ITEMID: 001-87045
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GULIYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Partly inadmissible;Violations of Art. 3;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1965 and lives in the village of Zheshart in the Komi Republic.
7. On 24 January 2000 policemen of the Ukhta Town Police Department arrested the applicant pursuant to an international arrest warrant issued by the Khanlarskiy District Prosecutor’s Office of Azerbaijan. Azeri authorities suspected the applicant of theft and abuse of position. The applicant was placed in the Ukhta Town temporary detention unit.
8. On the same day the Ukhta Town Prosecutor’s Office instituted criminal proceedings against the applicant on suspicion of involuntary manslaughter.
9. The applicant was apprised of his rights as a defendant, including the right to have the assistance of a lawyer and interpreter free of charge. He waived his right to interpretation services, insisting that he spoke Russian fluently, but he accepted the assistance of legal aid counsel Ms G.
10. On 4 February 2000 the applicant’s detention was authorised and he was transferred to detention facility no. IZ-7/2 in Sosnogorsk.
11. The Ukhta Town Prosecutor extended the applicant’s detention a number of times, relying on the gravity of the charges against him. The applicant unsuccessfully challenged the extension orders before the Sosnogorsk Town Court.
12. On 7 May 2001 the Ukhta Town Court found the applicant guilty of involuntary manslaughter and sentenced him to seven years’ imprisonment. On 9 November 2001 the Supreme Court of the Komi Republic upheld the conviction.
13. On 26 November 2004 the applicant was released on probation.
14. From 24 January to 4 February 2000 the applicant was held in the Ukhta Town temporary detention unit.
15. According to extracts from a registration log drawn up by the administration of the detention unit, and produced by the Government, from 24 January to 3 February 2000 the applicant was kept in cell no. 12 which measured 10.4 square metres and usually accommodated 3 to 4 inmates. On 3 and 4 February 2000 the applicant stayed in cell no. 8 which measured 10.1 square metres. On 3 February 2000 he shared that cell with two other detainees and on 4 February 2000 he was detained alone. The Government, relying on inspection certificates of 12 May and 30 November 2000, 16 April 2001 and 14 December 2005, argued that the design capacity of the cells had not been exceeded, although due to the large number of detainees it had been impossible to provide them with personal space in accordance with hygiene standards. The Government further submitted that cell no. 12 had had four sleeping places and at all times the applicant had had an individual bunk. The Government produced copies of black-and-white photos of the cell showing two single-tier metal bunks.
16. The applicant did not dispute the cell measurements. He alleged, however, that he had shared cell no. 12 with eight detainees. That cell had had two single-tier metal bunks and inmates had to take turns to sleep.
17. The Government, relying on the inspection certificates (cited above) and identical reports drawn up by warders in 2005, submitted that all cells were equipped with a lavatory pan, a tap, a sink and ventilation shaft. The lavatory pan was placed in the corner of the cell, near the door. The Government produced photos showing that the “lavatory pan” mentioned by them had in fact been a hole in the floor of the cell which had been separated from the living area by a metal partition. Cell no. 12 had a window which measured 170 centimetres in length and 85 centimetres in width. Photos produced by the Government show that the window had been covered with two layers of thick horizontal and vertical bars blocking access to natural air and light. The window was double glazed and had a casement which measured 30 centimetres in length and 26 centimetres in width. Inmates could request warders to open the casement to bring in fresh air. Twice a day warders turned on a ventilation system. The cells were constantly lit by a bulb placed in a niche above the door. The walls were covered with so-called “shuba”, a sort of abrasive concrete lining, designed to prevent detainees from leaning on the walls or writing on them. Inmates were allowed to take a shower once a week for fifteen minutes. A central-heating system was installed in the building. However, there had been no hot water since 1996. Warders boiled water and gave it to detainees on request. The applicant was not provided with bedding because the detention ward had scarce financial resources. The Government also submitted copies of contracts according to which the disinfestation and extermination of insects had been done twice a month and twice a year respectively.
18. The applicant disagreed with the Government’s description and submitted that the sanitary conditions had been unsatisfactory. The cells were infested with insects but the administration did not provide any insecticide. It was extremely cold because the casement was open all the time and warders refused to close it. It was impossible to take a shower as the shower room was permanently closed. Inmates had to sleep either on metal bunks or on the floor using their clothes as bedding. No toiletries were provided.
19. From 4 February 2000 to 25 January 2002 the applicant was detained in facility no. IZ-7/2 in Sosnogorsk.
20. According to certificates issued on 20 December 2005 by the director of the facility and produced by the Government, the applicant occupied three cells which measured 32.3, 16.2 and 32.3 square metres respectively. The two larger cells had eight sleeping places and housed eight detainees. The smaller cell had four bunks and accommodated four inmates. In their plea concerning the number of detainees in the cells the Government also relied on statements by warders who had worked in the facility while the applicant had been detained there.
21. The Government further submitted that each cell had a large window which measured 110 centimetres in width and 120 to 130 centimetres in length. Windows were covered with metal bars and were triple-glazed. Inmates could easily open windows to allow fresh air into the cells. The cell was equipped with ventilation shafts situated above the door and in the ceiling. The cells were constantly lit with artificial lighting. Two cells had a lavatory pan and a sink. The lavatory pan was separated from the living area with a two-metre-high tile brick wall. Inmates could take a shower once a week for fifteen minutes. The applicant was provided with bedding. He could also use his own bedding. The applicant was given food three times a day “in accordance with the established norms”.
22. The applicant contested the Government’s description, save for the information on the size of the cells. He further submitted that he had been detained in severely overcrowded cells. He stated that the cell population was two or three times greater than the capacity for which the cells had been designed. The applicant produced a written statement by an inmate, Mr G., who had been detained with him in one of the bigger cells. Mr G. attested that the cell had had eight bunks but it had housed 12 to 20 detainees. The applicant further provided an identical description of the conditions of his detention in facility no. IZ-7/2 to those in the Ukhta Town temporary detention unit. Mr G. affirmed the accuracy of the applicant’s description.
23. On 25 January 2002 the applicant, pursuant to the judgment of 7 May 2001, was sent from detention facility no. IZ-7/2 to serve his sentence in a correctional colony in the Mordoviya Republic. On 28 January 2002 he arrived to the town of Nizhniy Novgorod, where he was placed in detention facility no. 1. On 5 February 2002 the applicant was sent to the village of Ruzayevka in the Mordoviya Republic where he arrived the following day.
