ITEMID: 001-90026
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TROFIMOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 and 6-3-d
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1960 and lives in the town of Apatity in the Murmansk region.
7. On 6 June 2000 the Apatity Town Court of the Murmansk Region convicted the applicant and his co-defendant, Ms Sk., of concerted drug trafficking under Article 228 § 4 of the Criminal Code. It established that the applicant had repeatedly procured large quantities of drugs from unidentified sources and had handed them over to Sk. with a view to selling them to individual customers. Sk. had packaged the drugs, resold them and returned the proceeds to the applicant. On 1 October 1999 the applicant had come to Sk.’s flat and had collected the usual proceeds in the amount of 2,000 Russian roubles (RUB). He had been arrested shortly after leaving the flat.
8. At the trial Sk. pleaded guilty and submitted that the applicant had suggested that she sell drugs and that she had agreed. The applicant had repeatedly brought heroin and marijuana to her flat, she had sold the drugs to third persons and had returned to the applicant the proceeds in the amount of RUB 2,000 per gramme of heroin. The applicant pleaded not guilty to all charges and claimed that he had lent RUB 2,000 to Sk. and she had finally paid this amount back to him on the day of his arrest. He contended that during the search at his flat he had voluntarily surrendered heroin to the police and that marijuana seized there had been a plant.
9. In convicting the applicant the Town Court relied on the statements made by Sk. at the trial. It found that they were corroborated by the following evidence:
- In a pre-trial statement Mr S., the partner of Sk.. who had previously cohabited with her, confirmed that the applicant had repeatedly handed drugs over to Sk. and that she had subsequently resold them. According to S., on 1 October 1999, before being arrested, the applicant had collected from Sk. the usual proceeds for the sale of heroin and had promised to return later and to hand her over a further amount of drugs for sale. S. was not questioned at the trial; his deposition was read out despite the applicant’s and his counsel’s objections.
- In a pre-trial statement K. testified that she knew both from the applicant and Sk. that he had systematically provided Sk. with drugs for sale.
- Ya. testified at the trial that the applicant had suggested that she sell drugs but she had refused.
- Five police officers, questioned in court, submitted that prior to the applicant’s arrest they had arrested several persons leaving Sk.’s flat in possession of drugs. They also stated that they had seized drugs during the searches of the apartments of both co-accused.
- Five persons testified in court that they had bought drugs from Sk.
- Attesting witness V. confirmed at the trial that narcotic-like substances had been seized at Sk.’s flat.
- Forensic reports established that the substances seized from the co-defendants were heroin and marijuana and whereas it had been impossible to establish any match between the heroin samples seized from the applicant and Sk., the marijuana samples seized from them had not matched.
10. The applicant was sentenced to eleven years and three months’ imprisonment. Sk. was sentenced to three years’ imprisonment and was relieved from the punishment under the Amnesty Act.
11. The applicant appealed and contended, among other things, that his conviction had been based on circumstantial evidence and that the trial court had failed to summon S. despite the applicant’s requests and the fact that S.’s whereabouts had been known to it. Furthermore, he claimed that he had repeatedly requested a confrontation with S. during the preliminary investigation and at the Town Court’s preliminary hearings, but all his requests had been either disregarded or turned down without any reasons given. He claimed that, contrary to the statement by Sk. that he had started supplying her with drugs in July 1999, S. had allegedly testified that Sk. had started dealing in drugs in April 1999. The applicant also averred that in her initial statements to the police Sk. had submitted that she had procured drugs from several other sources and not from him. He further complained that the court had convicted him of concerted trafficking in drugs despite the conclusions of the forensic reports that the heroin samples seized from him and his co-defendant were differently coloured and that the expert had been unable to establish whether those samples matched. The marijuana samples seized from him and Sk. had not matched at all. The applicant also alleged that the police had planted marijuana on him during the search of his flat.
12. On 1 November 2000 the Murmansk Regional Court quashed the trial judgment and ordered a retrial. The Regional Court found that some of the trial court’s findings had lacked a proper evidentiary basis, that the trial court had found the applicant guilty of trafficking in bigger amounts of heroin than initially imputed to him by the prosecution, and that it should have questioned the attesting witnesses present when the seizure was carried out at the applicant’s flat. It also held that the trial court had breached Article 286 of the Code of Criminal Procedure by failing to take any measures to secure the attendance of witness S., whose testimony had had major importance for the determination of the charge against the applicant and whose whereabouts had been known to it.
13. During a new trial, the applicant pleaded guilty to unlawful purchase of drugs (Article 228 § 1 of the Criminal Code), but not to the concerted sale of drugs. He maintained that Sk. had slandered him under the influence of drugs and had yielded to pressure from the police officers. Sk. confirmed at the court hearings her statements made during the initial trial.
14. Having re-examined the case, on 22 January 2001 the Town Court delivered a new judgment. It found both defendants guilty of unlawful procurement, storage and concerted trafficking in drugs, repeatedly and on a large and particularly large scale under Article 228 § 4 of the Criminal Code. It sentenced the applicant to eleven years and three months’ imprisonment and Sk. to three years’ imprisonment, referring, among other things, to the fact that she had “unmasked her accomplice”. By the same judgment it relieved Sk. from punishment by virtue of the Amnesty Act and ordered that she be treated for drug addiction.
15. The court based the applicant’s conviction on the statements made at the retrial by Sk. It dismissed the applicant’s allegations that Sk. had slandered him as unfounded and held that her statements were corroborated by other evidence:
- It referred to the pre-trial deposition from S., noting that “his statements were read out pursuant to Article 286 of the Code of Criminal Procedure”.
- It questioned K. who had previously asserted that she had learnt from the co-defendants that they had been dealing in drugs. K. retracted, but the trial court preferred to rely on her earlier pre-trial statement.
- It also read out the statement from Ya. made at the initial trial in which she submitted that the applicant had been trafficking in drugs, in particular heroin, after his release from prison and that he had suggested that she sell drugs but she had refused.
- It further had regard to the fact that RUB 2,000 (according to Sk., the usual proceeds for the sale of one gramme of heroin) had been seized from the applicant during his arrest, and referred to handwritten notes seized at his flat. Those notes contained columns, arithmetical operations, and figures, including “2,000”, “1,150”, “500” and so forth.
- Attesting witness Kh. submitted to the court that during the search he had seen the applicant surrender to the police what was supposed to be heroin and the police discover what was supposed to be marijuana.
- The police officers and the drug buyers confirmed to the court their statements made at the first trial.
- The court also referred to the forensic reports and other pieces of evidence used in the previous trial. The expert was not summoned to be heard as a witness.
16. On 8 February and 22 March 2001 the applicant submitted his grounds of appeal to the Murmansk Regional Court. He complained, among other things, that the Town Court had failed to question S., although his testimony had contradicted Sk.’s and his own accounts of the events; that he had twice requested the court to question S.; that the trial court had known that S. had been held in a detention facility in the Murmansk Region and thus had had a real opportunity to obtain his attendance and, finally, that the first conviction had been quashed precisely because S. had not been questioned in open court. The applicant pointed out that the trial court had not referred to any circumstances which would justify the reading out of S.’s statement. He also complained that the trial court had incorrectly assessed the forensic reports on the seized substances and that it had refused to summon the expert who could have given his opinion as to the difference in colour of the heroin seized from him, Sk. and the drug buyers.
17. On 15 May 2001 the Murmansk Regional Court upheld the applicant’s conviction. It held that Sk.’s statements had been coherent and consistent throughout the proceedings and that the applicant’s conviction was based on her testimony, corroborated by other evidence. As to the failure to secure the attendance of S., the court of appeal ruled as follows:
“The fact that witness ... S. was not directly questioned at a court hearing is not a significant breach of the law on criminal procedure.. By the time of the retrial, S. was already serving a prison sentence. Transferring him to the town of Apatity would have entailed a lengthy adjournment of the trial. Therefore, in the present case the court, in the [appeal court’s] opinion, lawfully read out ... the statements of witness S. and subsequently assessed them together with other pieces of evidence...”
18. By a decision of 22 October 2001, the President of the Murmansk Regional Court dismissed the applicant’s request for supervisory review of his conviction.
