ITEMID: 001-79614
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KILIC v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Snejana Botoucharova
TEXT: The applicant, Mr Hizir Kilic, is a Turkish national who lives in Hellerup. He is represented before the Court by Mrs Jane Ranum, a lawyer practising in Copenhagen.
The applicant was born on 20 August 1985 in Denmark where he spent his childhood and youth. He speaks Turkish and Danish.
The applicant’s parents, three siblings, his paternal grandmother and two uncles also all live in Denmark. Every second year, the applicant has been on holiday for a longer period in Turkey, where his mother’s family and two paternal aunts live. The applicant’s family in Denmark owns a house in Turkey with several apartments, which are used by the family upon their visits.
It appears that as a child, he went for four years to a private school which was attended mainly by pupils with a Turkish background. The applicant left school after nine years’ schooling. He does not have any training or higher education and has not had any significant affiliation to the labour market.
By a City Court judgment of 5 December 2000 the applicant was convicted of assault, committed jointly with another perpetrator, and was sentenced to thirty days’ imprisonment suspended on probation.
By a City Court judgment of 29 April 2002 the applicant was convicted, inter alia, of assault, committed jointly with another perpetrator, and was sentenced to thirty days’ imprisonment.
By a City Court judgment of 10 June 2002 the applicant was convicted of robbery and, inter alia, assault, committed jointly with several other perpetrators. He was sentenced to six months’ imprisonment, of which three months were suspended.
On 14 August 2003 the applicant and his cousin were arrested and charged, inter alia, with attempted robbery, aggravated assault and manslaughter. They were detained on remand the following day.
On 9 November 2004 they were convicted by the High Court of Eastern Denmark (Østre Landsret) sitting with a jury. It found it established that on 9 August 2003, when the applicant was seventeen years old and his cousin sixteen, they had jointly threatened a young man, an Italian tourist, with a knife in order to steal his money. Although the young man was stabbed by the applicant, he first managed to flee. Shortly thereafter the applicant and his cousin ran him down, beat him, and the applicant stabbed him several times, the injuries inflicted resulting in the victim’s death.
In the same judgment of the High Court of Eastern Denmark, the applicant was also convicted of attempted burglary and violation of the Act on Arms committed on 13 February 2003; and of aggravated assault, robbery and attempted extortion committed on 6 September 2004, when the applicant was eighteen years old and detained on remand. The court found it established, inter alia, that the applicant jointly with an inmate had threatened a third inmate with a screw-driver in order to steal his watch and make him provide them with an amount equal to EUR 60,000 from outside the prison. Moreover, they had beaten and kicked him, inter alia, on the head with a stranglehold on him, resulting in the victim losing consciousness several times and being severely injured.
According to a psychiatric report of 6 January 2004, the applicant was not mentally ill but he did have character flaws such as limited empathy. Since puberty he had abused hashish.
In its judgment, the High Court of Eastern Denmark sentenced the applicant to ten years’ imprisonment. In addition he was expelled from Denmark for an indefinite time to be implemented after the sentence had been served.
The applicant’s cousin, who was also convicted of additional offences to attempted robbery, aggravated assault and manslaughter, was sentenced to eight years’ imprisonment and expulsion from Denmark for an indefinite time.
Upon appeal, the Supreme Court (Højesteret) confirmed the sentences on 15 March 2005. With regard to the order to expel the applicant and his cousin, the majority of six judges held as follows:
[The applicant] was born in Denmark, whereas [his cousin] arrived as a threeyearold. They have spent their youth and had their schooling in this country where also their parents and siblings live. Thus, they have a strong connection with the Danish society and to people living here. At the same time, however, they have a [significant] connection with Turkey and Turkish culture. They speak Turkish and approximately every second year they have visited Turkey where they have a big family. Both have been previously convicted, and have now been sentenced to longer prison terms, inter alia, for manslaughter, attempted robbery and aggravated assault. Having taken all considerations into account, in our view neither the elements mentioned in section 26, subsection 1 of the Aliens Act (Udlændingeloven) nor Article 8 of the Convention speak decisively against [their] expulsion. Accordingly, we vote [for their expulsion].
