ITEMID: 001-58451
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF MIRAGALL ESCOLANO AND OTHERS v. SPAIN
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Just satisfaction reserved;Pecuniary damage - reserved
JUDGES: Matti Pellonpää
TEXT: 11. The profit margins for chemists in Spain were fixed by a ministerial order (Orden Ministerial) on 22 January 1982.
12. On 10 August 1985 the government published a ministerial order in the Official Gazette (Boletín Oficial del Estado) reducing the profit margins.
13. On 9 September 1985 the National Society of Chemists of Spain (Consejo general de Colegios Oficiales de Farmacéuticos de España) commenced proceedings for judicial review with a view to obtaining an order quashing the ministerial order of 10 August 1985. The Supreme Court ordered a stay on the implementation of the order concerned. On 4 July 1987 it quashed the order on its own initiative. The judgment of the Supreme Court was served on the National Society of Chemists on 7 July 1987, but not on the applicants, as they were not parties to the proceedings.
14. The judgment of 4 July 1987 became public when a ministerial order of 30 September 1987 was published on 5 November 1987 in edition no. 265 of the Official Gazette, which reproduced the grounds of the judgment in question.
15. On 5 and 6 July 1988 the applicants lodged claims (dated between 27 April and 27 June 1988) with the State General Administrative Department for the payment of compensation for the damage sustained as a result of the ministerial order, under Article 106 of the Spanish Constitution and section 40(3) of the Law on the Legal Regime governing the Administration of the State. Those claims were deemed to have been rejected as the authorities did not reply to them.
16. On 3 January 1990 the applicants sought judicial review before the Supreme Court. They argued that the one-year limitation period for lodging their application had started to run on 5 November 1987, when the Supreme Court's judgment of 4 July 1987 was published in the Official Gazette, or, at the very least, 7 July 1987, when it was served on the National Society of Chemists. Their applications were, however, dismissed on the ground that the time-limit for making a claim for compensation to the administrative authorities had been one year from the date of delivery of the Supreme Court's judgment, namely 4 July 1987, and that they had lodged their applications out of time.
17. The dates the Supreme Court delivered its judgments were as follows: 27 December 1993 (application no. 41487/98); 26 January 1994 (application no. 38366/97); 26 March 1994 (application no. 41446/98); 17 November 1994 (application no. 41509/98); 21 November 1994 (application no. 41015/98); 29 November 1994 (application no. 40777/98); 12 January 1995 (application no. 38688/97); 17 January 1995 (application no. 41484/98); 23 January 1995 (application no. 41400/98); and 28 January 1995 (application no. 40843/98).
18. The applicants then lodged ten amparo appeals with the Constitutional Court, arguing that the starting-point of the one-year limitation period for lodging their applications with the authorities had been either 5 November 1987, when the Supreme Court's judgment was published in the Official Gazette, or 7 July 1987, when it had been served on the National Society of Chemists.
19. State Counsel's lodged memorials that were favourable to the applicants, in which he said:
“Whatever the position, State Counsel's Office considers that the interpretation by the Third Chamber of the Supreme Court, an interpretation which led it to declare that the action for compensation was statute-barred and, consequently, to dismiss that claim, in fact reflected a formal restrictive approach which is not best suited to facilitate the right of access to a court. That is because, as the Third Chamber itself openly recognised in its decision of 1 July 1994, which was produced by the applicant, it is impossible to establish the date when a judgment will be delivered before it has been drawn up and signed. That means that in every case, even people who were parties to the proceedings in question (which the applicant was not) will only learn the content and date of the judgment when it is served on them. Thus, taking as the starting-point the date of delivery of a judgment (which in practice is a fiction) and not the date of its service results in a material reduction in the time allowed for lodging the relevant claim for compensation, a reduction which, depending on how long service is delayed (which, admittedly, was for a very limited period in the present case), restricts and may even deny the effectiveness of the right to make a claim. Consequently, the decision of the Third Chamber of the Supreme Court entails a violation of the right to effective protection by the courts.”
20. The Constitutional Court nonetheless dismissed the appeals on the ground that the applicants had lodged their claims with the State General Administrative Department a year and two days after the date the Supreme Court's judgment was delivered. It held that a presumption arose that the applicants had been aware of the Supreme Court's judgment of 4 July 1987 in sufficient time, given their direct interest in it and the role played by the National Society of Chemists, which would have informed its members of the judgment.
The dates of delivery and service on the applicants of the decisions of the Constitutional Court were as follows: 10 March 1997; 2 October 1997; 13 October 1997; 27 October 1997; 10 November 1997; and 27 November 1997.
The judgments of 2 October 1997 (amparo appeal lodged by Mrs María de la Cinta Andreu Rocamora, application no. 38688/97) and 27 November 1997 (amparo appeal lodged by Mrs María Victoría Bonet Vilar, application no. 40777/98, Mr Salvador Roig Espert, application no. 41487/98, and Mrs María Dolores García Moreno, application no. 41446/98) were delivered by the Constitutional Court sitting as a full court. Three judges expressed an opinion dissenting from the judgment of 2 October 1997 (amparo appeal no. 160/1997). Three of the judgments of 27 November 1997 referred to the grounds of that judgment and to the dissenting opinion annexed to it. In the dissenting judges' view the starting-point for the limitation period was the date the person relying on it could reasonably act. In the instant case, that could not have been the date of “delivery” of the judgment of 4 July 1987, that being the date when the judges had voted in the parties' absence. Accordingly, in those sets of proceedings, the starting-point for the limitation period had to be the date of service of the decision, that being the point at which the parties had been able to act. With regard to Article 1969 of the Civil Code (see paragraph 23 above), the following view was expressed in the dissenting opinion:
“... If regard is had to the fact that this latter rule provides that the limitation period for all types of action shall be calculated from the date the actions could have been brought, it is obvious that that date can under no circumstances be the date of delivery of the judgment, for the simple reason that the parties are not invited to be present at that 'act', which in general takes place in practice at the same time as the vote which, with the exception of judgments made public 'in open court', enables it to be considered as a fiction devoid of purpose. ...
We therefore find ourselves confronted by a dangerous doctrine (by reason of the legal uncertainty which it creates for the parties) which, if extended to the calculation of the time-limits for appeals, may undermine the right to a remedy which is also fundamental. ...
If account is taken of the fact that rules governing procedural time-limits are mandatory, that an interested party is at liberty to bring an action at any time within that period, and that any change to the rules for calculating the time-limits will affect the constitutional principle of legal certainty (Article 9 [of the Spanish Constitution]), the conclusion that we are faced not with a mere problem of interpretation of an ordinary legal rule (for which the Supreme Court has sole jurisdiction), but with an unreasonable interpretation of a procedural requirement that prevented the claim for compensation being considered by a court on the merits is inescapable. In our view, that situation amounts to a violation of the right to effective protection by the courts, since the requirement that the courts must examine a case cannot be satisfied by a mere decision containing formal reasoning, but requires a decision satisfying the criteria of legal and substantive debate or which, in accordance with Article 24 § 1, protects 'legitimate rights and interests'.
The right to bring an action or to lodge an appeal must arise from the moment the parties may effectively become aware of a legal decision imposing an obligation on them or adversely affecting their legitimate rights or interests. As an act of communication between the court and the parties, service serves that purpose, namely to make the parties aware of the decision of the court and of the grounds for the decision. A pseudo-publication, a mere component of an esoteric judicial liturgy in which the parties play no role, cannot constitute the act required by our Constitution to enable the right to the effective protection by the courts or the right to a remedy to be exercised.”
The dissenting judges concluded:
“... we have to conclude that we are not dealing with a mere problem of interpretation of an ordinary legal rule ... but with an unreasonable interpretation of a procedural requirement which prevented the claim for compensation being considered by a court, something which is, in our view, contrary to the right to effective protection by the courts...”
21. Article 106 of the Constitution provides:
“1. The courts shall supervise regulatory powers and the lawfulness of administrative acts and whether such acts are directed at aims which justify them.
2. Save in cases of force majeure, individuals shall be entitled in the circumstances and in the manner laid down by statute to compensation for any damage caused to their property and their rights whenever such damage results from the functioning of the public service.”
22. At the material time, section 40(3) was worded as follows:
“Where the damage results from administrative deeds or acts ... the right to make a claim shall lapse one year after the event giving rise to the claim for compensation.”