19. By a decision of 18 March 2004, a judge of the Murmansk Regional Court dismissed an application by the prosecutor of the Murmansk Region for supervisory review of the applicant’s conviction. The decision stated, among other things, that the fact that the expert had been unable to confirm the match of the heroin samples seized from the applicant and Sk. and had concluded that the marijuana samples seized from them had not matched at all did not undermine the court’s finding that the co-defendants had been trafficking in drugs in concert. This was because it had been established that the applicant had procured drugs from different sources on several occasions and had repeatedly supplied Sk. with small quantities of drugs for further sale. It was also noted that, according to the trial court verbatim record, the applicant had not submitted any requests for the expert to be summoned or any further examinations to be carried out.
20. On 18 January 2005 the Kolskiy District Court of the Murmansk Region ordered the applicant’s release on parole. It found that the applicant had already served half of his prison sentence and that he had proved by his conduct that he did not need to serve it in full.
21. On 2 November 2006 the President of the Murmansk Regional Court dismissed the application by the Deputy Prosecutor General for supervisory review of the applicant’s conviction, finding that it did not contain any arguments which would not have been examined in the decision of 18 March 2004.
22. Article 228 § 1 of the Criminal Code (as in force at the material time) provided that unlawful purchase or possession of a large quantity of drugs without the intention to sell was punishable by up to three years’ imprisonment. Unlawful purchase or possession of a large or especially large quantity of drugs with the intention to sell, or the selling of drugs in the above quantities, committed by a group of persons and repetitively, carried a sentence of from seven to fifteen years’ imprisonment (Article 228 §§ 2, 3 and 4).
23. Article 240 of the Code of Criminal Procedure of 1960 (as in force at the material time) provided that the trial court was to examine the evidence in the case directly: it had to question defendants, victims, witnesses and experts, and examine material evidence, read out records and other documents. Article 286 provided that statements made by a witness during the inquiry or pre-trial investigation could be read out in two circumstances: (i) if there was a substantial discrepancy between those statements and the testimony given at the trial; or (ii) if the witness was absent from the court hearing for reasons that made it impossible to secure his or her attendance.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23240
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: HARRACH v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Ernst Leonhard Harrach, is a Czech and Austrian national. He was born in 1920 and lives in Bruck an der Leitha (Austria). He is represented before the Court by Mr P. Hrdina, a lawyer practising in Prague, and by Mr J. Eltz, a lawyer practising in Vienna.
Johann Harrach, the applicant’s cousin, owned real estate in former Czechoslovakia. On 28 December 1941 he made a will appointing his son Ferdinand his universal heir and the applicant his testamentary substitute. Johann Harrach died on 12 May 1945. As his son did not acquire the estate, it became hereditas iacens (a “dormant” inheritance; ležící pozůstalost; ruhender Nachlaβ).
The property was confiscated on 21 June 1945 under President Beneš Decree no. 12/1945.
Stephanie Harrach, Johann Harrach’s widow, requested that the property be excluded from the confiscation, as her husband had been loyal to the Czechoslovak State during the German occupation. Her request was rejected by the Hradec Králové District National Committee (okresní národní výbor) on 11 December 1946. The National Land Committee (zemský národní výbor) upheld this decision on 31 March 1947.
On 25 August 1961 Ferdinand Harrach died. As a result, the right to take over the hereditas iacens passed to the applicant.
On 24 January 1993 the applicant lodged a claim for restitution of the property which had been confiscated from Johann Harrach.
On 16 March 1999 the Tábor District Land Office (okresní pozemkový úřad) held that the applicant was the owner of part of the property. It found that Johann Harrach had died as an Austrian national and that the Ministry of Agriculture (ministerstvo zemědělství) had subsequently ordered the confiscation of his property under President Beneš Decree no. 12/1945. The Land Office’s decision stated that the confiscation proceedings had been held in respect of the hereditas iacens which had been considered under the Civil Code 1811 as being formally possessed by the deceased person until acquired by an heir. The Land Office established that the confiscation could have been effective only after a final administrative decision had been taken and that the confiscation proceedings should have been held subsequent to the ex officio inheritance proceedings, in which the heirs could have lodged their inheritance applications in order to acquire the estate. It held that confiscation proceedings could not have been conducted against the hereditas iacens and that there had never been any proceedings concerning the applicant’s inheritance. It concluded, with reference to the Land Ownership Act, that the property had been transferred to the State unlawfully and that the applicant’s property rights had been infringed during the period covered by that legislation.
On 22 October 1999 the Hradec Králové Regional Court (krajský soud), upon the defendant’s appeal, quashed the Land Office’s decision and remitted the case to the administrative authority, on the ground that the Land Office had insufficiently established the facts of the case. The court considered, in particular, that the Land Office had failed to examine the date on which the confiscation of the property had taken place. That issue was relevant for establishing whether the applicant’s case ought to be examined under the Restitution Act 1992. The court established that the Land Office’s legal opinion that the confiscation had been null and void was not supported by the evidence adduced. In the Regional Court’s view, the confiscation proceedings ended with the former National Land Committee’s decision of 31 March 1947, and thus fell outside the period laid down in section 4 of the Land Ownership Act. The court noted that the restitution requirements set out in section 6 of the Land Ownership Act could be fulfilled, provided that the relevant chronological requirement was satisfied.
The decision further stated that the Land Office had failed to establish whether any proprietary wrong had in fact been caused to the applicant and, if so, whether it had been caused within the relevant period. The court did not share the Land Office’s opinion that (i) the confiscation proceedings had been held by authorities which lacked power to deal with the case contrary to President Beneš Decree no. 12/1945, and that (ii) the final decision on confiscation had not become effective. The court further found, contrary to the view expressed by the Land Office, that the relevant provisions of the Civil Code 1811 had not excluded confiscation of the hereditas iacens.
In the meantime, on 6 September 1999, the Tábor District Land Office found that the applicant was the owner of the other part of the property claimed by him. It held that the confiscation proceedings had been conducted against the deceased owner, and that under the Civil Code 1811 the hereditas iacens had been considered as being in the possession of the testator until acquired by an heir. Accordingly, the confiscation of Johann Harrach’s property had been null and void, and the State had acquired the property illegally. The Land Office concluded that the applicant had suffered a proprietary wrong within a period covered by the Land Ownership Act, and that his restitution claim fell within the scope of section 6(1) of that Act.
On 23 February 2000 the České Budějovice Regional Court, upon the defendant’s appeal, quashed this decision and remitted the case to the Land Office for further consideration. The court held that the main reasons for which the property of Johann Harrach had been confiscated were that he had opted for German nationality and the German language as his mother tongue in 1939, that he had been active in associations having German professional or other interests, that he had acquired, on 27 September 1939, a German passport indicating that he was a German national, that he had become a member of a German political party (Sudetendeutschen Partei) on 28 August 1939, and that he had joined the Nazi political party NSDAP (Nationalsozialistische Deutsche Arbeiterpartei) on 1 November 1942. The court established that the property had been transferred to the State by operation of President Beneš Decree no. 12/1945 on 23 June 1945, and that the subsequent decisions on confiscation had only had a declaratory character.
The court found that the applicant’s case fell outside the scope of the Land Ownership Act which covered exclusively the period between 25 February 1948 and 1 January 1990. It rejected the Land Office’s argument that the legislation in force in former Czechoslovakia had not provided for the confiscation of the hereditas iacens. With reference to Articles 547 and 819 of the Civil Code 1811, the court noted that the proprietary nature of inheritance rights allowed their confiscation pursuant to President Beneš Decree no. 12/1945. It also noted, with reference to a decision of the Czech Constitutional Court of 2 November 1999, that the hereditas iacens was to be understood as a legal person sui generis. The court added that Johann Harrach had been represented by a guardian in the confiscation proceedings. The court finally stated that, even assuming that the confiscation could be deemed null and void, the State would have acquired the property without any legal title outside the relevant period prescribed by the Land Ownership Act, as the confiscation proceedings had terminated in 1947. It ordered the Land Office to examine whether Johann Harrach satisfied the conditions for the restitution of property laid down in the Restitution Act 1992.
The applicant lodged a constitutional appeal (ústavní stížnost) which was rejected as being premature by the Constitutional Court (Ústavní soud) on 7 June 2000.
On 5 June 2000 the Tábor District Land Office, after having joined the cases, decided that the applicant was not the owner of the estate. The Land Office, being bound by the judgments of the Hradec Králové Regional Court and the České Budějovice Regional Court, held that the property had been confiscated lawfully and that the confiscation fell outside the relevant period specified in the Land Ownership Act. The Land Office also held that the original owner had not satisfied the conditions for the restitution of property fixed by the Restitution Act 1992 as he had become a German citizen on 27 September 1939 and had not re-acquired Czechoslovak citizenship. The Land Office stated that the applicant had neither acquired the estate from Johann Harrach, as provided for in section 2 of the Restitution Act 1992, nor had they kinship as specified in section 2 § 3 of that Act.
