ITEMID: 001-70678
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND IVANOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. Ilinden is an association based in southwest Bulgaria, in an area known as the Pirin region or the geographic region of Pirin Macedonia. It has chapters in, inter alia, the towns of Sandanski, Petrich and Blagoevgrad.
10. Ilinden was founded on 14 April 1990. In 1990 it applied for registration. The courts refused, holding that “its statute and programme were directed against the unity of the nation” (see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, §§ 1014, ECHR 2001IX). Its second and third attempts to register in 199899 and 200204 likewise failed (see The United Macedonian Organisation Ilinden and Others v. Bulgaria (dec.), no. 59491/00, 9 September 2004).
11. During the period 199097 Ilinden each year tried to organise meetings at sites in Pirin Macedonia to commemorate certain historical events. All these commemorations were banned by the authorities (see Stankov and the United Macedonian Organisation Ilinden, cited above §§ 1531).
12. On 25 March 1998 the second applicant and three other members of Ilinden informed the mayor of Sandanski that the organisation indented to organise a meeting on 19 April at the Rozhen monastery to commemorate the anniversary of the death of a historical figure buried there – Yane Sandanski. On 3 April the mayor informed them that he prohibited the meeting, as the municipality was preparing a commemoration and as another association, which, according to the Government, was hostile towards Ilinden, had already notified the mayor of its intention to hold a meeting at the same time and place. Upon that the second applicant and the other members of Ilinden informed the mayor that in view of this scheduling conflict they decided to move the event to an earlier date, 18 April. On 14 April the mayor replied that he could not assent to that either, as in the meantime the other association had informed him that their commemoration would last from 18 until 22 April.
13. On 14 and on 16 April 1998 Ilinden lodged applications for judicial review of the mayor's refusals with the Sandanski District Court.
14. On 10 April 1998 it also advised the head of the local police station of its intention to hold the meeting on 18 April.
15. On 16 April 1998 the police conducted a search at the home of a member of Ilinden, which served as a club of the organisation, and at another member's home, and seized a copy machine, newspapers, books, leaflets, and some other items.
16. On 17 April 1998 the Blagoevgrad Regional Prosecutor's Office issued a decree, ordering the police to take measures to prevent Ilinden from holding a meeting. The decree, which was based on Article 185 § 1 of the Code of Criminal Procedure (“the CCP”), stated that the holding of the meeting would constitute an offence under Article 174a of the Criminal Code (“the CC”).
17. On 17 April 1998 the police summoned the second applicant and several other members of Ilinden. They were issued written warnings informing them that the planned meeting had been banned by the Blagoevgrad Regional Prosecutor's Office.
18. On 18 April 1998 a number of members and followers of Ilinden from towns and villages in Pirin Macedonia tried to approach Rozhen by cars and by buses. All were turned back by the police who were placed at checkpoints on the roads leading to the monastery. The passengers of one bus were forced off and the driver was fined for allegedly driving a vehicle in a state of disrepair. It seems that one person coming by car was taken into custody by the Sandanski police for ten hours for allegedly failing to produce an identification document, and was illtreated.
19. On 24 April 1998 the Sandanski District Court informed Ilinden of its refusal to examine the applications for judicial review on the merits as they had been submitted on behalf of an unregistered organisation and were vague. It invited Ilinden to rectify those deficiencies within seven days.
20. On 29 April 1998 the second applicant and several other members of Ilinden filed complaints against the 16 April search and seizure with the Regional Police Directorate and requested the return of the seized items. It seems that no reply was received.
21. On 13 May 1998 the second applicant complained to the Sofia Military Prosecutor's Office about the coercive actions of the police before and during the planned commemoration. It seems that he did not receive an answer.
22. On 10 July 1998 Ilinden notified the mayor of Petrich that it planned to hold a meeting in the area of Samuilova krepost on 2 August. On 15 July the mayor replied that he could not allow the holding of a meeting, as another meeting had been planned for the same date and place by a municipal child centre.
23. On 16 July 1998 Ilinden lodged an application for judicial review with the Petrich District Court, arguing that for years in a row its meetings had been banned. It also stated that the area where it planned to hold the meeting was large enough for two parallel events; if that was deemed impracticable, it was prepared to reschedule the meeting for another date.
24. The court dismissed the application in a judgment of 20 July 1998. It held that Ilinden was not duly registered “in accordance with the laws of the country”. As a result, it was unclear who would be the organiser of the event and who would be responsible for the order during the meeting, in accordance with sections 9 and 10 of the Meetings and Marches Act. The court concluded that the lack of clarity as to the organisers of a public event endangered public order and the rights and freedoms of others.
25. On 28 July 1998 the Blagoevgrad Regional Prosecutor's Office issued a decree under Article 185 § 1 of the CCP, ordering the police to take measures to prevent Ilinden from holding a meeting. It reasoned that Ilinden was not registered and hence had no right to organisational or political activities; the holding of a meeting would therefore constitute an offence under Article 174a of the CC. Furthermore, Ilinden was advocating changes in the constitutional order in Bulgaria and the holding of a meeting would thus also constitute an offence under Chapter 1 of the CC.
26. On 2 August 1998 a number of members and followers of Ilinden travelled by car to Samuilova krepost. All roads leading to the site were blocked by the police who were stopping the cars and turning them back. Earlier in the morning members from Petrich gathered at a bus station in order to go to the site. Several police officers approached them, informed them that the meeting had been banned by the Blagoevgrad Regional Prosecutor's Office, and warned them not to try to reach the site. The plans of Ilinden to have the meeting at the planned spot having failed, its members decided to hold it at the organisation's club in Petrich. On the way there they tried to lay flowers and wreaths at the memorial of a poet. The police blocked their way. Apparently one person was arrested and held for six hours in custody.
27. On 7 September 1998 Ilinden notified the mayor of Blagoevgrad that it planned to lay wreaths on 12 September at the memorial of a prominent historical figure – Gotze Delchev, situated in the centre of the town, to observe the seventy-forth anniversary of the alleged killing of certain Macedonian activists by agents of the Bulgarian government. As no reply was forthcoming, the head of the local chapter of Ilinden telephoned the secretary of the municipality to enquire about the matter. The secretary informed him that Ilinden would not receive a written answer and that the municipality would advise the police so that it could prevent the event.
28. The applicants submitted that on 10 September 1998 Ilinden lodged an application for judicial review with the Blagoevgrad District Court, but that it was not examined within the statutory time-limit. The Government submitted that the records of the court did not indicate that an application had indeed been lodged.
29. On 11 September 1998 the Blagoevgrad Regional Prosecutor's Office issued a decree under Article 185 § 1 of the CCP, ordering the police to take measures to prevent Ilinden from holding a meeting. It reasoned that Ilinden was not registered and hence had no right to organisational or political activities. Also, it was advocating changes in the constitutional order of Bulgaria and expressed anti-Bulgarian views. Thus, the holding of a meeting would lead to the commission of offences under Article 174a § 2 and Chapter 1 of the CC.
30. In the evening of 11 September 1998 the police visited the house of the head of the local chapter of Ilinden and warned him that if he tried to organise the event he would be criminally prosecuted.
31. On 12 September 1998 members and followers of Ilinden tried to approach the memorial of Gotze Delchev, but the police blocked their way. They informed them that the Blagoevgrad Regional Prosecutor's Office had banned the event and read them the decree, but refused to give them a copy.
32. On 7 April 1999 Ilinden notified the mayor of Sandanski that it planned a commemoration at Rozhen monastery on 25 April. On 9 April the mayor informed Ilinden that it would receive a reply after presenting a document establishing that it was a registered organisation.
33. The applicants submitted that on 16 April 1999 Ilinden lodged an application for judicial review with the Sandanski District Court, but that the court did not reply.
34. On an unspecified later date several members of Ilinden were warned by the police to not organise a meeting on 25 April.
35. On 25 April 1999 members and followers of Ilinden tried to approach Rozhen by cars. The police, who had dispatched patrols at all roads leading to the monastery, blocked their way and turned them back. Some drivers were fined, allegedly for driving vehicles in state of disrepair. On the way back members of the Sandanski chapter of Ilinden tried to lay flowers at the bust of Yane Sandanski, but the police seized the flowers and allegedly arrested one person.
36. On 27 April 1999 Ilinden notified the mayor of Blagoevgrad that it planned to lay wreaths at the memorial of Gotze Delchev on 4 May.
37. On 29 April 1999 the mayor invited Ilinden to present a document establishing that was a registered organisation.
38. The same day the Blagoevgrad Regional Prosecutor's Office issued a decree under Article 185 § 1 of the CCP, ordering the police to take measures to prevent Ilinden from holding a meeting. It reasoned that the holding of a meeting would constitute offences under Article 174a and Chapter 1 of the CC.
39. On 3 May 1999 a member of Ilinden lodged an application for judicial review with the Blagoevgrad District Court. The court refused to examine the application by an order of 4 May, as it was unclear who was the organiser of the planned event. Moreover, the court was competent to deal with applications against orders banning meetings; no such order had been issued.
40. On 4 May 1999 members and followers of Ilinden who tried to approach the memorial were stopped by the police who informed them that the Blagoevgrad Regional Prosecutor's Office had issued a decree prohibiting the event. The police read out the decree, but refused to give them a copy.
41. On 25 May 1999 Ilinden complained to the Sofia Military Prosecutor's Office about the coercive actions of the police and the authorities. On 25 May that Office refused to open criminal proceedings, reasoning that, since Ilinden had not been registered, the ban of its meeting had been lawful and that the police had acted in pursuance of their duty to preserve public order.