23. The relevant provisions of the Civil Code read as follows:
“Save as expressly provided otherwise, for the purposes of the limitation period in any action whatsoever, time shall start to run from the date the action may be brought.”
“For the purposes of the limitation period in actions for the execution of obligations arising under a judgment or decision, time shall start to run from the date the judgment or decision becomes final.”
24. The issue of the starting-point has been considered by the Supreme Court in a number of decisions.
“... The limitation period starts to run from the moment that a possibility of asserting the right exists, that is to say, from the moment the cause of action becomes a matter of public knowledge and the right can logically and legally be asserted, since it would be absurd and unjust if time started to run when the act giving rise to the cause of action was still unknown or concealed, when, as a consequence, it was impossible to challenge or contest that act effectively or when an obstacle prevented any challenge...”
“... Time shall start to run from the moment the parties are notified, that is to say, from the moment they become aware of the rights and obligations which the decision creates for them...”
“... [For the purposes of the one-year time-limit laid down by section 40(3) of the Law on the Legal Regime governing the Administration of the State, time begins to run as soon as] the judgment quashing the act or general administrative provision at the origin or constituting the cause of the pecuniary liability becomes final...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-96757
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: HENNE v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Ms Christa Henne, is a German national and lives in Köln. She was represented before the Court by Mr T. Purps, a lawyer practising in Potsdam.
In 1992 the applicant inherited a 2,490 square-metre plot of land in Neugattersleben on the territory of the former German Democratic Republic (GDR) (“the property”) and was registered in the land register as owner of the property. Some 400 square meters of the property had been used, at least since 1979 or 1980, as a road and were recorded as such in the registers of public roads in 1984 and 1989. The applicant disputed that the relevant authorities of the GDR had designated the property as a public road as required by the laws of the GDR.
On 5 December 2003, and amended on 28 July 2005, the municipality made a written offer to the applicant, certified by a notary public, to buy the property for 8,964 euros pursuant to the Act on the Allocation of Legal Positions on Traffic Space and Other Publicly Used Private Property – “the Traffic Space Allocation Act” (Gesetz zur Bereinigung der Rechtsverhältnisse an Verkehrsflächen und anderen öffentlich genutzten privaten Grundstücken/ Verkehrsflächenbereinigungsgesetz) (see “Relevant domestic law” below).
The applicant declined the offer.
On 9 September 2005 the Dessau Regional Court ordered the applicant to accept the offer. The Regional Court held that the property was “traffic space” within the meaning of Section 1(1) No. 1 of the Traffic Space Allocation Act (see “Relevant domestic law” below); that the municipality had proved that the relevant authorities of the GDR had considered the road as a public road prior to 1984 and that it was therefore “traffic space” within the meaning of Section 2(2) No. 1 of that Act (see “Relevant domestic law” below), since the laws of the GDR did not necessarily require the proper designation of property as a public road; that all other requirements for the sale as required by the Traffic Space Allocation Act had been met; and that the calculation of the purchase price was in accordance with the statutory requirements.
On 5 May 2006 the Naumburg Court of Appeal informed counsel for the applicant of its intention to dismiss the applicant’s appeal as manifestly ill-founded because the Regional Court’s judgment, in particular concerning the qualification of the property as “traffic space”, had been free of error.
On 13 June 2006 the Court of Appeal dismissed the applicant’s appeal. It held that it could not consider the applicant’s claim that only part of the property was used as a road whereas the whole property was to be taken on the following grounds: the municipality had stated before the Regional Court that it had made an offer for the whole property because the remainder of the property could not be sufficiently used; the applicant had not disputed this assertion in the proceedings before the Regional Court; his new submission that the taking of the whole property would be contrary to Sections 4(1) No. 2 and 4(2) of the Traffic Space Allocation Act (see “Relevant domestic law and practice” below) was procedurally barred pursuant to Section 531(2) of the Code of Civil Procedure (see “Relevant domestic law and practice” below).
On 26 March 2007 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication without giving further reasons (no. 1 BvR 2119/06).
In the GDR private property was often used for public purposes without the property being transferred into public ownership. Following German reunification the public use of private property was initially allowed to continue without any revision until 30 September 2001 and the owners of such property were, under certain conditions, entitled to rent from the public authority pursuant to Section 233(2a)(9) of the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche).
Under the Property Law Reform Act (Sachenrechtsbereinigungsgesetz), owners were in principle entitled to 50 % of the value of the land as compensation for the loss of the land (Section 68(1) of the Property Law Reform Act, is, as far as relevant here, inapplicable in cases concerning the use of private property for public purposes (Section 2(1) No. 4 of the Property Law Reform Act)).
With effect from 1 October 2001 the continued use of private property on the territory of the former GDR is governed by the Traffic Space Allocation Act. That Act is, inter alia, applicable if private property that was used as a public road by the authorities of the GDR continues to be used as a public road (Section 1(1) of the Traffic Space Allocation Act). “Traffic space” is defined as roads, alleys and squares that are either designated as public roads or treated as if they were by law (Section 2(2) No. 1 of that Act). The public authority using private property for a public road may request that the property be sold to it by making a written offer, certified by a notary public (Section 3(1) of that Act). The public authority may only request the sale of the property directly used for a public road (Section 4(1) No. 2 of that Act); it has to purchase the remainder the property only if it cannot be sufficiently used (Section 4(2) of that Act). The purchase price is 20 % of the value of the land (Section 5 of that Act). Until 30 June 2007 only the public authority could request the sale; since that date, only the private owner can do so (Section 8(1) of that Act). Until the sale has been concluded, the owner can request that the public authority pay him 8 % of the statutory purchase price as annual rent and bear the public expenses of the property; the public authority has the right to continue using the property pending the transfer of ownership (Section 9(1) of that Act). If the sold property is no longer used as a public road, the former owner can request that the property be sold to him for a certain purchase price (Section 9(2) of that Act).
The former owner can request the restitution of property irrespective of a public authority’s continuing use of it pursuant to the Traffic Space Allocation Act. The public authority continues to enjoy a right to use the property following the return of the property to the former owner (Federal Administrative Court, judgment of 14 April 2005, no. BVerwG 7 C 10.04).
In cases in which the public authority’s right to use the private property derived from Section 9(1) of the Traffic Space Allocation Act, the right to use prior to that Act’s coming into force derived from Section 233(2a)(9) of the Introductory Act to the Civil Code (Federal Court of Justice, judgment of 18 January 2002, V ZR 104/01).
The Federal Court of Justice held in a leading judgment of 20 June 2008 (no. V ZR 149/07) that the purchase price of 20 % of the value of the land pursuant to Section 5 of the Allocation of Traffic Space Act was constitutional on the grounds that the property had been used as a public road in the GDR and could not have been sold or used by the private owner prior to German reunification; that the value of the property was diminished by the public use; that the legislator had taken into account that not the owner but upon request the public authority had to bear expenses related to the property; and that the public authority’s right to use was considerably more limited than that of a user who acquired the property under the terms of the Property Law Reform Act: whereas the latter could stop using the property and nevertheless remain the owner, the public authority was bound to sell the property to the former owner for a certain purchase price on request once it had stopped using the property as “traffic space”. Furthermore the Federal Court of Justice held that the contested provisions of the Traffic Space Allocation Act did not violate the owner’s rights under Article 1 of Protocol No. 1 read alone or in conjunction with Article 14. Although the sale amounted to a de facto expropriation within the meaning of Article 1 of Protocol No. 1, it had a basis in domestic law, was in the general interest and not disproportionate. In particular, the legislator had acted within the wide margin of appreciation to be accorded to him in the unique context of the German reunification.
Pursuant to Section 529 of the Code of Civil Procedure the Court of Appeal shall base its decision on the facts established by the first instance court, unless there are concrete indications that raise doubts as to the correctness or completeness of the establishment of the relevant facts by the first instance court, and on new facts, as long as it is admissible to consider these.
The Court of Appeal may not consider submissions that the trial court has correctly excluded (Section 531(1) of the Code of Civil Procedure). It may, as far as relevant here, admit new submissions on appeal only if the party did not introduce them at trial through no fault of its own (Section 532(2) No. 3 of the Code of Civil Procedure).


