and on the borderline of what he could tolerate.
28. The following description of the political activities of Mr Cruz Varas was given by his lawyer in a letter to the Government of 11 August 1989:
"The appellant has been politically interested and active in different left-wing organisations ever since the sixties and by the end of the sixties he was involved with MIR (Movimiento de la Izquierda Revolucionaria). During the seventies he was active primarily in the Socialist Party. About 1983 he came into contact with people whom he believes belong to Frente Patriótico Manuel Rodriguez. Together with these persons he has taken part in certain military activities.
As a result of his political work he was tortured in 1973, 1976, 1981, 1983, 1986 and 1987. The reason why all these details are not found in the police interrogation is that the interrogation concentrated on events during the eighties. However at the end of the interrogation it is mentioned that he had been tortured four or five times.
When asked to account for his activity with the ‘Front’ he stated the following: some time during 1983 he made contact by chance with a person who was nicknamed the ‘Gorilla’ because of his heavy build and hair growth. Hector knew the Gorilla from the seventies when both of them were active in MIR. When they met again they had not seen each other for more than a decade but they immediately recognised each other. They met at a parents’ meeting in a school in Villa Alemana which the Gorilla’s daughters attended.
...
After a while his acquaintance with the Gorilla led to clear sabotage activities. The Gorilla held a senior post at the town’s Electricity Board. Hector has a knowledge of explosives after having worked in mining. Together they used explosive devices to destroy power lines around the town. They complemented each other well: the Gorilla indicated the targets and planned the operations, Hector acquired the dynamite by travelling to the town of San Salvador where he has many childhood friends. He was able to buy dynamite from his friends who work in the mine. The dynamite was smuggled out by the workers. This activity continued until some time in 1986.
After this Hector did not participate in any further sabotage operations since he felt he was under too much observation. However he believes that the Gorilla continued the activities since they had a fairly large stock of dynamite. He has also read in the newspapers about power lines being sabotaged after he had discontinued the activity himself.
The Gorilla has tried in different ways to get him to participate in more advanced military projects. They have often discussed the possibility of trying to arm the populace and start a school for military training. They have drawn up detailed plans of how they would obtain weapons. These plans began as a discussion about ‘how one could do even more ...’. Among other things concrete plans were drawn up on how to attack a carabineer barracks. The purpose of the attack would be to get hold of weapons which could later be used in other kinds of attacks. Nothing came of these plans because Hector was arrested in 1983. During this arrest the police asked a wide range of questions; inter alia, questions were asked about places which were to be meeting points for the participants in the attack. The attack against the carabineer barracks never took place. Hector found out instead that another attack had been carried out against another carabineer barracks.
When asked to describe more details about the plan to attack, Hector said that he and the Gorilla were to carry the stolen weapons to the churchyard and bury them there. When the time was right, the weapons were to be fetched from the churchyard by other persons.
The Gorilla never mentioned Frente Patriótico Manuel Rodriguez by name, but Hector understood that the Gorilla had a relatively central position in the organisation. The Gorilla himself only mentioned that he was now active in the Communist Party. As an example of the Gorilla’s central position Hector mentioned that a short time before the assassination attempt against Pinochet the Gorilla asked Hector if he would consider driving a lorry on a very important occasion. Hector gave a hesitant reply and the suggestion was dropped. In retrospect Hector has realised that it could possibly have been the vehicle that would be used on the occasion of the assassination attempt.
Hector has not taken part in any direct military operations. On one occasion however he was instructed to drive a lorry to a particular spot. He was to park the lorry there and then fetch another lorry. He was given no more information on that occasion. However this plan was cancelled for security reasons. Shortly thereafter Hector read in a newspaper that an arms cache had been discovered right next to the place where he was to park the lorry.
A few months after he had met the Gorilla by chance, an old friend turned up with whom he had worked in a resistance cell in 1973-74 in the town of La Serena. The friend immediately said that he was in trouble with the police and that he needed a place to hide. Hector offered to give him shelter and they went straight back to Hector’s home. Later in the evening two other friends joined them, all three armed with pistols. Hector also thought he saw sub-machine guns of the kind used by the Chilean police.
Hector never found out why the friend was on the run; as he said, ‘it was better not to know anything’. One day, on leaving Hector’s house, the friend was arrested. Hector was informed of the arrest by an acquaintance who had previously seen Hector with the friend who was in hiding. The two other men fled from Hector’s house immediately.
After this Hector moved to Santiago and supported himself as a construction worker. He remained in Santiago between roughly September 1984 and December 1985. He rented out his house through a fake owner and was informed that, shortly after, the house was searched and as a result of the search the tenants moved. The fake owner found new tenants to live in the house for the rest of the time. Since no further searches were carried out Hector did not think it was dangerous to move back to Villa Alemana. Thus, in December 1985, he returned there.