24. The Government, relying on itineraries and certificates issued in December 2005 by various officials of the Federal Service for Execution of Sentences, submitted that the applicant had been transported in a special security compartment in a railway carriage. Before placement on a train the applicant was body searched. The Government further noted that pursuant to legal regulations every two hours in the course of the transport a sentry had been relieved and a new sentry had checked and “moved around” detainees in order to “check doors, walls, the ceiling and presence of detainees”. During his sixty-five hour trip from Sosnogorsk to Nizhniy Novgorod the applicant was detained alone in compartment no. 7, which measured two square metres and had three sleeping places. In the course of his twelve-hour transport from Nizhniy Novgorod to Ruzayevka the applicant stayed in a similar compartment with four other detainees. Before his transport to Nizhniy Novgorod the applicant was provided with a two-day dry ration which included 1000 grams of bread, 1400 grams of tinned vegetables and meat, 30 grams of sugar, 20 grams of salt and four grams of tea. Before his transport to Ruzayevka he was given a one-day dry ration. The carriage was naturally ventilated. It was equipped with two lavatories which detainees could use. There was also a boiler which warders used to boil water. The applicant was allowed to use the lavatory on request and was provided with drinking water. The compartment had a lattice door but no window. The compartment was constantly lit by lighting strips and bulbs.
25. The applicant disputed the number of inmates transported in one compartment. He argued that at all times he had been kept with five other detainees in compartments which had been designed to accommodate three persons. He was not provided with food or hot water during the transport. He and his fellow inmates were constantly checked and body searched by wardens.
26. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
27. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows:
“b. temporary holding facilities for criminal suspects (IVS)
26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS establishments visited in 2001 varied considerably.
...
45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
...
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony’s administration”.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
VIOLATED_ARTICLES: 3


ITEMID: 001-85078
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF HADRI-VIONNET v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Giorgio Malinverni;Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Volodymyr Butkevych
TEXT: 5. The applicant was born in 1970 and lives in Lignon (in the Canton of Geneva).
6. The facts of the case, as presented by the parties, may be summarised as follows.
7. The applicant arrived in Switzerland on 10 June 1996 as an asylum seeker.
8. On 17 June 1996 she was placed in an accommodation centre for asylum seekers in the Canton of Aargau.
9. On 12 March 1997 she was moved to the “Thorfeld 2” accommodation centre in Buchs (Aargau).
10. On 4 April 1997 the applicant gave birth to a stillborn baby, the father of whom was a Swiss national. The autopsy established that the fœtus had died two days before delivery, at twenty-six weeks and two days. At the request of the midwife, the applicant, who was in a state of shock, was taken from the “Thorfeld 2” accommodation centre to the hospital in the Canton of Aargau. When asked by the midwife, both the applicant and the baby’s father said that they did not want to see the baby’s body.
11. On the same day the social worker (Sozialarbeiter) and the registrar of births, marriages and deaths (Zivilstandsbeamter) of the municipality of Buchs were informed of the child’s birth. Believing that it was not compulsory in the case of a child stillborn at the start of the twenty-seventh week of pregnancy to be buried with an attendant ceremony, they ordered a burial without a ceremony, in the absence of the applicant. They based their decision in particular on the fact that the parents had not expressed a wish to see the body before the autopsy and took the view that, given her mental state, the applicant was not fit to attend the burial.
12. On 8 April 1997, after having been placed in a wooden coffin by a firm of undertakers, the child’s body, on instructions from the municipality social worker, was carried in a delivery van to the cemetery of the municipality of Buchs for burial in a communal grave for stillborn babies (Grabstelle für Totgeburten).
13. It appears that the applicant left the hospital that same day (see the decisions of the Canton of Aargau Higher Court of 14 May 1999, paragraph 23 below).
14. On 10 April 1997 a member of the psychiatric services department took the applicant to the cemetery to lay flowers.
15. According to the Government, the applicant was informed on 15 April 1997 that it would be possible to organise a funeral for her child at a later date. In her statements of 1 July 1997 (see paragraph 19 below) the applicant disputed that assertion.
16. On 22 April 1997 she went to the cemetery and, accompanied by the priest, placed various stones and laid flowers at the site at which her child had been buried.
17. On 13 May 1997 the applicant lodged a criminal complaint against persons unknown at the district office (Bezirksamt) of Aarau and joined the proceedings as a civil party. Criminal proceedings were brought against the social worker and the registrar of births, marriages and deaths of the municipality of Buchs for misuse of official authority, disturbing the repose of the dead and, in the alternative, removal of property within the meaning of Article 141 of the Swiss Criminal Code. The applicant submitted that her child’s body had been unlawfully removed from her and that it had been carried in an inappropriate vehicle without the authorisation required for this kind of transport. In this context, she complained of a violation of her personal freedom guaranteed by the Federal Constitution and, in her submission, protecting the feelings of an individual vis-à-vis a deceased family member (see paragraph 33 below).
18. On 15 May 1997 the applicant moved to Geneva where her partner was living.
19. On 1 July 1997 the applicant and her partner were questioned by the Geneva cantonal police concerning the birth of their child and the circumstances that had surrounded it. Extracts of the interview with the applicant are reproduced below:
“Question (hereafter: “Q”) 17: Were you informed of the various types of funeral (burial, cremation or other) for stillborn babies?
Reply (hereafter: “R”) 17: The midwife, and then Dr R, asked me what I wanted to do with the body of my child.
Q 18: What type of funeral did you choose?
R 18: I chose a normal burial with a ceremony.
Q 19: Did anyone mention to you that you could see your child’s body?
R 19: The midwife offered to let me see the child.
Q 20: Did you see your child’s body?
R 20: I was in shock and I declined because I didn’t feel up to seeing my dead child.
...
Q 32: Did the hospital staff give you any guidance on the subject of funerals?
R 32: Yes. The formalities were carried out by C. [the firm of undertakers]. I just wasn’t told the date.
Q 33: Were you informed of the funeral by the Buchs Registry of births, marriages and deaths?
R 33: No.
Q 34: Were you informed of the place, date and time of the burial?
R 34: No.
Q 35: If so, by whom?
R 35: ---
Q 36: If not, did you ask the child’s father or any other person, in particular H. (the director of the Buchs accommodation centre) for this information?