On 9 August 2000 the Supreme Court held that the applicant’s appeal against the Tábor District Office’s decision of 5 June 2000 was to be considered by the České Budějovice Regional Court.
On 25 October 2000 the České Budějovice Regional Court upheld the administrative decision. In addition to the reasons set out therein, the court held that, pursuant to Articles 710 and 819 of the Civil Code 1811, an heir had acquired property upon a court decision and that an estate had been considered as being in the possession of the testator until delivered to an heir by a decision of a court of law. The Regional Court also held that, since the inheritance in the form of a hereditas iacens was in general of a proprietary character, it could have been subject to confiscation under the President Beneš Decrees. The property in the form of a hereditas iacens was a legal person sui generis with legal capacity. As a result, it could have been confiscated after the original owner’s death, provided that it had not yet been transferred to an heir in inheritance proceedings.
On 8 March 2001 the Constitutional Court, endorsing the reasons given in the Regional Court’s judgment of 25 October 2000, and referring to its decision no. II ÚS 170/96, rejected as being manifestly ill-founded the applicant’s second constitutional appeal, in which he claimed a violation of his right to a fair hearing and his right to the peaceful enjoyment of possessions.
The Land Ownership Act governs, inter alia, the restitution of certain agricultural and other property defined in section 1 which was assigned or transferred to the State or other legal persons between 25 February 1948 and 1 January 1990. Section 6(1) lists the acts giving rise to a restitution claim.
The persons entitled to claim restitution (“rightful claimants”) are set out in section 4. Under section 4(1), any natural person who is a citizen of the Czech and Slovak Federal Republic and who lost property which once formed his or her agricultural homestead in the aforementioned period, in one of the ways set out in section 6(1), is entitled to claim restitution. The entitled persons are the original owners of the property or, where the original owner is dead, the owner’s heirs or next of kin in a specified order (section 4(2)). By section 4(2), restitution can be claimed by natural persons who are citizens of the Czech and Slovak Federal Republic and are at the same time, in order of precedence, a) testamentary heirs who acquired the whole of the estate, b) testamentary heirs who acquired part of the estate, c) children and spouses, d) parents, or e) brothers and sisters or their spouses and children.
Section 5 provides that the persons obliged to restore property include the State and any legal person possessing the property at the date when the Act entered into force.
This Act constitutes a lex specialis in relation to the Land Ownership Act.
Section 2(1) provides that any natural person who is a citizen of the Czech and Slovak Federal Republic, who lost his or her property under Presidential Decrees nos. 12/1945 and 108/1945, and who was loyal to the Czechoslovak State and re-acquired Czechoslovak citizenship either under Acts nos. 245/1948, 194/1949 and 34/1953 or Act no. 33/1945, is entitled to claim restitution of any of his or her property which passed into State ownership in the circumstances referred to in the Land Ownership Act.
Section 2(3) provides that where such a person died or was declared to be presumed dead before the time-limit set out in Section 11a, restitution can be claimed by natural persons who are citizens of the Czech and Slovak Federal Republic and are at the same time, in order of precedence, a) testamentary heirs who acquired the whole of the estate in inheritance proceedings, b) testamentary heirs who acquired part of the estate, c) children or spouses, d) parents, or e) brothers or sisters or their children.
Article 547 provides for the concept of hereditas iacens, which exists from the moment of the owner’s death until a heir accepts the estate. Hereditas iacens is based on the notion that, during this period, an estate is considered to be formally owned by the deceased.
By Article 819, a person who has been declared heir by a decision of a court of law on his or her application, and who has fulfilled his or her obligations, receives the estate, thus putting an end to the inheritance proceedings.
The Civil Code 1811 was repealed at the end of 1950, whereupon the legal concept of hereditas iacens ceased to be valid in Czechoslovakia.
The decree provides for expropriation, with immediate effect and without compensation, of agricultural property for the purposes of programmed land reform. It concerns agricultural property, including buildings and movable goods, owned by persons of German and Hungarian origin irrespective of their citizenship status.
For the purposes of the land reform, section 1(1) provides, with immediate effect and without compensation, that the property of the following persons shall be confiscated:
a) persons of German and Hungarian origin irrespective of their citizenship, and
b) traitors and enemies of the State.
Section 1(2) provides that the property of persons of German and Hungarian origin who were active in the battle for the liberation of Czechoslovakia is eligible for exemption from confiscation.
Section 1(3) provides that decisions as to whether the property referred to in section 1(2) is exempt from confiscation shall be taken by the National District Committees.
Section 2(1) defines persons of German or Hungarian origin as being those who, in any census after 1929, declared themselves to be of German or Hungarian origin, or who became members of national groups, formations or political parties made up of persons of German or Hungarian origin.
That case concerned a claim for the restitution of property which had been confiscated, in the form of an hereditas iacens, under President Beneš Decree no. 12/1945. The applicants claimed a violation of their property rights, alleging that their father had been the principal heir and they had been his substitutes in succession.
The Constitutional Court stated that, pursuant to the Civil Code 1811, an heir had had the right either to accept or reject the hereditas iacens; however, an hereditas iacens could only have passed to an heir by virtue of a court decision. It established that, as the hereditas iacens in question had not been considered by the national courts in inheritance proceedings, the plaintiffs’ inheritance title to the property had been irrelevant for the purposes of the restitution proceedings.
The court further stated that the property claimed had been confiscated pursuant to President Beneš Decree no. 12/1945 on 23 June 1945, and that the subsequent administrative decisions on confiscation had only been declaratory. It noted that the national courts had rightly applied the Restitution Act 1992 instead of the Land Ownership Act on the facts of the case, as the former was a lex specialis.
The Constitutional Court concluded that only the owner of the confiscated property had to comply with the conditions for restitution of property laid down in the Restitution Act 1992 (i.e. to show that he or she was a Czech citizen, that the property had been confiscated under President Beneš Decree no. 12/1945, and that he or she was loyal to the Czechoslovak State and had acquired Czech citizenship). The Constitutional Court held that, as the original owner had not satisfied those conditions and the plaintiffs’ father had not acquired the hereditas iacens, and thus had never owned the property, the plaintiffs were not entitled to claim its restitution.


ITEMID: 001-105302
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: CASE OF BUCURIA INC AND OTHERS v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicants are Bucuria Inc, a joint-stock company registered in Chişinău, and three Moldovan nationals residing in Chişinău: Mr Pavel Filip, born in 1966; Mr Serghei Covtoniuc, born in 1961 and Ms Liuba Noviţcaia, born in 1960. They were represented before the Court by Ms J. Hanganu, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The first applicant, Bucuria Inc (“the Company”) is the biggest producer of chocolate and other confectionary in Moldova. The second applicant is the Company’s current Director General and a shareholder and the third and the fourth applicants are also shareholders.
4. Article 2 § 1 of the Company’s Statute describes the Company’s object as making “a permanent profit”. Article 7.10(k) of the Company’s Statute provides that the Board of the Company is competent to approve decisions to stand security for third parties and to pledge the Company’s assets.
5. On 29 August 2000 Mr Visile Tarlev, who was then the Director General of the Company, sent a letter to Moldindcombank (“the Bank”). The letter stated that the Company agreed irrevocably and unconditionally to guarantee a loan to be made by the Bank of 1,850,000 United States dollars (USD), a sum subsequently assessed to represent 18.5% of the share value of the Company. The money was to finance the purchase by a Moldovan company, Feodosia Ltd, of 837,787 shares in the Company from Agroprodimpex Cyprus Ltd, a company registered in Limassol.
6. In March 2001, following the victory in the parliamentary elections by the Communist Party, Mr Tarlev resigned from his post as Director General of the Company. On 19 April 2001 he was appointed Prime Minister by the President of Moldova and he remained in this post until 18 March 2008. The second applicant became the Director General of the Company.
7. On 28 June 2001 the Bank demanded full repayment of the loan secured.
8. Following the demand for payment, the Company filed a criminal complaint against Mr Tarlev. The complaint was dismissed by the Prosecutor General on 19 July 2002, on the ground that the alleged facts did not reveal an offence. It does not appear that the Company sought judicial review of the Prosecutor General’s decision.
9. On 10 December 2008 the Company was informed that on 1 December 2008 the Prosecutor General’s Office reopened the criminal investigation into Mr Tarlev’s alleged unlawful conduct.