ITEMID: 001-76503
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KANAYEV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Christos Rozakis
TEXT: 6. The applicant is an active officer of the Russian navy, third rank captain. He was born in 1963 and lives in Kronshtadt, Leningrad Region.
7. The applicant was involved in a dispute with his employer, the Ministry of Defence of the Russian Federation, concerning the amount of compensation of his travel expenses. On 7 March 2002 the Kronshtadt Garrison Military Court awarded him arrears in the amount of 598 Russian Roubles (RUR) and RUR 202 in compensation of legal expenses. This decision was not appealed against and on 17 March 2002 became final.
8. On 21 March 2002 the court issued a writ of execution. The applicant forwarded it with accompanying documents to the State treasury office. On 2 April 2002 the writ was returned to the applicant unexecuted. The treasury office explained that the debtor had no available funds which could be used for paying the judgment debt. The applicant was advised to address the writ of execution to the head office of the Ministry of Finance, which the applicant did on 10 April 2002. However, the judgment remained unexecuted.
9. On 2 July 2002 the applicant wrote a new letter to the Ministry of Finance, requesting an explanation as to why the judgment remained unexecuted to that date. On 26 August 2002 the Ministry of Finance informed the applicant that the writ of execution had been transmitted to the Ministry of Defence with a view to prepare a budget call for the respective amount. They also informed the applicant that the Ministry of Finance had no power to enforce the judgment and write off the money from the accounts of the Ministry of Defence without their acceptance.
10. On 31 December 2002 the Ministry of Finance transferred to the applicant RUR 598 with reference to the arrears due pursuant to the judgment of 7 March 2002. On 1 March 2004 the applicant received the rest of the amount awarded by the court (RUR 202).


ITEMID: 001-58001
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF AHMED v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Lack of jurisdiction (new complaint);Violation of Art. 3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo
TEXT: 8. Mr Ahmed, a Somali citizen born in 1963, currently lives in Graz (Styria).
9. On 10 October 1990 he left Somalia. He reached Vienna Airport on 30 October via Syria and the Netherlands.
10. He requested refugee status on 4 November 1990 and was interviewed on 27 November 1990 by the Lower Austria Public Security Authority (Sicherheitsdirektion). On that occasion he stated that his uncle had been an active member of the United Somali Congress ("the USC") and that his father and his brother, though not members of the USC, had assisted his uncle and been executed on that account in May 1990. Since then he and his family had been suspected of belonging to the USC and taking part in acts of rebellion. His car had been confiscated and he had been assaulted, as was evidenced by a still-visible scar on his left forearm. He had left Somalia through fear of being arrested and executed.
11. On 19 April 1991 the Styria Public Security Authority rejected the application, but on appeal by the applicant the Minister of the Interior reversed this decision on 15 May 1992 and granted refugee status within the meaning of the Geneva Convention (see paragraph 24 below). He considered that Mr Ahmed could not be required to return to his homeland, regard being had to his activities in an opposition group and the general situation in the country concerned. His statements, which appeared credible, gave grounds to fear that, in the event of his return to Somalia, he would suffer persecution there within the meaning of the Geneva Convention.
12. On 15 July 1994 the Federal Refugee Office (Bundesasylamt) in Graz, acting pursuant to section 5 (1) (3) of the Right to Asylum Act (see paragraph 25 below), ordered the forfeiture of the applicant’s refugee status. This decision followed a judgment of 25 August 1993 in which the Graz Regional Court (Landesgericht) sentenced the applicant to two and a half years’ imprisonment for attempted robbery (versuchter Raub): together with an accomplice, Mr Ahmed had struck a passer-by in the face and attempted to steal his wallet.
13. On 12 September 1994 the Minister of the Interior dismissed an appeal by the applicant. He pointed out that under section 5 (1) (3) of the Right to Asylum Act a refugee lost refugee status if he committed a "particularly serious crime" within the meaning of Article 33 para. 2 of the Geneva Convention. Section 37 (4) of the Aliens Act (see paragraph 28 below) showed that the legislature considered that expression to mean any offence punishable by a term of imprisonment exceeding five years. Since attempted robbery was punishable by up to ten years’ imprisonment, the applicant had forfeited his refugee status and any other consideration relating to the correctness of his conviction or the situation in Somalia was superfluous.
14. Mr Ahmed contested this decision in the Administrative Court (Verwaltungsgerichtshof), which set it aside on 2 February 1995. The Administrative Court held that the applicant’s conviction for a particularly serious crime had only evidential relevance; it could not be deduced therefrom that, ipso facto, the applicant constituted a danger to Austrian society within the meaning of Article 33 para. 2 of the Geneva Convention. Such a conclusion, which suspended the protection (Schutzzweck) afforded by that Convention in spite of the continuing risk of persecution, could only be reached after the interests of the refugee and those of the host State had first been weighed against each other, the result being unfavourable to the former. The measure involved such a restriction of the refugee’s personal rights (persönliche Rechtssphäre) that it had to be really necessary for one of the reasons set out in the provision concerned. In order to determine whether that was so, it was necessary to assess the future conduct of the person concerned, but in the present case the Minister had neglected to do so.
15. On 10 April 1995 the Minister of the Interior again ordered the forfeiture of Mr Ahmed’s refugee status. Referring to the Administrative Court’s decision (see paragraph 14 above), he first noted that the applicant had been found guilty of attempted robbery, a particularly serious crime within the meaning of Article 33 para. 2 of the Geneva Convention. He went on to mention other measures taken against the applicant, namely a suspended sentence of three months’ imprisonment and a fine of 500 Austrian schillings (ATS) for criminal damage (Sachbeschädigung) in 1991, a fine of ATS 1,000 for threatening behaviour (ungestümes Benehmen) in a police station in 1992 and a complaint by the police to the Graz public prosecutor alleging criminal damage in the same year. Although, taken separately, these offences did not represent any danger to society, taken together they nevertheless revealed a clear tendency to aggression. It could not therefore be excluded that the applicant might commit further offences in future, which made him a danger to society.
16. On 9 November 1995 the Administrative Court upheld the above decision, holding in particular that in carrying out an assessment of the applicant’s dangerousness (Gefährlichkeitsprognose) the Minister had validly relied on events prior to his imprisonment.
17. In the meantime, on 14 November 1994, the Graz Federal Police Authority (Bundespolizeidirektion) had issued an indefinite exclusion order (unbefristetes Aufenthaltsverbot) against the applicant under section 18 (1) and (2) of the Aliens Act (see paragraph 26 below) and ordered that after serving his sentence he was to be detained with a view to his expulsion (Schubhaft). It noted that in view of the applicant’s convictions and the seriousness of one of the offences, namely attempted robbery, it could not be excluded that he would continue to offend. Therefore, in order to preserve public peace, order and security, and to prevent Mr Ahmed from committing crimes within the meaning of Article 8 para. 2 (art. 8-2) of the European Convention on Human Rights, it appeared to be essential to deport him, even though that measure incontestably constituted an interference (Eingriff) in his private life.
18. The applicant appealed against the above decision on 30 November 1994, asking the authorities to find, under section 54 of the Aliens Act, that his expulsion would contravene section 37 of the same Act (see paragraphs 29 and 28 below). On 10 December 1994 the Graz Public Security Authority dismissed the appeal, but reduced the period specified in the exclusion order against him to ten years. It considered that the Federal Police Authority had correctly weighed the conflicting interests and had had valid reasons to form the view that revoking the expulsion would have much more serious detrimental effects on the community than on Mr Ahmed. It further noted that the applicant could not yet be regarded as integrated into Austrian society, as he had lived there for only four years and had been in prison since March 1993. Nor did he have family or other links with the country. As for his occupational activities, these did not require any particular qualification and could therefore also be carried on abroad. Moreover, the applicant had been unemployed at the time of his arrest.
19. After being released on parole (bedingte Entlassung), the applicant was taken into custody at the Graz police headquarters on 14 December 1994 with a view to his expulsion.
20. On 23 January 1995 the Styria Independent Administrative Tribunal (Unabhängiger Verwaltungssenat) upheld an appeal by Mr Ahmed against the above measure (Schubhaftbeschwerde) on the ground that, as the European Commission of Human Rights had extended the provisional measure indicated under Rule 36 of its Rules of Procedure (see paragraph 5 above), deportation of the applicant before expiry of the two-month maximum period for detention of that type (section 48 of the Aliens Act) seemed to be out of the question. The applicant was therefore released.