R 36: I had a visit from Dr H on the following Tuesday, unless I am mistaken, at approximately 2 p.m. She told me that my baby had been buried that very day at 1 p.m. I was very angry that I had not been present. She told me she wasn’t familiar with the system.
Q 37: Did you feel up to attending your child’s funeral?
R 37: I was preparing myself because to convince myself that he had died, I had to see him placed in the ground.
Q 38: Why didn’t you attend the burial?
R 38: I didn’t get the chance.
...
Q 40: Did the hospital staff suggest that you attend the funeral accompanied by a nurse?
R 40: No. No such suggestion was made to me.
Q 41: Have you visited your child’s grave and with whom?
R 41: On Thursday, 10 April 1997, I met Mr B., a social worker. He told me that I was not entitled to know where by baby was. I told him that even though I was an asylum seeker, I was first and foremost a mother and that I had the right to see my son’s grave.
As he refused to tell me anything, I went to the police where I spoke to Ms B. She told me that she was not able to deal with this kind of problem. I insisted and after she had obtained some information, she told me that the “municipality” had made the decision.
I then contacted the priest of the Catholic Church in Aarau and a pastoral assistant. They were astonished that I had not obtained satisfaction. They tried to obtain information but were unsuccessful.
Q 42: Do you feel that you have suffered a loss as a result of the lack of information provided to you concerning your child’s burial?
R 42: A huge loss. I experienced the shock of losing my child and on top of that, I don’t know where he is buried.
Q 43: What type of loss have you suffered?
R 43: I feel as though I have not been respected as a mother. I was kept out at every step.
Q 44: Would you have attended the burial if you had known the time and place?
R 44: Yes.
Q 45: Were you informed that it was still possible to have a private funeral?
R 45: No.
...”
20. The following are extracts of the interview with the applicant’s partner:
“Q 11: Were you informed of the various types of funeral (burial, cremation or other)?
R 11: The midwife asked me what kind of funeral I wanted for the child. I told her that as a Catholic, I wanted a burial (burial and ceremony). She asked me to contact a company called C.
...
Q 13: Were you told that you could see your dead child?
R 13: Yes, the midwife suggested it to me.
Q 14: Did you see your dead child?
R 14: No, I wasn’t up to seeing him. I did however see some photographs of the baby at the cantonal hospital.
...
Q 27: Did you feel up to attending a burial?
R 27: Yes
...
Q 30: Did you visit your child’s grave at the cemetery and who went with you?
R 30: I went with my girlfriend to the Buchs “unknown persons” cemetery on around 20 May 1997. As far as I’m concerned, it’s not a cemetery but a public park. There is no cross to indicate that it is a cemetery. There are two statues and a few stones with names on them. According to the information provided by the Buchs social services department, my child is buried at the edge of the trees. There is no proof.
Q 31: Do you feel that you have suffered a loss as a result of the lack of information provided to you concerning your child’s burial?
R 31: Yes I have suffered a loss. After all, the dead baby was my son.
Q 32: What kind of loss?
R 32: An emotional and human loss.
Q 33: Would you have attended the funeral if you had been aware of the date and place?
R 33: Yes, absolutely.
Q 34: Were you told that it was possible to hold a funeral ceremony at a later date?
R 34: I was given no such information.
...”
21. On 4 August 1998, on the basis of the final reports from the Aarau district office (Bezirksamt) dated 1 July 1998, the Canton of Aargau public prosecutor’s office issued two orders discontinuing the proceedings against the two defendants. With regard to the offence of disturbing the repose of the dead, the public prosecutor’s office considered that one of the constituent elements of the offence – the mens rea of the defendants – had not been established. With regard to the inappropriate transport of the child’s body, the public prosecutor’s office acknowledged that the municipality’s registrar of births, marriages and deaths had made a mistake of law. The accused were however ordered to pay some of the costs of the proceedings.
22. The applicant lodged two appeals against the orders of 4 August 1998 before the Higher Court (Obergericht) of the Canton of Aargau. She argued that the two accused had disturbed the repose of the dead through “recklessness” (Eventualvorsatz) and that they should therefore be held criminally liable. In the context of the appeal concerning the registrar of births, marriages and deaths, the applicant complained more specifically of a violation of her personal freedom and the right to a decent burial, as individual rights protected by the Federal Constitution, due in particular to the fact that she had not been invited to attend the burial of her child. Lastly, as regards the transport of the child, the applicant challenged the contentions of the public prosecutor’s office, which had acknowledged a mistake of law.
23. In two judgments of 14 May 1999 the Higher Court declared the appeals inadmissible. With regard to the offence of disturbing the repose of the dead, it considered that the constituent elements of the offence had not been made out in that case, but considered, nevertheless, that by ordering the child to be buried without a ceremony, the two accused had been in breach of the relevant legislation. Indeed, both Article 11, paragraph 1, of the order concerning funeral services in the Canton of Aargau and Article 8, paragraph 1, of the regulations governing cemeteries and funerals in the municipality of Buchs permitted burial two days after the date of the birth of the stillborn child. Furthermore, paragraph 4 of Article 8 of the regulations governing cemeteries and funerals in the municipality of Buchs made provision for a ceremony to be organised (see paragraph 40 below). The Higher Court therefore considered that there had been a prima facie violation of the applicant’s right to hold a ceremony. Furthermore, the applicant’s mental and physical state would not have prevented her from attending her child’s burial, since it was on precisely that date that she had left hospital. The Higher Court stated, however, that it would have been possible to conduct a ceremony after the burial (Article 12, paragraph 1, of the regulations governing cemeteries and funerals in the municipality of Buchs; see paragraph 41 below) but that the applicant had made no such application.
24. As regards the complaint relating to the transport of the child, the Higher Court acknowledged that the registrar of births, marriages and deaths had acted in breach of Article 75 of the road traffic regulations since no authorisation, as provided for in paragraph 2 thereof, had been granted. It considered however that the mistake committed by the official, who had little experience in such matters, had to be put in perspective, as did the actual effects (Tatfolge) of his conduct. Therefore, in accordance with the principle of discretionary prosecution, the public prosecutor’s office had legally entitled to discontinue prosecution of the accused.
