ITEMID: 001-72207
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SEZEN v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8
TEXT: 8. The applicants were born in 1966 and 1972 respectively and live in Amsterdam.
9. The first applicant entered the Netherlands in October 1989. From his relationship with the second applicant, who has been lawfully residing in the Netherlands since the age of seven and holds a permanent residence permit (vestigingsvergunning), a child, Adem, was born on 27 June 1990. The applicants married on 25 October 1990. One month later, the first applicant filed a request for a residence permit for the purposes of forming a family unit (gezinsvorming) with his wife and working in the Netherlands. This permit was granted on 12 February 1991. On 24 January 1992 the first applicant acquired the right to remain in the Netherlands indefinitely ex jure pursuant to Article 10 para. 2 of the Aliens Act 1965 (Vreemdelingenwet 1965).
10. On 31 July 1992 the first applicant was arrested and placed in detention on remand. The Regional Court of Amsterdam convicted the first applicant on 20 January 1993 of participating in an organisation aimed at committing offences and of being a co-perpetrator (medepleger) of intentionally being in the possession of about 52 kilos of heroin, committed on or around 31 July 1992. The first applicant was sentenced to four years’ imprisonment. In respect of the determination of this sentence, the Regional Court held as follows:
“... in the decision to impose a sentence involving a deprivation of liberty and the duration thereof, the Regional Court is in particular taking account of the fact that the accused has for a long time let his house be used as a safe house for quantities, of considerable size and suitable for further distribution, of a substance harmful to public health, so that only a prison sentence of considerable duration is appropriate.”
The first applicant was released on 11 April 1995. He went back to live with his wife and child and found a job.
11. Due to marital problems, the applicants did not live together for some time in 1995/1996. On 28 November 1995 the first applicant’s name was removed from the municipal register as living at the same address as his spouse. He was registered as once again living in the matrimonial home on 25 June 1996.
12. On 14 May 1996 both applicants went to the Aliens’ Police Department as they were going to resume cohabitation and wanted to prolong the first applicant’s residence permit. However, an official at that Department told them it would be better if the first applicant applied for an independent residence permit. For that reason, an application was made for prolongation of the first applicant’s residence permit or for an amendment of the restrictions attached to that permit so that it would enable him to reside in the Netherlands for the purpose of working in salaried employment without being required to live with his spouse.
13. On 14 October 1996 a second child, Mahsun, was born to the applicants. Both children have Turkish nationality.
14. The Deputy Minister of Justice (Staatssecretaris van Justitie) informed the first applicant on 7 March 1997 of her intention to impose a ten-year exclusion order on him by declaring him an undesirable alien (ongewenst vreemdeling). The first applicant was invited to submit his views on the matter. By letter of 24 March 1997 the first applicant declared that he would never again do anything wrong and asked to be given a second chance.
15. The Deputy Minister rejected the request for prolongation of the residence permit on 5 June 1997. According to the Deputy Minister, the first applicant had lost his indefinite right to remain on 28 November 1995 when he had ceased to cohabit with his wife. The fact that the spouses had in the meantime resumed cohabitation did not have the effect of reviving this right ex jure. Although Netherlands policy provided that aliens, following the dissolution or breakdown of their marriage on the basis of which they had acquired an indefinite right to remain, could under certain circumstances, relating to the duration of the marriage, be eligible for an independent residence permit, the prolongation of a residence permit could also be refused on general interest grounds. In view of the first applicant’s criminal conviction of 20 January 1993, the Deputy Minister considered that it was justified to deny the first applicant further residence and to impose a ten-year exclusion order. The interference with the first applicant’s right to respect for his family life was held to be justified in the interests of public order and for the prevention of crime. Having regard to the seriousness of the offences committed by the first applicant and the duration of the prison sentence imposed on him, the Deputy Minister concluded that the interests of the State outweighed those of the first applicant.
16. The first applicant filed an objection (bezwaar) against this decision. It was rejected on 19 March 1998 by the Deputy Minister who adopted the advice issued by the Advisory Board on Matters Concerning Aliens (Adviescommissie voor Vreemdelingenzaken). This Board was of the opinion that the first applicant’s request should be considered as a request for an independent residence permit (onafhankelijke verblijfsvergunning) in view of the fact that the right to remain indefinitely, pursuant to Article 10 § 2 of the Aliens Act 1965, did not constitute a residence permit which was eligible for prolongation or for amendment of the restrictions attached to it. The Board further considered, notwithstanding the fact that the first applicant had moved back to the matrimonial home after a separation of six or seven months, that the breakdown of the applicants’ marriage had been of a permanent nature given the duration of the separation and the first applicant’s request for an independent residence permit which did not require him to cohabit with his wife. Therefore, the question to be examined was whether, at the time of losing the indefinite right to remain, the first applicant had been eligible for continued residence (voortgezet verblijf).
17. Having regard to the first applicant’s criminal conviction, which implied that he had violated public order, the Board considered that the request for a residence permit should be refused and an exclusion order imposed. It saw no merit in the first applicant’s expressions of regret nor in his arguments to the effect that his wife and two children resided in the Netherlands and that he had been working in the Netherlands since 21 June 1995. In this connection the Board, referring to the duration of and the reasons for the prison sentence as set out in the judgment of the Regional Court of 20 January 1993, had regard to the nature and seriousness of the offence of which the first applicant had been convicted. The Board did not consider that the period of time between the conviction and the imposition of the exclusion order was so long that for that reason alone the authorities ought to refrain from taking that measure. In this respect it was borne in mind that the first applicant had held an indefinite right to remain from 24 January 1992 until 28 November 1995 which, pursuant to the policy in force, stood in the way of an exclusion order being imposed.
Finally, as far as the first applicant’s rights under Article 8 § 1 of the Convention were concerned, the Board considered that the interests of the State outweighed those of the first applicant.
18. The first applicant filed an appeal against this decision with the Regional Court (arrondissementsrechtbank) of The Hague, sitting in Amsterdam. He argued, inter alia, that there had not been any breakdown of his marriage, let alone one of a permanent nature. The spouses had merely not cohabited for a number of months because of marital problems; however, the first applicant had remained in contact with his wife. Moreover, during this time their child Mahsun had been conceived. The first applicant was gainfully employed, did not constitute a threat to public order and he had extricated himself from the criminal circles in which he had previously been involved. In the view of the first applicant, it was unreasonable to deny him continued residence and to impose an exclusion order on him more than four years after his criminal conviction.
19. In its judgment of 12 November 1998 the Regional Court agreed with the Deputy Minister that the applicants’ actual close family ties (feitelijke gezinsband) had been severed as a result of their temporary separation and that as a result the first applicant had lost his indefinite right to remain. It upheld the Deputy Minister’s decision in so far as the denial of continued residence was concerned. Having regard to the nature of the offence of which the first applicant was convicted and the length of the prison sentence imposed, the Regional Court considered that the interference with the applicants’ right to respect for family life was necessary in the interests of the protection of public order. In respect of the exclusion order, which denied the first applicant the right to visit the Netherlands even for short periods, the Regional Court quashed the impugned decision. It found that insufficient weight had been accorded to the interests of the applicants and their children. Thus, no attention had been given to the consequences which the exclusion order would have for the applicants and their children, both in the case where the other family members would follow the first applicant to Turkey and in the case where they would remain in the Netherlands. In this connection the Regional Court noted that the children, who had close links with the Netherlands as they had been residing there since their birth, might at this stage of their lives have a great need for regular contacts with their father within their own surroundings (levenssfeer), and not exclusively abroad. The exclusion order rendered such contacts – including occasional contacts – impossible.
20. On 6 May 1999 the Deputy Minister decided anew on the first applicant’s objection in so far as this concerned the exclusion order. She declared the objection well-founded and lifted the exclusion order.
21. The first applicant has not reoffended and has been in paid employment ever since his release from prison.
22. At the time relevant to the present application, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). On 1 April 2001 a new Aliens Act entered into force but this has no bearing on the present case.
23. Aliens married to a Netherlands national, a recognised refugee or a holder of a permanent residence permit acquired, after one year of legal residence, ex jure an indefinite right to remain pursuant to Article 10 § 2 of the Aliens Act 1965. This right expired ex jure when the alien no longer actually formed part of his or her spouse’s family unit. If the married couple ceased, other than temporarily, to live together, this was indicative of a breakdown in family relations even if the marital bond was preserved. The residence permit was not automatically reinstated if the actual close family ties were later restored. The alien could, however, apply for a new one, for the purposes of residence with his or her spouse, or for a residence permit in his or her own right.