10. On 22 October 2001 the Company initiated civil proceedings against the Bank and Feodosia Ltd, seeking a declaration that the guarantee issued by Mr Tarlev was null ab initio. The Company relied on Rule 7.10(k) of its Statute, according to which only the full Board was competent to guarantee a loan contracted by a third party, and also on Articles 50 and 61 of the Civil Code and Article 83 of Law No. 1134 of 2 April 1997 on Joint-Stock Companies (“Law No. 1134”), which required the unanimous vote of a Company’s Board for any “important transaction” (see below).
11. The Chişinău Economic Court held a hearing on 11 December 2001 and dismissed the action on 23 January 2002. The court found that neither the Company’s Statute nor Law No. 1134 prevented the Director General from standing as security for third parties and that the guarantee agreement did not constitute an “important transaction” within the meaning of Articles 82 and 83 of Law No. 1143 since it affected less than 25 % of the Company’s capital. The letter signed by Mr Tarlev on 29 August 2000 therefore validly bound the Company.
12. The court further ruled that, even if no decision of the Company’s Board was required by law, it appeared from the minutes submitted by the defendants that the Board had held an extraordinary meeting on 19 January 2001 during which all five members had approved the guarantee agreement set out in Mr Tarlev’s letter of 28 August 2000.
13. The Company filed an appeal on points of facts and law (apel) with the Appeal Chamber of the Economic Court, submitting, inter alia, that the first instance tribunal had erred, first, in finding that neither the Company’s Statute nor domestic law prevented the Director General from entering into a binding guarantee on behalf of the Company for such a large sum and, secondly, in finding that the Board of the Company had met and approved the agreement on 19 January 2001. The Company contended that the minutes of that meeting had been forged and it requested the court to hear evidence from the members of the Company’s Board who had allegedly been present.
14. On 14 May 2002 the Appeal Chamber rejected the Company’s request that it hear witness evidence and upheld the first instance judgment, on the ground that the minutes of the meeting of 19 January 2001 were valid unless declared invalid by a court. The court also held that the provisions of sections 82 and 83 of the Law on Joint-stock Companies (see below) were inapplicable because the guarantee agreement did not qualify as an “important transaction”.
15. On 24 May 2002 the Company’s Board held an extraordinary meeting with a view to examining the validity of the minutes of the meeting of 19 January 2001. The Board agreed that they had never met on 19 January 2001. They found that the minutes had been signed by Mr Tarlev and an engineer employed by the company, Eugenia G., who gave evidence that she had not attended any meeting and had signed at the request of Mr Tarlev, without understanding the significance. Contrary to the requirements of Articles 50, 52 and 61 of the Civil Code, Articles 2.1 and 7.10 (k) of the Company’s Statute and Article 68 of Law No. 1134, the minutes included neither the names of the persons who had allegedly attended the meeting, the agenda nor the names of the persons appointed as President and Secretary of the meeting, and had not been signed by the meeting’s Secretary or President. The Board decided unanimously to declare the minutes of 19 January 2001 invalid as a forgery.
16. The Company filed an appeal on points of law (recurs) to the Supreme Court against the decision of the Appeal Chamber of 14 May 2002. It contended in particular that the minutes of the meeting when the guarantee agreement had allegedly been approved did not comply with the formalities required by law and had been declared invalid by the Company’s Board at its meeting on 24 May 2002.
17. In response to the Company’s appeal, the Bank and Feodosia Ltd filed written statements from four of the five members of the Company’s Board in office in January 2001, including Mr Tarlev. In the statements, dated 13 December 2002, the Board members confirmed that they had, in fact, held a meeting on 19 January 2001 and had voted to approve the guarantee agreement. The Supreme Court found that this evidence, together with the minutes, confirmed that a unanimous vote had been taken during the meeting of 19 January 2001. It also upheld the ruling of the Appeal Chamber that the minutes were valid since the Company had not brought proceedings specifically to challenge their validity before a court. As to the refusal of the Prosecutor General to open a criminal investigation against Mr Tarlev, the Supreme Court considered that it had been based on the finding that the Company was in the practice of preparing minutes of meetings which did not comply with the formal legal requirements. The Supreme Court therefore found that the lower courts had decided correctly and it dismissed the appeal on 18 December 2002.
18. On 13 May 2003 the General Assembly of shareholders met and decided that both the guarantee letter issued by Mr Tarlev on 29 August 2000 and the minutes of the alleged meeting of 19 January 2001 were null and void.
19. Following this meeting the third applicant, a shareholder, commenced proceedings against the Company in the Chişinău Economic Court, requesting the annulment of the minutes of 19 January 2001 on the ground that they had not been drawn up in accordance with legal requirements. The Company accepted before the court that the minutes of the meeting of 19 January 2001 had been forged.
20. On 2 September 2002 the Bank had sold the debt owed by Feodosia Ltd and guaranteed by the Company to Fuchsia Ltd, a company registered in Mauritius. At the date of the sale the debt, including capital and interest, totalled USD 2,603,873. The Bank, Feodosia Ltd and Fuchsia Ltd intervened in the proceedings brought by the third applicant against the Company, alleging that the proceedings were simply a manoeuvre by the Company and its shareholders to avoid paying the debt.
21. The Economic Court heard evidence from two of the Directors, who had allegedly attended the meeting of 19 January 2001, as well as the engineer, Eugenia G., who had signed the minutes. The two Directors stated that they had not attended a meeting on that date and that their statements of 17 December 2002 had been made as a result of pressure and threats. Eugenia G. stated that she did not attend the meeting and that Mr Tarlev’s secretary had asked her to sign the minutes.
22. In a judgment dated 23 September 2003 the Economic Court found that no meeting had taken place on 19 January 2001. Referring to Article 7.10(k) of the Company’s Statute, according to which only the Board of the Company was competent to approve decisions to stand security for third parties, the court found that the guarantee letter signed by Mr Tarlev on 29 August 2000 had been ultra vires and that the minutes of the meeting of 19 January 2001 were null and void ab initio.
23. The defendant Bank appealed against this judgment. On 5 November 2003 the Appeal Chamber of the Economic Court, without holding a hearing, quashed the judgment of 23 September 2003. The Appeal Chamber noted that two contradictory sets of written statements had been submitted to the Economic Court. Without referring to the oral evidence of the three witnesses heard by that court, it held that the statements of the Directors dated 20 March 2003 might have been made under pressure by the newly appointed Director General of the Company (the second applicant) while the other statements were in the court’s eyes more trustworthy because their authors had made them personally in front of a notary. The court concluded on the basis of the evidence in its possession that all the five members of the Board had been present at the meeting of 19 January 2001 and had voted to approve the guarantee agreement. Irrespective of the above conclusion, the Appeal Chamber found that the Supreme Court had already ruled, in its final judgment of 18 September 2002, that the Board had met in an extraordinary meeting on 19 January 2001, when they had confirmed the validity of the guarantee letter. Consequently, the validity of the minutes and of the guarantee letter could no longer be challenged and the third applicant’s action was dismissed.
24. The third applicant submitted an appeal on points of law to the Supreme Court. It was rejected on 26 February 2004 for the following reasons:
“the appellate court has based its decision to reject [the applicant’s] claim on the fact that the [applicant’s] claim has been examined in the proceedings about the nullity of the guarantee letter, which concluded with the decision of the Supreme Court of 18 December 2002. It is clear from that decision that the court found that the validity of the guarantee letter was confirmed at the specially convened Board meeting of 19 January 2001. It follows that the court has determined the lawfulness of the act and the minutes of the Board meeting.”
25. A writ of enforcement was issued by the Economic Court of Appeal on 11 June 2004. Pursuant to the writ, the Company paid Fuchsia Ltd USD 2,330,012.19 between September and October 2004.
26. The relevant rules of company law are contained in Law 1134 of 2 April 1997 on Joint-Stock Companies, which provides as follows:
“Article 50. The General Assembly of Shareholders and its powers
...
(4) Unless the Company’s Charter provides otherwise, the General Assembly of Shareholders has the powers to approve:
a) the priority directions of the Company’s activity;
b) the forms of notification of shareholders about meetings of the General Assembly of Shareholders, as well as the procedure for informing shareholders of the agenda;
b1) the form of ensuring the access of shareholders to the Company documents provided in Article 92 paragraph (1);
c) the rules of activity of the Executive Body of the Company as well as the decisions on election of the Executive Body and the appointment of the Head of the Executive Body, his power to bind the Company, his remuneration and compensation and the premature termination of his powers;
d) quarterly reports of the Executive Body of the Company;
e) decisions on setting up, transforming or dissolving of Branch and Representative Offices, on appointing or releasing from office their managers, as well as changes and additions to the Company Charter.”