When asked about the numerous ‘chance’ occasions when he met people who can be assumed to belong to the ‘Front’, Hector replied that he had also wondered about this. With regard to the Gorilla he felt it was pure chance that he met him. Hector is more hesitant about the second friend. Hector said that it could have been a chance encounter but that it could also have been a conscious attempt to bind him more firmly to the activities of the Front. Hector stated himself that because of his knowledge of explosives and as the owner of a remotely situated house he could be of interest to such an organisation as the ‘Front’.
When Hector returned to Villa Alemana he felt he was being observed in different ways. He stated that he quite frequently encountered different types of salesmen who got in touch with him.
...
During one of our conversations Hector said suddenly ‘there is something I have never talked about and something which I shall never tell’. I insisted that he tell me. A psychological struggle took place which lasted at least an hour. I tried to maintain the initiative all the time and to motivate Hector to tell his secret. Hector defended his position and said ‘I’ll never say it, not even if I am expelled will I tell it. I’ll only say it at the airport’.
Finally Hector said that he had been in a poor state of mind for a long time in Chile and had taken large amounts of anti-depressants. After the torture of 1986 his nerves have been strained to the point of breaking and because of the internal confession tradition in the Mormon Church he sought out the highest ranking leader in the Mormon Church with the rank of Grand President and told him everything.
He told him of his contacts with the Gorilla and also about the two other members of the Mormon Church whom he had introduced to the Gorilla. The conversations took place on several occasions. On the first occasion Hector took the initiative and therefore related relatively little, then the Grand President took the initiative and obtained more details.
In January 1987 Hector was arrested and tortured. When he left the torture chamber he tried to get in contact with the two other members of the Mormon Church but they had both disappeared. He also tried to make contact with the Gorilla but he had also disappeared. Hector is subjectively convinced that all three are dead. He is also convinced that they have been killed as a result of his mistake in talking to the Grand President. Hector believes that the Mormon Church leader used his weak position and informed the Government about him and his friends.
Hector cannot say with certainty when the three disappeared but says that the last time he met them was in December 1986. The torture in January 1987 in combination with self-accusation at having caused the death of the Gorilla and the two Mormons was a contributing factor to his leaving Chile a short while after that."
29. Medical reports drawn up by doctors in Varberg hospital dated 21 June 1989 and 5 October 1989 concerning the welfare of Richard Cruz Varas (the third applicant) were also submitted to the Government. These reports stated that Richard had personality problems and would in all probability suffer serious psychological harm if expelled from Sweden.
30. The first applicant also submitted a letter from the United Nations High Commissioner for Refugees’ Regional Office for the Nordic Countries dated 16 August 1989 stating, inter alia, that:
"... a person who has been exposed to torture will in most cases have lasting effects of both a physical and psychological/somatic nature. For this reason, we should operate neither with time limits nor with degrees of torture when assessing a torture victim’s claim for refugee status."
31. In a letter of 5 October 1989, the same Office wrote:
"Therefore we would like to point out that we believe that Mr Hector Cruz Varas ... should be protected against return to his home country; apart from the many mental/traumatic/humanitarian aspects involved, we are of the opinion that not only the 1951 Refugee Convention, but in particular the 1984 Torture Convention should be emphasised."
32. On 4 October 1989 Mr Cruz Varas was taken into custody by the Police Authority of Varberg following a decision by the Minister of Labour. The following day the Government (Ministry of Labour) found that there was no impediment under Sections 77 and 80 of the Aliens Act to the enforcement of the expulsion order against the applicants.
33. On 6 October 1989 the Board decided not to stop the expulsion and on the same day Mr Cruz Varas was expelled to Chile. His wife and son, however, went into hiding in Sweden. Their present whereabouts is not known to the Court.
In August 1988 the state of emergency was lifted and in September 1988 exiles were allowed to return to Chile. On 5 October 1988 the Chilean people voted in a plebiscite to reject the candidacy of General Pinochet as President of the country. Presidential and congressional elections were then scheduled for December 1989. Following negotiations between the Government and opposition groups a referendum was held on 30 July 1989 resulting in the adoption of various constitutional amendments designed, inter alia, to render the presidential and congressional elections more democratic and reduce the continued influence of the armed forces in civilian life.
The presidential election took place on 14 December 1989 resulting in the election of Mr Patricio Aylwin, a member of the former opposition Christian Democratic Party and leader of a 17-party alliance entitled "Coalition of Parties for Democracy".
35. In April 1989 the International Covenant on Civil and Political Rights (1966) was published in the Diario Oficial, the official gazette, thereby incorporating it into Chilean law. The State also ratified in 1988 the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and the Inter-American Convention to Prevent and Punish Torture (1985) although with reservations in both cases.
An Amnesty International report of October 1989, however, provides details of various cases of torture reported to Amnesty which allegedly occurred in 1989.