42. On 12 July 1999 Ilinden notified the mayor of Petrich that it planned to hold a meeting at Samuilova krepost on 1 August. On 20 July the mayor replied that he could not allow the holding of a meeting, as another meeting had been planned for the same date and place by another organisation.
43. On 21 July 1999 Ilinden lodged an application for judicial review with the Petrich District Court, stating that it was prepared to move its meeting to another hour of the day or to hold it on some of the hills adjacent to Samuilova krepost, so as to avoid interfering with the other meeting. The court dismissed the application in a judgment of 26 July 1999. It held that Ilinden was non-existent as it was not registered. As a result, it could not be considered as the organiser of, and be responsible for order during the meeting, as required by sections 9 and 10 of the Meetings and Marches Act. In the court's view, that lack of clarity as to the organisers of the event endangered public order. Moreover, another meeting had been scheduled for the same date and place.
44. On 27 July 1999 the Blagoevgrad Regional Prosecutor's Office issued a decree under Article 185 § 1 of the CCP, ordering the police to take measures to prevent Ilinden from holding a meeting. It considered that the holding of a meeting would constitute offences under Article 174a and Chapter 1 of the CC.
45. It seems that no meeting was held on 1 August 1999 at Samuilova krepost by any other organisation. When that same day members and followers of Ilinden tried to approach the site by cars, they were stopped by police stationed at the roads leading to the site.
46. On 11 April 2000 Ilinden notified the mayor of Sandanski that it intended to organise a commemorative meeting on 22 April at Rozhen monastery. On 18 April the mayor made an order prohibiting the meeting, apparently on the ground it would endanger public order. Ilinden did not seek judicial review of this order.
47. On 22 April 2000 members and followers of Ilinden tried to approach Rozhen by cars. They were stopped at police checkpoints, where some of the drivers were fined, allegedly for traffic violations. It seems that the police also seized material intended for the decoration of a stage which the members of Ilinden planned to set up at the site. A vehicle transporting musicians and their instruments was not allowed to continue. The cars were stopped again at a second police post near the monastery and some written materials were impounded. However, some of the members and followers of Ilinden were allowed to approach the site, which was heavily guarded by police. The applicants alleged that a plain-clothes police officer was filming the participants despite their objections. They laid flowers and made a short speech, apparently denouncing the “assimilation policy” led by the Bulgarian Government. After that they left the site.
48. On 10 July 2000 Ilinden notified the mayor of Petrich of its intention to hold a commemorative meeting on 30 July at Samuilova krepost. By a letter of 18 July the mayor replied that he could not allow the event, as another association had already applied for authorisation to organise a meeting on the same date.
49. Ilinden lodged an application for judicial review with the Petrich District Court. It argued that the site was large enough for two events to take place simultaneously. The court dismissed the application in a judgment of 24 July 2000. It found that Ilinden had not been registered and apparently had links with a political party, “UMO Ilinden – PIRIN”, which had been declared unconstitutional by the Constitutional Court on 29 February 2000 for acting against the territorial integrity of the country (see The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria, no. 59489/00, §§ 2127, 20 October 2005). The holding of a meeting by Ilinden could therefore pose a threat to the territorial integrity of the country. Moreover, another, duly registered, association intended to organise a meeting on the same date. The parallel holding of two events could endanger public order.
50. Nevertheless, on 30 July 2000 certain members and followers of Ilinden were able to hold a meeting at Samuilova krepost. It seems that the police did not interfere.
51. On 1 September 2000 Ilinden informed the mayor of Blagoevgrad that that it wanted to hold a commemoration at the memorial of Gotze Delchev on 12 September. The mayor did not reply. Ilinden then lodged an application for judicial review with the Blagoevgrad District Court, but did not get an answer.
52. On 8 September 2000 the Blagoevgrad Regional Prosecutor's Office issued a decree under Article 185 § 1 of the CCP, ordering the police to take measures to prevent Ilinden from holding a meeting. It reasoned that the holding of a meeting would constitute an offence under Chapter 1 of the CC.
53. On 12 September 2000 members and followers of Ilinden tried to approach the memorial, but were stopped by the police. A police officer read out the decree prohibiting the commemoration, but refused to furnish a copy of it.
54. On 4 April 2001 Ilinden notified the mayor of Sandanski that it would organise a meeting on 22 April at Rozhen monastery. The mayor did not reply.
55. On 22 April 2001 members and followers of the organisation assembled at the site. Approximately fifty police officers were also present. The applicants averred that at some point during the meeting two members tried to place a wreath covered with a band with an inscription on the grave of Yane Sandanski. Allegedly four policemen moved towards them and ordered that the band be removed. When the persons carrying the wreath refused, the police seized it and arrested one of them. He was taken to a nearby village, released and warned not to try to return to the meeting. Additionally, a poster brought by the members of Ilinden was allegedly taken away by a plainclothes police officer. The police also prevented the placing on the podium of loudspeakers the members of Ilinden had brought. The applicants also alleged that local catering companies were prohibited by the municipal authorities from sending staff and facilities to the site during the meeting. The Government submitted that during the meeting a member of Ilinden stated that “there have been and will be Macedonians. Death to the enemies! Not a single Bulgarian will remain living...”. According to them, one person who was drunk was taken out of the area where the meeting was taking place.
56. On 27 April 2001 Ilinden notified the mayor of Blagoevgrad that it indented to lay flowers at the memorial of Gotze Delchev on 4 May. The mayor did not reply.
57. On 4 May 2001 a group of members and followers of Ilinden attempted to approach the memorial to lay a wreath covered with a band with an inscription. The applicants alleged that the police intervened and ordered them to remove the band with the inscription, citing a decree made by the Blagoevgrad Regional Prosecutor's Office. Apparently the members and followers of Ilinden refused and several plainclothes police officers diverted them from the memorial. The members and followers of Ilinden headed for a nearby church, followed by the police who were allegedly shouting insulting words at them. The applicants averred that two police officers seized a camera held by one of the members. The members laid the wreath at a grave in the churchyard. Later in the day three unknown persons took it away. According to the Government, the police had to disrupt the ceremony and direct the members and followers of Ilinden to the nearby church because other persons who were standing nearby became agitated upon the arrival of news that members of UMO Ilinden – PIRIN (see paragraph 49 above) had tried to assault the Bulgarian ambassador in Skopje.
58. On 12 July 2001 Ilinden notified the mayor of Petrich of its intention to hold a meeting on 29 July at Samuilova krepost. By a letter of 20 July, which was allegedly delivered at the home of a member of Ilinden on 28 July – a Saturday – the mayor prohibited the meeting because another meeting had been planned for the same date by a municipal child centre.
59. On 25 July 2001 the Blagoevgrad Regional Prosecutor's Office issued a decree under Article 185 § 1 of the CCP, ordering the police to take measures to prevent Ilinden from holding a meeting. It reasoned that the holding of a meeting would constitute offences under Article 174a and Chapter 1 of the CC.
60. On 29 July 2001 a group of approximately two hundred and fifty people tried to approach Samuilova krepost by buses and cars. They were turned back by the police two kilometres before the site. The applicants allege that the police told them that military exercises were to take place and that they could not continue. According to the Government, they were informed of the prosecutor's decree prohibiting the event. After they were stopped, the members and followers of Ilinden decided to lay flowers at the memorial of a poet in Petrich. Several dozen police officers blocked their way. Apparently the second applicant, Mr Ivanov, and another person were arrested and kept several hours in custody.
61. On 23 August 2002 Ilinden notified the mayor of Blagoevgrad that it wanted to hold a commemoration at the memorial of Gotze Delchev in the centre of Blagoevgrad on 12 September. The mayor did not reply.
62. At approximately 3.30 p.m. on 12 September 2002 members and followers of Ilinden, who had gathered at a meeting point situated at a little less than a kilometre from the memorial, started marching toward it. However, at first that proved impossible because the memorial was surrounded by a group of about twenty persons who were shouting insults. Several persons from that group attacked individual members and followers of Ilinden, broke the flagstaff one of them was carrying, tried to take another flag, tore a poster and took the ribbon from a wreath carried by one of the members of Ilinden. A member of Ilinden was filming with a camera. One person attacked him from behind and tore the electrical cables of the camera. The police was present and had formed a cordon between the members and followers of Ilinden and the hostile group, but apparently failed to prevent the above incidents. However, they secured the members and followers of Ilinden access to the memorial, where they laid a wreath. The president of Ilinden tried to make a short speech, which was constantly interrupted by the shouting of the hostile group. The members and followers of Ilinden then retreated from the memorial under police escort.
63. On 23 September 2002 Ilinden complained to the Blagoevgrad Regional Prosecutor's Office about the actions of the hostile group. That Office ordered a preliminary verification, but apparently nothing ensued.
64. On 15 October 2002 Ilinden complained to the Sofia Military Prosecutor's Office about the inactivity of the police officers present during the 12 September meeting and about their failure to secure the peaceful holding of the event. That office carried out a preliminary verification and on 10 December 2002 refused to open criminal proceedings. On appeal of Ilinden its decree was upheld by the Sofia Military Appellate Prosecutor's Office on 20 February 2003. Ilinden further appealed to the Chief Prosecutor's Office, which upheld the refusal in a decree of 6 October 2003, reasoning that Ilinden's allegations were not supported by the facts established during the preliminary verification. The police had strictly complied with the relevant legal provisions. Although certain members of the organisation had acted provocatively, the officers had showed restraint and had performed their duties.