24. Under the policy laid down in chapters A4/4.3.2 and A5/6 of the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire 1994), an alien who has been given a custodial sentence by a Dutch or foreign court (at least part of which sentence was not suspended), by a judgment that has become final and conclusive, for intentionally committing a crime punishable by a custodial sentence of three years or more, could be refused permission for continued residence in the country. Underlying this policy is the principle that the longer an alien has lawfully resided in the Netherlands, the more serious a crime has to be before it may justify refusing continued residence; the authorities thus apply a “sliding scale” (glijdende schaal). The seriousness of a crime is determined on the basis of the sentence attached to it. To determine whether an alien may be refused permission for continued residence, the length of the sentence imposed is compared to the length of time that the alien had been living in the Netherlands when he or she committed the crime.
25. In accordance with this policy, an alien who, at the time of committing the offence, had been residing lawfully in the Netherlands for less than three years – like the first applicant in the present case – would be refused permission for continued residence if he or she was sentenced to an unsuspended prison sentence of more than nine months.
26. An alien who has been sentenced by a final and conclusive judgment for an offence intentionally committed, punishable by a term of imprisonment of three years or more, was also liable to an exclusion order (Article 21 of the Aliens Act 1965). A person upon whom an exclusion order has been imposed is not allowed, for as long as the order is in force, either to reside in the Netherlands or to visit it.
27. Continued residence could not be refused to, and an exclusion order not imposed on, aliens with an indefinite right to remain pursuant to Article 10 § 2 of the Aliens Act 1965.
VIOLATED_ARTICLES: 8


ITEMID: 001-57519
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF LEANDER v. SWEDEN
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;No violation of Art. 10;No violation of Art. 13
JUDGES: C. Russo
TEXT: 9. The applicant, Mr. Torsten Leander, is a Swedish citizen born in 1951 and a carpenter by profession.
10. On 20 August 1979, he started to work as a temporary replacement in a post of museum technician (vikarierande museitekniker) at the Naval Museum at Karlskrona in the south of Sweden. The museum is adjacent to the Karlskrona Naval Base which is a restricted military security zone.
The applicant maintained before the Court that the intention was that he should work for ten months in this post, while its ordinary holder was on leave. He alleged that on 3 September he was told to leave his work pending the outcome of a personnel control which had to be carried out on him in accordance with the Personnel Control Ordinance 1969 (personal-kontrollkungörelsen 1969:446 - see paragraphs 18-34 below). According to the applicant, this control had been requested on 9 August 1979.
The Government submitted that the applicant was employed only from 20 August to 31 August 1979, as evidenced by a notice to this effect, issued on 27 August 1979 by the Director of the Museum. They further contended that in employing Mr. Leander the Director had committed two mistakes. Firstly, it was not in accordance with the procedure prescribed in the Ordinance and the relevant regulations issued thereunder to employ a person before a personnel control had been undertaken and, secondly, the post had not been properly declared vacant.
11. The necessary steps were taken on 30 August 1979. The post was opened for application until 28 September 1979. Mr. Leander did not apply.
12. It appears that on 25 September the Director informed him that the outcome of the personnel control had been unfavourable and that he could therefore not be employed at the Museum.
13. Following the advice of the Security Chief of the Naval Base, the applicant wrote to the Commander-in-Chief of the Navy (chefen för marinen) requesting to be informed of the reasons why he could not be employed at the Naval Museum.
In his reply of 3 October 1979, the Commander-in-Chief of the Navy stated, inter alia:
"The Museum possesses several storage rooms and historical objects within the area for the security of which the Chief of the Naval Base (örlogsbaschefen) is responsible. According to the information received by the Commander-in-Chief of the Navy, the person holding the post in question must have freedom to circulate within areas subject to special restrictions regarding access. The rules on access to these areas must therefore also be applied to the personnel employed at the Museum.
It is for these reasons that the Chief of the Naval Base requested a personnel control.
The control carried out has provided such grounds for the Commander-in-Chief’s assessment of you from a security point of view that the decision has been taken not to accept you.
However, if your duties at the Naval Museum will not necessitate that you have access to the naval installations at the Naval Base, the Commander-in-Chief sees no reason to oppose your employment. The decision whether or not to employ you is taken in a procedure distinct from the present one."
14. On 22 October 1979, the applicant complained to the Government and requested that the assessment of the Commander-in-Chief of the Navy be cancelled and that he be declared acceptable for the temporary employment at the Naval Museum, irrespective of the possibility of being reinstated in that employment. He pointed out in particular that he had left a permanent position in Dalarna, in the North of Sweden, on being told that he was accepted for employment at the Naval Museum and that a negative outcome of the personnel control could mean social misery, especially considering that he had a wife and child to support. In his original complaint, and also in a letter of 4 December 1979, Mr. Leander further requested that he be given information about the reasons for his not being accepted at the Naval Museum.
The Government requested the opinion of the Supreme Commander of the Armed Forces (överbefälhavaren), who in turn consulted the Commander-in-Chief of the Navy.
The Commander-in-Chief of the Navy explained in a letter of 7 November 1979 that he had received the result of the personnel control from the Supreme Commander on 17 September 1979 together with the following proposal:
"Accepted in accordance with the assessment of the [Commander-in-Chief of the Navy], on condition that L. does not, through access to the Museum’s premises or through his work, obtain insight into secret activities."
The Commander-in-Chief of the Navy added that, according to his information, the Director of the Museum required the person employed in the post in question to have free access to, and freedom to circulate in, the Naval Base and that accordingly, on 21 September 1979, he had taken the decision not to accept the applicant.
In his reply to the Government, the Supreme Commander of the Armed Forces stated, inter alia:
"However, the employment of Mr. Leander during this time, 15 August - 1 September 1979, did not involve any access to the Naval Base. The Commander-in-Chief of the Navy has said that he does not oppose such employment. The Director of the Naval Museum has, however, affirmed the requirement that Mr. Leander should have access to the Naval Base.
In view of the above and the fact that, if Mr. Leander was given access to the Naval Base, he would have access to secret installations and information, the Commander-in-Chief of the Navy decided not to accept the applicant.
When dealing with the present case, the Commander-in-Chief of the Navy has entirely followed existing regulations concerning the assessment of personal qualifications from a security point of view.
...
Like the Commander-in-Chief of the Navy, the Supreme Commander of the Armed Forces considers that Mr. Leander may properly be employed by the Naval Museum provided that the holder of the appointment does not require access to the Naval Base."
The opinion of the Supreme Commander of the Armed Forces was accompanied by a secret annex, containing the information on Mr. Leander released by the National Police Board (rikspolisstyrelsen). This annex was never communicated to the applicant and has not been included in the material submitted to the Court.
15. In a letter of 5 February 1980, the applicant raised new grievances before the Government. These concerned the decision of the National Police Board not to exercise its powers under section 13 of the Personnel Control Ordinance to communicate to him the information released on him (see paragraph 31 below). The applicant requested that the Government should, before taking a decision on his request of 22 October 1979, give him the right to be apprised of and to comment upon the information thus released by the Board.
On this matter, the Government sought the opinion of the Board. In its reply of 22 February 1980, the Board proposed that the applicant’s complaints be dismissed. It added:
"The entering of information in the register of the Board’s Security Department is based mainly on a 1973 Royal Decree which is secret. Before information is entered, the question of registration is subject to assessment, at several levels, by civil servants under responsibility to verify compliance with the above-mentioned rules in relation to each item of information. In the event of doubt, the question of registration is decided upon by the Chief of the Security Department.
Information from the register is handed out in accordance with section 9 of the Personnel Control Ordinance after decision by the National Police Board in plenary meeting. At least three of the six members of the Board who are appointed amongst parliamentarians should be present when decisions are taken in matters of personnel control. In the case of the applicant, all six members were present.
...
Under section 13 of the Personnel Control Ordinance, the person whom the information concerns ought to be given the opportunity to submit observations on the matter if special reasons give cause for this. However, the National Police Board did not see any cause to apply this provision in the case of the applicant as no special reasons were found, and also as the registering had been effected in accordance with the secret Royal Decree and disclosure of the information would have revealed part of the contents of that Decree."
Mr. Leander replied to this opinion in a letter of 11 March 1980 to the Government, in which he argued, inter alia, that the Board should have communicated to him, at least orally and subject to a duty of confidentiality, the information kept on him.
16. By decision of 14 May 1980, the Government rejected the whole of the applicant’s complaint. In its operative parts, the decision read:
"The question whether or not a person is suitable for certain employment can only be examined by the Government in the context of a complaint about the appointment to a post. Leander has lodged no appeal with the Government in respect of appointment. His request that the Government should declare him acceptable for the provisional employment concerned cannot therefore be examined.