36. On 7 October 1989 Mr Cruz Varas arrived at the airport in Rio de Janeiro (Brazil), where he applied unsuccessfully for asylum. He was then put on a plane for Santiago where he arrived on 8 October. He did not have any identity documents and when he came to passport control he was taken aside and photographed. He was required to sign a declaration to the effect that he had been in Sweden for financial reasons and that he promised not to engage in any political activities in Chile.
37. He remained in Chile from 8 to 29 October 1989 and returned to his home in Villa Alemana. On 26 and 27 October he participated in political meetings, the latter in favour of the presidential candidate, Mr Aylwin. He alleges that on that occasion an unknown person approached him and threatened his family in Chile. During this period he claims that his brother-in-law was attacked in the street and badly injured by unknown persons. Two other brothers-in-law were stopped and searched by officials who asked them questions about him.
38. On 29 October 1989 he left Chile for Argentina and lived for a time in Buenos Aires. On 2 December 1989 and 7 March 1990 the Board rejected requests from Mr Cruz Varas to be allowed to return to Sweden. Although he was able to attend the hearing before the Court, his present whereabouts are unknown to it.
39. The Commission heard Dr Sten W. Jacobsson as a witness on 7 December 1989. His evidence is summarised in detail in paragraphs 49-57 of the Commission’s report. He is an associate professor (docent) of forensic medicine (rättsmedicin) at the Karolinska Institute and also works with the Red Cross assisting torture victims. He has twenty years’ experience in assessing scars and wounds and has been working with allegations of torture from Chile since 1985.
40. Dr Jacobsson testified that there was a very high probability that the first applicant’s story was true having regard to his wounds (injury to collar bone and burn mark) and his reactions when recounting his story. He spoke with considerable reluctance of the sexual torture he had experienced and sweated profusely. Dr Jacobsson considered that such a reaction indicated that he had really experienced such treatment. He also exhibited great fear at the prospect of returning to Chile. Dr Jacobsson pointed out that victims of sexual torture are often so damaged that they are not prepared to talk about it even to their husbands or wives.
41. Following the expulsion of Mr Cruz Varas the Government submitted a memorandum from the Swedish Embassy in Santiago dated 2 January 1990 which contains a report of an inquiry undertaken in accordance with a request from the Ministry of Labour for information regarding possible political activities of Mr Cruz Varas, and any political persecution to which he may have been exposed. The inquiry had been made on 20 December 1989 by Ms Jenny Malmqvist, Second Secretary at the Embassy, during a visit to Villa Alemana, accompanied by, inter alia, the President of the Commission of Human Rights at Valparaiso. The report concludes that, as regards political activities, all the representatives of political parties who had been questioned had said that they do not know Mr Cruz Varas. Neighbours who were questioned know him but were unaware of his involvement in any political activity.
In support of the above the Government have also submitted affidavits from the Partido Radical, the Partido Socialista and the Partido Comunista.
42. As regards possible political persecution, the Government have submitted an affidavit by the President of the Human Rights Commission in Villa Alemana, Mrs Maria Teresa Ovalle, obtained by the Swedish Embassy in Santiago. It appears from the affidavit that Mr Cruz Varas is not known to the Commission and that consequently no persecution directed against him is known. The affidavit further states that the Commission has at its disposal complete registers of those who have disappeared, who have been tortured and who have been imprisoned in the fifth region of Chile since 1982.
43. In the proceedings before the Court the Government submitted a further affidavit from Mrs Ovalle dated 8 October 1990 in which she declared, inter alia, that Mr Cruz Varas has no connections with any political party or with any trade union; that there is no declaration registered at the Human Rights Commission in Villa Alemana regarding the detention of Mr Cruz Varas; that according to everyone who has been asked in the district where he lived he has never been politically active; that in all the inquiries made directly with persons who have participated in clandestine activities, he is not known; nor is he known by persons in prison in Valparaiso for their role in similar activities; that she was not aware of any explosions in Villa Alemana directed at railway lines and electric power lines which occurred in the period 1983-86 as alleged by the first applicant; that, following inquiries, he is not known by the various human rights bodies in Quilpue.
The Government also submitted an affidavit dated 8 October 1990 by the National Board of the FPMR which declared that Mr Cruz Varas is not a representative of the organisation abroad and is not and never has been a combatant member of FPMR. They further disclaimed all responsibility for any action he may have taken in the name of the FPMR.
44. The applicants have submitted a medical report drawn up by Dr Mariano Castex (Professor of Psychiatry, University of Buenos Aires) following an examination of the first applicant in February 1990. The report includes the following statement:
"As a conclusion one may state that Mr Hector Cruz Varas suffers a serious ‘post-traumatic stress disorder’ instilled in him as a consequence of the torture and ill-treatment suffered in Chile in the past years. The exposure to high insecurity, and the return to his native land, has increased the pathological dimension of his sufferings, and if arrangements are not made for an adequate psychological and psychiatric treatment, he might suffer from a worsening of his mental disorder with unforeseeable consequences not only for him, but for his wife and child, the latter badly needing a father if one reads carefully the report on the child."