65. On an unspecified date in July 2003 Ilinden notified the mayor of Petrich that it planned to hold a meeting at Samuilova krepost on 2 August, to commemorate the one-hundred anniversary of the Ilinden uprising. Apparently the mayor assented and on 2 August 2003 members and followers of Ilinden gathered at Samuilova krepost. There was a four-hour programme. During the entire event a plainclothes police officer was filming. When the chairperson of Ilinden tried to remove the camera, there ensued a scuffle and the police attempted to arrest him.
66. On 28 August 2003 Ilinden notified the mayor of Blagoevgrad that on 12 September it intended to organise a commemoration at the memorial of Gotze Delchev. In its notification it stated that the purpose of the event was to honour the memory of the “victims of the genocide ... inflicted by the Bulgarian Government on the Macedonian nation”. In a letter of 1 September, which was posted on 5 and arrived on 9 September, the mayor informed Ilinden that in principle every citizen of Bulgaria had the right to commemorate national heroes as Gotze Delchev. However, the remarks contained in the notification were unconstitutional and provocative. They were indicative of actions which would infringe the rights of others and would lead to conflicts, as had already happened in the past. Also, in order to organise events, Ilinden had to be registered. Finally, there was no need for the planned event to take place in front of the memorial of Gotze Delchev and its timing was inopportune, because another event had been planned for the same time and date. If Ilinden chose another place for holding its commemoration, the mayor would reconsider the matter.
67. On 10 September 2003 Ilinden objected to the mayor's decision. It stated that it was willing to shift the time of its commemoration to one hour later, but that the place was closely bound to a specific occasion and could not be changed. The same day the organisation filed an application for judicial review with the Blagoevgrad District Court.
68. On 11 September 2003 the police summoned two members of Ilinden and cautioned them in writing to refrain from organising the event planned for 12 September.
69. On 12 September 2003 the mayor of Blagoevgrad informed Ilinden that he prohibited the planned event, because it would create conditions for the disruption of the public order and would endanger the rights of others.
70. On 12 September 2003 members and followers of Ilinden gathered in the centre of Blagoevgrad with a view to marching to the memorial of Gotze Delchev. Approximately fifty police officers were also present. Several officers approached the members and followers of Ilinden and read out a decree of the Blagoevgrad Regional Prosecutor's Office prohibiting the commemoration.
71. In a decision of 16 September 2003 the Blagoevgrad District Court declared the application for judicial review inadmissible. It found that it had been filed with the court on 10 September and had been brought to the attention of a judge-rapporteur at 4.37 p.m. on 11 September. By section 12(6) of the Meetings and Marches Act, the time-limit for ruling on the application was five days. As of 16 September the issue whether to allow the event planned for 12 September had become moot and there was no need for the court to rule on that.
72. The relevant provisions of the Constitution of 1991 read as follows:
“1. Everyone shall have the right to peaceful and unarmed assembly at meetings and marches.
2. The procedure for organising and holding meetings and marches shall be provided for by act of Parliament.
3. Permission shall not be required for meetings to be held indoors.”
“Organisations whose activities are directed against the sovereignty or the territorial integrity of the country or against the unity of the nation, or aim at stirring racial, national, ethnic or religious hatred, or at violating the rights and freedoms of others, as well as organisations creating secret or paramilitary structures, or which seek to achieve their aims through violence, shall be prohibited.”
73. The legal requirements for the organisation of meetings are laid down in the Meetings and Marches Act of 1990. Its relevant provisions are as follows:
“Meetings, rallies and marches may be organised by individuals, associations, political or other civic organisations.”
“Every organiser [of] or participant [in a march or a meeting] shall be responsible for damage caused through his or her fault during the [event].”
“Where a meeting or rally is to be held outdoors, the organisers shall notify the [respective] People's Council or mayor's office in writing at least fortyeight hours before its beginning and shall indicate the [name of] the organiser, the aim [of the meeting or rally], and its venue and time.”
“The organisers of the meeting shall take the measures necessary to ensure order during the event.”
“1. The meeting shall be presided over by a president.
2. The participants shall abide by the instructions of the president concerning the preservation of [public] order ...”
74. The prohibitions against meetings are also set out in the Meetings and Marches Act of 1990:
“1. Where the time or venue of the meeting or rally or the itinerary of the march would create a situation endangering public order or traffic safety, the President of the Executive Committee of the People's Council, or the mayor, respectively, shall propose their modification.
2. The President of the Executive Committee of the People's Council or the mayor shall be competent to prohibit the holding of a meeting, rally or march, where reliable information exists that:
1. it aims at the violent overturning of Constitutional public order or is directed against the territorial integrity of the country;
2. it would endanger public order in the local community;
...
4. it would breach the rights and freedoms of others.
3. The prohibition shall be imposed by a written reasoned act not later than twentyfour hours after the notification.
4. The organiser of the meeting, rally or march may appeal to the Executive Committee of the People's Council against the prohibition referred to in the preceding paragraph. The Executive Committee shall decide within twentyfour hours.
5. Where the Executive Committee of the People's Council has not decided within [the above] timelimit, the march, rally or meeting may proceed.
6. If the appeal is dismissed, the dispute shall be referred to the respective district court which shall decide within five days. That court's decision shall be final.”
75. The Meetings and Marches Act was enacted in 1990, when the Constitution of 1971 was still in force. Under the Constitution of 1971 the executive local state organs were the Executive Committees of the district People's Councils. The mayors, referred to in some of the provisions of that Act, were representatives of the Executive Committee acting in villages and towns which were under the jurisdiction of the respective People's Council.
76. The Constitution of 1991 abolished the Executive Committees and established the post of mayor, elected by direct universal suffrage, as the “organ of the executive power in the municipality” (Article 139 § 1).
77. Former Article 185 § 1 of the CCP, as in force at the material time (it was repealed in 2003), provided that the prosecutor was bound “to take the necessary measures to prevent a crime, for which there [was] reason to believe that it [would] be committed. [These measures could include] the temporary impounding of the means which could be used for committing the crime”.
78. Article 174a § 2 of the CC makes it an offence for the organiser of a public meeting to, inter alia, hold a prohibited meeting in violation of section 12(3) of the Meetings and Marches Act of 1990.
79. Chapter 1 of the special part of the CC regulates offences against the Republic (attempted coup d'état, terrorist offences, mutiny, espionage, sabotage, advocating a fascist or other antidemocratic ideology, etc.).
VIOLATED_ARTICLES: 11


ITEMID: 001-119681
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF GARNAGA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - finding of violation sufficient
JUDGES: Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Myroslava Antonovych
TEXT: 6. The applicant was born in 1968 and lives in the town of Bila Tserkva, Ukraine.
7. According to the applicant, for many years she had been living as part of a family with her stepfather, mother and half-brother and wanted to associate herself more closely with them by taking the surname of her stepfather and also a patronymic derived from his forename.
8. On 24 March 2004 the applicant lodged a request with the Civil Status Registration Office in Bila Tserkva (hereinafter “the Registration Office”) seeking to change her patronymic from Volodymyrivna (Володимирівна) to Yuriyivna (Юріївна).
9. By a letter of 27 March 2004 the Registration Office refused the applicant’s request, referring to the Rules on Civil Status Registration in Ukraine, approved by the Ministry of Justice, which provided that the patronymic of a physical person could only be changed in the event of a change of forename by his or her father.
10. On 23 April 2004 the applicant challenged this refusal in the Bila Tserkva Local Court. She complained that her patronymic, along with her forename and family name, was part of her full name and she had the right to change it. She maintained that the refusal violated her constitutional rights, was unconstitutional and was not based on law. She further contended that she had good reasons for changing her patronymic - to disassociate herself from her biological father and associate herself more closely with her stepfather and half-brother.
11. On 5 May 2004 the applicant changed her original surname from Glazkova to the surname of her stepfather, Garnaga, which was also the surname of her mother and half-brother.
12. On 10 June 2004 the Bila Tserkva Local Court found that the Registration Office had acted in accordance with the law, in compliance with Article 149 of the Family Code of 2002, and so dismissed the applicant’s complaint. It found that a change of patronymic was only legally possible when the father of the person concerned had previously changed his forename. Therefore, given that the applicant’s father had not changed his forename, the applicant’s request for change of her patronymic had not been in compliance with the law. The court also noted that the Rules on Civil Status Registration provided more detailed regulation of the relevant provisions of the Constitution, the Civil Code and the Family Code and did not conflict with them.
13. On 3 December 2004 the Kyiv Regional Court of Appeal upheld the decision of the first-instance court, holding that its conclusions were based on law.
14. On 31 October 2006 the Higher Administrative Court dismissed an appeal lodged by the applicant on points of law. It held, in particular, that the argument put forward by the applicant that the new Family Code limited the right to change a patronymic was based on an incorrect interpretation of the provisions of Article 191 of the Family Code of 1969.
15. The relevant provision of the Constitution reads as follows:
“... The content and scope of existing rights and freedoms shall not be diminished as a result of the enactment of new laws or in the amendment of laws that are in force.”
16. The relevant provisions of the Code read as follows:
“Registration of a change of surname, forename or patronymic of a citizen of Ukraine shall be conducted by civil status registration offices at his or her place of residence.
Registration of a change of surname, forename or patronymic shall be notified to those civil status registration offices in Ukraine which keep the records of births, marriages and divorces of those who have changed their surname, forename, or patronymic.”
17. The relevant provisions of the Code read as follows:
“1. An individual acquires rights and responsibilities and exercises them under his or her own name.
The name of an individual who is a citizen of Ukraine consists of his or her surname, forename and patronymic, unless the law or custom of the national minority to which they belong provides otherwise ...”
“1. An individual has the right to a name ...”
“1. An individual who has reached the age of sixteen has the right to change his or her surname and forename in accordance with the procedure prescribed by law.
...