The minority of one judge held as follows:
In my view, when taking all the elements mentioned in section 26, subsection 1 of the Aliens Act into account, the connection which the applicant and [his cousin] have with Turkey and Turkish culture, is not of such an extent and character that it has decisive weight when compared to their strong connection to the Danish society and people living here. In my opinion, the latter speaks significantly against expelling the applicant [and his cousin] from Denmark. Accordingly, notwithstanding the serious crimes committed, I vote [against their expulsion].
The relevant provision of the Aliens Act (Udlændingeloven) applicable at the time read as follows:
“An alien who has lawfully stayed in Denmark for more than the last seven years, and an alien issued with a residence permit under sections 7or 8 may be expelled only if:
(i) the alien is sentenced to minimum 4 years imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration.
...
(vi) the alien is sentenced, pursuant to ... Articles ...[manslaughter, aggravated assault , robbery, etc] of the Penal Code to imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature.”
1. In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of:
(i) the alien’s ties with the Danish community, including whether the alien came to Denmark in his childhood or tender years;
(ii) the duration of the alien’s stay in Denmark;
(iii) the alien’s age, health, and other personal circumstances;
(iv) the alien’s ties with persons living in Denmark;
(v) the consequences of the expulsion for the alien’s close relatives living in Denmark;
(vi) the alien’s slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; and
(vii) the risk that, in cases other that those mentioned in section 7(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence.
2. An alien may be expelled pursuant to section 22, subsection 1, (iv) to (vi) unless the circumstances mentioned in subsection 1 above constitute a decisive argument against doing so.


ITEMID: 001-58149
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 1998
DOCNAME: CASE OF REINHARDT AND SLIMANE-KAÏD v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed
JUDGES: C. Russo;John Freeland;R. Pekkanen
TEXT: 8. Mr Slimane-Kaïd was formerly the chairman of two public limited companies Provex S.A. (“Provex”) and Servec S.A. (“Servec”), respectively engaged, in particular, in buying equipment for export and in industrial coachbuilding.
On 26 January 1982 he had also formed with Mrs Reinhardt a private company called Urka S.A.R.L (“Urka”), whose registered office was at the latter’s home address and main activity the hire and sale of equipment of all types both in France and overseas. On 1 July 1982 Mr Slimane-Kaïd had replaced Mrs Reinhardt as manager of that company.
9. Under two commercial agreements the Iveco company was to sell industrial vehicles to Provex and deliver “cab chassis” on bailment, with Iveco being named as bailee, to coachbuilders designated by either Provex or Servec. It was stipulated that at the end of the bailment and on receipt of payment, Iveco would deliver to Provex and Servec the vehicle test certificates (feuilles des mines) of the vehicles concerned and the certificates of sale.
10. The description of the facts set out in this and the next paragraph is based on the documents from the domestic proceedings produced to the Court.
On 28 April 1984 two hundred and eighty-seven vehicles belonging to Iveco were delivered on bailment to Servec’s premises. The periods of bailment were due to end on 5 June, 5 July, 5 August and 5 September 1984; on those dates Provex and Servec were to take up the purchase option on the vehicles and to obtain delivery of the test certificates for each vehicle and the certificates of sale specific to Iveco.
At Iveco’s request, a bailiff inspected Servec’s premises and drew up an official report on 11 May 1984. A court-appointed expert carried out an inspection on 25 July 1984 and an interim attachment was made on 28 August 1984. It was found on the first of those three dates that 155 vehicles were missing, on the second that 198 were missing and on the third that 211 were missing. Iveco obtained restitution of only 43 vehicles; the others had been registered and sold.