45. A further psychiatric report dated 9 October 1990 was drawn up by Dr Søndergaard following a detailed examination of the applicant in September 1990. The report stated that the first applicant must have experienced "a stressful event of catastrophic proportions". It concluded that he showed the "obvious stigmata of a post-traumatic stress disorder".
46. The applicants have also submitted the following documents:
- a report dated 18 January 1990 from a former Professor of Psychology at the University of Chile, Marcello Ferrada-Noli, currently researcher at the Karolinska Institute, Stockholm, which suggested that the first applicant might seek to resolve his problems by committing suicide;
- a letter dated 20 October 1990 from Mr Sergio Bushman (European spokesman for the FPMR) which stated that it was not only the members of the FPMR who risked their lives in Chile but also those who collaborated with the organisation. He further stated that the risk of torture, imprisonment or assassination still existed for FPMR members during the present regime;
- a Chilean newspaper cutting of 17 October 1984 describing an attempt to blow up a power line in a town ten kilometres outside Villa Alemana;
- a letter dated 26 September 1990 from staff at the third applicant’s nursery school expressing the fear that his removal from Sweden may cause him permanent harm.
47. The Aliens Act of 1980 and Aliens Ordinance were in force until 1 July 1989 when the Aliens Act of 1989 entered into force. A new Aliens Ordinance was made under the 1989 Act.
Under the 1980 Act, a decision of expulsion by the Board could be appealed to the Government whose decision was not subject to appeal. The Government’s decision was then transferred to a Police Authority for execution. If the alien contended, inter alia, that he would be exposed to political persecution or be sent to a theatre of war, the matter would be referred to the Board (Sections 85 and 86) unless the claims were manifestly ill-founded or did not merit consideration. If the Police Authority decided not to refer this question to the Board, an appeal lay to the Board. If the Board decided against the alien, the decision could be appealed to the Government.
48. Under the 1989 Act the competent authorities have a duty when deciding the question of expulsion to consider at the same time whether there is any impediment to the enforcement of the expulsion order.
49. The 1989 Act contains transitional rules to be applied in cases submitted before 1 July 1989. In such cases the procedures applicable under the 1980 Act still apply. Most of the decisions in the present case have therefore been taken under the 1980 Act.
50. Section 3 of the 1980 Aliens Act reads:
"A refugee shall not without grave reasons be refused asylum in Sweden when he has need of such protection.
For the purposes of this Act, a refugee is a person who is outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. A stateless person who for the same reason is outside the country of his former habitual residence and who is unable or, owing to such fear, is unwilling to return to that country, shall also be deemed a refugee.
For the purposes of this Act, persecution is defined as indicated in subsection two of this Section as being directed against the life or liberty of the alien or as being otherwise of a severe nature (political persecution)."
Other relevant provisions of the 1980 Act provide as follows:
"An alien who, although not a refugee, is unwilling to return to his home country on account of the political situation there, and is able to plead very strong grounds in support of this reluctance, shall not be refused permission to stay in this country if he is in need of protection here, unless there are special reasons for such denial."
"An alien may be expelled if he is residing here without possessing the passport or permit required for residence in Sweden.
Expulsion orders as provided in subsection one are to be issued by the National Immigration Board. If an application for a residence permit is rejected, the National Immigration Board shall at the same time make an expulsion order unless there are very strong grounds to the contrary."
"When a refusal-of-entry order or an expulsion order is put into effect, the alien may not be sent to a country where he risks political persecution. Nor may the alien be sent to a country where he is not safeguarded against being sent on to a country where he risks such persecution."
"An alien referred to in Section 6 and pleading grave reasons for not being sent to his home country, may not in the enforcement of a refusal-of-entry order or an expulsion order be sent to that country or to a country from which he risks being sent on to his home country."
"An alien intending to settle in this country or for any other reason to remain here in excess of the period referred to in Section 30, subsection one, may not enter Sweden until he has obtained a residence permit, unless:
1. he is exempted, by virtue of Section 30, subsection two, from the requirement of a residence permit,
2. he is an alien as referred to in Section 3, 5 or 6 of the Aliens Act (1980:376),
3. he intends joining a close relative who is permanently domiciled in Sweden and with whom he has previously lived abroad, or,
4. there is some other particularly important reason why he should be allowed to enter the country.
An alien, who has entered Sweden without a residence permit or with a residence permit for a temporary stay only, may not be granted such a permit as long as he is present in this country or on account of an application made here, except in the cases specified in subsection one, paragraphs 2-4 of this section. The aforesaid notwithstanding, an alien who has entered Sweden as a visitor and has substantial reasons for prolonging his visit may be granted a residence permit for a specified period."