3. An individual’s patronymic can be changed if his or her father changes his forename ...”
18. The relevant provisions of the Code read as follows:
1. Where family relations are not regulated by this Code or by agreement (contract) between the parties, the rules of this Code governing similar relations shall apply to them (analogy of statute).
2. Where the analogy of statute cannot apply to the regulation of family relations, these are governed by the general principles of family law (analogy of law).
1. The patronymic of a child shall be determined by the forename of her or his father.
2. The patronymic of a child who was born to an unmarried woman, where the paternity of the child is not recognised, shall be determined by the forename of the person who the child’s mother called his or her father.
“1. If a father changes his name, the patronymic of his child who has reached the age of fourteen years shall be changed with the latter’s consent.”
19. In her commentary on the Family Code (Ромовська З. В. Сімейний кодекс України: Науково-практичний коментар. – 2-ге вид., перероб. і доп. – К.: Видавничій Дім Ін Юре, 2006. Стор. 310, 312), Professor Z. V. Romovska, a drafter of the Code, noted, in particular, in respect of Articles 147 and 149:
“1. ... The forename of the person recorded as the child’s father automatically defines the patronymic of the child ...
3. Every child, must, in all circumstances, have a "patronymic" even when the identity of his or her real father is not established. In that case, the "patronymic" can be invented.”
“2. A child who has attained the age of fourteen, already has his or her place in society, is preparing for independent life and associates his or her name with the patronymic which appears in his or her documents. Therefore, his or her consent or objection to the change of patronymic will be crucial. A situation may thus arise in which the father has changed his forename, while the patronymic in the documents of his son or daughter remains [the old one].
3. Can the patronymic be changed when the forename of the father has not been changed? There is no response to this question in Article 149. However, Article 10 of the F[amily] C[ode] allows the analogy of statute and law and can help in finding a solution in such a situation.”
20. The Decree provided inter alia:
“1. Citizens of Ukraine are allowed to change their surname, forename and patronymic when they attain the age of sixteen.
2. ... A refusal to change a surname, forename or patronymic can be challenged before the court in accordance with the established procedure.”
21. As with the Presidential Decree, the procedure approved by this Resolution provided that any citizen who had reached the age of sixteen could apply for a change of surname, forename and patronymic and that a refusal of such a change could be appealed against to the courts. The procedure further provided that:
“15. change of surname, forename or patronymic shall not be allowed if
a) the applicant is under investigation or trial or has been convicted;
b) there are objections from the police.”
22. This Resolution replaced the Government’s Resolution of 27 March 1993. It set forth a procedure for changing all parts of the individual’s name (surname, forename, patronymic). Only one provision refers exclusively to patronymics:
“3. ...The application of an individual for a repeated change of patronymic shall be lodged and examined in accordance with this procedure.”
23. The procedure further provides for the circumstances in which an application for change of name can be refused:
“11. The grounds for refusal to allow the change of name are:
(i) the applicant is under investigation, trial or administrative supervision;
(ii) the applicant has a criminal record which has not been cancelled or overturned in accordance with the procedure established by law;
(iii) there is an official request from the law-enforcement agencies of foreign countries for the applicant’s placement on a list of wanted persons;
(iv) the applicant submits false information.
Refusal to allow the change of name can be appealed against to the court.”
24. The relevant provisions of the Rules, in the wording at the material time, read as follows:
“6. Registration of change of name
6.1. ... The name of an individual who is a citizen of Ukraine consists of a surname, forename and patronymic, unless the law or custom of the national minority to which he or she belongs provides otherwise.
6.2. A change of surname and forename by individuals who are citizens of Ukraine shall be allowed once they have reached the age of sixteen.
...
The patronymic of an individual can be changed in the event of a change of forename by his or her father.
If the father changes his forename, the patronymic of his child who has reached the age of fourteen years may be changed with the latter’s consent.”
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-66743
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF KELLNER v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
TEXT: 4. The applicants were born in 1955 and 1959, respectively, and live in Székesfehérvár, Hungary. They represent their minor daughter, Sz.K. before the Court. Sz.K. was born in 1985.
5. In 1986 Sz.K. suffered paralysis as a consequence of a compulsory polio inoculation. In 1987 the applicants, as her representatives, brought an action against the Hungarian State claiming compensation and a monthly allowance. The parties reached a friendly settlement. On the applicants' request, in 1991 the compensation and the allowance were raised. In 1993 the Supreme Court partly accepted their claim for the value of a special car.
6. On 26 November 1993 the applicants brought an action before the Fejér County Regional Court, sitting as a first instance court, claiming a raise in the monthly allowance as a result of inflation and the high cost of schooling.
7. Following the court's order, on 27 June 1994 an expert submitted an opinion on the matter.
8. On 7 January 1995 the applicants modified their action.
9. On 10 February 1995 the Regional Court partly granted the applicants' claims.
10. Upon the applicants' appeal, on 25 January 1996 the Supreme Court quashed the first-instance judgment and remitted the case to the Regional Court.
11. In the resumed proceedings, on 12 June 1997 the expert submitted another opinion. On 8 August 1997 the applicants clarified their claims about inflation.
12. On 19 September 1997 the Regional Court partly accepted the applicants' claims.
13. On 12 October 1997 the applicants appealed to the Supreme Court for the full claim.
14. On 22 July 1998 the applicants requested the court to deliver a judgment, and modified their claims in view of the lapse of time since their appeal had been lodged.
15. On 9 January 2000 the applicants again requested the court to deliver a judgment and modified their claims, given the time lag.
16. On 3 February and 30 March 2000 the Supreme Court held hearings. In a judgment of 6 April 2000, the Supreme Court partly modified the first-instance decision.
17. On the applicants' petition for review, on 14 May 2001 the Supreme Court's review bench increased the award.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72350
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF HAVLICKOVA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
TEXT: 4. The applicant lives in Frýdlant v Čechách.
5. On 21 November 1988 the applicant, having been divorced on 27 June 1988, lodged an action with the Liberec District Court (okresní soud) for the separation of the matrimonial property.
6. On 13 January and 13 February 1989 the court held two hearings. On 28 April and 8 June 1989 it appointed two experts with a view to evaluating real estate, antiques and jewellery. Subsequent hearings were held on 13 December 1989, 29 November 1990 and 5 March 1991. In the meantime, the expert in real estate delivered his opinion. Another hearing was scheduled for 28 June 1991.
7. On 15 March 1992 a new expert opinion concerning the real estate was submitted to the court, which had appointed another expert in antiques and jewellery.
8. On 20 August 1993 the District Court ordered a new expert opinion concerning the real estate. The expert submitted his report on 6 September 1993.
9. On 4 January 1994 the case was transmitted to another judge at the District Court.
10. Two hearings were held on 19 May and 9 June 1999. The parties expressed their wish to reach a friendly settlement. The last hearing was therefore adjourned sine die.
11. As the parties had not informed the court about a friendly settlement, a hearing was held on 7 February 2002. It was adjourned in order to evaluate the antiques and jewellery claim. Moreover, the applicant was invited to submit the address of a witness she had suggested be heard.
12. On 4 October 2002 the court appointed a new expert in real estate. The expert submitted his opinion in February 2003.
13. On 31 October 2002 and 29 April 2003, the District Court held hearings. The applicant did not attend the last hearing, being in the United States of America. The court therefore adjourned the hearing sine die.
14. On 17 July 2003 the applicant’s lawyer informed the court that her client had returned to the Czech Republic and that a friendly settlement of the case was not excluded. On 3 September 2003 she informed the court of the continuation of the dispute. On 16 October 2003 the applicant notified the court that she would be abroad until December 2003.
15. A hearing scheduled for 4 May 2004 was adjourned at the request of the applicant’s lawyer until 18 May 2004. At this hearing, the defendant challenged the judge for bias. On 15 July 2004 the Ústí nad Labem Regional Court (krajský soud) decided that the judge was not biased, and remitted the case to the District Court.
16. A hearing scheduled for 2 November 2004 was adjourned, the defendant being ill.
17. A hearing held on 25 January 2005 was adjourned sine die, the parties not agreeing on the value of the antiques and jewellery. The court requested the Czech Insurance and Police Office to submit written opinions as the defendant claimed that certain antiques had been stolen in 1995.
18. It appears that the proceedings are still pending at first instance.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-92104
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: KAYA v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 1. The applicant, Mr Hasan Kaya, is a Turkish national who was born in 1973 and lives in Istanbul. He was represented before the Court by Mr M. İriz and Mr R. Doğan, Mr Y. Aydın and Ms S. Turan, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. According to the applicant’s version of the events, on 10 February 2002, at around 6.00 to 6.30 p.m., the applicant was arrested by two plainclothes policemen and one uniformed police officer on a street in the Karadeniz district of Gaziosmanpaşa, Istanbul, on suspicion of having participated in an illegal demonstration. He was put in a commercial taxi and taken to the Karadeniz Police Station. There, the applicant was punched, kicked and beaten with truncheons by officers, who broke his nose, which started bleeding. The officers took him to the Karadeniz Clinic. The doctors applied a bandage to his nose. He was then taken to the Emergency Clinic of the Haseki Hospital and had a nose x-ray. On the same day, at around midnight, he was handed over to police officers from the anti-terrorism branch of the Istanbul Security Directorate. The applicant was subjected to further beatings at the anti-terrorism branch and was asked to become a police informer.