In the present case, there are no such special circumstances as are mentioned in section 13 of the Personnel Control Ordinance which would give Leander the right to be acquainted with the information about him released by the National Police Board to the Supreme Commander of the Armed Forces.
The remainder of Leander’s petition is a request to be given an extract from, or information about the contents of, a police register.
The Government reject [this] request ...
The Government do not examine Leander’s request for a revised assessment of his person and take no measure in regard to any other part of his petition."
17. The applicant maintained before the Court that he still did not know the content of the secret information recorded on him.
Regarding his personal background, he furnished the following details to the Commission and the Court. At the relevant time, he had not belonged to any political party since 1976. Earlier he had been a member of the Swedish Communist Party. He had also been a member of an association publishing a radical review - Fib/Kulturfront. During his military service, in 1971-72, he had been active in the soldiers’ union and a representative at the soldiers’ union conference in 1972 which, according to him, had been infiltrated by the security police. His only criminal conviction stems from his time in military service and consisted of a fine of 10 Swedish Crowns for having been late for a military parade. He had also been active in the Swedish Building Workers’ Association and he had travelled a couple of times in Eastern Europe.
The applicant asserted however that, according to unanimous statements by responsible officials, none of the above-mentioned circumstances should have been the cause for the unfavourable outcome of the personnel control.
18. According to Chapter 2, section 3, of the Swedish Instrument of Government (regeringsformen, which forms the main constituent of the Swedish Constitution and is hereafter referred to as "the Constitution"), "no entry regarding a citizen in a public register may without his consent be founded exclusively on his political opinion".
19. The legal basis of the register kept by the National Police Board’s Security Department ("the secret police-register") is to be found in the Personnel Control Ordinance, which was enacted by the Government under their regulatory powers and which was originally published in the Swedish Official Journal (svensk författningssamling, 1969:446). Section 2 of the Ordinance (as amended by Ordinance 1972:505) provides:
"For the special police service responsible for the prevention and detection of offences against national security, etc., the Security Department within the National Police Board shall keep a police-register. In this register, the National Police Board may enter information necessary for the special police service.
In the police-register referred to in the first paragraph, no entry is allowed merely for the reason that a person, by belonging to an organisation or by other means, has expressed a political opinion. Further provisions concerning the application of this rule shall be laid down by the Government."
20. In consequence, the following instructions, published on 22 September 1972, were given to the National Police Board by the Government:
"In this country, there exist organisations and groups engaging in political activities which involve the use or the possible use of force or threats of compulsion as means to achieve their political aims.
Some organisations have adopted a programme in which it is said that the organisation shall endeavour to change the social system by violence. It can be assumed, however, that a large part of the membership of such organisations will never take part in the realisation of the goals in the programme. The mere fact of being a member of such an organisation does not therefore constitute a reason for the Security Police to make an entry about a person in its register. An entry may be made, however, if a member or a supporter of such an organisation has acted in a way which justifies the suspicion that he may be prepared to participate in activities which endanger national security or which are aimed at, and may contribute towards, overthrowing the democratic system by force or affecting the status of Sweden as an independent State.
There also exist organisations and groups which may engage in, or may have engaged in, political subversion in Sweden or in other States, while using force, threats or compulsion as means for such subversion. Information about members or supporters of such organisations or groups shall be entered in the register of the Security Police.
Further instructions concerning the application of section 2 of the Personnel Control Ordinance shall be issued by the Government following proposals from the National Police Board. If, in the special police service, circumstances appear which may call for amendments to the instructions issued by the Government the National Police Board should submit proposals for such amendments."
21. Further instructions, this time secret, were issued by the Government on 27 April 1973 and again on 3 December 1981.
22. In addition to the circumstances provided for in the Personnel Control Ordinance (see paragraph 24 below), information from the secret police-register appears also to be released by the National Police Board in certain cases of public prosecution and in matters relating to applications for Swedish citizenship.
23. In addition to the above-mentioned provisions regarding the secret police-register, the Personnel Control Ordinance contains provisions as to, inter alia, the posts which are to be security classified, the procedure for handing out information and the use of the information released. The main relevant provisions are summarised below.
24. According to section 1, personnel control means the obtaining of information from police registers in respect of persons holding or being considered for appointment to posts of importance for national security.
25. Section 3 (as amended by Ordinance 1976:110) enumerates certain authorities, including the Supreme Commander of the Armed Forces, entitled to request a personnel control.
26. Section 4 specifies that a personnel control may only be carried out with regard to certain posts of importance for national security. The posts concerned are divided into two security classes (skyddsklasser), depending upon whether or not they are of vital importance for national security. The decision to classify a post in Security Class 1 is taken by the Government, whereas the right to classify a post in Security Class 2 is normally delegated to the authority in question.
27. According to section 6, requests for release of information for the purposes of a personnel control are to be made to the National Police Board and the request shall be made only with regard to the person whom it is intended to appoint to the post.
28. Sections 8 and 9 deal with what information may be handed out to the appointing authority.
If the post in question falls within Security Class 1, the National Police Board may, under section 8, release all information on the person concerned contained in the secret police-register or in any other police register. If the post comes within Security Class 2, the Board may, by virtue of section 9 (as amended by Ordinance 1972:505), only supply a certain specific kind of information on the person concerned, namely
"1. his conviction for, or his being suspected of having committed, crimes mentioned in paragraph 1 of the Act of 21 March 1952 (no. 98) laying down special provisions on investigation measures in certain criminal cases (lag med särskilda bestämmelser om tvångsmedel i vissa brottmål) or mentioned in Chapter 13, paragraphs 7 or 8, of the Penal Code" - mainly crimes against public peace, national security or the Government - "or his conviction for, or his being suspected of, an attempt, conspiracy or incitement to commit such crimes;
2. his conviction for, or his being suspected of having committed, such other acts as constitute crimes against the security of the State, or which are intended and liable to bring about the violent overthrow of the democratic government or to affect the country’s position as an independent State; or his conviction for, or his being suspected of, an attempt or conspiracy to commit such crimes;
3. his being suspected, on the basis of his activities or otherwise, of being ready to participate in such acts as are mentioned in sub-paragraphs 1 and 2."
29. Section 11 provides that, when deciding whether or not to make information from the register available, the National Police Board shall be composed of the National Police Commissioner (rikspolischefen), the Head of the Security Police and those members of the Board who have been appointed by the Government; there are six such lay members - usually Members or former Members of Parliament from different political parties, including the Opposition - and at least three of them must be present when the decision is taken.
Information may be released only if all the participating members of the Board agree on the decision. Where one or more of the lay members of the Board oppose release of certain information, the National Police Commissioner may refer the matter to the Government for decision if he considers that the information should be made available. Such reference to the Government shall also be made if one of the lay members so requests.
30. When a request for a personnel control is received by the National Police Board, the practice is the following. The Security Department draws up a memorandum on the information contained in the relevant registers and presents this orally to the Board, which, after deliberation, decides whether the information should be handed out in whole or in part. In taking this decision, it considers among other things the nature of the post in question, the degree of reliability of the information and how old the entries are. When a file contains only a few entries, this is a factor which may militate against disclosure. There are no written instructions on disclosure apart from the provisions of the Ordinance and the Instructions of the Government.
31. At the relevant time, section 13 prescribed that before information was released by the National Police Board in cases relating to appointment to posts classified in Security Class 1, the person concerned should be given an opportunity of presenting his observations in writing or orally, unless there were special reasons to the contrary. In cases of appointment to posts classified in Security Class 2, the above notification procedure was to be applied only if required on account of special circumstances. However, in no case concerning a Security Class 2 post does the Board ever seem to have found any special circumstances to be present and, accordingly, such notification was never made - in spite of the fact that various important authorities, including the Chancellor of Justice and the Parliamentary Ombudsman, called upon to comment on the legislative proposal which was to become the Ordinance had recommended the making of at least some form of notification.
This provision was amended as from 1 October 1983 (Ordinance 1983:764). At present, before information is released in cases of appointment to posts in all Security Classes, the person concerned must be given the opportunity of presenting his observations in writing or orally. This rule does not, however, apply if the person would thereby come to know information classified as secret by virtue of any provision in the Secrecy Act 1980, except for section 17 in Chapter 7 of the Act (see paragraph 41 below), or if the requesting authority, in cases not concerned with appointment to official posts, has been exempted by the Government from the requirement of informing the person concerned of the personnel control (see paragraph 33 below).
32. At the time of the proceedings in Mr. Leander’s case, the National Police Board was, under section 14, prohibited from adding any comments to the information released to the requesting authority.
33. Section 19 provided that before an authority initiated a personnel control, it had to inform the person concerned thereof - with one exception not relevant in the present case.