51. Since 1973 Sweden has received about 30,000 Chilean citizens, a large proportion of whom have been granted asylum. Visas have been required for travellers from Chile as of 1 January 1989. In view of political developments in Chile in 1988 and 1989 some refugees have returned voluntarily to take up political activities.
52. Rule 36 of the Commission’s Rules of Procedure reads:
"The Commission, or when it is not in session, the President may indicate to the parties any interim measure the adoption of which seems desirable in the interest of the parties or the proper conduct of the proceedings before it."
53. An indication under Rule 36 is only given where it appears that irreparable damage would result from the implementation of the measure complained of. This might be the case where expulsion or extradition is imminent and the applicant alleges that he is likely to be treated contrary to Articles 2 and/or 3 (art. 2, art. 3) of the Convention in the receiving State. Normally Rule 36 would only apply to cases involving allegations of this nature. Further there must exist a certain degree of probability that a person would be subjected to treatment in breach of these provisions if sent to the country concerned. Evidence must thus be presented to the Commission which reveals the existence of such a risk.
54. When an application for interim measures is made it is brought immediately before the Commission or the President or Acting President if the Commission is not in session. A Rule 36 indication is always limited in time. If the decision is taken by the President or Acting President, the indication will be limited until the Commission next sits. If it is taken by the Commission, it is normally limited until its next session.
55. When the Commission or the President has applied Rule 36, the Secretary to the Commission will inform all the parties by telephone of the decision and confirm it by post or telefax. At the time of the first applicant’s expulsion the Commission had been seised of 182 requests for interim measures in expulsion (as opposed to extradition) cases. In 31 of these cases an indication under Rule 36 was given and complied with by the Contracting Parties concerned. In several cases concerning extradition the State has failed to comply with a Rule 36 indication.
56. The application to the Commission was introduced on 5 October 1989 and registered on the same day. On 6 October 1989, at 09.00 hours, the Commission decided to apply Rule 36 of its Rules of Procedure in the following terms:
"The Commission ... decided ... to indicate to the Government of Sweden ... that it was desirable in the interest of the Parties and the proper conduct of the proceedings before the Commission not to deport the applicants to Chile until the Commission had had an opportunity to examine the application during its forthcoming session from 6 to 10 November 1989."
57. The Agent of the Government was informed by telephone on the same day, at 09.10 hours, of the Commission’s decision. At 12.00 hours the Commission confirmed the said indication by telefax.
58. Officials at the Ministry of Labour were informed of the Commission’s indication at 09.20 hours on 6 October. The matter was presented to the competent Minister at 12.45 hours. However, according to information given by the Government, the Minister could not take any action since the matter had already been decided by the Government and was pending before the Board.
59. On the same day, following a request from Mr Cruz Varas, the Board decided not to stay the enforcement of the expulsion. At that time the Board was aware of the present application to the Commission and of the Commission’s indication under Rule 36.
60. Mr Cruz Varas was deported to Chile on 6 October 1989 at 16.40 hours. His wife and their son went into hiding in Sweden.
61. On 9 November 1989 the Commission took the following decision under Rule 36 of its Rules of Procedure:
"Having examined the parties’ submissions the Commission decided to indicate to the Government, in accordance with Rule 36 of its Rules of Procedure, that it is desirable in the interest of the parties and the proper conduct of the proceedings before the Commission not to deport to Chile any of the applicants, who are still in Sweden, until the Commission has had an opportunity to examine the application further during its forthcoming session 4-15 December 1989. In respect of Mr Cruz Varas the Commission, given the failure of the Government to comply with its earlier indication not to deport him to Chile, now indicates that it is desirable in the interest of the parties and the proper conduct of the proceedings before the Commission, that the Government take measures which will enable this applicant’s return to Sweden as soon as possible."
62. By letter of 22 November 1989 the Government informed the Commission that a request from the first applicant for permission to enter and remain in Sweden was to be examined by the Board and that the question of the execution of the expulsion order in respect of Mrs Bustamento Lazo and Richard Cruz was pending before it. Consequently, the Government had, on 16 November 1989, decided to communicate the Commission’s indication under Rule 36 to the Board.
63. Following the hearing on 7 December 1989, the Commission decided to maintain its indication under Rule 36 of its Rules of Procedure that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Commission not to deport the second and third applicants to Chile and that the Government take measures which would enable the first applicant to return to Sweden as soon as possible.
64. On 7 June 1990 the Commission decided, following the adoption of its report, not to prolong the Rule 36 indication.
65. The applicants complained that the first applicant’s expulsion amounted to a breach of Article 3 (art. 3) because of the risk that he would be tortured by the authorities. They also claimed that the expulsion of the third applicant would be in breach of Article 3 (art. 3). In addition they complained that the separation of the family constituted a breach of Article 8 (art. 8) of the Convention. They further invoked Articles 6 and 13 (art. 6, art. 13) of the Convention.