4. According to the Government, on 10 February 2002, the applicant took part in an illegal demonstration and was chanting slogans in favour of the PKK (Kurdistan Workers’ Party). When the security forces arrived at the scene of the demonstration to disperse the crowd, the applicant attempted to escape and fell on the ground. Thereafter, he was surrounded by a group of people living in the neighbourhood and beaten. The police officers rescued him and put him in a taxi and then took him to the Karadeniz police station. He was immediately taken to the Sultançiftliği L. Nuri Burat State Hospital for medical examination and treatment before placing him in custody. According to the medical report issued by a doctor, at 8.25 p.m., the applicant bore a number of injuries. The doctor noted the presence of scratches, oedema and lesions on the nose, an ecchymosis measuring 3x1 on the side of the left eye, an ecchymosis inside his lower lip as well as haematoma measuring 2x2 on the face.
5. Later that day the applicant was taken to the Haseki Hospital for further treatment. The medical report, issued at 10.35 p.m., stated that the applicant bore lesions and ecchymoses on his lower lip, nose and left knee.
6. On 11 February 2002, in his statements to the anti-terrorism police, the applicant stated that he had been beaten by the local people and had been rescued by the police officers.
7. On 12 February 2002 the applicant was taken to a branch of the Forensic Medicine Institute in Istanbul for medical examination. The medical report prepared by a forensic doctor stated that the ecchymoses, swelling and lesions observed on the applicant’s body as well as the broken nose were not life threatening but would prevent him to carry out his regular work for ten days. This medical report was signed by the applicant and also contained his hand written statement which read:
“The bruises, swellings and scratches on my body as well as the broken bone in my nose had been caused by the assault of a 5-10 people at the exit of the local bazaar.”
8. On the same day, the applicant was brought before the Public Prosecutor, where he denied the charges against him. He was released the same day.
9. On 15 February 2002 the applicant filed two separate complaints with the Gaziosmanpasa and Fatih Public Prosecutor’s Offices against the police officers who had allegedly ill-treated him in custody at the Karadeniz Police Station and at the anti-terrorism branch, respectively. He also claimed that his statements dated 11 February 2002 had been obtained under duress and that he had been forced to sign those statements without reading. The Public Prosecutor then sent the applicant to the Fatih Forensic Institute for medical examination.
10. The preliminary medical report issued by the Forensic Institute on the same day indicated the presence of chest pain and an ecchymosis on the left leg, an ecchymosis of 3x2 cm under his left eye, an ecchymosis of 2x1 cm under his right eye, an ecchymosis inside his lower lip as well as an oedema. Given the applicant’s allegation that his nose could have been broken, the doctor recommended an x-ray examination.
11. On 19 February 2002 the Fatih Chief Public prosecutor took statements from the applicant in relation to his allegations of ill-treatment. The applicant claimed that following his arrest he had been beaten up by the police officers and that his nose had been broken. He asked the Public Prosecutor to initiate criminal proceedings against the police officers.
12. On 27 February 2002 the applicant was referred for a further medical examination by the Gaziosmanpasa Public Prosecutor. On 20 March 2002 the Forensic Medicine Institute issued a definitive report on his medical condition, which made reference to the findings of a report dated 15 February 2002 by the Haseki Hospital. In the latter, it was stated that the applicant had an ecchymosis of 1.5x1.5 cm under his left eye, estimated to be three or four days old, an ecchymosis of 1x1 cm under his right eye, an ecchymosis of 1x1 inside his lower lip as well as an oedema, estimated to be three or four days old, and pain in the nose. His injuries were not regarded as life threatening but were classified as sufficient to render him unfit for ten days.
13. On 9 May 2002 the Gaziosmanpasa public prosecutor filed an indictment with the Gaziosmanpasa Assize Court, charging twelve police officers from the Karadeniz Police Station with inflicting ill-treatment on the applicant, under Article 245 of the former Criminal Code.
14. On 15 May 2002 the Assize Court commenced the trial and scheduled the first hearing for 11 July 2002.
15. During the hearing of 11 July 2002, the Assize Court heard statements from the accused police officers and the applicant as the complainant. All defendants denied the allegations. The applicant identified a police officer, A.G., as being one of the officers who had arrested him and had beaten him at the Karadeniz Police Station. The same day, the public prosecutor submitted to the court that the offence in question fell within the scope of Law no. 4483 (the Law on the Prosecution of Civil Servants and Public Officials). Accordingly, he requested that the case file be sent to the District Governor for leave to prosecute the police officers under that law. The court complied with this request, stopped the trial and sent the case file to the District Governor’s Office. The District Governor then appointed an investigator to conduct an investigation into the applicant’s allegations.
16. On 5 August 2002 the investigator also heard Mr E.S., the taxi driver who took the applicant to the Karadeniz police station. The latter stated that he had parked his car in the area and had been watching the applicant being beaten up by the local people. Two police officers arrived at scene and had rescued him from the assault of the crowd. They then put the applicant in his car and had asked him to drive to the police station. He submitted that the applicant’s face had been covered with blood when he had been put in his car.
17. On 6 September 2002 the investigator took statements from twelve police officers who were on duty that day at the aforementioned police stations. The accused police officers claimed that, contrary to the applicant’s allegations, they had rescued him from the angry crowd and had brought him to the police station.
18. On 10 September 2002, relying on the investigation report prepared by the investigator, the District Governor decided not to permit the prosecution of the officers. This decision stated that the police officers, who had been patrolling after an illegal demonstration in the Karadeniz district, had seen some local people beating the applicant. The officers had put the applicant into a taxi and had taken him to the police station, and later that night they had handed him over to the anti-terrorism branch. The District Governor concluded that, apart from the applicant’s allegations, there was no evidence to prosecute the accused.
19. The applicant challenged this decision before the Istanbul Regional Administrative Court.
20. On 25 February 2003 the Regional Administrative Court upheld the Governor’s decision. It noted that the taxi driver that day had testified that the applicant’s face had been covered in blood when the police officers had put him into his vehicle. Moreover, the applicant, in his statement to the anti-terrorism police, had admitted that he had been beaten by some locals who had caught him as he was running away.
21. On 6 June 2002 the Fatih Public Prosecutor issued a decision of nonprosecution concerning the applicant’s complaint against the police officers from the anti-terrorism branch. He noted that in his statement of 11 February 2002 to the anti-terrorism police, the applicant had maintained that he had been rescued by the officers from local people who had been beating him. On 12 February 2002 he had been examined by the Forensic Medicine Institute at the State Security Court. The applicant had written in the medical report of that day that the injuries on his body and the fracture to his nose had been inflicted by some local people, and had added his signature.
22. The applicant appealed against this decision before the Beyoğlu Assize Court, which on 20 March 2003 upheld the decision.
23. A full description of the domestic law and practice at the relevant time may be found in Batı and Others v. Turkey (nos. 33097/06 and 57834/00, §§ 95-99, ECHR 2004IV).


ITEMID: 001-81728
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BUKTA AND OTHERS v. HUNGARY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 11;No separate issue under Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: András Baka;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 5. The applicants are Hungarian nationals who were born in 1943, 1945 and 1951 respectively and live in Budapest.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 1 December 2002 the Romanian Prime Minister made an official visit to Budapest and gave a reception on the occasion of Romania’s national day, which commemorates the 1918 Gyulafehérvár National Assembly when the transfer of hitherto Hungarian Transylvania to Romania was declared.
8. The Hungarian Prime Minister decided to attend the reception and made that intention public the day before the event.
9. The applicants were of the opinion that the Hungarian Prime Minister should refrain from attending the reception, given the Gyulafehérvár National Assembly’s negative significance in Hungarian history. Therefore, they decided to organise a demonstration in front of the Hotel Kempinski in Budapest where the reception was to be held. They did not inform the police of their intentions.
10. In the afternoon of 1 December 2002, approximately 150 people, including the applicants, assembled in front of the hotel. The police were also present. There was a loud noise, whereupon the police decided to disband the assembly, considering that it constituted a risk to the security of the reception. The police forced the demonstrators back to a park next to the hotel where, after a while, they dispersed.
11. On 16 December 2002 the applicants sought judicial review of the action of the police and requested the Pest Central District Court to declare it unlawful. They asserted that the demonstration had been totally peaceful and its only aim had been to express their opinion. Moreover, the applicants pointed out that it had obviously been impossible to inform the police about the assembly three days in advance, as required by Law no. III of 1989 on the right of assembly (the “Assembly Act”), because the Prime Minister had only announced his intention to attend the reception the day before.
12. On 6 February 2003 the District Court dismissed the applicants’ action. Concerning the circumstances of the event, it noted that the demonstration had been disbanded after a minor detonation was heard.
13. The District Court also noted that the three-day time-limit for informing the police of a planned assembly could not possibly be observed if the demonstration had its roots in an event that had occurred less than three days beforehand. In the court’s view, the possible shortcomings of the Assembly Act could not be remedied by the courts. Therefore, the duty to inform the police about such meetings applied to every type of demonstration, including spontaneous ones. The court also noted that there might be a need for more precise and sophisticated regulations in respect of such events but said that this was a task for the legislator, not the courts.
14. The court also found that the duty to inform the police in advance about assemblies held in public served to protect the public interest and the rights of others, namely, the free flow of traffic and the right to freedom of movement. It observed that the organisers of the demonstration had not even attempted to notify the police. The District Court went on to say:
“... under the relevant provisions of the domestic law in force, the fact that an assembly is peaceful is not by itself enough to dispense with the duty to inform the police. ... The court has not dealt with the issue whether or not the assembly was peaceful, since the lack of notification made it illegal per se and, therefore, the defendant dissolved it lawfully, pursuant to section 14(1) of the Assembly Act.”