21. On 26 April 1995 Mr Ahmed appeared before the Federal Refugee Office with a view to the possible application of section 37 of the Aliens Act (see paragraph 28 below). He asserted that the situation in Somalia had deteriorated since his departure in 1990. He was a member of the Hawiye clan, which at that time was being persecuted, especially by the generals in power. His clan, who lived 900 kilometres to the north of Mogadishu, had supported General Aïdid, but had later withdrawn that support and since then had been on the run from him as well. He could therefore not return to the country without risking his life.
On 27 April 1995 the Federal Refugee Office declared the proposed expulsion of the applicant lawful (zulässig). It took the view that, taken together, the offences he had committed revealed a tendency towards aggressive behaviour and even increasing aggressiveness (steigendes Aggressionspotential), which did not stop short of violence against the person. It could therefore not be excluded that Mr Ahmed might commit other offences in future, so that he constituted a danger to the community within the meaning of section 37 (4) of the Aliens Act. That being the case, even the fact that he risked persecution in the event of his return to Somalia could not make his deportation to that country unlawful.
22. On 4 May 1995 the Graz Federal Police Authority dismissed the applicant’s appeal of 30 November 1994 (see paragraph 18 above) on the ground that there were no solid reasons to believe that on his return to Somalia he might suffer treatment prohibited by section 37 (1) and (2) of the Aliens Act. According to the established case-law of the Administrative Court, section 37 (1) contemplated only dangers and threats emanating from a State. Since the overthrow of President Siyad Barre a civil war had been raging in Somalia and all State authority (staatliche Gewalt) had disappeared. Moreover, there was nothing to suggest that the applicant might be persecuted in Somalia for one of the reasons set out in section 37 (2). Lastly, there would not be any breach of Article 2 para. 1 (art. 2-1) of the European Convention on Human Rights either, since under section 37 the mere fact that on returning to his home country an alien might be risking his life was not a sufficient bar to expulsion.
23. On appeal by the applicant, the Styria Public Security Authority set aside the above decision on 22 May 1995. Thereupon the Graz Federal Police Authority found on 31 October 1995 that in Somalia Mr Ahmed would be at risk of persecution for one of the reasons set out in section 37 of the Aliens Act. On 22 November 1995 it accordingly stayed his expulsion for a renewable period of one year.
24. Under Article 1 of the Geneva Convention of 28 July 1951, as amended by the Protocol of 31 January 1967, a "refugee" is defined as any person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country".
Article 33 of the above Convention provides:
"1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
25. Under section 5 (1) (3) of the 1991 Right to Asylum Act (Asylgesetz), a refugee loses refugee status if the competent authority finds that the conditions set out in Article 33 para. 2 of the Geneva Convention relating to the Status of Refugees (see paragraph 24 above) are satisfied.
26. Section 18 of the 1992 Aliens Act (Fremdengesetz) governs exclusion orders (Aufenthaltsverbot). The first paragraph provides that an alien’s exclusion must be ordered if certain facts give reason to believe that his presence in the country constitutes a danger to public peace, order and security or is incompatible with other public interests referred to in Article 8 para. 2 (art. 8-2) of the European Convention on Human Rights. Among the facts which are relevant for the purposes of section 18, subsection 2 mentions a final decision by an Austrian court imposing on the refugee concerned a custodial sentence of more than three months.
27. The first sentence of section 36 (2) provides for expulsion to be stayed for a renewable period of up to one year at the request of the person concerned, or by the authorities of their own motion, where expulsion is prohibited under section 37 or appears to be impossible in practice.
28. Section 37 forbids the expulsion of an alien to a State where there are solid reasons (stichhaltige Gründe) to believe:
- that he will be exposed to the risk of inhuman treatment or punishment or the death penalty (subsection 1); or
- that his life or liberty will be at risk on account of his race, religion, nationality, membership of a particular social group or political opinion (subsection 2, which refers to Article 33 para. 1 of the Geneva Convention).
The expulsion of an alien to a State where he would be at risk within the meaning of subsection 2 is permitted only if, for weighty reasons, the person concerned constitutes a danger to the security of the Republic of Austria or, having been convicted by a final judgment of a crime punishable by more than five years’ imprisonment, a danger to society (subsection 4, which refers to Article 33 para. 2 of the Geneva Convention).
No alien may be deported while a provisional measure requested by the European Commission or Court of Human Rights is in force (subsection 6).
29. Under section 54 the competent authority has to determine (Bescheid), at the alien’s request (Antrag), whether there are solid reasons to believe that he would be at risk, within the meaning of section 37 (1) or (2), in a particular State named by him (subsection 1).
Pending the final decision on the alien’s request he may not be deported to the State in question. If he has been deported to another State the proceedings are discontinued for lack of object (subsection 4).
VIOLATED_ARTICLES: 3


ITEMID: 001-91138
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF IDALOVA AND IDALOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicants were born in 1952 and 1949 respectively. At the material time they lived in the village of Akhkinchu-Borzoy, in the Kurchaloy District of the Chechen Republic. They are currently residing in the village of Noyber, in the Gudermes District of the Chechen Republic.
6. The applicants are the parents of Mr Marvan Agdulmusumovich Idalov, born in 1985. They also have three other sons: Khizir, Vakhid and Alikhan Idalov.
7. At the material time Marvan Idalov was a student at a secondary school. A certificate issued by the local authorities confirmed that Marvan Idalov had not participated in any illegal armed groups.
8. According to inhabitants of Akhkinchu-Borzoy, special military unit no. 24 of the Russian Ministry of the Defence («24-е стрелковое спецподразделение МО РФ», hereinafter “military unit no. 24”) was based near their village in 2002.
9. On the night of 21 to 22 November 2002 the applicants and Marvan Idalov were sleeping at their family home. Early in the morning the first applicant went outside the house to perform an ablution.
10. At about 6 a.m. an armoured personnel carrier (“APC”), an infantry battle vehicle (“IBV”) and a Ural vehicle arrived at the Idalovs' house; a group of armed men wearing camouflage uniforms and masks descended from them. The first applicant inferred that the men belonged to the Russian military.
11. The servicemen started breaking the entrance door and windows. The first applicant asked them why they were doing so. In reply the servicemen shouted at her and forced her to enter the house.
12. Meanwhile five or six servicemen broke into the house without producing any documents or search warrants. The first applicant saw the faces of two unmasked servicemen who had Slavic features; they spoke Russian without an accent. The servicemen hit the second applicant, tied his arms behind his back, forced him to the floor and pointed a machine gun at him.
13. Marvan Idalov was studying when the servicemen entered his room. They tied his arms, put a sack on his head and took him to the street. It appears that they then put Marvan Idalov in one of the vehicles parked at the house and left. Some neighbours submitted that the vehicles drove away in the direction of the base of military unit no. 24.
14. According to the decision of the district prosecutor's office of 20 December 2004 to grant the second applicant victim status in criminal case no. 44034, on 22 November 2002 at least ten unidentified armed men wearing camouflage uniforms and masks travelling in an APC, an IBV and a lorry with an anti-aircraft gun on it unlawfully entered the applicants' house, kidnapped Marvan Idalov and took him away to an unknown destination.
15. Immediately after their son's abduction the applicants requested information on his whereabouts from the head of special military unit no. 24, Mr K., who replied that the military servicemen under his command had not carried out any special operations in the morning of 22 November 2002 and had not apprehended Marvan Idalov.
16. The applicants continued searching for their son. They applied to various official bodies, such as the prosecutors' offices at different levels, the departments of the interior, the Administration of the Chechen Republic, the Russian State Duma and the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms, asking to help them to find Marvan Idalov. In their efforts the applicants were assisted by the SRJI. It appears that those complaints were futile.
17. On 26 February 2003 the first applicant complained about her son's disappearance to the military prosecutor's office of the United Group Alignment (“the UGA prosecutor's office”).
18. On 27 March 2003 the military prosecutor's office of military unit no. 20116 (“the prosecutor's office of unit no. 20116”) sent a letter to the UGA prosecutor's office and the first applicant concerning Marvan Idalov's disappearance. The copy of the letter submitted to the Court is illegible.