66. The application was declared admissible on 7 December 1989 as regards the applicants’ complaints under Articles 3 and 8 (art. 3, art. 8) and inadmissible as regards the complaints under Articles 6 and 13 (art. 6, art. 13). The Commission also retained for further examination the issues arising from the Government’s failure to comply with the Rule 36 indications.
In its report adopted on 7 June 1990 (Article 31) (art. 31) the Commission expressed the opinion that there had been no violation of Article 3 (art. 3) (eight votes to five) or Article 8 (art. 8) (unanimously) but that there had been a failure to comply with Article 25 § 1 (art. 25-1) in fine (twelve votes to one) by not following the Commission’s Rule 36 request not to expel the first applicant. The full text of the Commission’s opinion and of the separate opinions contained in the report is reproduced as an annex to the judgment.
NON_VIOLATED_ARTICLES: 25
3
8
NON_VIOLATED_PARAGRAPHS: 25-1


ITEMID: 001-102131
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF VRIONI AND OTHERS v. ALBANIA
IMPORTANCE: 4
CONCLUSION: Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 7. On 18 March 1996 and 14 December 1999 the Tirana Property Restitution and Compensation Commission (Komisioni i Kthimit dhe Kompensimit të Pronave – “the Commission”), recognised the applicants' title to two plots of land measuring 1,100 sq. m and 537 sq. m, respectively. The Commission held that it was impossible for the applicants to have the whole of the original plot of land allocated to them. It decided to restore to the applicants a vacant plot of land (një truall i lirë) measuring 1,456 sq. m., which was situated within the grounds occupied by the Italian Embassy, and ordered the authorities to pay compensation in respect of a plot of land measuring 181 sq. m. Moreover, it ordered that the applicants' title to the property be entered in the Tirana Property Register.
8. The applicants lodged a civil action in view of their impossibility to recover the plot of 1,456 sq. m. By virtue of the Court of Appeal's decision of 29 October 2002 it was decided that the applicants should receive compensation in lieu of the original property in one of the forms provided for by law in respect of the plot of land measuring 1,456 sq. m. The Court of Appeal found that, in so far as that plot of land was an integral part of the Italian Embassy's premises, it could not be considered vacant and thus recoverable by the applicants. This decision was upheld by the Supreme Court on 15 June 2004. Consequently, the applicants were to receive compensation in accordance with the Property Act for the totality of the 1,637 sq. m. of land (see §§ 24-25 of the principal judgment).
9. Further details are set out in the principal judgment.
10. The 1994 Act contained the criteria to be employed for assessing the financial compensation to be awarded to former landowners. According to the 1994 Act, Tirana was to be divided into three zones A, B and C. The price reference for the property located in zone A was fixed at 1,600 Albanian leks (ALL) per square metre.
11. By virtue of three decisions, two of which were adopted in 2007 and one in 2008, the Government approved and issued property valuation maps as listed above. The maps, which were to be used in the determination of the award of financial compensation by the competent authorities, included the reference price per square metre throughout the country.
12. The first decision fixed the price of land for the regions of Berat, Gjirokastër, Vlorë and Dibër; the second decision fixed the price of land for the regions of Lezhë, Dibër, Korçë and Kukës; the third decision fixed the price of land for the regions of Fier, Elbasan, Tirana, Vlorë, Durrës and Shkodër. The fourth decision contained an updated price list for certain cities. According to that decision, the reference price per square metre for the area in which the applicants' property was located was valued at ALL 180,000.


ITEMID: 001-24073
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: SCHREIBER and BOETSCH v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Jean-Marie Schreiber and Mr Jean-Claude Boetsch, are French nationals, born in 1942 and 1946 respectively, who live in Lautenbach and Raedersheim (France). They were represented before the Court by Mr S. Thomann, of the Mulhouse Bar. The Government were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are victims of the Airbus A320 accident which occurred in Habsheim on 26 June 1988, causing the deaths of three people and injuring about a hundred others. The first applicant is also the chairperson of the accident victims' association.
The vice-president responsible for investigations at the Colmar tribunal de grande instance conducted the judicial investigation into the accident. In a judgment of 9 April 1998, the Colmar Court of Appeal convicted various individuals, including the pilots of the aircraft, of unintentionally causing death and injury. An appeal on points of law was lodged against that judgment.
One of the pilots personally filed a complaint with the Mulhouse investigating judge and applied to join the proceedings as a civil party, alleging “breaking of seals and destruction, unlawful removal, concealment, dissimulation or alteration of public or private documents likely to facilitate the investigation of serious crimes and other major offences, the discovery of evidence, or the punishment of their perpetrator”, on the ground that the aircraft's flight recorders had been deliberately tampered with. This investigation was subsequently entrusted to the Colmar investigating judge and was closed by an order of 19 March 1996 finding that there was no case to answer, which was upheld by a judgment of 13 June 1996 of the Indictment Division.