Article 65. The Board of the Company and its powers
(1) The Board of the Company shall represent the shareholders’ interests during the periods between General Assemblies and shall carry out the general management and control of the Company’s activity within the limits of its competence. The Board of the Company is accountable to the General Assembly of Shareholders.
(2) The Board of the Company has the following exclusive powers:
a) making decisions on the convocation of the General Assembly of Shareholders;
b) approving the market value of assets which are the object of a large-scale contracts;
c) making decisions on the conclusion of large-scale contracts as stipulated in paragraph (1) of Article 83;
d) concluding an agreement with the Executive Body of the Company;
e) approving the Company’s Registrar and determining his remuneration;
f) approving the prospectus of public offers of securities;
g) approving the report on the results of securities’ issues and operating changes to the Company’s Charter;
g1) approving the decision on bonds’ issue, except convertible bonds, as well as the report on results of bonds’ issue;
h) during the fiscal year, deciding on the distribution of net income, the use of reserve capital and of the special funds of the Company;
i) making proposals to the General Assembly of Shareholders on the payment of annual dividends and deciding on the payment of interim dividends;
j) approving a remuneration fund and the remuneration rules for the Company’s employees;
k) deciding on the Company’s joining an association or other union; and
l) deciding on other issues provided in this law and in the Charter of the Company.
(3) The powers of the Board of the Company shall also include deciding on the issues specified in paragraph (4) of Article 50, provided that this is stipulated in the Company Charter.
(4) Issues referred to the competence of the Board of the Company may not be delegated for review by the Executive Body of the Company, except as provided in paragraph (3) of Article 69.
(5) The Board of the Company shall submit to the General Assembly of Shareholders the annual report on its activity prepared according to the legislation on securities, the Charter of the Company and the regulation on the Board of the Company.
(6) The functions of the Board of the Company may not be delegated to another person.
(7) If the Board of the Company is not set up or its powers are terminated in conformity with this law, the functions of the Board shall be performed by the General Assembly of Shareholders, except for the convocation, preparation and holding of the meeting of the General Assembly.
27. Articles 82 and 83 of the same law provide that “important transactions”, amounting to between 25 and 50% of a company’s assets, can be approved only by a unanimous decision of the company’s board.
28. The powers of the executive body are set out in article 69, as follows:
“Article 69. Executive Body of the Company
(1) The Executive Body is competent to deal with all issues related to the management of the current activities of the Company, except the issues which are within the competence of the General Assembly of Shareholders or the Board of the Company.
(2) The Executive Body of the Company shall carry out decisions of the General Assembly of Shareholders and of the Board of the Company and is accountable to:
a) the Board of the Company;
b) the General Assembly of Shareholders, if provided in the Company Charter.
(3) If the Board of the Company has not been set up or its powers are terminated, the Executive Body of the Company shall carry out the functions of the Board of the Company concerning the preparation and holding of a General Assembly of Shareholders.
(4) The Executive Body of the Company can be either collegiate (Board, Directorate) or unipersonal (General Director, Director). The persons specified in paragraph (12) of Article 31 cannot hold a seat in the Executive Body of the Company. Persons elected (appointed) already shall be revoked from their functions.
(5) The Company Charter can simultaneously provide for two Executive Bodies specified in paragraph (4). In this case, the unipersonal Executive Body shall also act as a manager of the collegiate Executive Body.
(6) The Executive Body of the Company shall submit to the founding central or local public administration authority reports concerning the economic and financial activity of the Company, when the State’s share represents 50 per cent plus one share, and in some cases, the results of an independent audit of the annual financial report.
(7) The Executive Body of the Company has to ensure the submission to the Board of the Company, Auditing Commission and to each of their members documents and other information necessary for carrying out their functions appropriately.”
29. According to law, all judges must be competent, hold a university degree in law, have requisite work experience, have no criminal record, have a good reputation, and know the official State language. All judicial candidates have to pass a written examination.
30. During the period in question, judges of district and municipal courts, the Court of Appeal, and specialised courts such as the Economic Court were appointed by the President of the Republic of Moldova on the proposal of the Supreme Council of the Magistracy. Judges of the Supreme Court were appointed by Parliament on the proposal of the Supreme Council of the Magistracy. Parliament, the Government, and the Supreme Council of the Magistracy each appointed two of the six judges to the Constitutional Court.
31. The Supreme Council of the Magistracy included certain ex officio members, namely the Minister of Justice, the Prosecutor General, the President of the Supreme Court and the President of the Court of Appeal. Three other members were elected by the Supreme Court and three by Parliament.
32. Judges are appointed for an initial five-year term and, unless serious objections are raised, thereafter remain in post until retirement. According to an amendment to Law 947 of 19 July 1996 on the Supreme Judicial Council, passed on 19 July 2001, Presidents and Vice-Presidents of tribunals were, during the period in question, appointed for a four-year term of office.


ITEMID: 001-110803
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF A.L. v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Togo)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 6. The applicant was born in 1988 and lives in Salzburg.
7. On 20 November 2008 the applicant arrived at Vienna airport and applied for asylum.
8. During the asylum proceedings, the applicant was heard on 22 November and 25 November 2008, and on 6 July 2009. In the course of those interviews he submitted that he was a member of the political party UFC (Union des Forces de Changement), which was at the time an opposition party in Togo. In 2005, he was attacked by soldiers and members of the ruling party of Togo and thereupon fled to Benin, where he stayed until the end of 2006. He then returned to Togo.
9. In summer 2008, areas of Togo were flooded and the applicant and his family lost their house and their possessions. They thus moved to a camp for flood victims. The applicant claimed that relief items sent by international organisations were unequally distributed in the camp, which was why he and a group of other young members of the UFC criticised the distribution methods and attempted to distribute the goods themselves. However, soldiers threatened the applicant by saying, inter alia, that after the 2010 elections, the applicant and other UFC party members “would see what would happen.” This was the reason why the applicant decided to leave Togo and fled to Europe.
10. When making further statements on 6 July 2009, the authorities told the applicant that since the 2007 elections, the UFC held twenty-seven seats in the Togolese parliament. The applicant replied that he was aware of this. When asked who exactly had persecuted him, he repeated that during his stay in the camp for flood victims, he and other members of the UFC had organized demonstrations to demand fair distribution of the relief supplies, as some members of the UFC had not received any of the food donations. On 5 or 6 August 2008 the police came to the camp and told them they “would see what would happen”. The applicant left the camp on 7 August 2008 and stayed with a friend in Lomé for approximately two months. Subsequently, he went on to Ghana.
11. The applicant stated that he was afraid that upon his return, the police would kill him because of his membership of the UFC. To the asylum authorities’ reminder that the UFC was now an active and official part of the government, the applicant replied that the de facto regime of the last forty-three years was still in power and that there was no democracy in Togo.
12. On 6 July 2009, the Federal Asylum Office (Bundesasylamt) rejected the applicant’s request for asylum and subsidiary protection and ordered his expulsion to Togo. It held that the fear of persecution described by the applicant was not credible and that the applicant’s story seemed to have been fabricated around real events. In the event of his return the applicant would not face a real risk of a violation of Articles 2 or 3 or of Protocols Nos. 6 or 13 to the Convention.
13. With reference to the relevant country reports, the Federal Asylum Office stated that on 14 October 2007, parliamentary elections were held in Togo in which the former president’s party, RPT, won fifty seats, the UFC twenty-seven seats and the party of the former prime minister, CAR, four seats in parliament. Despite the elections having been described as generally fair and free, Togo could not yet be considered a representative democracy. The 2005 presidential elections were considered rigged and had been accompanied by severe outbursts of violence. With regard to respect for human rights in Togo, the Federal Asylum Office held that although the situation had improved slightly, serious violations of human rights persisted, such as inhuman treatment of prisoners, impunity for illegal acts committed by the authorities, arbitrary arrests, prolonged detention pending trial, and similar. Freedom of opinion, freedom of the press and freedom of assembly were not generally respected. No violence on the part of state organs or government forces against opposition members had been recorded since the end of 2005. Opposition parties, media, associations of civil society and religious faiths were free to act.