19. On 31 March 2003 the prosecutor's office of unit no. 20116 sent a letter to the UGA prosecutor's office and the second applicant concerning Marvan Idalov's disappearance. The copy of the letter submitted to the Court is illegible.
20. On 3 April 2003 the prosecutor's office of the Chechen Republic forwarded the first applicant's complaint about her son's disappearance to the prosecutor's office of the Kurchaloy District of the Chechen Republic (“the district prosecutor's office”).
21. On 27 May 2003 the district prosecutor's office invited the first applicant to send her queries concerning her son's kidnapping to the prosecutor's office of unit no. 20116.
22. On 5 November 2003 the UGA prosecutor's office informed the first applicant that an inquiry into her son's alleged kidnapping by unidentified military servicemen had been carried out. The inquiry established that on 22 November 2002 the Russian military had not organised any special operations and had not apprehended Marvan Idalov. No traces of military personnel implication in Marvan Idalov's kidnapping had been found.
23. On 13 November 2003 the North-Caucasus Operational Department of the Main Department of the Russian Ministry of the Interior for the Southern Federal Circuit informed the first applicant that it had verified the facts relating to her son's disappearance and had sent the collected materials to the prosecutor's office of the Chechen Republic.
24. On 8 December 2003 the SRJI wrote to the district prosecutor's office, the prosecutor's office of the Chechen Republic and the prosecutor's office of unit no. 20116, requesting them to inform it whether an investigation into Marvan Idalov's disappearance had been instituted and, if so, to provide details on the course of the investigation and to grant the first applicant the status of victim of a crime.
25. On 2 February 2004 the prosecutor's office of the Chechen Republic replied to the SRJI that Marvan Idalov had not been apprehended by servicemen of the department of the interior of the Kurchaloy District (“ROVD”) or kept in the temporary detention facility of the ROVD. They further noted that the prosecutor's office of unit no. 20116 had inquired into Marvan Idalov's kidnapping.
26. On 1 June 2004 the SRJI repeated their requests concerning Marvan Idalov's fate to the district prosecutor's office and to the prosecutor's office of unit no. 20116.
27. On 5 August 2004 the prosecutor's office of the Chechen Republic instituted an investigation into the disappearance of Marvan Idalov under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping) and ordered the district prosecutor's office to assign a number to the case file. On 6 August 2004 they informed the first applicant accordingly and invited her to send further queries to the district prosecutor's office.
28. On 4 October 2004 the SRJI wrote to the district prosecutor's office and to the prosecutor's office of unit no. 20116, repeating their requests of 8 December 2003 and 1 June 2004.
29. On 21 October 2004 the prosecutor's office of the Chechen Republic informed the SRJI that it had instituted criminal proceedings in relation to Marvan Idalov's disappearance and that the investigation was under way.
30. On 13 November 2004 the prosecutor's office of unit no. 20116 forwarded the SRJI's complaint about Marvan Idalov's kidnapping to the military prosecutor's office of military unit no. 20102 (“the prosecutor's office of unit no. 20102”) and requested that the SRJI submit a detailed description of the crime to that office.
31. On 27 November 2004 the prosecutor's office of unit no. 20116 forwarded the SRJI's complaint to the military prosecutor's office of military unit no. 20119 (“the prosecutor's office of unit no. 20119”) and requested that the SRJI submit a detailed description of Marvan Idalov's kidnapping to that office.
32. On 26 January 2005 the district prosecutor's office granted the first applicant victim status in case no. 44034, instituted in relation to Marvan Idalov's kidnapping by unidentified armed persons. On the same date the second applicant was informed of the decision to grant him the status of victim of a crime in case no. 44034, issued by the district prosecutor's office on an unspecified date.
33. On 26 March 2005 the prosecutor's office of unit no. 20116 forwarded the SRJI's complaint about Marvan Idalov's kidnapping to the prosecutor's office of unit no. 20102.
34. On 4 April 2005 the SRJI sent the prosecutor's office of unit no. 20102 information on Marvan Idalov's kidnapping as requested by the prosecutor's office of unit no. 20116.
35. On 1 June 2005 the prosecutor's office of unit no. 20119 forwarded the SRJI's letter to the prosecutor's office of unit no. 20116.
36. On 9 August 2005 the prosecutor's office of unit no. 20102 informed the SRJI that there was no evidence of the implication of military personnel in the crime and that the investigation should therefore be carried out by a civilian prosecutor's office.
37. On 15 August 2005 the SRJI requested the district prosecutor's office, the prosecutor's office of the Chechen Republic and the prosecutor's office of unit no. 20116 to inform it of the state of the proceedings instituted in relation to Marvan Idalov's kidnapping.
38. On 5 October 2005 the prosecutor's office of the Chechen Republic informed the SRJI that the first applicant had been granted victim status and that she would be updated on progress in the investigation.
39. On 2 August 2007 the Ministry of the Interior of the Chechen Republic forwarded the applicants' letter dated 25 July 2007 to the ROVD and requested it to search for Marvan Idalov and his kidnappers more actively and to inform the applicants of measures taken.
40. On 17 August 2007 the ROVD informed the applicants that the investigation into the kidnapping of Marvan and Alikhan Idalov in case no. 44034 had been commenced on 5 August 2004 and that investigative measures were being taken to solve the crime.
41. On 30 August 2007 the district prosecutor's office informed the applicants that the investigation into the kidnapping of Marvan Idalov had been resumed on 30 September 2007.
42. On 13 December 2003 the district prosecutor's office received a complaint by the first applicant dated 29 August 2003 and addressed to the Administration of the President of Russia. According to the complaint, on an unspecified date during the month of Sawm unidentified men wearing camouflage uniforms and masks had entered the Idalovs' house in the village of Akhkinchu-Borzoy and kidnapped Marvan Idalov.
43. On 18 December 2003 the district prosecutor's office ordered the ROVD to ensure the first applicant's appearance before the investigators, to collect depositions by her relatives and to examine the scene of the incident.
44. Later the ROVD reported that the first applicant's whereabouts were unknown and that her neighbours had no information concerning the merits of her complaint.
45. On 23 January 2004 the district prosecutor's office informed the prosecutor's office of the Chechen Republic that it was impossible to give a decision on the first applicant's complaint owing to the failure to establish her whereabouts or to find any evidence of the facts complained of.
46. On an unspecified date the temporary department of the interior of the Kurchaloy District (“VOVD”) informed the district prosecutor's office of the following. They had established that Vakhid and Alikhan Idalov had been active members of illegal armed groups and that Marvan Idalov had been an accomplice of insurgents. Vakhid Idalov had been killed in June 2000 in a fight with federal servicemen. Alikhan and Marvan Idalov had not been arrested by the VOVD servicemen and had been hiding from the federal authorities.
47. Several residents of Akhkinchu-Borzoy informed the investigation that three of the first applicant's sons had been involved in unlawful activities of illegal armed groups.
48. On 23 April 2004 the district prosecutor's office decided on the basis of the inquiry's results to refuse to institute criminal proceedings in the absence of any crime.
49. On 5 August 2004 the prosecutor's office of the Chechen Republic quashed the decision of 23 April 2004 and ordered the district prosecutor's office to institute an investigation into Marvan Idalov's abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping).
50. On 20 December 2004 the second applicant was granted victim status and questioned. He submitted that Marvan Idalov had been kidnapped on 22 November 2002 by unknown persons in masks.
51. On 26 January 2005 the first applicant was granted victim status and questioned. She made a statement similar to that by her husband.
52. The investigators requested information from law-enforcement agencies of the Chechen Republic and were told in reply that Marvan Idalov had not been arrested, prosecuted or held in any detention facilities and that no special operations had been carried out in Akhkinchu-Borzoy on 22 November 2002.
53. The Idalovs' relatives and neighbours were questioned in the course of the investigation and submitted that they had no information concerning the circumstances of Marvan Idalov's kidnapping.
54. On 15 February 2005 the district prosecutor's office suspended the investigation in case no. 44034 concerning the kidnapping of Marvan Idalov on 22 November 2002 on account of the failure to identify those responsible and notified the applicants accordingly.
55. On 21 May 2005 the district prosecutor's office resumed the investigation in case no. 44034 and notified the applicants accordingly.