The investigation of five complaints, including four in which the applicants, inter alios, applied to join the proceedings as a civil party, was referred to the Colmar investigating judge, either directly or as a result of the relinquishment of jurisdiction by the Mulhouse investigating judge, which was confirmed by a judgment of the Indictment Division of 29 April 1999.
On 29 July 1999 the applicants personally applied to the President of the Colmar Court of Appeal to challenge the Colmar investigating judge. They claimed that fraudulent acts of manipulation and substitution had been carried out at the outset or during the proceedings, and expressed doubts regarding the judge's impartiality and objectivity. Their application was based, inter alia, on Article 6 of the Convention.
By an order of 2 November 1999 that was not subject to appeal, the President dismissed the challenge and ordered the applicants jointly and severally to pay a civil fine of 1,000 French francs (about 150 euros). He held, in particular:
“A judge does not infringe the requirement of impartiality by the mere fact of intervening in the same case twice, provided that he has not previously evaluated the facts referred to him on the second occasion; short of impugning his motives, there are no objective reasons in the present case to doubt the impartiality of Mr G., whose investigative activities will be carried out under the Indictment Division's supervision.
The fact that, in the exercise of the powers legally conferred on him, he had previously refused to conduct the investigations or hearings requested by those placed under examination or by the victims, in decisions which were approved by the Court of Appeal when this matter was referred to it, does not provide grounds for finding that the applicants' concerns are objectively justified.”
He also directed that the claimants, the Principal Public Prosecutor and the judge concerned were to be notified of this order.
The relevant Articles of the Code of Criminal Procedure applicable at the material time read as follows:
Article 669
“A person under investigation, defendant, accused and any party to the proceedings who wishes to challenge an investigating judge, a judge of the police court or one or more or all of the judges of the criminal court, the court of appeal or the assize court must, if the request is to be valid, submit an application to the president of the court of appeal.
Members of State Counsel's Office cannot be challenged.
The application must mention by name the judge or judges being challenged and set out the grounds relied on, together with all the supporting evidence.
A party who has willingly proceeded in a court or before an investigating judge shall be entitled to challenge a judge only on the basis of circumstances that have arisen since, where they are such as to constitute a ground for challenge.”
Article 671
“The president shall receive the applicant's supplementary memorial, if necessary, and that of the judge being challenged; he shall obtain the opinion of the Principal Public Prosecutor and shall rule on the application.
No appeal shall lie against the order ruling on the challenge. It shall have full legal force.”
Article 673
“Any order dismissing a challenge shall sentence the applicant to a civil fine of 500 to 5,000 francs.”


ITEMID: 001-4651
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: BONAPART v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicant is a Dutch national, born in 1964, and resides in Amsterdam. He is represented by Mr G. Spong, a lawyer practising in The Hague.
A. Particular circumstances of the present case
By judgment of 12 July 1995, the Regional Court (Arrondissementsrechtbank) of Amsterdam convicted the applicant of offences under the Opium Act (Opiumwet) and membership of a criminal organisation and sentenced him to twelve years’ imprisonment and payment of a fine of NLG. 250,000. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam.
In its judgment of 20 December 1995, following adversarial proceedings in the course of which hearings were held on 6 and 11 December 1995, the Court of Appeal quashed the judgment of 12 July 1995, convicted the applicant of participation in offences under the Opium Act and membership of a criminal organisation and sentenced the applicant to twelve years’ imprisonment and payment of a fine of NLG. 250,000.
The evidence before the Court of Appeal consisted of, inter alia, the verbatim records of the hearing on 23 October 1995 of Mr Brand, head of the regional police force Haaglanden, before the parliamentary commission of inquiry for investigation methods, statements made by the applicant in the course of the investigation and the trial proceedings, formal records (proces-verbaal) on the investigation, statements made by witnesses before the police and verbatim records of tapped telephone conversations.
The Court of Appeal rejected the arguments raised by the defence that the prosecution should be declared inadmissible on grounds that the fair trial principle within the meaning of Article 6 of the Convention had been violated in that the prosecution had insufficiently disclosed information about the criminal investigation at issue and that evidence had been obtained by use of an unlawful method of investigation, i.e. allowing imported drugs to reach their destination. The Court of Appeal held on these points:
<Translation>
“Admissibility of the prosecution ...
It has not appeared that the Public Prosecution Department has refused to provide information or that acts have been performed or findings have been made in the context of the investigation of the facts at issue which have not been related in formal records. It appears clearly from the case-file that the investigation started with the interrogation of O.G. on 2 July and 2 August 1993 in Miami in the United States.