15. The applicants appealed. On 16 October 2003 the Budapest Regional Court upheld the first-instance decision. It amended part of the District Court’s reasoning, omitting the remarks concerning the possible shortcomings of the relevant domestic law. Moreover, the Regional Court found, referring, inter alia, to the case-law of the Court and decision no. 55/2001. (XI. 29.) of the Constitutional Court:
“... in the application of the relevant domestic law, the approach is obviously authoritative in that there is no exemption from the duty of notification and, therefore, no difference between ‘notified’ assemblies and ‘spontaneous’ ones – the latter are unlawful owing to the failure to respect the above-mentioned duty of notification.”
16. In sum, the Regional Court found that the restrictions imposed on the applicants were necessary and proportionate.
17. The applicants lodged a petition for review which the Supreme Court dismissed on 24 February 2004, without examining its merits, since it was incompatible ratione materiae with the relevant provisions of the Code of Civil Procedure.
18. Article 62 of the Constitution guarantees the right to freedom of peaceful assembly and secures its free exercise.
19. Section 6 of the Assembly Act requires the police to be informed of an assembly at least three days before the date of the event.
20. Section 14(1) of the Assembly Act requires the police to disband (feloszlatja) any assemblies held without prior notification.
21. Section 14(3) of the Assembly Act provides that if an assembly is dissolved its participants may seek judicial review within fifteen days.
VIOLATED_ARTICLES: 11


ITEMID: 001-72700
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MENESHEVA v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violations of Art. 3;Violation of Art. 13 (no remedy in respect of ill-treatment);Violations of Art. 5-1;Violation of Art. 6-1;No separate issues under Art. 5-4 and 13 (no right to appeal);Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Snejana Botoucharova;Sverre Erik Jebens
TEXT: 8. The applicant was born in 1979 and lives in Bataysk, Rostov Region.
9. On 11 February 1999 the police started an investigation into a murder case in which they identified L. as a suspect. It was believed that L. was the applicant's boyfriend.
10. On the same day the police decided they would search for L. at the applicant's home.
11. On 12 February 1999, about midnight, the police arrived at the applicant's flat, apparently to conduct a search, but since they failed to produce a warrant she would not let them in.
12. On the following day, 13 February 1999, at about 4.30 p.m., three policemen in plain clothes were waiting for the applicant at her door. One of them produced the identity card of a police major S. and demanded to enter the applicant's flat. As they still had no warrant, the applicant again refused to let them in. The policemen insisted and the applicant fell into a heated discussion with them during which both sides exchanged threats and insults. Ultimately, the major ordered the applicant's arrest. His subordinates, P. and B., seized the applicant, turned her upside down and, while continuing to intimidate her, threw her into a car with no police markings on it. In the struggle the applicant was pushed against the door and hurt her leg and her head; she also banged her head against the car when she was being pushed into it. On the way, the major S. threatened the applicant, saying that he would beat her family and loot her flat while searching it.
13. The applicant was taken to the Zheleznodorozhnyy district police station in Rostov-on-Don. She was not informed why she had been taken to the police station. According to the Government's subsequent accounts, it was to fill in the official report on her forceful resistance to the police. However, in the police report it was stated that she was brought in for questioning.
14. At the police station, the applicant was brought before the Deputy Head of the Criminal Investigation Department who questioned her about the whereabouts of “her husband”. The applicant told him that she had never been married, and after that he started strangling her with his hands and several other policemen started beating her. For about two hours they administered kicks and blows to her legs, threw her across the room, beat her with a baton and hit her head against the walls. While beating her they accused her of telling lies, insulted her and threatened her with rape and violence against her family.
15. The applicant requested that her relatives be informed about her detention; she also requested medical assistance and permission to contact a lawyer, but all her requests were refused.
16. At the end of the applicant's interrogation, the deputy prosecutor of the district of Zheleznodorozhnyy, D., happened to visit the police station and enter the room where the applicant had been beaten. The applicant seized this opportunity to complain about her arrest and the beating. He listened to her and suggested that she write him a complaint about her unlawful arrest, but he discouraged her from complaining about ill-treatment. The applicant claimed that she wrote her complaint on the spot and handed it to D.
17. After that, at about 7 p.m., the applicant was taken home because the police wanted to conduct a search of her flat. The applicant's neighbour Z., who was summoned as a witness, was told that they were looking for L., and she confirmed that L. did not live there. The police insisted on searching the flat, however it transpired that they still did not have a search warrant and the applicant again refused to let them in. After a short struggle the applicant was again seized and carried to the car upside down with her head banging on the walls and the staircase. She was taken back to the Zheleznodorozhnyy district police station where she was again beaten up, intimidated and accused of hiding L. She was then placed in a detention cell.
18. The applicant was kept in the detention cell until 2.30 p.m. on 14 February 1999. Although this fact has never been in dispute, no record concerning this period of the applicant's detention could be found.
19. On 14 February 1999 at about 2 p.m. the applicant was subjected to a personal search and the keys to her flat were seized. Later on the same day the prosecutor of the district of Zheleznodorozhnyy issued a warrant to search the applicant's flat and it was carried out.
20. On the same day the applicant was brought before an officer who, without introducing himself, said to her “five days”. Subsequently the applicant learned that it was Judge P. of the Zheleznodorozhnyy District Court of Rostov, and that “five days” meant a five-day sentence for the administrative offence of forceful resistance to the police. On the same day the applicant was taken to a special centre for administrative detention.
21. On 18 February 1999, when the applicant's release after the five-day detention was due, the police major S. who had arrested her checked her out of the detention centre, took her to the Zheleznodorozhnyy district police station and ordered her to wash the floor in the police station hallway. When she had finished doing so he released her.
22. On 19 February 1999 the applicant underwent a forensic examination by a medical expert who established that she had multiple bruises on the face and legs, abrasions on the face, jaw, neck and legs, and a traumatic oedema of the soft tissues of the head.
23. On 11 March 1999 the Human Rights Commissioner of the Rostov regional governor's office filed, on the applicant's behalf, a complaint with the Head of the Internal Affairs Department of the Rostov Region and another one with the prosecutor of the Rostov Region. They requested an investigation into the applicant's alleged ill-treatment by the police and her allegedly unlawful detention; they also enclosed the applicant's detailed account of the events and the forensic report of 19 February 1999.
24. On 15 March 1999 the applicant lodged a claim for damages with the Bataysk City Court of the Rostov Region, alleging ill-treatment by the police and challenging her arrest and the search of her flat.
25. On 30 March 1999 the Deputy Head of the Internal Affairs Department of the Rostov Region informed the applicant that an internal inquiry had been conducted in view of her complaint and that her allegations had been found to be unsubstantiated. The conclusions of the internal inquiry were forwarded to the prosecutor's office. However, she was also informed that some unspecified police officers had been charged with disciplinary offences. The Human Rights Commissioner received a similar reply.
26. On 12 April 1999 the applicant received a letter from the deputy prosecutor of the district of Zheleznodorozhnyy, D., whom she had met at the police station (see paragraph 16 above). He informed the applicant that her complaint against the police had been forwarded to him by the Rostov City prosecutor's office and that he had decided that no criminal investigation in respect of the accused police officers was to be opened.
27. On 7 May 1999 the prosecutor of the district of Zheleznodorozhnyy, Kh., informed the Bataysk City Court, apparently following their official inquiry, that no documents concerning the applicant's arrest and detention could be found.
28. On 9 June 1999 the deputy prosecutor of the Rostov City prosecutor's office confirmed that decision.
29. On 22 December 1999 the Bataysk City Court examined the applicant's claim and held that the search of the applicant's flat, the initial arrest and the five-day detention had been lawful. The court found that the police had acted lawfully, as authorised by the prosecutor, and that it was necessary for the investigation into the murder case. As to the allegations of ill-treatment, the court referred to the prosecutor's refusal to open a criminal investigation in respect of the police officers and to the conclusion of the internal police inquiry that no ill-treatment had been established. It dismissed the forensic report as irrelevant and held that the allegations of ill-treatment were unsubstantiated.
30. On 23 February 2000 the Rostov Regional Court examined the applicant's appeal and upheld the earlier findings.
31. On 15 March 1999 the applicant attempted to challenge her five-day detention before the Rostov Regional Court. She alleged that she was not informed of the name of the officer who took the decision to detain her and that he did not ask her any questions, did not inform her of any charge against her, did not explain the purpose of her appearance before him and did not give her a copy of his decision concerning her detention.
32. On 17 March 1999 the same judge who imposed the five-day detention informed the applicant that no ordinary appeal could be brought against that decision, and that it could only be challenged by the prosecutor's extraordinary appeal.
33. On 25 March 1999 the applicant filed a complaint with the Zheleznodorozhnyy District Court and the Rostov Regional Court. She challenged the refusal to consider her claim in civil proceedings.
34. On 26 May 1999 the President of the Rostov Regional Court replied to the applicant that, on the evidence of the file, her detention had been lawful as it had been imposed for the administrative offence in accordance with substantive and procedural law.
35. On 17 July 1999 the applicant filed another appeal with the Rostov Regional Court against the decision on her detention.
36. On 23 August 1999 the Acting President of the Rostov Regional Court replied that no appeal against a decision on administrative detention was provided for by law.
37. The applicant subsequently tried to challenge the above decisions, but none of her claims were accepted, the ground given being that the courts lacked jurisdiction over the subject matter. The last decision in this respect was taken on 1 December 1999 by the Rostov Regional Court.
38. On 15 January 2003 the prosecutor's office of the district of Zheleznodorozhnyy instituted a criminal investigation into the circumstances of the applicant's arrest and her overnight detention and into her allegations of ill-treatment.
39. On 28 February 2003 the prosecutor of the Rostov Region filed of his own motion a request with the President of the Rostov Regional Court to quash the decision of 14 February 1999 by which the applicant had been convicted of an administrative offence. He stated that the applicant's resistance to the police did not constitute an administrative offence because the police had acted unlawfully and that the detention was in any event a disproportionate punishment.