25. On 25 June 1999 the applicant lodged two public-law appeals and two applications for judicial review with the Federal Court (Bundesgericht). As regards the offence of disturbing the repose of the dead, the applicant claimed that all the elements thereof, both objective and subjective, had been made out in the case at hand. She then submitted that her arguments concerning the right to a decent burial and the violation of personal freedom had not been properly considered by the lower courts. On that point, she asked the Federal Court to transfer the part of her appeal concerning the right to a decent funeral to the Federal Council, the only authority having jurisdiction in the matter. As regards the violation of her personal freedom, the applicant submitted that for the family of a deceased person, the mourning process was an essential manifestation of personality development, according to the relevant case-law of the Federal Court. Lastly, she challenged the reasoning of the cantonal authorities concerning the inadequate transport of the child.
26. In two judgments of 12 August 1999 the Federal Court dismissed all four of the applicant’s appeals. It declared the ground based on the right to a decent funeral inadmissible and determined that her application to transfer part of her appeals to the Federal Council was vexatious (geradezu mutwillig), pointing out that a specific type of appeal to that court existed for complaints of that nature.
27. Subsequently, leaving aside the matter of whether the objective elements of the offence of disturbing the repose of the dead had been met, the Federal Court held that whatever the circumstances, mens rea on the part of the accused had not been established. Lastly, as regards the violation of personal freedom complained of by the applicant for having been prevented from completing her mourning process, and the violation of the right to a decent funeral, the Federal Court held that these claims were well-founded, or at least could have been, but that they were not relevant in the context of the proceedings at issue, in which the only matter to be decided was whether or not the perpetrators were guilty of the acts complained of.
28. Under the federal law on assistance to victims of crime, the applicant lodged a parallel application for payment of compensation for the non-pecuniary damage suffered as a result of the infringement of her personality rights.
29. That application was rejected first by the social services of the Canton of Aargau, then by the Administrative Court of that canton and, lastly, by the Federal Court on 24 November 2000. While acknowledging that an offence committed by negligence could, as the case may be, fulfil the requirements of section 2(1) of the federal law on assistance to victims of crime even if it were not, as such, punishable as a crime because it lacked the requisite mens rea, the High Court held that the offence in question in the present case, namely, misuse of authority, inherently fell outside the scope of that law.
30. By a decision of 23 March 1998 the Buchs municipal council authorised the child’s body to be exhumed at the expense of the municipality. The exhumation took place on 20 May 1998 and the body was transferred to the applicant’s new home in Geneva where it was buried following a Catholic ceremony.
31. On an unspecified date, the applicant married her partner.
32. Before 1 January 2000, when the new Constitution came into force, the Federal Constitution made no specific provision for the protection of the private sphere. However, in a judgment of 20 March 1963 (ATF 89 I 92) the Federal Court afforded it constitutional value as an element of personal (or individual) freedom.
33. In a judgment of 18 September 1985 (ATF 111 Ia 231) the Federal Court acknowledged more specifically that personal freedom also encompasses the feeling of parental devotion and, accordingly, the right of parents to object to any unjustified intervention in relation to the remains of a deceased family member.
34. Article 13 of the new Federal Constitution protects the private sphere and is worded as follows:
“1. Everyone has the right to respect for their private and family life, their correspondence and their relations established by mail and telecommunications.
2. Everyone has the right to be protected against the misuse of their personal data.”
35. Article 53, paragraph 2, of the old Federal Constitution provided for an obligation on the authorities to ensure that the dead received a decent burial:
“The disposal of burial grounds is a concern of the civil authorities. They shall make sure that every deceased person can have a decent burial.”
The new Constitution has not explicitly reproduced this provision.
36. Under the old section 73(1), paragraph a, sub-paragraph 4, of the Federal Law on administrative procedure in force at the material time, the Federal Council was the only authority with jurisdiction to deal with appeals lodged against the acts of cantons concerning burial grounds. The relevant paragraph was worded as follows:
“An appeal to the Federal Council shall be admissible against decisions taken at final instance at cantonal level and against legislative acts of the cantons for violation
a. of the following provisions of the Federal Constitution or the provisions corresponding to cantonal constitutions:
...
4. Article 53, paragraph 2 (of the Federal Constitution) concerning burial grounds.
... .”
This provision was repealed with effect from 1 March 2000 in line with the entry into force of the new Federal Constitution.
37. Paragraph 2 of Article 262 of the Swiss Criminal Code concerning disturbing the repose of the dead punishes the removal of human remains. The provision reads as follows:
“Any person who removes a dead body or part of a dead body or the ashes of a dead person against the will of those entitled thereto shall be liable to a custodial sentence or to a fine.”
38. Article 75 of the road traffic regulations reads as follows:
“Motor vehicles shall not be used to transport dead bodies unless they are specifically equipped for this purpose. This shall not apply to the transport of victims from the scene of an accident.
The cantonal authorities may allow the use of another vehicle where it can be guaranteed that the body will be transported decently and in optimum conditions of hygiene.”
39. Article 11, paragraph 1 of the canton of Aargau order concerning funeral services (Verordnung über das Bestattungswesen) is worded as follows (unofficial translation):
“Burial must take place within a time-limit which is in line with local custom and practice and as a general rule, not less than 48 hours after death.”
40. Article 8, paragraph 1, of the regulations governing cemeteries and funerals (Bestattungs- und Friedhofreglement) in the municipality of Buchs establishes a similar rule. Paragraphs 2 and 4 thereof read as follows (unofficial translation):
“In principle, burials shall take place on the third day following the death ... .
After consultation with the family and the priest, the registry of births, marriages and deaths shall regulate the ceremony and burial ...”
41. Article 12, paragraph 1, of the same regulations is worded as follows (unofficial translation):
“The burial or cremation of the coffin at the cemetery must be organised in person by the family, together with the registrar and the priest. Burial or cremation shall normally take place before the ceremony. Upon request, they may be scheduled to take place at a different time.”
VIOLATED_ARTICLES: 8


ITEMID: 001-93456
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF D. v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Anne E. Niemi;David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza
TEXT: 6. On 19 July 2000 the applicant’s daughter E., born in June 1997, was first interviewed at a hospital child psychiatric clinic on a suspicion that she had been sexually abused by the applicant. That suspicion was initially based on E.’s own account of what her father had done to her.
7. Dr S. examined E. at the clinic on 2, 4 and 8 August 2000. The sessions were recorded on videotape. Following those sessions the hospital staff proposed that a meeting be arranged between the applicant and E. to enable the observation of their interaction. Such a meeting was never held, presumably due to the opposition of E.’s mother, the applicant’s former wife.