11. On 27 July 1984 an Iveco representative reported certain of these matters to the Versailles Regional Criminal Investigation Department (“RCID”). Inquiries were made by Detective Inspector Renaud. In a report of 24 September 1984 he said that the test certificates and certificates of sale of 116 Iveco vehicles that had been filed by Provex for registration purposes with the prefecture were forgeries; he went on to say that offences may have been committed under the companies acts and insolvency legislation in connection with Servec /Provex and to conclude that a judicial investigation was necessary.
12. On 25 September 1984 the Chartres public prosecutor made a written application for an investigation to be opened into offences by an unnamed person of misappropriation and procuring the issue of administrative documents by means of false information, certificates or statements. Mr Candau, the investigating judge, who was assigned to the case that day, sent instructions on 27 September 1984 to the head of the Versailles RCID to “... continue the investigation with a view to identifying the persons who committed the offences, their co-principals and accomplices...”.
13. On 2 October 1984 Mr Slimane-Kaïd was taken into police custody and questioned. On 4 October 1984 the Versailles RCID’s report was received, Mr Slimane-Kaïd was charged with misappropriation and procuring the issue of administrative documents by means of false information, certificates or statements, and remanded in custody (until 8 January 1985, when the investigating judge ordered his release under judicial supervision). On the same day the investigating judge sent instructions to the Versailles RCID to pursue the investigation.
14. On 2 October 1984 the Chartres public prosecutor made a written application for an additional investigation to be opened into offences of forgery of private, commercial or banking documents by Mr Slimane-Kaïd, who was suspected of having falsified the relevant test certificates and certificates of sale.
15. On 12 October 1984 Iveco – which had joined the proceedings as a civil party claiming damages on 9 October – made oral submissions and a director of Provex was heard as a witness. On the same day and on 15 October 1984 Mr Slimane-Kaïd’s lawyer wrote to the investigating judge enclosing documents for the file. Iveco’s lawyer did likewise on the latter date.
16. Mr Slimane-Kaïd was questioned on 15 and 16 October 1984 and an Iveco executive was heard on 17 October. On 22 October a confrontation was held between Mr Slimane-Kaïd and an Iveco executive and on 9 November 1984 Mr Slimane-Kaïd was questioned again and charged with forgery of private, commercial or banking documents.
17. On 10 November 1984 Mr Slimane-Kaïd’s lawyer wrote to the investigating judge enclosing documents for the file. Iveco’s lawyer did likewise on 13 December 1984.
18. Since the investigators suspected Mr Slimane-Kaïd of further offences, a second preliminary inquiry was started on 3 October 1984 into his activities at Provex, Servec and Urka.
19. Between 9 October 1984 and 27 March 1985 the Versailles RCID carried out a number of searches and seizures at Mr Slimane-Kaïd’s home address and on the premises of Provex; but they also carried out searches and seizures on 16 October 1984 at Mrs Reinhardt’s home (the registered office of Urka) – while she was in custody – and on 18 October 1984 in a house rented by Urka. On 14 November 1984 Mrs Reinhardt was questioned by a police investigator.
20. On 2 November 1984 the investigating judge had made an order transmitting the file to the public prosecutor for submissions (ordonnance de soit-communiqué). On 11 December 1984 the Chartres public prosecutor made an application for additional charges to be preferred against Mr Slimane-Kaïd for misappropriating company assets, offences equivalent to negligent bankruptcy (for failure to declare within the statutory time-limit that the company was unable to meet its liabilities), fraudulent bankruptcy (for misappropriation of part of the company’s assets), false accounting and fraud. On 14 December 1984 Mr Slimane-Kaïd was charged with those offences.
21. On 19 December 1984 the investigating judge sent instructions to the head of the Versailles RCID to pursue the investigation into all the offences with which Mr Slimane-Kaïd had been charged.
22. Mr Slimane-Kaïd was questioned on 3 and 7 January 1985.
23. The Versailles RCID sent the investigating judge its report on 1 February 1985 after carrying out the instructions. On the same day, Mr G., who had been held in custody since 30 January, was charged with forgery of private, commercial or banking documents and released under judicial supervision. He was suspected of issuing false invoices to Provex and Servec and supplying Mr Slimane-Kaïd with the means for committing a like offence.