34. Section 20 prescribed that it was the requesting authority that should independently assess the importance of the information released from the police register(s), having regard to the nature of the activities connected with the post in question, the authority’s own knowledge of the person concerned and other circumstances.
35. Over the years, the Minister of Justice has been actively engaged in the supervision of the security police and the personnel control. He has made a number of investigations of varying depth. The investigations made by the Minister of Justice do not result in any reports. However, the Government stated that the deliberations between the Minister and the National Police Board have led to amendments of both the public and the secret instructions.
36. The Office of the Chancellor of Justice has a long tradition and is now established in Chapter 11, section 6, of the Constitution. His functions and powers are set out in the 1975 Act on Supervision by the Chancellor of Justice (lag 1975:1339 om justitiekanslerns tillsyn) and in the Government’s Instruction to the Chancellor (förordning 1975:1345 med instruktion för justitiekanslern).
The duties of the Chancellor of Justice, as laid down by Parliament (riksdag), include supervising the public authorities and their employees in order to ensure that their powers are exercised in accordance with the law and the applicable regulations. In this capacity, he often receives and examines complaints from individuals. He also has to act on the Government’s behalf in order to safeguard the rights of the State and has to assist the Government with advice and investigations in legal matters.
The appointment as Chancellor of Justice is made by the Government and continues until retirement age. According to Chapter 11, section 6, of the Constitution, the Chancellor is subordinate to the Government. However, section 7 of the same Chapter provides: "No public authority," - including the Government - "nor the Parliament, nor the decision-making body of a municipality may determine how an administrative authority" - including the Chancellor of Justice - "shall make its decision in a particular case concerning the exercise of public authority against a private subject or against a municipality, or concerning the application of law."
The Chancellor of Justice has the right to attend all deliberations held by courts and administrative authorities, although without expressing his opinion. He is also entitled to have access to all files or other documents kept by the authorities.
All public authorities as well as their employees must provide the Chancellor of Justice with such information and reports as he may request (see also paragraph 41 below).
In his supervisory capacity, he may institute criminal proceedings against public servants or he may report them with a view to disciplinary proceedings.
The Chancellor may, in agreement with the Parliamentary Ombudsman, transfer to him cases involving individual complaints, and vice versa. Thus, identical complaints will in practice be considered by either the Chancellor or the Ombudsman, but not by both.
37. The National Police Board, being a public authority, and its activities, including personnel control, fall under the Chancellor of Justice’s supervision.
The Chancellor of Justice visits the Board and its Security Department regularly, generally once a year. In addition, visits take place if special reasons so warrant. A complaint from an individual may constitute such a special reason. His visits are always recorded and the minutes are drafted in such a way that they may be made public. If secret material has to be recorded, the secret passages in the minutes will not be made public. The Government have submitted a copy of the minutes of an inspection visit of 6 December 1983, from which it appears that the Chancellor of Justice together with two officials of the Chancellery inspected the premises of the Security Department and discussed, inter alia, questions concerning personnel control. Nothing emerged from the visit which called for special mention.
The Chancellor of Justice has no power to alter a decision by the Board or the Security Department, nor can he interfere with their decision-making in general, although he is free to make statements about actions that he deems to be contrary to law or inappropriate.
Since opinions expressed by the Chancellor in relation to an inspection of the personnel control procedure are not legally binding, it might perhaps be doubted whether they fall within the sphere where the Chancellor is guaranteed independence by virtue of Chapter 11, section 7, of the Constitution (see paragraph 36 above). In view of Swedish legal tradition, it is however inconceivable that the Government would endeavour to use their powers under Chapter 11, section 6, of the Constitution so as to give the Chancellor instructions as to, for example, the opinion he should give in a matter concerning the application of the Personnel Control Ordinance, or generally to prohibit him from monitoring the activities of the National Police Board; no such instructions exist and none has ever been given.
38. The functions and powers of the Parliamentary Ombudsmen, an institution that dates back to 1809, are laid down in particular in Chapter 12, section 6, of the Constitution, and in the Act of Instruction to the Parliamentary Ombudsmen (lag 1975:1057 med instruktion för justitieombudsmännen).
The four holders of the office of Parliamentary Ombudsman are elected by Parliament. Their main task is to supervise the application, within the public administration, of laws and other regulations.
It is the particular duty of an Ombudsman to ensure that courts of law and administrative authorities observe the provisions of the Constitution regarding objectivity and impartiality and that the fundamental rights and freedoms of citizens are not encroached upon in the processes of public administration.
If, while performing his supervisory duties, an Ombudsman should find cause to raise the question of amending legislation or of any other measure the State should take, he may present a statement on the subject to the Parliament or the Government.
An Ombudsman exercises supervision either on complaint from individuals or by carrying out inspections and other investigations he deems necessary.
The examination of a matter is concluded by a report in which the Ombudsman states his opinion on whether the measure contravenes the law or is inappropriate in any other respect. The Ombudsman may also make pronouncements aimed at promoting uniform and proper application of the law.
The Ombudsman’s reports are considered to be expressions of his personal opinion. Whether or not his statements will have any practical effects depends on his ability to convince the decision-maker or authority in question. Those concerned often, but by no means always, abide by the Ombudsman’s opinion (see Gustaf Petrén/Hans Ragnemalm, Sveriges Grundlagar, Stockholm 1980, p. 327).
An Ombudsman may institute a criminal prosecution or disciplinary proceedings against an official who has committed an offence by departing from the obligations incumbent upon him in his official duties.
An Ombudsman may be present at the deliberations of a court or an administrative authority and shall have access to the minutes and other documents of any such court or authority. Any court, any administrative authority and any civil servant in central or local government must provide the Ombudsman with such information and reports as he may request. In the performance of his duties, the Ombudsman may request the assistance of any public prosecutor.
39. It follows from the foregoing that the National Police Board and its activities come under the supervision of the Parliamentary Ombudsmen.
According to information submitted by the registrar of the Parliamentary Ombudsmen, the procedure in cases of individual complaint is the following. When the complaint is lodged, the Ombudsman responsible contacts the Board or the requesting authority (see paragraph 25 above). He will then be furnished with oral opportunity to study the relevant documents and files. This information is not entered on any record kept by the Ombudsman, as that would entail problems as to how to preserve the secret character of the information. The Ombudsman arrives at his opinion on the basis of the inquiry described above and of the results of any other investigations undertaken. His report is always drawn up in writing and made accessible to the public. It does not therefore set out any secret information.
Since 1969 there have been at least eight individual complaints relating to the personnel control system. Four were complaints of a general nature by notorious complainants. After having investigated the factual circumstances underlying the other four complaints, the Ombudsman closed the file in two of them only after having expressed specific criticism in respect of certain issues (reports of 20 February 1984 in case 684-1983 and of 15 February 1985 in case 2316-1984). The criticism expressed by the Ombudsman in the report of 20 February 1984 has, according to a recent judgment of the Labour Court (no. 28 of 12 March 1986), led the Supreme Commander of the Armed Forces to change a previous practice regarding the application of section 19 of the Ordinance.
40. The Parliamentary Standing Committee on Justice consists of fifteen Members of Parliament nominated on a proportional basis. Since 1971, it has considered the appropriations for the security branch of the police and, almost every year, scrutinised the expenses of the security police, its organisation and activities. A great interest has, according to the Government, been shown in matters concerning the Personnel Control Ordinance and its application and in the question of assessing the influence of the lay members of the National Police Board on the activities of the security police. The Committee normally informs itself by holding hearings with spokesmen of the Board and its Security Department and by regular visits. Such visits took place in the spring of 1977, the autumn of 1979 and the spring of 1983. In the spring of 1980, special discussions took place between the Committee and the parliamentarians on the Board. In the spring of 1981, the Committee asked for, and received, a special report. In the spring of 1982, the Committee held a hearing with the National Police Commissioner and the Head of the Security Department.
According to the Government, the Principal Secretary to the Committee has confirmed that the members of the Committee, during their visits, have full access to the registers and that they have also examined the register kept at the Security Department. The members have also discussed various matters concerning the keeping of the register with the officials responsible for making the entries and putting data before the Board when a personnel control is carried out.
41. Under section 2 of Chapter 2 of the Freedom of the Press Act (tryckfrihetsförordningen), which is part of the Swedish Constitution, everyone is entitled to have access to a public document unless, within defined areas, such access is limited by law.
At the relevant time, the main provisions concerning these limitations were found in the Act on Restrictions on the Right of Access to Public Documents (lag om inskränkningar i rätten att utbekomma allmänna handlingar 1937:249, "the 1937 Act"), which was in force until 1 January 1981.