8. On 7 August 2000 the applicant met a social worker and a nurse at the hospital. He denied any sexual abuse, suspecting that the mother had manipulated E. into saying negative things about him in order to prevent his visits with the child. The applicant and E.’s mother had divorced in 1998 and they had not been able to agree on the child’s custody and visiting rights. They had subsequently been afforded joint custody of E. by a court. Against this background, the applicant urged that other possible reasons for E.’s behaviour than sexual abuse be taken into consideration.
9. In a feedback discussion held on 14 September 2000 Dr S. informed the applicant about the results of the examinations, which in his opinion supported the suspicion of abuse by the applicant. The applicant was told that a meeting between him and E. was to be arranged and that he would be informed about the date of the meeting later on. The applicant requested copies of E.’s examination reports.
10. No meeting between the applicant and E. was arranged.
11. As copies of E.’s examination reports had not been sent to the applicant, his counsel made fresh requests to that end on 3 and 14 November 2000. She also insisted that the applicant be heard regarding the examinations.
12. On 15 November 2000 E. was examined at the clinic by Dr H. That session was also videotaped. No meeting with the applicant was arranged in respect of the results of that examination.
13. On 28 November 2000 the hospital refused to submit copies of E.’s examination reports to the applicant, finding that their disclosure might be detrimental to her health or treatment and that it might conflict with another very important private interest.
14. In December 2000 the applicant filed a request with the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen) to obtain access to E.’s medical file. No decision was given by that authority before the beginning of the subsequent trial against the applicant.
15. E.’s therapy at the hospital started in January 2001.
16. On 15 February 2001 the police began a pre-trial investigation of the applicant during which his counsel was given the opportunity to view the video recordings of E.’s examinations by Drs S. and H. Apparently, counsel was also given copies of at least some of the documents pertaining to the case. The investigation was closed on 19 September 2001. In his final statement to the pre-trial investigation, the applicant requested that the investigating authorities acquire the totality of E.’s medical file from the hospital. His request was not complied with as the police and the public prosecutor did not regard E.’s patient records as having any influence in the matter.
17. While the investigation was still pending, in May and June 2001, the applicant’s counsel had again asked the hospital authorities for access to those documents in E.’s medical file which were not already in the possession of the defence. The requests were refused. The applicant appealed against the decisions to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen).
18. On 24 October 2001 the prosecutor brought a charge against the applicant, alleging aggravated sexual abuse of E. between March and June 2000. On 23 November 2001 the applicant submitted a written request to the District Court (käräjäoikeus, tingsrätten) to gain access to E.’s medical file, claiming that it was necessary for his defence.
19. On 19 February 2002 the Administrative Court dismissed the applicant’s appeal against the hospital authorities’ refusal to grant him access to E.’s medical file (see paragraph 16 above). It stated that the examination reports requested by the applicant were not included in the trial material, and his request thus lacked legal basis. Furthermore, the court held that the applicant was entitled to obtain any medical documents given to or acquired by the District Court in the course of the criminal proceedings. Moreover, he had already been given copies of the video recordings and documents included in the pre-trial investigation material.
20. The District Court held a preparatory hearing on 16 August 2002, in which the applicant repeated his request to obtain all of E.’s examination reports. On that date, having obtained the consent of E.’s mother, the court ordered the hospital to submit to the court the requested documents. In another preparatory hearing, held in September 2002, the applicant was finally afforded the opportunity to acquaint himself with the remainder of E.’s medical file.
21. The main proceedings against the applicant began on 9 December 2002. The court received testimony from the applicant and 17 other persons, including Dr S., Dr H. and other doctors. A number of documents, including medical reports drawn up by the doctors treating E., were referred to in evidence. The videotaped examinations of E. were played back before the court.
22. On 20 December 2002 the District Court acquitted the applicant of the charge, finding that there was at least reasonable doubt as to his guilt. The court noted that the examination reports obtained during the pre-trial investigation had been exceptionally important to the outcome thereof. According to the court the examinations seemed to have been based on the presumption that E. had been sexually abused by the applicant. Nevertheless, the applicant had not been afforded an opportunity to acquaint himself with E.’s medical file while the examinations at the hospital were being conducted and had only gained access to the totality of her examination reports shortly before the trial. There had thus been crucial shortcomings in the pre-trial investigation, contrary to the rights of the defence as set out in the Criminal Investigations Act (esitutkintalaki, förundersökningslag; 449/1987) and the Convention.
23. The prosecutor and E., represented by her mother, appealed to the Court of Appeal (hovioikeus, hovrätten). In his reply to that court, the applicant contended, inter alia, that the investigation against him had de facto been carried out by the doctors and not by the police. He had not been given an opportunity to put questions to E., even indirectly, when she had been examined at the hospital, or at any later stage of the proceedings. He had only seen the video recordings when the pre-trial investigation was already well underway. It transpired from those recordings that during the examinations E. had claimed sexual abuse not only by her father, but also by several other persons. Further, the applicant had only been given access to E.’s medical file at the beginning of the trial, which meant that he had not had adequate time to prepare his defence.
24. The Court of Appeal held an oral hearing between 19 and 22 May 2003. The evidence presented to the court was in most part the same as had been before the District Court. As to the applicant’s involvement in the examinations, Dr S. testified that during the feedback discussion of 14 September 2000 he had asked the applicant whether he had any questions. The applicant had not indicated at that point that he wished to have any further examinations conducted.
25. On 19 June 2003 the appellate court quashed the lower court’s judgment and convicted the applicant of aggravated sexual abuse. He was sentenced to three and a half years’ imprisonment. The court found that E.’s account, recorded on videotape, was essential evidence, but not the sole evidence, against the applicant. In its conclusions the court emphasised E.’s behaviour, as it transpired from the video recordings, and the statements of Drs S. and H., who had examined her, and of another doctor who had treated her. This evidence was supported by three other witness testimonies regarding E.’s behaviour. The court further stated as follows:
“Given that [E.’s] account is essential evidence supporting the charge, [the applicant] or his counsel should have been given an explicit opportunity (“olisi...selkeästi tullut varata tilaisuus”) to put questions to [E.] through the pre-trial authorities or to request further investigations. However, this opportunity has not been provided within a reasonable time nor at a stage when it would have been useful, namely before the beginning of [E.’s] therapy. The procedure has therefore been deficient in part. [Dr S.] has, however, given [the applicant] an opportunity to request further examinations. Having regard to the fact that also other evidence in addition to [E.’s] account has been presented, the Court of Appeal finds that the above-mentioned procedural error cannot lead to the dismissal of the charge. Taking into account the legal protection of the child and her state of health as well as the fact that she had already been undergoing treatment for a long time, it would not have been reasonable to follow the adversarial procedure at a later stage. Naturally, the child’s account and her behaviour, as they transpire from the video recordings, must be taken with circumspection when assessing the evidence. However, the Court of Appeal considers that the taking of evidence, assessed as a whole, meets the minimum requirements of a fair trial.”