24. On 1 February 1985 the investigating judge sent instructions to the Versailles RCID to pursue the investigation into the offences with which Mr Slimane-Kaïd and Mr G. had been charged. The Versailles RCID sent in its report on 7 February.
25. Mrs Reinhardt was arrested on 6 February 1985; the next day, following an application by the Chartres public prosecutor for a further investigation to be opened, she was charged with aiding and abetting the misappropriation of company assets and of handling misappropriated company assets. She was suspected of having given Mr Slimane-Kaïd four blank cheques between July and December 1983 drawn on Urka’s bank account for a total of 1,735,000 French francs – which she had signed and which Mr Slimane-Kaïd was to make out and endorse – and of having benefited from monies fraudulently obtained from that company.
26. On 7 February 1985 the investigating judge sent instructions to the Versailles RCID to pursue the investigation into the offences with which Mr Slimane-Kaïd, Mr G. and Mrs Reinhardt had been charged.
27. On 25 March 1985 Mr Slimane-Kaïd’s lawyer sent a letter to the investigating judge enclosing documents for the file.
28. On 31 May 1985 the Versailles RCID sent in its report pursuant to the investigating judge’s instructions of 7 February 1985.
29. Mr Slimane-Kaïd and Mr G. were questioned on 4 and 5 December 1985 respectively and Mrs Reinhardt – who had been summoned to appear before the investigating judge on 4 December 1985, but had not done so – on 11 February 1986.
30. On 25 March 1986 the investigating judge made an order transmitting the file to the public prosecutor for submissions.
31. On 16 July 1986 Mr Slimane-Kaïd wrote to the investigating judge enclosing documents for the file.
32. In a further application of 21 July 1986 the Chartres public prosecutor requested the investigating judge to pursue the investigation into the offences with which Mr Slimane-Kaïd, Mr G. and Mrs Reinhardt had been charged and to interview Mr Slimane-Kaïd, Mr G. and the managing director of the VPL company.
33. On 25 September 1986, following a complaint lodged on 17 July 1986 by VPL (which joined the proceedings as a civil party claiming damages) against a person or persons unknown for misappropriation and forgery of commercial documents, the senior investigating judge at Chartres made an order transmitting the file to the public prosecutor for submissions.
34. On 29 September 1986 the Chartres public prosecutor applied for an investigation to be opened for misappropriation and forgery of commercial documents by a person or persons unknown. The investigation was to be conducted by Judge Candau.
35. On 7 January 1987 both investigations were assigned to a different judge, Judge Halphen. He heard VPL’s representative on 5 February 1987.
36. On 16 February and 18 March 1987 Mr Slimane-Kaïd and his lawyer wrote to the investigating judge enclosing documents for the file in connection with the first set of proceedings.
37. Mr Slimane-Kaïd was questioned on 11 June and 8 July 1987.
38. On 1 July VPL’s lawyer had sent documents to the investigating judge requested by the latter in a letter of 9 June 1987.
39. Mr Slimane-Kaïd’s lawyer wrote to the investigating judge on 10 September 1987 regarding the hearing of witnesses and inquiries in the first investigation. On 22 September 1987 Iveco’s lawyer produced documents for the file.
40. Instructions were sent on 7 October 1987 to the Versailles RCID for inquiries to continue into the offences with which the three suspects had been charged.
41. On 28 October 1987 the investigating judge ordered that an expert’s report be commissioned on the signatures at the foot of the certificates of sale. The expert filed his report on 31 December 1987. It was served on Iveco on 29 April 1988.