14. Turning to the applicant’s arguments, the Federal Asylum Office held that while the applicant’s account of the flood and the tensions with the security forces in the camp were credible, the alleged threats by the police and the resulting fear of the applicant were not, and the fact that the police had apparently not used violence against the inhabitants of the camp was in contradiction with the applicant’s statements. Furthermore, since the 2007 parliamentary elections the UFC had held twenty-seven seats in parliament. Lastly, according to the Federal Asylum Office’s information, returned asylum seekers had not been subjected to systematic persecution. Therefore, the authority concluded that the applicant’s claim for asylum was based on a fabricated story and that he had only submitted speculations on what could happen to him upon his return to Togo, and provided no indication of actual persecution against him on grounds recognized in Article 1 Section A Number 2 of the 1951 United Nations Convention Relating to the Status of Refugees. The Federal Asylum Office also rejected the applicant’s application for subsidiary protection, holding that he would not be exposed to a risk of persecution if returned.
15. The applicant appealed and complained that he had been informed that it was not possible for the authority to collect more than three different pieces of evidence and had refused to take all the evidence the applicant had put forward. He had also had difficulty understanding the interpreter properly and was never given a chance to tell his story, as he had only been asked questions to which he could answer “yes” or “no”. Thus, the authority should not be allowed to claim that the applicant’s account was too vague and unsubstantiated, as it had never given him the opportunity to substantiate his story. The applicant claimed that due to a translation error, it was not recorded that he had been beaten up by the police several times after he had participated in demonstrations in the wake of the 2005 presidential elections. In addition, the fact that he had fled to Benin and stayed there until 2006 had not been taken into account, and nor had the fact that the police had searched for him several times. The applicant had also been beaten up together with the other protestors when they had organised a demonstration in the camp for flood victims. He stated that even though the UFC was represented in parliament, regular UFC members were still subject to persecution, and in the event of his return to Togo, the authorities would “make him disappear” and probably kill him.
16. The Asylum Court (Asylgerichtshof) held a hearing on 29 April 2010. The applicant submitted a UFC membership card and confirmation that he had been an active member and had returned to Togo on 14 October 2007 after having fled to Benin. He also provided a newspaper article from the paper “Express” of 23 March 2010, according to which his cousin’s whereabouts after having been arrested were unknown, and the police were also looking for the applicant on account of his involvement in the demonstrations in the camp for victims of the floods in July and August 2008. Finally, the applicant submitted a newspaper article about a protest march in 2010 during which protestors were ill-treated by state forces.
17. In the course of the hearing, the Asylum Court emphasised contradictions in the applicant’s statement, for example, in relation to his school education, which he had allegedly followed until 2006 in Togo, although he claimed to have fled to Benin in April 2005. The applicant replied that he had spent the week in Togo to go to school, but the weekends in Benin for safety reasons and to avoid arrest in Togo. The Court also noted that the applicant had at one point stated that he had never been beaten up by the police, only verbally threatened, whereas he had then claimed to have been beaten up by the police in the course of the demonstrations in the camp for flood victims. The applicant referred to language problems in the drafting of his appeal to the Asylum Court. He repeated that he had never been beaten up by the police, but that they had wanted to arrest him because of the demonstrations about the unfair distribution of food in the camp. He had fled on 7 August 2008, after the soldiers had threatened to arrest him and the other demonstrators. The applicant also mentioned that another organizer of the demonstrations, M.A., had in the meantime been granted asylum in Austria.
18. On 7 May 2010, the Asylum Court dismissed the applicant’s claim for asylum or subsidiary protection, and ordered his expulsion to Togo. It held that the applicant’s claims were not credible, and the contradictions in his statements were not – as the applicant had claimed – due to translation errors. It stated that the newspaper article from the paper “Express” appeared to be a fake which had been paid for, as it was not probable that two years after the demonstrations in the camp a newspaper would still publish such a story. In addition, the statement of the UFC according to which the applicant had fled Togo and only returned in October 2007 was in contradiction with his statements that he had returned at the end of the year 2006.
19. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) against that decision and applied for suspensive effect, which was granted on 30 July 2010. However, on 21 September 2010, the Constitutional Court rejected the applicant’s request for legal aid and refused to deal with the complaint.
20. The applicant applied for the proceedings to be re-opened (Wiederaufnahme des Verfahrens), submitting a newspaper article from the paper “Le Patriote” dated 3 December 2008 which stated that due to the demonstrations in the camps, a clash between the police and a group of young people – among which the applicant was mentioned by name – had occurred. He also submitted other documents and a “verification report” in relation to the authenticity of the newspaper article from “Le Patriote”, which had been drawn up in the course of M.A.’s asylum proceedings.
21. On 27 October 2010 the Asylum Court dismissed the applicant’s request for the re-opening of the asylum proceedings. With regard to the newspaper article from “Le Patriote”, it found that it was unlikely that a newspaper would report on events about food distribution in a camp for flood victims half a year after that occurrence. Furthermore, it was well known to the court that such articles could be easily bought in Togo and that the applicant had only presented the print-out of an internet download of the page, which was again an indication of it being a falsification. This conclusion could not be altered by the “verification report”, which was not a reliable source for establishing the authenticity of the article and any resulting danger of persecution for the applicant, especially taking into consideration that it had not been drawn up in the course of the applicant’s proceedings, but for entirely different proceedings. Even if the article from “Le Patriote” were considered evidence to support the applicant’s story, it alone was not enough to outweigh all the other remaining inconsistencies in his account presented in the former proceedings.
22. The applicant applied for legal aid to lodge a complaint against that decision. However, on 15 December 2010, the Constitutional Court rejected the application for legal aid due to lack of the application’s prospects of success.
23. On 26 January 2011, the applicant, represented by counsel, lodged an application and a request for an interim measure under Rule 39 of the Rules of the Court to stay his expulsion to Togo.
24. On 9 February 2011, the President of the Section granted the request for an interim measure and asked the Government to inform the Court as to the exact content of the documents and the “verification report” submitted by the applicant in the proceedings for the re-opening of his asylum claim. Furthermore, if the document was public, the Government was asked to submit the “verification report” to the Court. Finally, they were requested to explain to what extent that report was relevant to the granting of asylum to M.A.
25. On 9 March 2011, the Government confirmed that the “verification report” had been commissioned by the Austrian authorities in the course of M.A.’s asylum proceedings to verify the authenticity of the same article from “Le Patriote”, which had been submitted in M.A.’s asylum proceedings and which also featured M.A.’s full name, as it did the applicant’s, in the context of the demonstrations in the camp for flood victims in relation to problems with the distribution of relief items. However, the Government emphasised that neither the authenticity of the article nor the chief editor’s information on the extensive research done for the article could prove that the events were relevant to the applicant’s asylum status. The Government further stated that the “verification report” was not public and that it did not concern the applicant. Therefore, reasons of data protection prevented the Government from submitting the whole report. With regard to the importance given to the article and the “verification report” in M.A.’s asylum proceedings, the Government submitted that the finding that the article was authentic carried no more weight in those asylum proceedings than other evidence, and that it had been considered together with all the other evidence in M.A.’s proceedings without taking any precedence.
26. M.A. was interviewed for the first time by the Federal Asylum Office on 25 November 2008. He stated there that because of the flood in August 2008, his family had lost their house and moved to a camp for flood victims. In the camp, relief items were distributed by soldiers and social workers; however, they did not allow him and his friends to help with the distribution, called them “members of the opposition” and threatened them by stating “you will see what will happen to you”. M.A. was again interviewed on 3 July 2009. Asked to freely narrate his reasons for fleeing his country, he added that at the camp for flood victims, only supporters of the ruling government had had access to the relief items, whereas other groups of people and M.A. himself had not. Several families had protested against those practices and eventually M.A. had organised demonstrations against the way relief items were distributed in the camp. As a result, the police had come, beaten them up and prohibited any further demonstrations. Police and security services had accused M.A. and his followers of causing disturbances in the camp and uttered their threats. M.A. had told the story to a member of the UFC, who had helped him to leave the country. M.A. further claimed that he had also been persecuted by the military in 2005 in the course of the presidential elections and the ensuing violent protests. Soldiers had come to his house several times, but he had never been there. He had also failed to comply with a number of summonses, but had left for Ghana and stayed there until 2007. He had returned to Lomé in 2007 and had not had any problems with the authorities until the events in the camp for flood victims.
27. On 19 October 2009, the Federal Asylum Office granted M.A. asylum in Austria. The decision did not elaborate on the reasons for granting him asylum in any depth. Referring to unspecified evidence in the file, the authority concluded that M.A.’s submissions concerning the reasons for his fear of persecution, taken in conjunction with the results of investigations conducted by it, were credible.