56. The investigation in case no. 44034 was suspended on 21 June 2005 and then resumed on 15 October 2005.
57. On 15 November 2005 the district prosecutor's office again suspended the investigation.
58. On 30 August 2007 the district prosecutor's office resumed the investigation in case no. 44034.
59. The Government submitted a copy of an undated document entitled “Explanation”, signed with the name of the first applicant and addressed to the prosecutor's office of the Chechen Republic. The document stated that in May 2000 a group of servicemen had found bags with firearms and ammunition in a cemetery in Akhkinchu-Borzoy near the Idalovs' house. The first applicant had been detained for questioning for some time. Then she had found out that her son Vakhid had been killed in unknown circumstances. In December 2000 her son Alikhan had gone to the forest with insurgents. Two or three months later he had returned home and started hiding from the authorities. Then he had tried to flee the country and to go to Turkey. The first applicant had no information on his whereabouts. He might have been arrested by federal servicemen. At about 5.30 a.m. on 22 November 2002 the first applicant had seen an APC, an IBV and a vehicle fitted with an anti-aircraft gun arriving at her house. Around ten armed men had entered the house; all the men but one had been wearing masks, and the unmasked man was tall and had red hair. The armed men had taken away Marvan Idalov. The first applicant had told of the kidnapping to officials of the district prosecutor's office whom she had seen on the VOVD premises.
60. The investigation failed to identify the perpetrators. The involvement of federal troops in the kidnapping was not proven. The investigation was suspended several times owing to the failure to identify those responsible and was then resumed in order to verify certain items of information. It was pending under the supervision of the Russian Prosecutor General's Office.
61. Despite specific requests by the Court, the Government did not disclose most of the contents of the file in criminal case no. 44034, providing only copies of the first applicant's “explanation”, several witnesses' interviews, decisions to grant the applicants victim status and a few notifications to the applicants concerning the suspension and resumption of the investigation. Relying on the information obtained from the Prosecutor General's Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.
62. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-96612
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BACHVAROVI v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 6. The applicants were born in 1927 and 1951 respectively and live in Varna. They are a father and his son.
7. In 1959 the first applicant and his wife bought from the State, through the Ministry of Defence, an apartment of 115 square metres in the centre of Varna. The apartment had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following years. It had been a part of a bigger apartment, which had on an unspecified date before 1959 been divided into two smaller ones.
8. In the beginning of 1993 the heirs of the former pre-nationalisation owner of the property brought proceedings against the first applicant and his wife under section 7 of the Restitution Law.
9. In 2003 the first applicant’s wife died and was inherited by the two applicants.
10. The proceedings under section 7 of the Restitution Law ended by final judgment of the Supreme Court of Cassation of 20 February 2004. The courts found that the applicants’ title was null and void because the division of the initial bigger apartment into two smaller ones (see paragraph 7 above) had not been carried out in accordance with the law.
11. Immediately after the final judgment in their case, it became possible for the applicants to obtain compensation from the State, in the form of bonds which could be used in privatisation tenders or sold to brokers. The applicants did not avail themselves of this opportunity.
12. In December 2006 the heirs of the former owner of the apartment brought a rei vindicatio action and an action for damages against the first applicant who was still living in the apartment. The proceedings are still pending. The first applicant’s request to be accommodated in a municipallyowned dwelling, lodged in 2004, has not yet been granted due to the unavailability of free apartments.
13. These have been summarised in the Court’ s judgment in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007.


ITEMID: 001-97900
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: NILSEN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 1. The applicant, Mr Dennis Andrew Nilsen, is a British national who was born in 1945. He is currently in prison. He was represented before the Court by Mr N. Wells, a lawyer practising in Manchester. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Upton, of the Foreign and Commonwealth Office.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In 1983 the applicant was convicted of the murder of six men and of the attempted murder of two others. The bodies of the deceased had been variously dismembered, buried, burned, boiled and/or disposed of otherwise. He was arrested when a drain cleaning company, called to his building to investigate a blocked drain, found human flesh. The applicant had confessed to numerous additional killings, but identification of all of the victims was not possible at that point. The applicant is subject to a whole life tariff and has always been a Category A security prisoner. The High Court (see below) later described his offences as “as grave and depraved as it is possible to imagine”.
4. In 1985 a journalist published a book about the murders entitled “Killing for Company”: it drew extensively on the applicant’s notes written whilst on remand and it contained graphic descriptions of the applicant’s crimes.
5. In 1992 the applicant began to write his autobiography. By 1996 his work amounted to 400 closely typed pages. He handed the manuscript to his then solicitor, with a view to publication, who took it with him when he left the prison. The prison authorities did not know about, or consent to, the manuscript leaving the prison. A number of copies were made and these are still, unpublished, outside the prison. The High Court later described the manuscript as falling into three parts. The first concerned aspects of the applicant’s life before he committed the offences and contained explicit details of sexual encounters with various men. The second concerned the offences and included considerable detail of the killings and the ways in which the bodies of the victims were abused, dismembered and disposed of. The third – the longest part – was essentially a diary of prison experiences with reflections on the criminal justice system. On 7 July 1996 the applicant’s then solicitor wrote to the prison stating that the applicant intended to publish the manuscript “at some later date” and offering the Governor the opportunity to read it “in case it should be thought that any abuse of the legal visit has occurred”. However, in a subsequent letter that solicitor informed the Governor that he no longer had instructions to permit the prison authorities to read the manuscript.
6. On 7 March 2001 a new solicitor sent a copy of the manuscript in a sealed package to the prison with a cover letter stating that it was legally privileged material to be handed to the applicant unopened but disclosing the nature of the material. The Governor returned it to the solicitor on the basis that it was not legal correspondence. On 28 March 2001 the solicitor wrote to the prison claiming the right to send the manuscript to the applicant and on 25 May 2001 the Governor replied noting that it was clear that manuscript was intended for publication, that correspondence in and out of the prison which contained material intended for publication was restricted under paragraph 34(9) of Standing Order No. 5B (“SO5B”) and that it was necessary for the prison service to examine the material in order to determine if SO5B applied.
7. The applicant began judicial review proceedings. On 19 March 2002 the High Court found that the prison authorities had the right to examine the manuscript to see whether it would be in accordance with the rules for it to be passed to the applicant and dismissed the application. The judgment noted that it was not in dispute that the applicant’s objective was to rework the manuscript for publication.
8. The prison authorities then read the manuscript. By letter dated 23 October 2002 the applicant was informed by the Governor of the decision of the prison service that the manuscript would not be passed on to him:
“The Prison Service has now read the manuscript ... It has decided not to allow the manuscript to be passed to [the applicant] and because of this I am returning the manuscript to you.
The Prison Service considers that the manuscript is material intended for publication, that it is about [the applicant’s] offences and that it does not consist of serious representations about a conviction or sentence and does not form part of serious comment about crime, the processes of justice or the penal system. [The applicant] is not permitted to send such material out of prison: [SO5B] paragraph 34(9)(c); Standing Order 4, paragraph 40. Because the manuscript has been out of prison for a number of years, it is likely that copies have been made by third parties. However, to date [the applicant] has not caused the manuscript to be published and has indicated that he wishes to do further work on it. The Secretary of State has no reason to believe that any such further work would alter the character of the manuscript.
The only way in which the Secretary of State can in practice realistically seek to prevent [the applicant] from publishing such material is by withholding the manuscript from [the applicant pursuant to rules 34 and/or 70 of the Prison Rules ...and/or paragraph 40 of SO5B [see relevant domestic law below].
The reasons why the Secretary of State has concluded that publication of the manuscript, or of a revised version of it, would be contrary to paragraph 34(9)(c) ...are as follows.
The manuscript is about [the applicant]. But it is also about his offences: the offences themselves, how [the applicant] came to commit them, and how he is now being punished for them. The offences are an integral part of the manuscript.
The manuscript does not consist of serious representations about conviction or sentence or form part of serious comment about crime, the processes of justice or the penal system. Rather it is a platform for [the applicant] to seek to justify his conduct and denigrate people he dislikes. The Secretary of State believes that his decision is in accordance with Article 10 of the European Convention on Human Rights. He accepts that withholding the manuscript is an interference with [the applicant’s] freedom of expression. But he considers that this is justified in the circumstances.