Under section 11 of the 1937 Act (as amended), "details of information entered on such registers as are mentioned in the Act on the General Criminal Register (lag om allmänt kriminalregister 1963:197) or in the Police Register Act (lag om polisregister m.m. 1965:94) may not be handed out in any other cases or manner than those provided for in those Acts". According to section 3 of the Police Register Act (as amended by Act 1977:1032, in force until 1 March 1985):
"Extracts from or information on the contents of police registers shall be given upon request from
1. the Chancellor of Justice, the Parliamentary Ombudsmen, the National Police Board, the Central Immigration Authority, County Administrative Boards, county administrative courts, Chiefs of Police or public prosecutors;
2. other authorities, if and to the extent that the Government, for certain types of cases or in a specific case, have given the necessary authorisation;
3. an individual, if he needs the extract in order to secure his rights in a foreign country, in order to enter a foreign country or in order to take up residence or domicile or to work there, or in order to have decided questions of employment or contracts related to activities concerned with health-care or with matters of importance from a national security point of view, and the Government by way of special ordinance have authorised that extracts or information be given for such purposes, or, in other cases, if the individual can prove that he depends on obtaining information from the register in order to secure his rights, and the Government authorise such information to be given to him."
As of 1 January 1981, the 1937 Act was replaced by the Secrecy Act 1980 (sekretesslagen, 1980:100) and similar regulations are now to be found in Chapter 7, section 17, of this Act.
No evidence has been adduced of any special ordinance allowing individuals in the applicant’s situation to obtain extracts from the police registers.
42. A decision by an authority other than the Parliament or the Government to refuse access to a document is subject to appeal to the courts (Chapter 2, section 15, of the Freedom of the Press Act).
In several recent cases decided by the Supreme Administrative Court, individuals have been refused access to information contained in the secret police-register as they had not obtained or sought the previous authorisation by the Government required by the above-cited section 3 of the Police Register Act (Yearbook of the Supreme Administrative Court - 1981: Ab 100 and Ab 282 and 1982: Ab 85).
This is consistent with the events in the present case, in that the Government declared themselves competent to examine Mr. Leander’s request to be acquainted with the information about him released by the National Police Board (see paragraph 16 above).
However, no appeal - either to the Government or to the administrative courts - against a decision of the Board to release information to the requesting authority seems to be available to the individual concerned, since he is not considered to be a party to the release procedure before the Board (see the Supreme Administrative Court’s decision of 20 June 1984 in case 1509-1984).
43. Even if a certain document is secret, the Government always have a certain discretionary power to release it, and a person who is a party to judicial or administrative proceedings in which the document is of relevance may still be allowed access to it. The basic provisions in this respect were, until 30 December 1980, contained in section 38 of the 1937 Act (as amended by Act 1974:567), which stated:
"Whenever it is found necessary in order to secure public or individual rights, the Government may, without being subject to the restrictions otherwise laid down in this Act, provide for the release of documents.
If a document which may not be released to everybody can be presumed to be of importance as evidence in a trial or police investigation in a criminal matter, the court which handles the case or which is competent to decide questions relating to the police investigation may order that the document should be released to it or to the officer in charge of the police investigation. The foregoing does not however concern documents referred to in sections 1-4, 31 and 33. If the contents of a document are such that the person who has drawn it up may not, according to Chapter 36, section 5 (2), (3) or (4), of the Code of Judicial Procedure, be heard as a witness in regard thereto, the document may not be presented in the judicial proceedings or in the course of the police investigation; neither, unless warranted by special circumstances, may the document be presented in the judicial proceedings or in the course of the police investigation if a professional secret would thereby be disclosed."
As from 1 January 1981, corresponding provisions are to be found in Chapter 14, sections 5 and 8, of the Secrecy Act 1980.
44. The civil liability of the State is dealt with in Chapter 3 of the Civil Liability Act 1972 (skadeståndslagen 1972:207).
According to section 2, acts of public authorities may give rise to an entitlement to compensation in the event of fault or negligence.
However, under section 7, an action for damages will not lie in respect of decisions taken by Parliament, the Government, the Supreme Court, the Supreme Administrative Court or the National Social Security Court. Furthermore, with regard to decisions of lower authorities, such as the National Police Board, section 4 of the Act provides that such an action will not lie to the extent that the person concerned could have avoided losses by exhausting available remedies.
NON_VIOLATED_ARTICLES: 10
13
8


ITEMID: 001-108981
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF GUT v. POLAND
IMPORTANCE: 4
CONCLUSION: Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Ján Šikuta;Lech Garlicki;Vincent A. De Gaetano
TEXT: 6. The applicant was born in 1958 and lives in Biskupiec.
7. On 19 June 2002 the applicant was arrested on charges of arson and uttering threats. On an unknown later date he was indicted before the Biskupiec District Court.
8. The applicant was detained on remand for a total period of 8 months in 2002 and 2003.
9. On 3 June 2003 the District Court acquitted the applicant of some of the charges and convicted him of uttering threats and attempted arson. and
10. On 26 June 2003 the applicant appealed against his conviction.
11. On 16 October 2003 the Olsztyn Regional Court quashed the judgment and remitted the case.
12. Between 19 October 2005 and 29 March 2006 the District Court held seven hearings. On several occasions the applicant who was duly summoned, refused to appear at hearings. However, the court proceeded with the trial in his absence.
13. On 31 March 2006 the Biskupiec District Court convicted the applicant as charged and sentenced him to three years’ imprisonment.
14. On 14 September 2006 the Olsztyn Regional Court again quashed the judgment and remitted the case.
15. On 3 June 2009 the Gizycko District Court acquitted the applicant of all arson charges and convicted him of uttering threats.
16. On 27 July 2009 the applicant filed his appeal against this judgment. The proceedings were terminated by the judgment of the Olsztyn Regional Court of 26 November 2009.
17. On 16 and 21 August 2007 the applicant lodged complaints with the Białystok Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). The applicant sought a ruling that the length of the proceedings before the Olsztyn Regional Court had been excessive and an award of just satisfaction.
18. On 7 November 2007 the Court of Appeal gave a decision and dismissed the applicant’s complaint.
19. On 19 June 2008 the Olsztyn Regional Court dismissed yet another complaint under 2004 Act lodged by the applicant. The court considered that there had been no significant delays in the proceedings.
20. The applicant was also involved in several other sets of criminal and civil proceedings in particular, proceedings concerning assault of a judge and contempt of court. The proceedings were terminated respectively on 24 October 2005 and 14 March 2007 by the Olsztyn Regional Court.
21. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.


ITEMID: 001-96440
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF PADURET v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (victim);Violation of Art. 3;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1979 and lives in Bozieni.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. At the time of the events, the applicant was a student at the State University in Tiraspol located in Chişinău.
8. On 3 February 2000 P. complained to the Centru Police Station in Chişinău that he had been robbed on 27 December 1999 by three unidentified persons. He suspected that one of those persons was the applicant.
9. A criminal investigation was initiated. On 31 March 2000 a student of the police academy, A.P., knocked at the applicant’s door at approximately 7.30 in the morning. Having opened the door, the applicant was forced to follow A.P. out to the street, where he was forced into a car belonging to P. Another student from the police academy, A.R., was waiting in the car.
10. According to the applicant, he received blows from A.P. and A.R. all the way to the Centru Police Station. Upon his arrival at the station, the applicant was taken up to office no. 508. The applicant alleges that he was ill-treated in that office by A.P. and A.R. and by another plain-clothed person, whose identity he did not know at the time. He made this complaint to the prosecution.
11. The applicant was invited to confess to having robbed P. When he refused, A.P. and A.R. tied his hands and feet together behind his back and he was suspended on a metal bar placed on two adjacent tables (a position called “swallow” akin to “Palestinian hanging”). He then received truncheon blows to the soles of his feet and was kicked and punched in various parts of his body. A gas mask was put on his face and cigarette smoke was blown into the air access tube, causing him to suffocate. That tube was later attached to his penis. His captors also inserted a glass bottle into his anus three times. At one time he lost consciousness.
12. Later on that day the applicant was taken to a prosecutor’s office. In view of clear signs of ill-treatment on the applicant’s body, the prosecutor ordered a medical examination to establish whether he had been ill-treated.
13. According to the applicant, the investigator responsible for the criminal investigation into P.’s complaint was officer O. This officer had never delegated any power of investigation or arrest to any other officer, including officers C., A.P. and A.R..
14. On 3 April 2000 the applicant was examined by a group of forensic doctors, who found that he had been injured. In particular, he had a black eye and a bruise on his chest of 10 x 7 cm, and had suffered head trauma and anal damage. The doctors excluded the possibility that the injuries could have been sustained as a result of a fall. Later that day he was admitted to hospital with a diagnosis of head trauma.