42. On 11 April 1988 Mr Slimane-Kaïd wrote to the investigating judge informing him that he had changed lawyers.
43. On 25 April 1988 the Versailles RCID’s report pursuant to the instructions of 7 October 1987 was received.
44. On 5 May 1988 Mr Slimane-Kaïd wrote to the investigating judge informing him that he had changed lawyers.
45. On 25 May 1988 he was questioned and charged in connection with the second investigation with misappropriation and forging commercial documents.
46. On 16 June 1988 he wrote to the investigating judge informing him that he had changed lawyers.
47. On 29 June 1988 he again appeared before the investigating judge.
48. On 7 and 22 July and 26 September 1988 Mr Slimane-Kaïd or his lawyer wrote to the investigating judge in connection with additional inquiries and the production of documents for the file.
49. On 5 December 1988 a confrontation was held between Mr Slimane-Kaïd and the VPL representative.
50. On 26 and 29 December 1988, 12 and 30 January, 27 and 28 February and 6 and 7 March 1989, Mr Slimane-Kaïd or his lawyer wrote to the investigating judge in connection with additional inquiries and the production of documents for the file.
51. On 16 March 1989, in connection with the first investigation concerning Mr Slimane-Kaïd, the investigating judge instructed the Chartres police superintendent to “inspect the Iveco vehicle registration file for the first six months of 1969 and the first six months of 1970” and “to seize and place official seals on the originals of the test certificates”.
52. On 20 March 1989 VPL’s lawyer wrote to the investigating judge and produced documents for the file.

53. On 30 March 1989 the investigating judge heard an Iveco representative. Documents were produced for the file.
54. On 13 April 1989 the Versailles RCID’s report on the instructions of 16 March 1989 was sent to the investigating judge.
55. On 5 June 1989 Mr Slimane-Kaïd’s lawyer wrote to the investigating judge enclosing documents for the file relating to the first investigation; a lawyer acting for one of the civil parties did likewise on 16 June 1989.
56. On 26 June 1989 the investigating judge heard Mr Slimane-Kaïd, who both at that hearing and under cover of a letter of 7 July 1989 produced documents for the file.
57. On 25 July 1989 Mr Slimane-Kaïd requested an expert audit of Iveco’s accounts. The request was renewed by his lawyer on 26 July, but turned down by the investigating judge on 28 July 1989. Mr Slimane-Kaïd appealed against that decision on 1 August 1989 but, following submissions on 19 September 1989 by the Principal Public Prosecutor at the Versailles Court of Appeal, the President of the Indictment Division of that court refused, in an order of 26 September 1989, to refer the request to the Indictment Division.
58. On 9 August 1989 Iveco’s lawyer had written to the investigating judge and produced documents for the file. Mr Slimane-Kaïd’s lawyer did likewise on 19 September 1989 in connection with the second investigation.
59. By an order of the president of the Chartres tribunal de grande instance on 23 October 1989, Judge Halphen was replaced by Judge Defarge. On 3 November Judge Defarge ordered the transmission of the file to the public prosecutor for submissions with a view to joinder of the two sets of proceedings; the public prosecutor sought an order to that effect the same day. On 6 November 1989 the investigating judge made two orders: the first for joinder of the two sets of proceedings and the second for transmission of the file to the public prosecutor. On 28 November 1989 the public prosecutor made final submissions requesting the committal of Mr Slimane-Kaïd, Mr G. and Mrs Reinhardt to the criminal court. On 14 December 1989 Judge Defarge made a committal order.
60. The Chartres Criminal Court held a hearing on 11 June 1990.
On 25 June 1990 Mr Slimane-Kaïd’s lawyer wrote to the president of that court enclosing documents for the file, as did Iveco’s lawyer on 8 August 1990. Mr Slimane-Kaïd’s lawyer forwarded further documents on 25 August.
On 12 September 1990 the criminal court decided to extend its deliberations until 14 November1990.
On 22 and 25 October 1990 respectively Iveco and Mr Slimane-Kaïd’s lawyers wrote to the president of that court enclosing documents for the file.