40. On 5 March 2003 the President of the Rostov Regional Court granted the request and quashed the decision on the grounds that the judge who had convicted the applicant whether she was guilty of any administrative offence. It was found that no forceful resistance had taken place, because the police were carrying out an investigation and not safeguarding public order when the applicant resisted. It was also held that the police had acted in violation of the procedural law.
41. On 25 August 2003 the prosecutor's office of the district of Zheleznodorozhnyy terminated the criminal investigation into the alleged ill-treatment and unlawful arrest and detention on the ground that the police officers had not committed any unlawful act.
42. On 3 March 2004 the Prosecutor General's Office quashed the termination order of 25 August 2003 and resumed the criminal investigation concerning the ill-treatment and the unlawful arrest. The prosecutor's office of the district of Zheleznodorozhnyy was given thirty days to complete the investigation under the supervision of the Prosecutor General. The relevant parts of this decision read as follows:
“[The applicant] consistently maintained that she objected to the unlawful entry of the police into her flat and the unlawful search in the absence of a prosecutor's warrant, and had therefore been subjected to unlawful arrest and detention and beaten up ...
The medical examination revealed numerous injuries caused by beating ... the time of origin and the cause of which corroborate [the applicant's] statements ... The investigation has not established the circumstances in which these injuries were caused.
The reports on the administrative offence and on the applicant's arrest of 13 February 1999 ... contain fraudulent statements concerning the participation of the attesting witnesses ... These circumstances have not been fully investigated, although they served as a basis for the applicant's administrative arrest. The decision of 29 April 2003 dispensing with criminal proceedings against [the police officer who issued the reports] ... is unfounded.”
43. In their letter of 19 April 2004, the Government submitted that the investigation was still in progress. The parties have not provided any update concerning the criminal investigation thereafter.
44. The relevant provision of the Administrative Code (Кодекс об административных правонарушениях РСФСР), in force until 1 July 2002, read as follows:
“Forceful resistance to a lawful order or demand by a police or a voluntary brigade serviceman, ... shall be punished by a fine of ten to fifteen times the minimum wage ... or by one to two years' corrective labour ... or if these measures are considered insufficient, by up to fifteen days' imprisonment.”
45. The relevant parts of the Code of Criminal Procedure in force at the material time provided as follows:
“A witness shall be summoned for questioning by a written notice served on him personally, or in his absence to an adult member of his family ...
The notice shall contain the name of the person called as a witness, indicate where, before whom, on what date and at what time he is due to appear and the consequences of a failure to appear. A witness may also be summoned by telephone or telegram.”
“The questioning of a witness takes place at the place of investigation. An investigator may decide to question a witness at the witness's location.”
46. The relevant part of the Constitution of the Russian Federation adopted by referendum on 12 December 1993 provides as follows:
“1. Everyone has the right to liberty and personal security.
2. Arrest, detention and placement in custody shall be subject to a court decision. No one may be detained longer than forty-eight hours before the court decision is taken.”
Chapter 19 of the Administrative Code (see paragraph 44 above) provided that the police could subject a person to an administrative arrest to prevent an administrative offence, to establish a person's identity, to issue a document certifying that an administrative offence had been committed, if it was necessary and could not be done on the spot, and to ensure effective proceedings or the enforcement of administrative sanctions. Article 242 provided, in particular, that the term of administrative arrest should not exceed three hours, except for certain categories of offenders, including those who forcefully resisted the lawful order of the police, who could be detained as long as necessary until their case was considered by a district (city) judge or a senior police officer. Article 240 set out the requirements for the arrest report.
The Administrative Code did not provide for an appeal against the administrative arrest if imposed by a judge. The relevant provisions read as follows:
“... The decision of a district (city) court or judge to impose an administrative sanction is final and not subject to appeal in the administrative proceedings ...”
“The decision of a district (city) judge to impose an administrative sanction under [Article 165] may be changed or quashed by the same judge following a prosecutor's extraordinary appeal, or by a president of a superior court, of his own motion.”
VIOLATED_ARTICLES: 13
3
5
6
VIOLATED_PARAGRAPHS: 5-1
6-1


ITEMID: 001-5850
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: FARRUGIA MIGNECO v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Maltese national, born in 1973 and living in Marsaxlokk. He is represented before the Court by Mr P. J. Galea and Mr M. Sciriha, two lawyers practising in La Valletta.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 5 September 1998, the applicant took part in the General Elections for the House of Representatives of Malta. He was a candidate of the Malta labour party.
In his electoral district, the quota for election was 3,402 votes. The applicant obtained 1,591 first preference votes, and was therefore not elected. After the fifteenth count of votes, the applicant had 2,399 votes. At the sixteenth count of votes, the Electoral Commission declared elected another candidate, Mr V., with a count of 3,110 votes.
On an unspecified date, the applicant instituted proceedings before the First Hall of the Civil Court. He alleged that according to the relevant provisions of the General Election Act of 1991, he should have been declared “eliminated” at the sixteenth count of votes. Under Maltese law, the consequence of the “elimination” of a candidate is that another candidate could benefit from the preferences given to him, and that the votes of that candidate should in a subsequent Causal Election be re-transferred to the first candidate. The applicant observed that had his elimination taken place, he would have benefited from the votes of Mr V. He therefore requested the Civil Court to order the correction of the electoral results with all consequences.
In a decision of 22 September 1998, the Civil Court rejected the applicant’s claim. It held that it had jurisdiction to consider the merits of the case, which concerned a matter of interpretation of the electoral law. However, it observed that according to Article 12 of the General Election Act, when only two candidates remain after the elimination of the others, no transfer of votes should occur and the candidate having more votes is elected, without a quota. As this provision should be applied notwithstanding any other provision of the same Act, the Civil Court concluded that the Electoral Commission had correctly applied the law and given a proper interpretation of the Electoral Regulations.
The applicant lodged an appeal before the Constitutional Court. He alleged, in particular, that Article 12 of the General Election Act was not applicable in his case, which did not concern the election of a candidate, but the procedure before the declaration that a candidate was elected.
The Electoral Commission lodged an incidental appeal, requesting the Constitutional Court to declare that the applicant had failed to comply with the procedure prescribed by law to contest the results of the election.
In a judgment of 22 September 1998, the Constitutional Court accepted the Electoral Commission’s incidental appeal. It observed that according to Article 16 of the General Election Act, “if any question shall arise in relation to any transfer of votes, the decision of the [Electoral] Commission ... shall be final unless an objection is made in writing by any candidate or agent before the declaration of the poll ...”. The Civil Court had held that this provision was not applicable, as it referred to a transfer of votes that had been made, while the applicant was complaining about a transfer which had not been made. However, the Constitutional Court could not subscribe to this opinion, as Article 16 regulated any question about transfer of votes and made no distinction between votes which had already been transferred and votes which had not been transferred. Article 16 was thus applicable to the present case. As it was not disputed that the applicant failed to contest in writing the decision and performance of the Electoral Commission, it was clear that he had side-stepped an essential and statutory-established procedure, with the consequence that the Constitutional Court could not take the matter into consideration.
In the meanwhile, the applicant had submitted his candidature to the so-called Causal Elections. This expression indicates the elections to the House of Representatives consequent to the vacancy of electoral seats by candidates which, having been elected in two electoral districts, should retain one seat and vacate the other.
The Causal Elections took place on 23 September 1998. The applicant was not elected.
He subsequently filed an electoral petition before the Constitutional Court, challenging once again the procedure followed by the Electoral Commission. He reiterated the objections concerning the General Elections raised before the Civil Court and alleged that contrary to the relevant internal provisions, the Electoral Commission failed to take into account, at the beginning of the counting, the votes he had obtained during the General Elections of 5 September 1998. The applicant moreover stressed that he had been discriminated vis-à-vis the candidates who, having been eliminated in the General Elections, had re-acquired the first preferences they had passed on to the elected candidate Mr V.
In a judgment of 20 October 1998, the Constitutional Court dismissed the applicant’s plea. Interpreting the relevant national regulations, it concluded that the first count of votes in the Causal Elections was a process completely independent from the General Elections. As concerned the discrimination alleged by the applicant, the Constitutional Court observed that the difference in treatment was justified by the fact that the candidates who were eliminated in the General Elections, and therefore could re-acquire the preferences they had passed over to Mr V., had contributed to the election of the latter, who subsequently vacated his post. As the applicant had not been eliminated in the General Elections, he had not contributed to the election of Mr V.


ITEMID: 001-4742
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: EASTON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1956 and detained in Durham prison.
He is represented before the Court by Mr B. Row, a lawyer practising in Newcastle upon Tyne.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 May 1994 the applicant and three other men were arrested following a series of armed robberies in Newcastle upon Tyne.
On 21 May 1994 all four men were charged by the police with conspiracy to rob, an offence allegedly committed between February 1993 and May 1994.
Three other men were arrested subsequently and charged with the same offence of conspiracy to rob.
On 23 May 1994 the applicant was remanded in custody by a Magistrates' Court. Various applications for bail by the applicant were refused on the grounds that he was likely to abscond, to commit further offences or to interfere with witnesses.
Committal papers were served on the applicant's legal representatives on or about 17 August 1994. The applicant's representatives requested an “old style” committal hearing.
On 21 November 1994 the applicant and the six co-accused persons were committed to the Crown Court for trial.
The Government claim that in December 1994 the defence were given access to certain transcripts of audio tapes of conversations between the defendants. These had been recorded unbeknownst to the latter at the police station where they had been detained for questioning about their part in the robberies. The applicant disputes this.