26. The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) contending, inter alia, that the proceedings had been unfair in the light of Article 6 of the Convention as he had been denied adversarial proceedings and the timely opportunity to acquaint himself with the totality of the case material. On 25 March 2004 he was refused leave to appeal.
27. At the time of the proceedings in question, apart from the leave to appeal proceedings in the Supreme Court, there were no legal provisions concerning the use as evidence of a video recording of testimony given by a child prior to the trial.
28. The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), as in force at the material time, provided that a statement included in a pre-trial investigation report or another document, or a statement recorded by other means, could not, as a rule, be admitted as evidence in court. The court might, exceptionally, admit such a statement as evidence, if the witness in question could not be questioned before the court (Chapter 17, articles 11(1)(2) and 11(3), Act No. 690/1997). It was at the court’s discretion to hear as a witness a person less than 15 years old (Chapter 17, article 21, Act no. 571/1948).
29. The Code of Judicial Procedure was amended with effect from 1 October 2003. According to the current provisions, the testimony of a person under 15 years old, or a mentally disturbed person, recorded on audio or videotape during the pre-trial investigation, may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony (Chapter 17, article 11(2), Act No. 360/2003). According to the explanatory report to the relevant Government Bill (No. 190/2002), this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to, inter alia, a child and on the importance of respecting the rights of the defence.
30. A more detailed description of the domestic law regarding pre-trial investigation and receipt of evidence in court may be found in the Court’s judgment of A.L. v. Finland (no. 23220/04, §§ 13-22, 27 January 2009).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103120
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF AYDIN v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 10
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1972 and lives in Wuppertal.
6. On 22 November 1993 the German Interior Ministry issued a decision by which it imposed a ban on the activities of the Workers' Party of Kurdistan (“the PKK”), under Article 18, second sentence, of the Law on Associations (Vereinsgesetz, see Relevant domestic law, below).
7. Relevant parts of the decision read as follows:
“1. The activities pursued by the “Workers' Party of Kurdistan” (PKK)...run contrary to provisions of the criminal law, are directed against the concept of international understanding, endanger inner security and other important interests of the Federal Republic of Germany.
2. The “Workers' Party of Kurdistan” (PKK)...is not allowed to pursue its activities within the territorial ambit of the Law on Associations.”
8. As the PKK as such did not challenge the imposition of the ban before the German courts, the decision became final on 26 March 1994.
9. Following the arrest of its leader, Abdullah Öcalan, in 1999, the PKK's executives changed their strategy and declared an end to the armed battle against Turkish army entities. Following a “peace initiative” declared by the party's seventh congress on 17 January 2000, the PKK did not organise any further demonstrations or violent acts in Germany.
10. In 2001 the PKK's presidential counsel decided to launch a large-scale campaign, during which their supporters should address themselves to the German authorities, should acknowledge their support for the PKK and should demand that the ban on the PKK's activities be lifted.
11. The supporters signed a declaration. The declarations were then collected and handed over in large numbers to parliaments, administrative bodies and courts. The content of the largely identical declarations was as follows:
“Self declaration (Selbsterklärung)
“I also am a follower of the PKK” (“Auch ich bin ein PKK'ler”)
As the Kurdish people has been denied its basic right to life, it has had no choice but to take up arms. After twenty years of war, our national leader, Abdullah Öcalan, has initiated a strategic change. For two years the PKK has been using exclusively political means to fight for a peaceful and democratic solution to the Kurdish question. On the basis of this new strategy the Workers' Party of Kurdistan (PKK) is undergoing a global reformation. Strongly determined to find a solution, it has developed its political activities against all resistance without leaving the framework of legality.
Although the Kurdish question emerged geographically in the Middle East, having regard to its historical, political and international connections it is a European problem waiting for a solution. Europe played a major role in the setting of Middle Eastern boundaries. That is why Europe is now confronted with the task of playing a role in the solution of the problems. Just as it failed to offer a prospect of a solution when our leader was abducted in the framework of an international conspiracy, Europe fails today to make use of the opportunities offered by the PKK.
While the majority of the European Member States make Turkey's accession to the European Union dependent on the Copenhagen criteria, they deny the national and political status of the Kurds living in Europe. Germany and England, in particular, insist on a policy of bans. With this destructive attitude Europe puts itself within the context of the policy of destruction and negation which is directed against the Kurdish people. Today as in the past Europe continues its negative tradition. This is nothing but a policy of double moral standards.
1. On this basis I, as a member of the Kurdish people, declare that I share the PKK's new policy, which, for two years, has been leading its political fight on a legal basis. I further declare that I belong to the PKK.
2. I challenge the European Member States to apply the same standards to themselves they apply to non-member States. I furthermore request these States to comply themselves with the express criteria for accession to the European Union with regard to the Kurds living in Europe. I therefore demand the full recognition of the rights granted to other peoples for the Kurdish people.
3. I further demand the official recognition of the cultural and political values created by the Kurdish people in the course of their great struggle. In this context I demand respect for my people's national and political identity.
4. I support the line of the PKK's democratic struggle, as has been confirmed by its seventh congress. Having regard to the fact that the PKK has not committed one single violent act for two years, I demand the lifting of all bans which are applied on the PKK.
5. I further declare that the liberty of our leader, Abdullah Öcalan, and the possibility of his political activity are the only guarantee for an enduring solution. I therefore demand: “Freedom for Abdullah Öcalan – Peace in Kurdistan”.
I hereby declare that I most severely condemn the prohibition issued against the PKK and the criminal prosecution of PKK membership and of active sympathy for the PKK. I further declare that I do not acknowledge this prohibition and that I assume all responsibility arising therefrom.”
12. With others, the applicant organised and coordinated a collection of signatures of the declaration in Berlin. She also signed a declaration herself. On 16 July 2001 the applicant, with two others, handed two folders containing 467 signed declarations to the Berlin public prosecutor. On 24 September 2001 the applicant handed over one further folder containing declarations. Furthermore, the applicant donated certain sums of money to a sub-organisation of the PKK, which was also subject to the ban.