61. Judgment was delivered on 14 November 1990. Mr Slimane-Kaïd was found guilty of misappropriation, forging private, commercial or banking documents, fraud, false accounting and misappropriation of company assets and sentenced to five years’ imprisonment, three of which were suspended; he was barred from carrying on any business activity for ten years. Mr G. was given a sentence of eighteen months’ imprisonment for forging private, commercial or banking documents and aiding and abetting the forgery of commercial documents and Mrs Reinhardt a one-year suspended sentence for aiding and abetting the misappropriation of company assets. The court declared the civil party claims of Iveco and VPL inadmissible.
62. Mr Slimane-Kaïd appealed to the Versailles Court of Appeal on 14 November 1990, as did the public prosecutor's office, Mrs Reinhardt, Mr G. and Iveco on 15, 16, 20 and 26 November 1990 respectively.
63. According to the Government, on 22 January and 8 February 1991 a summons was issued requiring a representative of VPL to appear, but the company could not be located. Mrs Reinhardt, Iveco, the liquidator of Servec (Mr Pierrat) and Mr Slimane-Kaïd were summonsed on 8, 15 and 19 February and 8 March 1991 respectively.
64. At the hearing on 21 March 1991 Mrs Reinhardt, Mr Slimane-Kaïd and Iveco lodged their submissions. The hearing was adjourned to 3 October 1991 to enable summonses to be served on Mr G. and VPL.
Summonses were issued against Mr G. on 16 April 1991 and, according to the Government, against VPL on 25 September 1991, but neither could be located.
65. On 3 October 1991 the hearing was adjourned for the last time to 6 February 1992 to enable summonses to be served on VPL and Mr Mariani, the liquidator acting in the joint liquidation of Provex, Provex S.A.R.L. and Urka.
Summonses were issued against VPL on 5 November 1991 and 8 January 1992.
66. On 2 April 1992 the Versailles Court of Appeal acquitted Mr Slimane-Kaïd on the count of misappropriation of company assets, upheld the guilty verdict on the other counts and confirmed the sentence. It increased Mrs Reinhardt’s sentence to a term of eighteen months’ imprisonment, suspended, and reduced Mr G.’s sentence to one year. It upheld the judgment of the trial court in all other respects.
67. Mrs Reinhardt and Mr G. lodged appeals on points of law with the Court of Cassation that same day. Mr Slimane-Kaïd and Iveco did likewise on 3 and 6 April. Mr G. also appealed.
The case file was sent to the Court of Cassation on 29 April 1992 and assigned to a reporting judge on 2 June 1992.
Iveco lodged written pleadings on 31 August 1992, followed by Mr G. and Mrs Reinhardt on 1 September 1992. On 12 October 1992 Iveco lodged one, and Mr Slimane-Kaïd two, written pleadings.
The reporting judge filed his report on 20 November 1992 and the advocate-general was appointed on 30 November.
Mr Slimane-Kaïd filed written pleadings on 18 February and 9 March 1993. VPL and Mr Mariani filed pleadings on 11 March 1993.
68. According to the Government, it is unlikely that the advocate-general prepared his submissions in writing as he intended to present them orally at the hearing.
The Government further maintained that at the hearing of the Court of Cassation on 15 March 1993, which took place without the applicant’s representatives being present, the reporting judge addressed the court and oral submissions were made by the advocate-general.
69. In a decision delivered on 15 March 1993, the Court of Cassation, relying on the reporting judge’s report, the parties’ pleadings and the submissions of the advocate-general, dismissed the appeals of those who had been convicted.
70. The Court of Cassation is composed of the president, the divisional presidents, the judges, the auxiliary judges, Principal State Counsel, the Principal Advocate-General, the advocates-general, the senior registrar and the divisional registrars (Article L. 121-1 of the Judicature Code).
It is divided into five civil divisions and one criminal division, each comprising a divisional president, judges, auxiliary judges, one or more advocates-general and a divisional registrar (Articles L. 121-3, R. 121-3 and R. 121-4). The divisions are subdivided into sections, in which formation most appeals are heard.