On 25 February 1995 the applicant and the co-accused appeared before the Crown Court and pleaded not guilty. The case was adjourned for trial. The trial date was fixed for May 1995. However, an adjournment was ordered at the request of the defendants' representatives because counsel were not all available to represent them on the relevant dates.
The applicant claims that the transcripts of the audio tapes were disclosed to the defence on 23 August 1995 following a number of requests. On 28 September 1995 the defence requested the disclosure of the audio tapes themselves.
A new hearing date was fixed for 4 December 1995. On that date the case was taken out of the list at the request of the representatives of some of the applicant's co-accused who had not had sufficient time to consider some of the prosecution evidence, particularly the audio tapes.
The trial was re-fixed to commence on 15 April 1996. On 2 April 1996 the lawyers of some of the defendants applied for a further adjournment in order to consider the audio-taped evidence. The application was refused by the trial judge who, nevertheless, set aside 15 and 16 April for the defendants' representatives to listen to the tapes using equipment hired by the prosecution. Then a defendant, W, indicated that he considered changing his plea and on 19 April 1996 the trial was adjourned.
The trial restarted on 30 April 1996. W pleaded guilty and indicated that he would give evidence for the prosecution against his co-defendants. On 2 May 1996 the applicant pleaded guilty to conspiracy to rob. All the other co-defendants also changed their pleas to guilty.
On 20 May 1996 the applicant was sentenced to eleven years' imprisonment.


ITEMID: 001-90093
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SHULEPOVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Reminder inadmissible;Violation of Art. 5-1;Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1934 and lives in the Kaliningrad Region.
6. At the beginning of February 1999 the applicant complained to her doctor Ms K. about the neighbours, who had allegedly subjected her to electromagnetic emissions, attempted to contaminate her with HIV, created noises and draughts and tortured her in a multitude of other ways. She threatened to pour acid on them.
7. On 10 February 1999 the applicant was examined by a medical panel comprising two psychiatrists and three general practitioners affiliated with the Baltiysk Town Medical Association. The panel concluded that the applicant suffered from a paranoid personality disorder and was hallucinatory and aggressive. She was therefore dangerous to the public and to herself. The doctors also found that the applicant suffered from hypertension.
8. On the same day she was taken to the Kaliningrad Regional psychiatric hospital No. 1 (hereinafter “the hospital”).
9. On 12 February 1999 the applicant was examined by the hospital psychiatrists, who diagnosed her with involutional paranoid psychosis and concluded that she needed compulsory treatment.
10. On the same day the hospital applied to a court for approval of the applicant’s confinement.
11. On 16 February 1999 the Leningradskiy District Court of Kaliningrad ordered that the applicant should provisionally remain in the hospital until the application was examined. The hearing was scheduled for 18 February 1999.
12. On 18 February 1999 the hearing did not go ahead. The record indicated that the applicant was unable to appoint a representative owing to her grave mental state.
13. On 26 March 1999 the applicant consented to medical treatment. She remained in the hospital until 21 April 1999.
14. On 13 May 1999 the court proceedings were discontinued as the hospital had withdrawn its application.
15. After her discharge, the applicant complained to the prosecutor’s office about her allegedly unlawful confinement.
16. By letter of 1 February 2000, the Head of the Law-Enforcement Supervision Department of the Kaliningrad Regional prosecutor’s office acknowledged that from 16 to 26 March 1999 she had been unlawfully held in the hospital without a judicial decision and advised her that measures would be taken to remedy the situation.
17. On 11 April 2002 the Leningradskiy District Court informed the prosecutor’s office that it would take measures to avoid similar violations in future and undertook to observe the time-limits for examining applications from hospitals.
18. In the meanwhile on 21 February 2000 the applicant sued doctor K. and the hospital in tort. She contested the findings of the medical panels of 10 and 12 February 1999, claiming that she had not suffered from any mental disorder and that it had not been necessary to confine her. She further argued that her detention had been unlawful as it had not been based on a court order. She sought compensation in respect of non-pecuniary damage. In reply, the hospital’s representative argued that the medical findings in the applicant’s case had been correct and her confinement lawful. He asked the court to reject the applicant’s claims in full.
19. On 22 June 2000 the Leningradskiy District Court of Kaliningrad found that there had been no reason to question the findings of the medical panels and that the applicant’s detention had been lawful.
20. On 25 October 2000 the Kaliningrad Regional Court quashed the judgment and remitted the case. It held that the first-instance court had omitted to address the applicant’s criticism of the findings of the medical panels of 10 and 12 February 1999 and had failed to verify whether her confinement had been justified by her mental condition.
21. On 31 May 2001 the Leningradskiy District Court found that expert advice was necessary to assess the applicant’s mental condition in February 1999. It commissioned the hospital’s medical specialists to perform a psychiatric examination on the applicant. The experts were asked to determine whether the findings of the medical panels of 10 and 12 February 1999 had been correct and whether the applicant’s state of mental health in February 1999 had warranted compulsory psychiatric treatment.
22. On 30 July 2002 the experts examined the applicant’s medical file, in particular the reports of 10 and 12 February 1999, and concluded that the medical findings contained in those reports had been correct and that the applicant’s involuntary placement into the hospital had been justified, taking into account her serious mental condition in February 1999.
23. The applicant challenged the experts’ report. She claimed that the experts were biased because they were employees of the hospital and asked the court to dismiss the report.
24. On 15 January 2003 the Leningradskiy District Court dismissed the applicant’s claim. In particular, with reference to the medical reports of 10 and 12 February 1999 and 30 July 2002, it held that the applicant’s placement in the hospital had been necessary because she had been a danger to the public and to herself. The court held that the expert report of 30 July 2002 was admissible evidence because the experts had been informed that they would be criminally liable for perjury. Moreover, the panel of 30 July 2002 had not included the psychiatrists who had examined the applicant on 12 February 1999.
25. As to the lawfulness of the applicant’s detention from 10 to 26 March 1999, the court found as follows:
“... in accordance with section 33(3) of the [Psychiatric Treatment Act] a judge ordered that [the applicant] should remain in the hospital until the decision [on the hospital’s application for her confinement] had been taken. The hospital’s application was not examined within five days as required by section 34(1) of the Act because, owing to her mental state, [the applicant] could not participate in the hearing or name her representative, whose presence was mandatory under section 34(4) of the Act...
Since the judicial decision committing [the applicant] to the hospital was not set aside or amended, and the hospital had no right to discharge [the applicant] in defiance of the order, the court considers that in those circumstances the hospital was not responsible for [the applicant’s] involuntary confinement until 26 March 1999.”
26. The applicant appealed. In her grounds of appeal she complained, in particular, that the experts who had produced the report of 30 July 2002 had been partial.
27. On 2 April 2003 the Kaliningrad Regional Court upheld the judgment, finding that it had been lawful and justified. As to the experts, it held that the judgment had not been based solely on the report of 30 July 2002, but was corroborated by other evidence.
28. Psychiatric medical care in Russia is governed by the Law on Psychiatric Treatment and Associated Guarantees of Citizens’ Rights, enacted on 2 July 1992 (“the Psychiatric Treatment Act”).
29. An individual suffering from a mental disorder may be taken to a psychiatric hospital against his will or the will of his legal representative and without a court decision having been taken if the individual’s examination or treatment may only be carried out by in-patient care, and the mental disorder is severe enough to give rise to (a) a direct danger to that individual or to others, or (b) the individual’s helplessness, that is, an inability to take care of himself, or (c) a significant impairment in health as a result of a deteriorating mental condition, if the affected individual were to be left without psychiatric care (section 29).
30. A person placed in a psychiatric hospital on the grounds listed in section 29 shall be subject to compulsory examination within forty-eight hours by a panel of psychiatrists of the hospital. The panel is required to take a decision as to the necessity of confinement. If no reasons for confinement are established and the individual expresses no intention of remaining in the hospital, he must be released immediately. If confinement is considered necessary, a representative of the hospital where the person is held is required to file, within twenty-four hours, an application for compulsory confinement with a court having territorial jurisdiction over the hospital. The application must contain the grounds for involuntary confinement and must be accompanied by a reasoned conclusion of a panel of psychiatrists as to the necessity of the person’s in-patient treatment in a psychiatric hospital. A judge who receives the application for a review must immediately order the person’s detention in a psychiatric hospital for the term necessary for its examination (sections 32 and 33).
31. The judge is required to examine the application within five days of its receipt. The individual concerned has the right to participate in the hearing. If, according to the information provided by a representative of the psychiatric hospital, the individual’s mental state does not allow him to take part in the hearing, the application must be examined by the judge on the hospital premises. The presence at the hearing of a public prosecutor, a representative of the psychiatric institution requesting confinement, and a representative of the individual concerned is mandatory (section 34). The Psychiatric Treatment Act does not contain any specific provisions for the appointment of a representative for the individual concerned.
32. After examination of the application on the merits, the judge must either allow or dismiss it. The judge’s decision is subject to appeal within ten days by the person placed in the psychiatric hospital, his representative, the head of the psychiatric hospital, or by an organisation entitled by virtue of law or by its charter to protect citizens’ rights, or by a public prosecutor. The appeal shall be made in accordance with the rules established in the Code of Civil Procedure (Section 35).
33. Complaints of unlawful actions by medical staff may be made to a court, a supervising authority or a public prosecutor (section 47).
34. The use of expert evidence in court is governed by the Law on State Forensic Examinations (“the Forensic Examinations Act”) enacted on 31 May 2003. It establishes that a forensic expert must be independent from the court, the parties to the proceedings and other interested parties (section 7).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-1
6-1