15. On the same date the criminal investigation against the applicant was discontinued, but he was allegedly not informed about it until much later, on an unspecified date.
16. In a statement made on 12 April 2000 A.P. mentioned, inter alia, that while the applicant was being questioned a person who was not part of the police force, R.B., was also present. No violence had been used against the applicant, who had been arrested on the orders of investigator C.
17. On 15 June 2000 a criminal investigation was initiated against A.P. and A.R.
18. The applicant underwent two more medical examinations, on 28 June and 24 July 2000, which confirmed the injuries caused to him. The last examination concluded that it could not be excluded that the applicant had caused the injuries himself.
19. On 21 September 2000 an investigator decided to discontinue the criminal case against A.P. and A.R. for lack of evidence. On 29 November 2000 the applicant complained to a prosecutor about the discontinuation, noting that he had not been informed of it until he insisted on receiving an update on 21 November 2000. On 1 December 2000 the prosecutor annulled the investigator’s decision.
20. According to an order issued by the Minister of Internal Affairs on 26 August 1999, police academy students A.P. and A.R. had been temporarily authorised to act as police inspectors until 1 March 2000. On 25 December 2000 inspector C. was reprimanded for ordering A.P. and A.R. to arrest the applicant on 31 March 2000, despite being aware that they were no longer authorised to act as police inspectors, actions which led to bodily harm being caused to the applicant.
21. On 30 December 2000 a prosecutor decided to discontinue the criminal proceedings against A.P. and A.R. under Article 185 (2) of the Penal Code (abuse of authority, see paragraph 41 below) for lack of evidence and opened an investigation under article 116 (2) of the Penal Code for unlawful deprivation of the applicant’s liberty (see paragraph 41 below).
22. On 20 February 2001 a prosecutor decided to discontinue the investigation against A.P. and A.R. under Article 116 (2) of the Penal Code and to initiate an administrative investigation against them for causing minor injuries to the applicant. On 23 March 2001 the Centru District Court annulled that decision and sent the case file to the prosecution for re-qualification of the acts committed by A.P. and A.R. under the provisions of the Penal Code.
23. On 11 April 2001 the prosecutor annulled his decision of 30 December 2000 and sent the case file to the investigator for further investigation.
24. On 28 April 2001 the prosecutor decided that the actions of A.P. and A.R. came within the ambit of Articles 101 and 207 of the Penal Code (beating an usurpation of powers respectively, see paragraph 41 below). On 8 May 2001 the applicant asked the Prosecutor General’s Office for a re-qualification of the acts from beating to torture, as provided by Article 101/1 of the Penal Code (see paragraph 41 below). The applicant emphasised that he had been caused suffering with the aim of forcing him to confess to a crime which he had not committed. This could only be characterised as torture. On 14 May 2001 he made a similar complaint to the prosecutor in charge of the case.
25. A.P., A.R. and their lawyers failed to appear at the court hearing on 28 May 2001. At the next hearing on 4 June 2001, the applicant’s lawyer asked the court to re-qualify the acts committed by A.P. and A.R. from beating to torture. This request was rejected since the prosecution was responsible for such a re-qualification.
26. Further court hearings were held on 13 and 20 June, 9, 17 and 20 July, 17 and 26 September 2001. After the hearing of 26 September 2001 the applicant was arrested by the police on the orders of officer Adajii, who was a witness for the defence in the case against A.P. and A.R. The applicant lodged a separate complaint in respect of this arrest with the Court. The applicant also submitted that he had been openly insulted and intimidated in court by A.P. and A.R., who often came armed to court hearings, and by other police officers.
27. On 8 October 2001 the applicant lodged a civil action against A.P. and A.R. within the criminal proceedings.
28. On 27 November 2001 R.B. was called to court as a witness for the defence. The applicant identified R.B. as the plain-clothed person who had ill-treated him in office no. 508 alongside A.P. and A.R. He asked the prosecution and court to charge R.B. with the crime of torture, together with A.P. and A.R. On 29 November 2001 the applicant’s lawyer made a similar request. The lawyer complained that the investigators had not made sufficient efforts to verify the involvement of the third person in the applicant’s ill-treatment, referring to the consistent submissions the applicant had made since his first complaint about the participation of a third person in the events. They received no reply and no investigation was initiated in respect of R.B.
29. On 22 April 2002 the Centru District Court found A.P. and A.R. guilty as charged and sentenced them to two years’ imprisonment, suspended for one year. The applicant was awarded 1,235 Moldovan lei (MDL, equivalent to 102 euros (EUR)), to be paid by A.P. and A.R.
30. In response to a request by the Helsinki Committee of Human Rights in Moldova, on 14 May 2002 the Ministry of Internal Affairs confirmed that A.P. and A.R. had not been suspended from their positions during the investigation against them, based on the principle of presumption of innocence.
31. The applicant and the accused appealed. On 29 October 2002 the Chişinău Regional Court allowed the applicant’s appeal and awarded him MDL 11,058 (EUR 826) in respect of pecuniary and non-pecuniary damage. The applicant and the accused appealed.
32. On 26 December 2002 and 16 and 30 January 2003 the defence lawyer did not appear in court. The hearings were postponed each time.
33. On 6 February 2003 the Court of Appeal annulled the lower courts’ judgments and sent the case file for re-examination by the first-instance court, finding that the accused could not be tried for usurpation of powers.
34. Further hearings were scheduled for 20 March, 14 and 29 April, 13 May, 1 and 23 June, 5, 20 and 27 July and 2 August 2003. All except one of these hearings were postponed due to the absence of the prosecutor or the defence attorney.
35. On 26 March 2003 the Centru District Court sent the case file to the prosecution for re-qualification of the acts committed by the accused. According to the applicant, he was not informed about the course of the proceedings after that date.
36. On 7 April 2003 the applicant’s lawyer asked the prosecution to qualify the acts of the accused as torture. Having received no reply, she repeated the request on 25 August 2003 and subsequently complained to the Centru District Court that there had been no response from the prosecution. On 18 September 2003 a similar request was made to the same court. On 8 October 2003 the Centru District Court found that the prosecution had failed to respond to the applicant’s lawyer’s requests, for no reason. It ordered the prosecution to give an answer.
37. In August 2004 A.R. died. The applicant made numerous unsuccessful attempts to access the criminal file. He was not informed about the course of the proceedings.
38. On 10 June 2005 the Centru District Court acquitted A.P. of the charge of usurping police powers. He was sanctioned administratively and fined MDL 1,000 (EUR 65). The applicant was awarded MDL 2,263 (EUR 147) in damages.
39. On 8 December 2005 the Chişinău Court of Appeal partly quashed that judgment. The court found A.P. guilty under Article 101 of the Penal Code (see paragraph 41 below), but relieved him from criminal responsibility due to the expiry of the five-year limitation period applicable in his case. The court awarded the applicant MDL 15,000 (EUR 997).
40. That judgment was upheld by the Supreme Court of Justice on 30 May 2006. The judgment was final.
41. The relevant provisions of the Penal Code, applicable at the relevant time, read as follows:
A person cannot incur criminal responsibility if the following periods of time have expired from the date of committing the crime:
...
(3) five years from the date when the crime was committed for crimes which, under the present Code, are punishable with deprivation of liberty of up to five years;
(4) ten years from the date when the crime was committed for crimes which, under the present Code, are punishable with more than five years of deprivation of liberty.”
Causing physical or mental and emotional suffering through beating and other violent acts, if they did not result in damage mentioned under Articles 95 and 96 of the present Code,
- shall be punished with deprivation of liberty for a period of up to three years. ...”
Actions which intentionally cause pain or severe physical or mental and emotional suffering to a person, especially with the aim of obtaining from that person or from a third party information or confessions, punishing an act which that person or a third party has committed or is suspected of having committed, or intimidating or putting pressure on such a person or on a third party, or for any other reason based on a form of discrimination, regardless of the ground, when such pain or suffering is caused by an agent of a public authority or by any other person acting in an official capacity or is, expressly or implicitly provoked or condoned by such an agent, with the exception of pain or suffering which results exclusively from lawful sanctions and is inherent in such sanctions or is caused thereby,
- shall be punished with deprivation of liberty for a period of between three and seven years”
Unlawful deprivation of liberty,
- shall be punished with deprivation of liberty for a period of up to a year.
The same action, if it has endangered the victim’s life or health, or if it has caused physical suffering,
- shall be punished with deprivation of liberty for a period of one to five years.”