13. Within the framework of the campaign, more than 4,000 declarations were handed to the authorities in Berlin; approximately 100,000 declarations were submitted to German administration as a whole.
14. On 17 July 2003 the Berlin Regional Court (Landgericht) convicted the applicant of contravening a ban imposed on an association's activity (section 20 § 1 no. 4 in conjunction with section 18, second sentence, of the Law on Associations) and sentenced her to 150 daily fines of eight euros each. During the hearing before that court, the applicant submitted a declaration that she had not intended to breach the criminal law, but to express her opinion and to further the understanding between the German and the Kurdish people. The Regional Court considered that the applicant, by signing the declaration, taking part in the campaign and giving donations, had flouted the ban on pursuing the PKK's activities.
15. The Regional Court considered that the declaration's content, seen in the context of the accompanying campaign, was likely to have a positive effect on the association's unlawful activities. The Regional Court considered, in particular, that the declaration “not (to) acknowledge this ban and (to) assume all responsibility arising therefrom” had a twofold effect: Firstly, the applicant expressed her commitment not to abide by the ban in the future and thus to provide the PKK with security for planning further unlawful activities. Secondly, it was likely to strengthen solidarity with other potential supporters.
16. According to the Regional Court, the declaration signed by the applicant was not covered by her right to freedom of expression, as the applicant did not confine herself to claiming freedom and self-determination for the Kurdish people, to demand the lifting of the ban on the PKK and most severely to condemn its continuation, which would fall within the ambit of the applicant's freedom of expression. Seen in the context of the aims of the overall campaign, the declaration also contained the statement that the applicant would continue to support the PKK even if the ban imposed on its activities was not lifted. This was already implied in the concluding statement, that the applicant would “assume all responsibility arising therefrom”, that is to say from any flouting of the ban. The Regional Court also considered that the campaign had the further aim of overburdening the public prosecution service with such a large number of criminal proceedings that they would not be able to cope.
17. The Regional Court considered as mitigating factors, inter alia, the importance of the right to freedom of expression.
18. On 15 January 2004 the Federal Court of Justice (Bundesgerichtshof), referring to its own pilot judgment given on 27 March 2003 (see relevant domestic law and practice, below), dismissed the applicant's appeal on points of law. According to that court, the Regional Court's interpretation of the applicant's statement and the evaluation of her behaviour were compatible with the right to freedom of expression as enshrined in Article 5 of the Basic Law.comprehensively and coherently refuted the applicant's allegations that she had not participated in a campaign which had been organised by the PKK with the aim to hamper the criminal prosecution of breaches of the ban by provoking a massive quantity of criminal investigations, but that she had merely intended to express her opinion on the ban. This was demonstrated by the fact that the applicant and the other campaigners did not address themselves to the Federal Interior Ministry, which would have been competent for lifting the ban, but addressed a massive quantity of collected individually signed declarations to the public prosecutor's office. The applicant's unwillingness to abide by the ban was further demonstrated by the fact that she had been previously convicted of a similar offence and that she had flouted the ban in another, separate way by financially supporting a sub-organisation of the PKK.
19. The Federal Court of Justice finally considered that the Regional Court had sufficiently weighted the importance of the right to freedom of expression when assessing the sentence.
20. On 20 March 2004 the applicant lodged a constitutional complaint in which she complained that her right to freedom of expression and her right to petition had been violated.
21. On 26 September 2006 the Federal Constitutional (Bundesverfassungsgericht), in a reasoned decision of 21 pages, refused to accept the applicant's complaint for adjudication as being unfounded.
28. Article 5 of the German Basic Law (Freedom of Expression) reads as follows:
“(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources(...).
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.
(3)....”
Article 9 of the Basic Law (Freedom of Association) provides:
“(1) All Germans shall have the right to form corporations and other associations.
(2) Associations whose aims or activities contravene the criminal laws, or that are directed against the constitutional order or the concept of international understanding, shall be prohibited.”
29. Article 103 of the Basic Law (ban on retroactive criminal laws) provides:
“(1)...
(2) An act may be punished only if it was defined by a law as a criminal offence before the act was committed.”
30. The relevant sections of the Law on Associations (Vereinsgesetz) read as follows:
Section 3
Banning
“An association can only be treated as being banned if the competent authority established by decree that its aims or its activity contravene the criminal law or that it is directed against the constitutional order or against the idea of international understanding ...”
Section 18
Geographical applicability of bans imposed on associations
“...If a (foreign) association does not have a sub-organisation within the geographical applicability of this Act, the ban (section 3 paragraph 1) is directed against its activity within that territory.”
Section 20
“Anyone who, within the geographical applicability of this act, by pursuing an activity
(...)
4. contravenes an enforceable prohibition under section 18 sentence 2 (...)
Will be sentenced to up to one year's imprisonment or to a fine.”
31. On 27 March 2003 the Federal Court of Justice issued a pilot judgment (no. 3 StR 377/02) on the criminal liability incurred by signing the “self declaration” which also forms the subject matter of the instant complaint.
32. The Federal Court of Justice confirmed its earlier case-law that a person contravened an enforceable prohibition within the meaning of section 20 § 1 no. 4 in conjunction with section 18 sentence 2 of the Law on Association if his activity made reference to the banned activity of the association and was conducive to those activities. The acts had to be actually suited to producing an advantageous effect in regard to the banned activities.
33. The court considered that the submission of these signed declarations within the framework of a large-scale campaign was concretely suited to support the PKK's activities. Having regard to the overall context of the statement and to the circumstances of the campaign, the Federal Court of Justice considered that it could be ruled out that the signatories confined themselves merely to demand freedom and self-determination for the Kurdish people, a lifting of the ban and most severely to condemn the maintenance of the ban. This statement would have been covered by their right to freedom of expression. However, the concluding statement, according to which the signatories declared that they assumed “all responsibility arising therefrom” (that is to say from the non-observance of the ban) made it unequivocally clear that they were ready to flout the ban and to bear the ensuing criminal prosecution. Otherwise, the addendum would not make sense, as these consequences could not be expected for the mere utterance of criticism and the request for a lifting of the ban, which would be covered by the right to freedom of expression and thus be exempt from criminal liability.