O.G. made a statement about the involvement of “M.” in the importation of cocaine, as well as of B.G., owner of the sport school B. Gym in Amsterdam. On the basis of this information, a preliminary judicial investigation (gerechtelijk vooronderzoek) was opened on 30 September 1993 against M. and on 15 October 1993 against B.G., owner of B. Gym in Amsterdam. It appeared from these investigations that B.G. had close contacts with J.R. and that the latter had almost daily contacts with A. On the basis of this information, preliminary judicial investigations were opened on 2 February 1994 against A. and J.R. It appeared from these investigations that A. had regular contacts with inter alia a certain G., whose name turned out to be J.W.A. Bonapart. On the basis of this information, a preliminary judicial investigation was opened on 2 August 1994 against J.W.A. Bonapart.
Chief Inspector H.D., head of the Holco-team, stated under oath in the first instance trial proceedings that in the course of the investigation no use was made of information from the Criminal Intelligence Service (Criminele Inlichtingen Dienst: hereinafter “CID”).
Contrary to what the defence contend, it does not appear from the questioning by the parliamentary commission of inquiry of J.L. Brand that according to the latter other than normal methods of investigation were used in this case. Quite the opposite, since when Brand apparently speaks about the case at issue, he refers to it - insofar as the alleged importation of cocaine is concerned - as a case in which “the traditional methods have been applied” and - insofar as the alleged importation of marihuana is concerned - as “a case in which we have applied classical methods of criminal investigation”.
The argument of the defence relating to a decision of non-prosecution (sepot) having been issued in the case against G.G. has, following information obtained in the course of the trial proceedings, proved to be incorrect and not to be borne out by the facts. The Procurator General has been informed by the CID public prosecutor dealing with that case that it is absolutely untrue that G.G. was an informer.
The defence have insufficiently substantiated their contention that another informer besides G.G. may have been used.
Neither the formal records nor any other source give reason to presume that there may be a demonstrable direct link between any other (criminal) investigation than the one described in the formal records and the present case. This is not altered by the fact that the police was said to have procured a position for themselves from where it was possible to obtain information in the period from 1991 until the beginning of 1994. (“Noch uit het proces-verbaal noch anderszins blijkt van een ernstig vermoeden dat er een direct verband aanwijsbaar is tussen enig ander onderzoek dan in het proces-verbaal is gerelateerd en deze zaak. De stelling dat de politie zich in de periode 1991 tot begin 1994 een informatiepositie zou hebben verworven doet daaraan niet af.”)
In view of the above, no indications can be found either in the case-file or in the facts and circumstances argued by the defence that the formal records in casu were incomplete and that Article 152 of the Code of Criminal Procedure was contravened or that any methods of criminal investigation other than the usual methods were deployed.
The fair trial principle (Article 6 of the Convention) has in the Court’s opinion, therefore, not been violated.
...
Lawfulness of the evidence obtained
Counsel has argued that there is a serious suspicion that use has been made of an unlawful method of investigation, namely the delivery of drugs ... The Court rejects this argument and refers to its considerations as regards the admissibility of the prosecution ...“
The applicant’s subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 25 March 1997 under Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) as not prompting a determination of legal issues in the interest of legal unity and legal development. The Supreme Court further found no grounds for quashing ex officio the judgment of 20 December 1995.
B. Relevant domestic law
Article 152 of the Code of Criminal Procedure (Wetboek van Strafvordering) provides as follows:
<Translation>
“The civil servants, referred to in Articles 141 and 142, shall record as soon as possible in formal records the investigated punishable fact or what they have done or found in the investigation.”
<Dutch>
“De ambtenaren, bedoeld in de artikelen 141 en 142, maken ten spoedigste proces-verbaal op van het door hen opgespoorde strafbare feit of van hetgeen door hen tot opsporing is verricht of bevonden.”
Article 33 of the Code of Criminal Procedure reads as follows:
<Translation>
“Access to all documents in the case-file, either the originals or copies thereof, may not be denied to the suspect as soon as the decision to close the preliminary judicial investigation, in accordance with Article 238, has become final for the public prosecutor, or the preliminary judicial investigation, in application of Artilce 258 para. 2, has ended, or, where there has been no preliminary judicial investigation, as soon as the notification of further prosecution or the summons for appearance at the trial in first instance has been served.”
<Dutch>
“De kennisneming van alle processtukken in het oorspronkelijke of in afschrift mag de verdachte niet worden onthouden zodra de beschikking tot sluiting van het gerechtelijk vooronderzoek overeenkomstig artikel 238 voor de officier van justitie onherroepelijk is geworden, dan wel het gerechtelijk vooronderzoek met toepassing van artikel 258, tweede lid, is beëindigd, of, indien een gerechtelijk vooronderzoek niet heeft plaatsgehad, zodra de kennisgeving van verdere vervolging of de dagvaarding ter terechtzitting in eerste aanleg is betekend.”