Abuse of authority or ultra vires acts, that is, acts by a public official which manifestly exceed the limits of the rights and powers given by law, shall, if they cause substantial damage to a public interest or to the rights and lawful interests of natural and legal persons,
- be punished with either deprivation of liberty for a period of up to three years, or a fine of between 30 and 100 times the minimum salary, or with removal from office, in all cases accompanied by disqualification from occupying certain functions or engaging in certain activities for a period of up to five years.
Abuse of authority or ultra vires acts, accompanied by acts of violence or the use of a weapon or by acts of torture and which harm the victim’s personal dignity,
- shall be punished with deprivation of liberty for a period of three to ten years, and disqualification from occupying certain functions or engaging in certain activities for a period of up to five years.”
Usurpation of the powers or title of a public official, and the carrying out of socially dangerous acts on that basis,
- shall be punished with deprivation of liberty for a period of up to two years or with a fine of up to thirty times the minimum salary.”
42. The Code of Ethics and Deontology for the Police was adopted on 10 May 2006 (Law no. 481, in force since 18 May 2006). According to that Code, it is prohibited to ill-treat and to tolerate or encourage ill-treatment and inhuman or degrading treatment or punishment “regardless of the circumstances”.
43. At its thirtieth session (8-9 May 2003) devoted to the consideration of reports submitted by States Parties to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations Committee Against Torture examined the initial report submitted by the Republic of Moldova (document CAT/C/32/Add.4 30 August 2002).
In paragraph 72 of that report the Moldovan Government stated:
“Another example of illegal actions is the case of the citizen Paduret - a student at the State University in Tiraspol, evacuated to Chisinau - who was arrested by police and brought to the police station of the Centre district charged with committing an offence. He was beaten, tortured and later released. A case was brought by the General Magistracy, but it was filed and disposed of without informing the suspect. The Helsinki Committee made a complaint to the General Magistracy and the file was reopened, but the expedition of the file to the court is delayed.”
44. The relevant parts of the CPT report concerning its visit to Moldova from 10 to 22 June 2001 read as follows:
“25. As indicated in paragraph 13 above, in response to the deterioration in the situation, the delegation invoked Article 8, paragraph 5 of the Convention to request the Moldovan authorities to carry out, without further delay, a thorough and independent inquiry into the methods used by operational police units throughout the country during the questioning of detained persons. In their letter dated 5 November 2001, the Moldovan authorities simply indicate that ‘the Ministry of Interior declares that it is not aware of concrete cases of recourse to inhuman methods of interrogation of persons detained by the police’ and recalls the procedures in force in case of complaints of ill-treatment. Such a position is, in the view of the Committee, clearly untenable, considering all the information gathered during the 2001 visit.
With reference to Article 3 of the Convention, the CPT urges the Moldovan authorities to carry out without delay the aforementioned investigation and to inform the Committee, within three months of transmission of the report on the 2001 visit, of the results thereof.”
45. The relevant parts of the response submitted on 26 June 2002 by the Moldovan Government to the 2001 CPT report read as follows:
“28. The CPT would like comments from the Moldovan authorities concerning the development of modern methods of investigation.
In this respect, regretfully, no progress has been achieved.
29. The CPT would like to obtain information on the progress achieved in drafting a Code of Deontology for the police.
To our great regret, no progress was achieved in this respect.”
VIOLATED_ARTICLES: 3


ITEMID: 001-82053
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KOZEYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1967 and lives in the town of Ryazan.
5. The applicant is a retired serviceman. On unspecified dates in the past, he had taken part in peace-keeping operations in former Yugoslavia.
6. On an unspecified date, the applicant instituted proceedings against military unit no. 03611, seeking to recover the unpaid daily allowances owed to him for his participation in the above operations.
7. In the proceedings before the Military Court of the Ryazan Garrison (Рязанский гарнизонный военный суд) the representative of the military unit fully accepted the applicant's claim.
8. He submitted that it was impossible to pay the sum owed to the applicant, since there was no mechanism developed for payment of daily allowances to servicemen who had been commissioned abroad. Furthermore, no funds were available for this purpose.
9. On 11 December 2001 the Military Court of the Ryazan Garrison granted the applicant's claim and ordered the defendant to pay him 377,776.12 Russian roubles (RUR, approximately 14,100 euros at the material time).
10. The court found that the applicant could not be deprived of the right to receive the sum owed to him because of the absence of an appropriate mechanism of payment. No appeal was lodged and this judgment became final on 24 December 2001.
11. On 5 February 2002 the Military Court issued an execution writ.
12. On an unspecified date, the applicant submitted the execution writ to the Ryazan Regional Branch of the Federal Treasury.
13. It appears that the Federal Treasury informed the applicant that it was impossible to enforce the judgment as there were no budgetary funds available on the defendant's account for this purpose. He was advised to apply to the Ministry of Finance for the latter to recover the amount due from the Ministry of Defence.
14. On 16 September 2002 the applicant forwarded the execution writ to the Ministry of Finance.
15. On 6 November 2002 the Moscow Military Circuit Court, acting as a supervisory review instance upon the application by the President of that Court, quashed the judgment of 11 December 2001 as unlawful and unfounded and remitted the case at first instance for a fresh examination.
16. It does not appear that the applicant and his counsel were notified of the supervisory review proceedings in advance or that they were able to take part in them.
17. According to the Government, in April 2003 the Military Court rejected the applicant's claims. This judgment was upheld on appeal by the Moscow Military Circuit Court by two decisions dated 16 May, 10 and 17 June 2003.
18. According to Articles 13, 209 and 338 of the old Code of Civil Procedure (Гражданский процессуальный кодекс РСФСР), in force at the material time, a court judgment, which has become final, is binding and must be executed.
VIOLATED_ARTICLES: 6


ITEMID: 001-5454
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: ACCURACY INTERNATIONAL LIMITED AND 13 OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants appear to be engaged in the wholesale distribution of firearms. A list of applicants is annexed to the present decision. They are represented before the Court by Edwin Coe, Solicitors, London. The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants refer to, and adopt, application no. 37683/97 brought by Ian Edgar (Liverpool) Limited (“Ian Edgar”), without providing any factual material to support their individual claims.

Controls on firearms in Great Britain, including controls on the possession of pistols, revolvers, rifles and the ammunition for them, were introduced for the first time in 1920. In 1934, fully-automatic weapons were prohibited, and in 1962, airguns and shotguns were made subject to restrictions for the first time. The controls were consolidated in the Firearms Act 1968. In 1988, semi-automatic and self-loading rifles were prohibited, and in 1992, disguised firearms were prohibited.
In March 1996, an individual entered a primary school in Scotland and shot dead a teacher and 16 children, and wounded 13 others. He had with him four handguns and 743 rounds of ammunition. The Government subsequently established a public inquiry chaired by the Hon. Lord Cullen, which presented a report to the Parliament of the United Kingdom in October 1996 (“the Cullen Report”).
Following the presentation of the Cullen Report, legislation was passed in 1997 prohibiting the possession of handguns, and schemes were set up for the payment of compensation to private individuals and to dealers in firearms in respect of handguns the possession of which was prohibited.

By the beginning of 1999, approximately £22 million had been paid out to some 1,500 dealers under the schemes, of a total of some £67 million which had been paid out to individuals, dealers and others. The Government estimate the total costs which will be involved in paying compensation under the schemes to be some £120 million.


ITEMID: 001-80783
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: DERKACH v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Ms Nadezhda Alekseyevna Derkach, is a Russian national who was born in 1958 and lives in Temnolesskaya – a locality in the Apsheronskiy District of the Krasnodar Region. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a school teacher. In 2002 she was dismissed from work. She brought proceedings against her employer – a municipal school owned and funded by the local authority – for reinstatement, pecuniary and non-pecuniary damages.
On 12 August 2002 the Apsheronskiy District Court of the Krasnodar Region found for the applicant. The court ordered the applicant’s reinstatement and awarded her 9,414.20 Russian roubles (RUR) in pecuniary damage, RUR 3,000 in non-pecuniary damage and RUR 600 in costs and expenses.
On 19 September 2002 the Krasnodar Regional Court upheld the judgment on appeal.
On 17 June 2004 the applicant was again dismissed from work and once again brought proceedings seeking to be reinstated and awarded non-pecuniary damage.
On 16 July 2004 the Apsheronskiy District Court of the Krasnodar Region dismissed the applicant’s claims.
However, on 2 September 2004 the Krasnodar Regional Court upheld the judgment on appeal.
It appears that the judgment of 12 August 2002, as upheld on 19 September 2002, was enforced in so far as pecuniary damage was concerned, whereas the award of RUR 3,000 for non-pecuniary damage as well as of RUR 600 awarded for costs and expenses remained unenforced.