The withholding of the manuscript is prescribed by law, for the reasons set out above.
The withholding of the manuscript pursues a legitimate aim, namely the protection of morals, the protection of the reputation or the rights of others and the protection of information received in confidence. The manuscript contains several lurid and pornographic passages. It contains highly personal details of a number of [the applicant’s] offences. It seeks to portray [the applicant] as a morally and intellectually superior being who justifiably holds others in contempt. Its publication would be likely to cause great distress to [the applicant’s] surviving victims and to the families of all his victims, and would be likely to cause a justifiable sense of outrage among the general public.
The withholding of the manuscript is a proportionate response in the circumstances. There is a pressing social need to avoid the harm described above. No lesser measure will avoid that harm. [the applicant] is free to send out writings that comply with the terms of the Prison Rules and the Standing Orders.
In reaching his decision, the Secretary of State has borne in mind that [the applicant] is serving a whole life tariff. The Secretary of State’s present view is that for as long as [the applicant] remains in prison, preventing the publication of the material in the manuscript is justified, no matter how long that may be.”
9. The applicant sought leave to challenge by judicial review the decision of 23 October 2002 and on 19 December 2003 the High Court refused his application. The applicant relied on three grounds.
10. In the first place, the applicant submitted that paragraph 34(9)(c) of SO5B was unlawful given Article 10 of the Convention. He argued that Parliament had neither expressly not impliedly conferred upon the prison Governor or service the power to regulate matters beyond the prison walls, any implied power was limited to matters concerning good order and discipline and prison security so that the prevention of harm to the families of victims and the prevention of public outrage were not matters for a prison Governor. The High Court found it abundantly clear that section 47 of the 1952 Act enabled the Secretary of State to promulgate Rule 34 of the 1999 Rules which conferred upon him a discretion to impose “any restriction or condition, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons”, provided that he considered that it was Convention compliant. Paragraph 34(9)(c) was the result of such an exercise of discretion. Once it was accepted that the paragraph allowed the Secretary of State to concern himself with consequential effects outside the prison, and not just matters such as internal prison security, it followed that he could restrict a prisoner’s freedom of expression in pursuance of the legitimate aim of, inter alia, the prevention of disorder or crime, the protection of morals and the protection of the rights and freedoms of others. This case was, in the High Court’s view, “an object lesson in why private feelings and public outrage may be matters of highly relevant concern”. Paragraph 34 struck a balance which, in principle, complied with Article 10 acknowledging as it did the prisoner’s right to expression as regards serious representations but restricting it in relation to other matters.
11. Secondly, the applicant maintained that paragraph 34(9)(c) could not apply to autobiographical writings. The High Court found that Article 10 did not confer special status on autobiographical work, whatever its nature or content, and the solution was to be found in the general principles of Article 10 of the Convention.
12. Thirdly, the applicant argued that the application of that paragraph was disproportionate or irrational: it was a futile exercise since copies of the manuscript existed already outside the prison and since the material was already in the public domain given the book “Killing for Company”; the applicant wished to work on it to make it less offensive and its later dissemination could be controlled; and what was at issue was the return of the manuscript which had been in the prison for years without objection. The High Court found:
“The decision letter ... unquestionably carried out a proportionality assessment. ... I am entirely satisfied that his decision satisfies the demands of proportionality and the test of rationality. ... The Secretary of State is entitled, and in my view right, to take the view that, notwithstanding the risk of publication of material which is already in hands outside his control, it is not futile to prevent [the applicant] from doing what he wishes to do – that is, publish his material in a revised form. The history of the original movement of the material out of prison, putting it at its lowest, justifies the Secretary of State’s view that there is a significant risk that, if the material is entrusted to [the applicant], it may later leave the prison in a revised form without the knowledge or consent of the prison authorities. I am wholly unpersuaded that what is already in the public domain, in particular in Killing for Company, is such as to render any further restriction pointless. There is an appreciable difference between the publication of material which is all the prisoner’s own work and the publication of his account by another person over whom the prisoner had no control. The difference is highlighted by the fact that [the applicant] intends to dispute significant parts of [the previously published book].
I have already explained ... that ... the Secretary of State is entitled to have regard to the likely effect of publication on members of the public, including survivors and the families of victims of [the applicant’s] serial offences. I am unimpressed by the suggestion that anyone can choose not to read whatever may be published.
... I have not read the entirety of [the applicant’s] material. To do so would take 2-3 days. However, from what I have seen of it and from what I have learned from the witness statements of Steven Taylor (filed on behalf of [the applicant]) and Professor Martin Wasik (filed on behalf of the Secretary of State), I am satisfied that the Secretary of State reached unimpeachable conclusions about it – both as regards proportionality and as regards its falling outside the “serious representations” and “serious comment” exceptions in paragraph 34(9)(c).
... although the majority of [the applicant’s] submissions on proportionality were made in the context of Article 10, [he] also sought to rely on Article 1 of the First Protocol ... The arguments on behalf of [the applicant] which failed to relation to Article 10 produce no more favourable an analysis in relation to Article 1 of the First Protocol.”
13. On 17 November 2004 the Court of Appeal rejected the applicant’s appeal. He again argued that paragraph 34 of SO5B fell outside the powers conferred on the Secretary of State by the 1952 Act. Having reviewed relevant domestic law, the Court of Appeal confirmed that paragraph 34 did not exceed the 1952 Act in that section 47 of the 1952 Act spoke not only of the regulation and management of prisons but about control of prisoners. The applicant further argued that paragraph 34 of SO5B itself conflicted with Article 10 of the Convention. The Court of Appeal, in the first place, found the limitation in paragraph 34 of SO5B to be consistent with relevant domestic jurisprudence as regards Article 10 and prisoners:
“Criminals who are deprived of their liberty by a sentence of imprisonment are deprived of enjoyment of their possessions and of communication with the outside world, save in so far as the prison authorities permit this. Prison rules must necessarily make provision for the use prisoners may make of their possessions and for what may be sent from the outside world in to prisoners and what prisoners may send out. [The applicant] does not challenge this. The issue is the matters to which the Secretary of State can properly have regard when making rules in relation to these matters.
... Penal legislation is not required to spell out those aspects of a prison regime that properly constitute an incident of the punishment of deprivation of liberty. The powers conferred on the Secretary of State under the [1952 Act] include, at least, the power to have regard, when regulating what a prisoner can and cannot do, to the natural incidents of penal imprisonment.
It is not so easy to define the test of what are the natural incidents of penal imprisonment, and these are certainly susceptible to change as a result of changes in attitude to punishment. In [R(Mellor) v. Secretary of State for the Home Department [2001] EWCA Civ 472)] at paragraph 65 the Master of the Rolls expressed the view that:
‘Penal sanctions are imposed, in part, to exact retribution for wrongdoing. If there were no system of penal sanctions, members of the public would be likely to take the law into their own hands. In my judgment it is legitimate to have regard to public perception when considering the characteristic of a penal system.’
We endorse that statement. In considering what restrictions can properly be placed on prisoners as natural incidents of imprisonment regard can be had to the expectations of right thinking members of the democracy whose laws have deprived the prisoners of their liberty.
In his decision letter, the Governor made the point that publication of [the applicant’s] typescript would be likely to cause great distress to families of his victims and a justifiable sense of outrage among the general public. There is ample authority that freedom of expression includes the freedom to publish outrageous matter. But the outrage referred to by the Governor was not outrage at the subject matter, but outrage that a prisoner should be permitted to publish such material from his prison cell. ...
[In the present case, we] are concerned with a tightly drawn restriction on a prisoner writing about his crimes, which is subject to an exception for ‘serious representations about conviction or sentence’ or ‘part of serious comment about crime, the processes of justice or the penal system’.
We do not believe that any penal system could readily contemplate a regime in which a rapist or a murderer would be permitted to publish an article glorifying in the pleasure that his crime had caused him. English jurisprudence suggests that to restrict prisoners from publishing such matter is a legitimate exercise of the power conferred on the Secretary of State by the Prison Act. We have concluded that, from the viewpoint of that [domestic] jurisprudence, the wording of Paragraph 34 (9)(c) draws the line appropriately between what is and what is not acceptable conduct on behalf of a prisoner and falls within the powers conferred on the Secretary of State by the Prison Act.”