28. On 1 July 2008, an Austrian amendment statute repealed the possibility to lodge a complaint against a second-instance decision in asylum matters with the Administrative Court (Verwaltungsgerichtshof).
29. Before 1 July 2008, Article 129c of the Austrian Federal Constitution had provided the possibility for decisions taken in asylum matters in the first instance to be appealed against in the form of a complaint with the Independent Federal Asylum Panel (Unabhängiger Bundesasylsenat). To appeal against decisions taken by the Independent Federal Asylum Panel, an applicant had the option of lodging a complaint with the Constitutional Court and/or with the Administrative Court.
30. After the entry into force on 1 July 2008 of the amending statute in asylum matters, which established the Asylum Court and repealed the Law on the Independent Federal Asylum Panel, it was no longer possible to lodge a complaint with the Administrative Court due to lack of jurisdiction: since 1 July 2008, the Asylum Court has decided upon appeals brought against decisions taken in asylum matters in the first instance. As concerns the possibility to lodge a complaint against a decision by the Asylum Court, Article 133 no.1 of the Federal Constitution reads as follows:
“Article 133. The following matters are excluded from the jurisdiction of the Administrative Court:
1. matters pertaining to the jurisdiction of the Constitutional Court;
.....”
31. The new Article 144a of the Federal Constitution concerning jurisdiction of the Constitutional Court now reads – after the entry into force of the amending statute – as follows:
“Article 144a. (1). The Constitutional Court shall decide on complaints against decisions of the Asylum Court where the appellant alleges an infringement of a constitutionally guaranteed right by such decision ... .
(2) The Constitutional Court may decline to deal with a complaint ... if it has no reasonable prospects of success or if the decision is not expected to clarify a constitutional problem.”
32. In sum, Austrian asylum procedure includes the possibility of lodging a full appeal with the Asylum Court against a decision taken by the Federal Asylum Authority. Since 1 July 2008, the Austrian Administrative Court has no longer had jurisdiction over a complaint lodged against a decision by the Asylum Court. However, an asylum seeker can still lodge a complaint with the Constitutional Court alleging a violation of a right guaranteed under the Federal Constitution.
33. In Austria the European Convention on Human Rights has the status of a constitutional law (Federal Law Gazette 59/1964).
34. Finally, section 58 paragraph 2 of the General Administrative Procedure Act provides that a decision rendered by an administrative authority must only be reasoned if the party’s arguments were not fully adhered to.
35. In August 2006, the United Nations High Commissioner for Refugees (UNHCR) updated his information on the international protection needs of asylum seekers from Togo. It referred to its position paper dated August 2005 in which it had urged, inter alia, a moratorium on forced returns in the light of the precariousness of the security situation in Togo following an outburst of human rights violations in the aftermath of the presidential elections of April 2005. In the twelve months since, the report found that the situation in Togo had stabilised and in a number of ways improved. Reports of kidnappings and killings at night continued to be received but in substantially diminished numbers. There had been no fresh outbreaks of widespread violence. According to UN and diplomatic sources, the Togolese government evinced a genuine intention to resolve issues with the political opposition in the country, although this intention had not yet translated into meaningful reform. However, Amnesty International reported on the complete impunity in Togo for the perpetrators of the outbursts of violence in 2005. The UNHCR for its part acknowledged the difficulties balancing the desire for reconciliation and for justice and referred to a general amnesty announced by the Togolese Prime Minister, Edem Kodjo.
36. The UNHCR further referred to an avowed reluctance of many refugees to return to Togo, which was considered to be due in part to the lack of independent and reliable information on the treatment of individuals who had returned to Togo. It concluded that there was insufficient and contradictory information on the treatment of returnees to Togo to allow for a determination of the issue.
37. Based on the above conclusions, the UNHCR amended its position of August 2005 in respect to the international protection needs of Togolese asylum seekers and urged host countries to consider every asylum claim on the basis of their individual merits and pursuant to the requirements of the 1951 United Nations Convention Relating to the Status of Refugees. Individuals already recognized as refugees should for the time being retain their status. For individuals found not to be in need of international protection following the determination of their claims in fair and efficient proceedings including a right of appeal, UNHCR did not object to their return to Togo. Host States’ obligations under the principle of non-refoulement under application of human rights law remained unaffected and compelling humanitarian reasons were to be given due consideration.
38. Following an application by a Togolese refugee in asylum proceedings in Switzerland, the organization Schweizerische Flüchtlingshilfe created a report in May 2009 about the current situation of members of the opposition party UFC in Togo.
39. The UFC participated for the first time in the parliamentary elections on 14 October 2007. Pursuant to international observers, those elections took place peacefully and in an orderly fashion. The governing party RPT won fifty of the eighty-one seats of the Togolese parliament and the UFC, as the strongest opposition party, won twenty-seven seats. The UFC contested the election results and claimed forged ballots. The independent national election commission, CENI, noted that more than 300 of 750 ballot boxes were not correctly sealed. However, the Constitutional Court finally confirmed the election results.
40. The report confirmed that from 2006 onwards the Government had bowed to international pressure and tried increasingly to re-establish national dialogue among the government, the opposition and representatives of civil society, since such a dialogue was a condition for the re-instatement of economic cooperation with the European Union. High-level members of the opposition were considered to be safe in view of the Togolese government’s own interest in international approval of the democratisation process in the country and the ensuing economic consequences. However, the situation was different for opposition activists who had no public standing, and for “simple” members who went on protest marches and became entangled in skirmishes with the military. An [unnamed] expert on Togolese affairs was quoted as saying that those opposition members were still being secretly arrested, threatened and tortured, but that their stories would never be heard by the broader public.
41. Freedom of speech was still not guaranteed in Togo, a fact which was illustrated by the dissolution by use of teargas of a peaceful march organised by the UFC to mark the 49th Independence Day on 27 April 2009. It was unclear if demonstrators had also been arrested at the march.
42. The report concluded that UFC members of low public profile could still be victims of reprisals in Togo upon their return. Returnees from Europe were furthermore viewed with more suspicion than returnees from Benin or Ghana.
43. With regard to arbitrary or unlawful deprivation of life, disappearances and torture in Togo, the report referred to several notifications that the government or its agents had committed arbitrary or unlawful killings during the year. Amnesty International had reported that several people had died in detention in 2009 “probably as a result of torture or other ill-treatment”. In January 2009, a UN special rapporteur found evidence that police and gendarmes abused detainees during interrogation, guards beat prisoners and young persons and children were at risk of corporal punishment while in detention. Impunity for such actions remained a problem.
44. On 4 March 2010, the RPT candidate Faure Gnassingbé was re-elected as president with 61 percent of votes cast. International and national observers monitoring that election declared it generally free, fair, transparent and peaceful. The government arrested and held sixteen political detainees in connection with the presidential election, but denied that fact in public. As of September, according to Amnesty International and the League of Togolese Human Rights all sixteen detainees were released. None of those political prisoners had been mistreated.
45. Following the March elections, the UFC split into two factions, one led by Jean-Pierre Fabre, presidential candidate, and the other led by UFC president Gilchrist Olympio, who agreed to join the ruling RPT. As a result of an agreement between Olympio and the government, seven UFC ministers joined the presidential cabinet. As a result of internal rivalries in the UFC, the government banned the UFC weekly marches, justifying the action on the grounds that Fabre was no longer the lawful leader or the voice of the party.
46. Even though freedom of speech and of the press and freedom of assembly were guaranteed by the law and the constitution, the government continued to restrict those rights.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-90163
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SHIREBY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Article 14+P1-1 - Prohibition of discrimination (Article 1 of Protocol No. 1 - Protection of property)
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 4. The applicant was born in 1955 and lives in Sheffield.
5. His wife died on 3 April 2001. His claim for widows’ benefits was made in June 2001. On 22 June 2001 the applicant was informed that he was entitled to Widowed Parent’s Allowance (“WPA”). However, on 14 January 2002 he was informed that he was not entitled to a Bereavement Payment on the ground that the benefit did not exist at the time of the applicant’s wife’s death. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
6. The relevant domestic law and practice are described in the Court’s judgment in the case of Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV.
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-90499
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: DANKER v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Anders Danker, is a Finnish national who was born in 1961 and lives in Lidingö, Sweden. He was represented before the Court by Mr J. Hakanen, a lawyer practising in Turku. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties and as they appear from the documents on the file, may be summarised as follows.