On an unspecified date the applicant applied for indexation of the remaining judgment debt.
On 25 November 2005 the Apsheronskiy District Court of the Krasnodar Region acknowledged that the judgment of 12 August 2002 as upheld on appeal on 19 September 2002 remained partially unenforced and awarded the applicant RUR 5,148. The awarded sum represented the sum of the remaining principal debt (RUR 3,600) and the damages for inflation losses (RUR 1,548).
On 12 May 2006 the enforcement proceedings were set in motion.
On 2 June 2006 RUR 5,148 were transferred on the applicant’s bank account.


ITEMID: 001-5643
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: M.A. ET M.M. v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: Both applicants are Cameroonian nationals and live in Douala. The first applicant, Mr M.A., was born in 1977 and the second applicant, Mr M.M., in 1978.
They are represented before the Court by Mr S. Foreman of the Paris Bar (whose office is their address for service), and by Mrs S. Brunet of the Poitiers Bar.
The facts of the case, as presented by the parties, can be summarised as follows.
On an unspecified date, when the “Roland Delmas” was in the port of Douala, the applicants stowed away on it. They were discovered by the crew at about 10 a.m. on Thursday 29 May 1997 when the ship was putting in to the French port of La Pallice, La Rochelle. Having been informed of the situation by the ship’s captain, the head of the départemental Immigration Control and the Prevention of Illegal Immigrant Labour Department in La Rochelle (SDCILEC) instructed the captain to hold the applicants on board while the ship was in port and during “any other calls at French ports”.
At 6.30 a.m. on 30 May 1997 the “Roland Delmas” left La Pallice for Le Havre. It was scheduled to call at Dunkirk on 31 May and to leave France the same or the following day bound for the Netherlands.
At 10.30 a.m. on 30 May the applicants lodged an application with the President of Poitiers Administrative Court under Article L. 10 of the Code of Administrative Courts and of Administrative Courts of Appeal for a provisional stay of execution of the decision to confine them on board the “Roland Delmas”. They submitted that their complaint was urgent and, relying inter alia on Articles 5 § 4 and 13 of the Convention, sought an injunction requiring both the Prefect of the Charente-Maritime département and the head of the SDCILEC to allow them to disembark and to proceed to the waiting zone. On the same day they lodged an application with the Administrative Court to have the decision for their confinement quashed and for an order for their admission to the waiting zone.
At 6.30 a.m. on 31 May 1997, when the “Roland Delmas” was at Dunkirk, the authorities ended the confinement measure. The applicants were refused leave to enter French territory and an order was made for their placement in the waiting zone at the port of Dunkirk. That order was renewed by the administrative authorities on 2 June and upheld by the Vice-President of the Dunkirk tribunal de grande instance on 3 June.
On 4 June 1997 the Vice-President of Poitiers Administrative Court made the following order on the application for a provisional stay of execution:
“… in view of developments, the decision requiring [the applicants] to be held on board while the ship was docked at La Pallice and during ‘any other calls at French ports’ – a decision which, incidentally, was effective only while the ship was at La Pallice – is no longer enforceable. Accordingly, it is no longer necessary to decide either the application for a provisional stay of execution or, for the same reasons, the application for an injunction requiring the Prefect of the Charente-Maritime département to allow the applicants to disembark; …”
On 2 July 1997, Poitiers Administrative Court set aside that ruling on the following grounds:
“Article 35 quarter of the Ordinance of 2 November 1945 [on the conditions of aliens’ entry into and residence in France], as amended by Laws nos. 92-625 of 6 July 1992 and 94-1136 of 27 December 1994, provides that ‘an alien who arrives in France by rail, sea or air and who (a) is refused leave to enter French territory or (b) applies for asylum may be held in a waiting zone ... for the time strictly necessary to arrange his departure...’
Although the authorities maintained that those provisions merely gave them a discretion to place aliens who had been refused leave to enter French territory in a waiting zone and that they retained the right to prevent stowaways disembarking provided that their enforced stay on board the vessel did not amount to a greater degree of constraint than that which would arise on their placement in a waiting zone, the provision cited above, as made clear by the preparatory work on the law of 6 July 1992, shows firstly that the procedure established by Article 35 quarter, namely placement in a waiting zone, is the only course of action available to the authorities when they decide, as they are entitled to do by Article 5 of the Ordinance cited above, of their own motion to give effect to a decision, even an implied decision, to refuse leave to enter French territory by holding the alien concerned against his will in a specific place, and, secondly, that forced confinement on board ship would in any event amount to a significantly greater degree of constraint than that arising on placement in a waiting zone as, in particular, it deprives the alien concerned of the safeguards laid down in paragraphs II to VI of Article 35 quarter. Consequently, the applicants’ submission that the decision of 29 May 1997 to confine them on board a vessel was unlawful and had to be quashed is founded...”
Articles L. 9 and L. 10 of the Administrative Courts and Administrative Courts of Appeal Code provide respectively:
“… [The presidents of the administrative courts, presidents of the administrative courts of appeal, the Vice-President of the Paris Administrative Court and the presidents of the judicial benches of the administrative courts and the administrative courts of appeal] may…, by an order made after adversarial process, dismiss an application for a stay. They may, in any event, remit the case before the full court.
On an application to that end and after adversarial process, the president of the administrative court or the president of the ordinary court may make an order staying the execution of the administrative decision concerned for a maximum of three months if there is a danger that execution will entail irreversible consequences and reasonable grounds are made out in the request.
A provisional stay shall cease to be effective if the decision on the application for a stay is handed down before the period fixed by the judge has expired.”
In a judgment of 12 May 1997 (Préfet de police de Paris v. tribunal de grande instance de Paris) the Jurisdiction Disputes Court (Tribunal des conflits) held as follows:
“… While a vessel was in a French port, the French immigration authorities decided to refuse two passengers of Moroccan nationality … leave to enter and held them on board the ship. The passengers … challenged their “confinement” on board before the urgent-applications judge of the Paris tribunal de grande instance and sought an injunction against the administrative authorities requiring them to allow them to disembark and to proceed to the waiting zone established by Article 35 quarter of the Ordinance of 2 November 1945. Considering that a flagrantly unlawful act (voie de fait) had been committed, the urgent-applications judge rejected the Paris Police Commissioner’s submission that he had no jurisdiction to hear the application.
Furthermore, by Article 136 of the Code of Criminal Procedure: ‘… in all cases involving deprivation of liberty of the individual, the conflict of jurisdiction can never be dealt with by the administrative authorities and the ordinary courts always have exclusive jurisdiction. The same shall apply to any civil proceedings based on facts amounting to a deprivation of individual liberty...’ These provisions, which provide an exception to the rule governing the separation of the powers of the administrative and judicial authorities ... cannot be construed as authorising the ordinary courts to obstruct the enforcement of decisions taken by the authorities unless the decision concerned amounts to a flagrantly unlawful act. The power to issue injunctions against the authorities rendering their decisions unenforceable is of the same nature as the power to quash or vary decisions made by the authorities in the exercise of their prerogatives as a public authority; that power is in the sole province of the administrative authorities except for those domains which, by their nature, are reserved to the judicial authorities. It follows from this that the provisions ... of Article 136 of the Code of Criminal Procedure cannot in the instant case serve as a basis for the giving the urgent-applications judge of the Paris tribunal de grande instance jurisdiction to hear the action brought by [the applicants].
Further, the provisions of Article 5 of the aforementioned Ordinance of 2 November 1945 show that the legislature has in principle given the administrative authorities the power to enforce deportation orders or orders refusing leave to enter made as part of the immigration-control process. Consequently, even supposing them to be unlawful, the measures taken in the instant case against [the applicants] were not manifestly incapable of being within the authorities’ powers. Accordingly, they cannot be regarded as amounting to flagrantly unlawful acts.
It follows from the foregoing that it was the administrative courts which had jurisdiction to hear the matter that came before the Paris tribunal de grande instance and that the question of jurisdiction was rightly raised by the Paris Police Commissioner...”
The applicants complained that the President of Poitiers Administrative Court had not ruled on their application for a provisional stay of execution of the decision confining them on board the “Roland Delmas” until 4 June 1997, despite the fact that it had been lodged at 10.30 a.m. on 30 May 1997 when the vessel was due to leave France on 31 May. They argued that as a result of the Jurisdiction Disputes Court decision in the case of Préfet de police de Paris v. tribunal de grande instance de Paris of 12 May 1997, they could not apply to the urgent-applications judge, and so had been victims of a violation of Articles 5 § 4 and 13 of the Convention.