14. The Court of Appeal also found that this Court’s jurisprudence did not mean that paragraph 34 of SO5B was in conflict with Article 10 of the Convention. That court also rejected the proposition that the wording of paragraph 34 was too vague to indicate to an inmate what would fall foul of the law, finding that the wording of the exception was “clear and readily capable of application by a prison Governor”.
15. The Court of Appeal went on to review this Court’s case-law. While Hirst v. the United Kingdom (no. 2) ([GC], no. 74025/01, ECHR 2005IX) found that a blanket ban on voting was disproportionate, it accepted that it was open to the legislative to tailor disenfranchisement to particular offences. In Bamber v. the United Kingdom (application no. 33742/96 (1997)) the Commission accepted that some measure of control over the content of prisoners’ communications (the scope of which was not in issue in that case) was not in itself incompatible with the Convention. The significance of the Silver Commission Report (Silver and Others v. the United Kingdom (1980), application nos. 5947/72 et seq., Report of Commission 11 October 1980) was not so much that it was a decision endorsing a restriction that had much in common with that under consideration in the appeal (Silver was decided nearly 25 years previously and standards could change). It was rather that it exemplified the approach of considering what restrictions on freedom of expression are normal incidents of imprisonment. That approach was more clearly demonstrated by the Commission’s approval of the prohibition of letters in connection with business matters without the prior leave of the Secretary of State: in this respect, the Commission commented that it was, in principle, a normal consequence of imprisonment, necessary ‘for the prevention of disorder’ that convicted prisoners cease their professional activities during their term of imprisonment. The Court of Appeal noted that this Court had not found it necessary to comment on this conclusion of the Commission and affirmed both decisions on narrower grounds than that adopted by the Commission.
16. The Court of Appeal concluded that this Court’s jurisprudence did not support the applicant’s arguments that it was disproportionate for imprisonment to carry with it some restrictions on freedom of expression or for those restrictions to have regard to the effect of the exercise of that freedom in the world outside the prison walls. Paragraph 34 was not therefore in conflict with the requirements of Article 10 of the Convention.
17. As to whether the restriction was disproportionate on the facts of his case, the applicant argued, in the first place, that it was futile. A book had been already published containing graphic descriptions of his crimes which he had provided to its author and there were copies of the manuscript outside the prison the publication of which the Secretary of State was powerless to prevent. The Court of Appeal found these submissions paradoxical: the applicant’s primary argument was that the Governor’s conduct was illegal in preventing him from publishing his typescript and yet he was also submitting that the Governor’s conduct could not pose any significant impediment to that. It continued:
“We do not consider that there is any merit in this part of [the applicant’s] case. The fact that, 19 years ago, Brian Masters published an account of [the applicant’s] crimes is not likely to do much to diminish the public outrage that will be felt if the prison service permits [the applicant] himself to publish his own account. [The applicant] has not caused or permitted the typescript to be published in its present form. He has made it plain that he wants to work on it before publication. We do not consider that the prison service can be expected to waive prison rules in order to assist him to achieve a goal which is contrary to the Secretary of State’s policy. [The applicant] has argued that he should be given the opportunity to transform his typescript into a work which makes serious representations about his conviction or sentence or serious comment about crime, the processes of justice or the penal system. There is no evidence that [the applicant] has any such intention.”
18. The applicant sought leave to appeal to the House of Lords arguing that the Court of Appeal erred in law and invoking Article 10 of the Convention: the prison service did not have the power to regulate his Article 10 rights outside the prisons; that refusing to return the manuscript was disproportionate since it was futile to prevent publication since the material was in the public domain; that paragraph 34 of SO5B was too vague (he also invoked Article 8 in this respect); that the application of paragraph 34 was disproportionate in that it would never be possible for the applicant to publish his writing in his lifetime (he was serving a life sentence); and that the Court of Appeal applied an insufficiently intrusive form of review by placing itself in the shoes of the decision maker, the latter of whom was not qualified to make the decision he did (Article 8 was also invoked in this context).
19. On 18 April 2005 the applicant was refused, by summary decision, leave to appeal to the House of Lords.
20. Sections 1 and 3 of the 1952 Act vest in the Secretary of State for Justice all existing powers exercisable in relation to prisons whether under statute, common law or charter, and grant the Secretary of State power to do all acts necessary for the maintenance of prisons and prisoners. Section 4 of the 1952 Act reads as follows:
“(1) The Secretary of State shall have the general superintendence of prisons and shall make the contracts and do the other acts necessary for the maintenance of prisons and the maintenance of prisoners.
(2) Officers of the Secretary of State duly authorised in that behalf shall visit all prisons and examine the state of buildings, the conduct of officers, the treatment and conduct of prisoners and all other matters concerning the management of prisons and shall ensure that the provisions of this Act and of any rules made under this Act are duly complied with.
(3) The Secretary of State and his officers may exercise all powers and jurisdiction exercisable at common law, by Act of Parliament, or by charter by visiting justices of a prison.”
21. Section 47(1) of the 1952 Act provides:
“Rules for the management of prisons, remand centres, detention centres and Borstal institutions
(1) The Secretary of State may make rules for the regulation and management of prisons... and for the classification, treatment, employment, discipline and control of persons required to be detained therein.”
22. The 1999 Rules (as amended by the Prison (Amendment) (No. 2) Rules 2000), in so far as relevant, provide as follows:
“34. (1) Without prejudice to sections 6 and 19 of the Prison Act 1952 and except as provided by these Rules, a prisoner shall not be permitted to communicate with any person outside the prison, or such person with him, except with the leave of the Secretary of State or as a privilege under rule 8.
(2) Notwithstanding paragraph (1) above, and except as otherwise provided in these Rules, the Secretary of State may impose any restriction or condition either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed-
(a) does not interfere with the convention rights of any person; or
(b)(i) is necessary on grounds specified in paragraph (3) below;
(ii) reliance on the grounds is compatible with the convention right to be interfered with; and;
(iii) the restriction or condition is proportionate to what is sought to be achieved.
(3) The grounds referred to in paragraph (2) above are-
(a) the interests of national security;
(b) the prevention, detection, investigation or prosecution of crime;
(c) the interests of public safety;
(d) securing or maintaining prison security or good order and discipline in prison;
(e) the protection of health or morals;
(f) the protection of the reputation of others;
(g) maintaining the authority and impartiality of the judiciary; or
(h) the protection of the rights and freedoms of any persons.”
23. Rule 70 provides:
“No person shall, without authority, convey into or throw into or deposit in a prison, or convey or throw out of a prison, or convey to a prisoner, or deposit in any place with intent that it shall come into the possession of a prisoner, any money, clothing, food, drink, tobacco, letter, paper, book, tool, controlled drug, firearm, explosive, weapon or other article whatever. Anything so conveyed, thrown or deposited may be confiscated by the governor.”
24. In order to ensure uniformity of practice throughout prisons, the Secretary of State also issues to prison governors, pursuant to his general powers and duties under sections 1 and 4 of the 1952 Act, management guidance or directives in the form of SOs. While previously these SOs were not made available to the public or prisoners, they were at the relevant time available, inter alia, in prison libraries and on the Prison Service website. SOs have since been replaced by Prison Service Orders.
25. SO5B dealt with communications between prisoners and other persons, is entitled “restrictions on general correspondence” and where relevant provides:
“1. The examination and reading of correspondence to and from inmates is undertaken to prevent its use to jeopardise the good order of establishments, to detect and prevent offences against prison discipline or the criminal law and to satisfy other ordinary and reasonable requirements of prison administration. Accordingly the extent to which correspondence needs to be read will vary according to the nature of the establishment, inmate and correspondence ....
33. For the purpose of restrictions on content, inmates’ correspondence, both incoming and outgoing, is divided into the following groups (1) general correspondence, that is to say correspondence with ... individuals ... [excluding, for example, correspondence between a prisoner and his legal adviser].
34. General correspondence ... may not contain the following:
...
(9) Material which is intended for publication or for use by radio or television (or which, if sent, would be likely to be published or broadcast) if it ...
(c) is about the inmate’s crime or past offences or those of others, except where it consists of serious representations about conviction or sentence or forms part of serious comment about crime, the processes of justice or the penal system...”