The police investigated allegations that a bank had advanced loans without the necessary guarantees to such an extent that its solvency had been endangered and that unlawful financial inducements had been offered. The investigation also focused on whether there had been debtor dishonesty or fraud.
On 10 September 1994 the applicant was questioned by the police as a suspect. The pre-trial investigation was completed on 14 July 1995. The applicant was subsequently charged with economic crime allegedly committed in 1991 and 1992.
On 18 April 1996 the Salo District Court (käräjäoikeus, tingsrätten) upheld a co-defendant’s claim that he had not been properly summoned to the trial and declared the case against him inadmissible. On 24 September 1996 the Turku Court of Appeal (hovioikeus, hovrätten) upheld the decision. On 20 October 1997 the Supreme Court (korkein oikeus, högsta domstolen) quashed the previous decisions and remitted the case to the District Court.
Meanwhile, a second hearing was held on 12 June 1996. At the third hearing on 27 August 1996, the District Court upheld a co-defendant’s claim that he had not been properly summoned. On 11 February 1998 the Court of Appeal quashed the decision. On 8 February 1999 the Supreme Court upheld the appellate court’s decision.
The applicant was summoned to appear before the District Court for the first time at the above-mentioned third hearing held on 27 August 1996. The public prosecutor was found to be biased and a new prosecutor was assigned to the case, which was then adjourned until 11 November 1996.
On 21 January 1998 the District Court upheld a co-defendant’s claim that he had not been properly summoned and that the statute of limitations had already expired. On 8 October 1998 the Court of Appeal quashed the decision and remitted the case to the lower court. On 3 November 2000 the Supreme Court upheld the appellate court’s decision.
Meanwhile, on 30 March 2000 the District Court noted in its minutes that the parties disagreed as to whether the “reasonable time” requirement in Article 6 of the Convention had been complied with, and that the court would decide at a later stage whether the trial could continue.
On 18 May 2000 the District Court issued a separate decision dismissing a co-defendant’s request that the charges against him should be declared inadmissible due to the length of the proceedings. It held, inter alia, that the case was exceptionally difficult, involving voluminous evidence and being of significant public interest. On 19 December 2000 it dismissed a renewed request. On 12 January 2001 a co-defendant lodged a procedural complaint with the appellate court. It was dismissed on 13 March 2001.
There were 28 days of hearings in the District Court up to the end of 2000, held at approximately two to five-month intervals.
On 28 June 2001 a Spanish court acceded to the request of the Finnish Government for the extradition of a co-defendant to Finland to serve a prison sentence which had previously been imposed on him. According to an arrangement, he would be granted immunity from further prosecution in Finland for offences he had previously committed. On 14 August 2001 the District Court found that the criminal case against the co-defendant was barred on the basis of his immunity. On 30 November 2001 the Ministry of Justice applied to the Spanish authorities for permission to continue his prosecution in Finland in respect of offences other than those for which he had been extradited. On 4 October 2002 the relevant Spanish court acceded to the request. The appeal was rejected on 2 December 2002. On 10 January 2003 the Spanish Government consented to his continued prosecution in Finland. The co-defendant challenged the lawfulness of his continued prosecution before the Finnish courts. During spring 2003 he changed counsel. On 20 August 2003 the District Court rejected his claim for continued immunity, finding that the immunity had been annulled by the afore-mentioned decision of the Spanish Government. The decision was upheld by the Court of Appeal on 3 or 13 December 2003.
The present case was adjourned until 9 December 2003 owing to the need to replace the public prosecutor, who had fallen ill.
Meanwhile, on 25 February and 20 August 2003 respectively, the District Court dismissed the further requests of a co-defendant and the applicant to have the charges against them ruled inadmissible on account of the length of the proceedings. The applicant’s procedural complaint was dismissed by the appellate court on 3 December 2003. On 12 October 2004 the Supreme Court refused leave to appeal. On 9 February 2004 the District Court also dismissed the renewed request of the applicant, among others, observing that the question of whether the length of the proceedings had been unreasonable would be examined in due course and that any redress required could be given at the end of the proceedings. The appellate court upheld the last-mentioned decision on 30 June 2004. On 12 October 2004 the Supreme Court refused leave to appeal.
On 31 August 2004 the District Court dismissed a further request that the charges be declared inadmissible owing to the length of the proceedings.
During the trial the police conducted at least 12 additional investigations, the last of which, according to the Government’s observations in the case of Uoti v. Finland (no. 61222/00, § 19, 9 January 2007), was completed on 28 November 2003.
There had been a total of some 50 days of hearings prior to 30 March 2004 when the District Court had started to obtain evidence. Thereafter, there were 38 days of hearings up until the end of October 2004.
On 30 December 2004 the Parliamentary Ombudsman, noting that he lacked competence to interfere with the ongoing proceedings, drew the Government’s attention to the need to allocate adequate financial resources to both the District Court and the authorities involved in the case.
On 21 March 2006 the District Court gave its judgment. It dismissed as time-barred the charge concerning aiding and abetting debtor dishonesty but convicted the applicant of an accounting offence.
The court found that the “reasonable time” requirement laid down in the Constitution and the Convention had not been respected and that the applicant was therefore entitled to redress. The court noted that it had dismissed one of the charges as time-barred. As the court was not allowed to pass judgment on the time-barred charge, redress for the length of the proceedings had to be given in some other way. Accordingly, the applicant’s sentence should be mitigated. The court considered that the redress had to be significant and, having regard to the exceptionally lengthy nature of the proceedings, it should also be substantial. The applicant had not contributed to the length of the proceedings. The court stated that it was reducing the applicant’s sentence by half owing to the breach of the “reasonable time” requirement. It sentenced him to a suspended term of sixty days’ imprisonment.
The applicant appealed. The Court of Appeal held two preparatory hearings in November 2006. In the main hearing the case was heard over five days in January 2007.
On 22 October 2007 the Court of Appeal gave its judgment. It concurred with the lower court that the “reasonable time” requirement had not been respected and that the applicant was therefore entitled to redress, which had to be significant and substantial. It also had to be given in a clear and measurable manner. No reason had emerged not to impose a sentence. The court found that the applicant had not contributed to the length of the proceedings. It stated that it was reducing the applicant’s sentence by two-thirds owing to the lengthy proceedings.
The Court of Appeal agreed with the District Court that the standard sentence would be four months’ imprisonment and noted that the lower court had mitigated that sentence by half, that is, sixty days. The Court of Appeal further noted that it was not possible to mitigate the applicant’s sentence to a fine, having regard to the harmful and dangerous nature of the offence, the motives and the guilt displayed by the offence. Applying Chapter 6, article 7, point 3, of the Penal Code (as amended by Act no. 515/2003 and with effect from 1 January 2004; rikoslaki, strafflagen), the Court of Appeal, owing to the breach of the “reasonable time” requirement, sentenced him to a suspended term of forty days’ imprisonment.
The applicant requested leave to appeal. On 22 May 2008 the Supreme Court refused leave to appeal.
Chapter 6, article 7, point 3, of the Penal Code reads:
“In addition to what is provided above in section 6, grounds for mitigating the sentence that are also to be taken into consideration are
...
(3) a considerably long period that has passed since the commission of the offence;
if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result.”
Chapter 6, article 12, point 4, of the Penal Code (as amended by Act no. 515/2003 which took effect on 1 January 2004) reads:
“The court may waive the sentence if
...
4) the imposition of a sentence must be considered unreasonable or purposeless especially having regard to the factors mentioned in Chapter 6, article 6, point 3 and Chapter 6, article 7 or the measures taken by social and health services;
...”
In its judgment of 11 June 2004 (KKO 2004:58) the Supreme Court noted that, although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings, such a dismissal or declaration of inadmissibility might in some exceptional circumstances, for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case here. In considering whether there were grounds for applying Chapter 6, article 7, point 3, of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (here over 5.5 years) had been unreasonable. It concluded that in this case there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings.
In its judgment of 15 June 2005 (KKO 2005:73) the Supreme Court, applying Chapter 6, article 7, point 3, of the Penal Code, reduced the sentence by six months owing to the lengthy proceedings (some ten years). It imposed an immediate term of ten months’ imprisonment, finding that it was not justifiable to further mitigate the sentence by suspending the term of imprisonment.
On 1 February 2006 the Supreme Court gave a judgment (KKO 2006:11) in which, applying Chapter 6, article 12, point 4, of the Penal Code, it afforded redress for the breach of the “reasonable time” requirement (here the proceedings had lasted over seven years) by waiving the sentence.