34. This interpretation was further corroborated by the fact that it had been the campaigners' declared aim to overburden public prosecution authorities with such a large number of proceedings that they would be unable to cope.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-5640
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: GONZALEZ MARIN v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr Jesús María Gonzalez Marin] is a Spanish national who lives in Valencia.
He was represented before the Court by Ms C. García Ramos, of the Valencia Bar.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 19 and 20 October 1982 the Valencia region was hit by torrential rains which produced a sudden rise in the River Júcar and caused the Tous dam to burst and then collapse.
Land was flooded in twenty-five municipalities as a result of the dam collapsing and the water from it pouring into the Júcar. Eight people died, many properties and much farmland were damaged and some 33,000 people were affected by the disaster. The scale of it gave rise to very strong public feeling and wide reporting in the media.
At the time of the disaster the applicant was an engineer at the dam.
On 23 October 1982 Játiva (Valencia) investigating judge no. 1 started a criminal investigation.
In an order of 27 January 1983 he charged the applicant and S.M.S., another engineer who worked at the dam, with serious negligence.
On 31 January 1986 those victims of the disaster who had together joined the proceedings as a single civil party applied for two other engineers at the dam, F.S.G. and R.G.M.-R., to be charged with the same offence. In an order of 26 February 1986 the Valencia Audiencia Provincial charged F.S.G. and R.G.M.-R. with serious negligence. The two engineers and counsel representing the government lodged an appeal (recurso de súplica) against that decision. Their appeal was dismissed on 16 April 1986.
The trial began on 9 March 1987. The civil party sought to have a further engineer at the dam, J.S.-T.M., likewise charged with the same offence. In an order of 9 June 1987 the Valencia Audiencia Provincial charged J.S.-T.M. with very serious negligence. J.S.-T.M. lodged a súplica appeal against that decision. His appeal was dismissed on 17 July 1987. The trial was then adjourned to 20 February 1989.
On 5 October 1987 J.S.-T.M. lodged a criminal complaint against two of the Audiencia Provincial judges for abuse of office. On 30 October 1987 the Audiencia Provincial ruled that there were no grounds for that complaint. J.S.-T.M. lodged a súplica appeal against that ruling. His appeal was dismissed on 21 November 1987. On a further appeal, the Supreme Court upheld the original ruling.
Subsequently, on 6 October 1987 and 22 September 1988, J.S.-T.M. challenged the same two judges in the Valencia Audiencia Provincial, but was unsuccessful. He lodged an appeal (recurso de amparo) with the Constitutional Court, which dismissed it on 27 April 1989.
The trial was held at the Valencia Audiencia Provincial between 20 February 1989 and 15 February 1990. On 23 October 1990 the court acquitted the applicant, S.M.S. and F.S.G., but sentenced R.G.M.-R. and J.S.-T.M. to one year’s imprisonment and to fines for serious negligence.
R.G.M.-R. and J.S.-T.M. appealed on points of law to the Supreme Court, arguing that the trial court’s judgment should be declared a nullity on the ground that the proceedings had been flawed. In a judgment of 8 February 1993 the Supreme Court declared that the order in respect of F.S.G. and R.G.M.-R. was void and that the trial was a nullity on the ground that one of the Valencia Audiencia Provincial judges had been biased. It ordered the proceedings to be resumed expeditiously.
In a decision (auto) of 26 April 1993 the Valencia Audiencia Provincial ordered the trial to begin. Hearings were held in open court between 13 October and 29 November 1993.
Subsequently, in a decision of 18 December 1993, the Valencia Audiencia Provincial adjourned the date for lodging final written submissions in order to allow other victims of the disaster to bring proceedings. The defendants and the victims lodged súplica appeals (nine in all) against that decision. In a decision of 17 January 1994 the Audiencia Provincial dismissed the appeals and upheld the decision of 18 December 1993.
On 9 February 1994 counsel representing the government lodged an amparo appeal against those two decisions. Subsequently the applicant himself joined that appeal. The Constitutional Court, in a decision of 1 December 1994, reversed the decisions, found that the proceedings had been lengthy and ordered the trial to begin.
Hearings were held from 30 January to 21 July 1995.
In a judgment of 4 October 1995 the Valencia Audiencia Provincial acquitted all the defendants.
The public prosecutor’s office and the civil party appealed on points of law to the Supreme Court, which, in a judgment of 15 April 1997, served on 17 April 1997, set aside the Audiencia Provincial’s judgment and sentenced the applicant to one month’s imprisonment and to fines for negligence under Article 586 bis of the Criminal Code. It also ordered the State to pay the damages if the applicant was insolvent.
The applicant then lodged an amparo appeal with the Constitutional Court in which he complained, inter alia, of the length of the proceedings. His appeal was dismissed in a decision of 16 July 1997, which was served on 29 July 1997, on the grounds that the fundamental right on which he relied had not been raised earlier and that the appeal did not raise a constitutional issue. The Constitutional Court stated that the applicant had failed to comply with section 44(1)(c) of the Constitutional Court Act in that he had not submitted his complaint to the Supreme Court when it had heard the appeal on points of law; he should in any event have raised it at an earlier stage of the proceedings when formal note could have been taken of the excessive length of the proceedings, and not thirteen years after the violation had occurred and after the authority responsible for the lengthy proceedings had taken steps to expedite them. The Constitutional Court also pointed out that it had already addressed that ground of appeal and granted relief on an earlier amparo appeal.
“Everyone is entitled … to a public trial without undue delays …”
“Losses incurred as a result of judicial errors or a malfunctioning of the administration of justice shall be compensated by the State, in accordance with the law.”
“1. Anyone who incurs a loss as a result of a judicial error or a malfunctioning of the judicial system shall be compensated by the State, other than in cases of force majeure, in accordance with the provisions of this Part.
2. The alleged loss must in any event actually have occurred and be quantifiable in monetary terms and must directly affect either an individual or a group of individuals.”
“In the event of a judicial error or a malfunctioning of the judicial system, the complainant shall submit his claim for compensation to the Ministry of Justice.
The claim shall be examined in accordance with the provisions governing the State’s financial liability. An appeal shall lie to the administrative courts against the decision of the Ministry of Justice. The right to compensation shall lapse one year after it could first have been exercised.”
“1. An amparo appeal in respect of a violation of rights and guarantees capable of constitutional protection … does not lie unless … the violation in question has been formally alleged in the proceedings in question as soon as possible after it has occurred.
…”