71. Judgments of an Indictment Division and judgments delivered by an assize court, a criminal court or a police court sitting as a court of last instance may, if they are not in accordance with the law, be set aside on an appeal on points of law by either the public prosecutor's office attached to the court which delivered the judgment or the party adversely affected (Article 567 of the Code of Criminal Procedure).
In criminal cases, Principal State Counsel at the Court of Cassation may appeal to that court only for the purposes of clarifying the law (pourvoi dans l’intérêt de la loi). In such cases, he appeals either on formal instructions from the Minister of Justice (Article 620) or of his own motion against a judgment delivered by an assize court, a criminal court or a police court sitting as a court of last instance where none of the parties has entered an appeal within the set time-limit (Article 621); in the event of an appeal by Principal State Counsel of his own motion, if the appeal is allowed the judgment is reversed but the parties may not rely on the Court of Cassation’s ruling to contest execution of the judgment that has been set aside (ibid.).
72. As soon as the case file is received by the registry of the Criminal Division of the Court of Cassation, the president of that division appoints a reporting judge (Article 587 of the Code of Criminal Procedure) from among the judges and the auxiliary judges; the latter have a vote at deliberations on appeals in which they are appointed as reporting judge (Article L. 131-7 of the Judicature Code).
73. The reporting judge draws up a written report in which he carries out a thorough review of the case, sets out the legal arguments deduced from the grounds of appeal, indicates what research he has carried out into legal opinion and case-law on the basis of the grounds of appeal and states his recommendations. He also prepares a draft judgment, which is distributed to each of his colleagues as a basis for discussion at deliberations.
The case file lodged by the reporting judge is sent by the registry, with the report and draft judgment, to the advocate-general assigned to the case by Principal State Counsel. Counsel for the parties are informed of the recommendation in the report (appeal to be declared inadmissible, or to be dismissed, allowed in part or in full) by an entry in the list of cases that is distributed a week before the hearing to lawyers practising in the Conseil d’Etat and Court of Cassation.
In principle, any additional pleading filed at this stage will be declared inadmissible (Article 590 of the Code of Criminal Procedure). However, the Court of Cassation has a discretion and it appears that examples of its declaring inadmissible pleadings filed late are rare (see Y. Monnet, Principal Advocate-General at the Court of Cassation, “Pourvoi en cassation”, Juris-classeur procédure pénale, 1993, fascicule 40).
74. Principal State Counsel's Office at the Court of Cassation does not act as a prosecuting authority before that court. Except in appeals made for the purposes of clarifying the law, it acts only as a party joined to the criminal proceedings. Its role is not to argue the prosecution’s case but to ensure that the law is correctly applied (see “Pourvoi en cassation”, cited above, and P. Malibert, Ministère Public, Juris-classeur procédure pénale, 1994).
Mr Charbonnier, Advocate-General at the Court of Cassation, thus explains that whereas the role of the prosecution consists, in principle, of law enforcement and upholding the law, the role of Principal State Counsel's Office at the Court of Cassation is confined to the latter task. In that capacity it is required to ensure that the law is correctly applied when it is clear and correctly construed when ambiguous (L. Charbonnier, “Ministère Public et Cour suprême”, La semaine juridique, Doctrine (1991), Ed. G. no. 43).
75. The duties of State Counsel in the Court of Cassation are “personally conferred on Principal State Counsel” (Article R. 132-1 of the Judicature Code). Save for directions to lodge an appeal for the purposes of clarification of the law, Principal State Counsel does not receive any instructions regarding the performance of his duties (see for example the speech made on 6 January 1995 by Mr Jéol, Principal Advocate-General at the Court of Cassation, at the formal ceremony marking the beginning of the judicial year, La documentation française, Paris 1995, and the “Ministère Public et Cour suprême” article cited above).
Principal State Counsel “assigns the Principal Advocate-General and the advocates-general to the divisions in which he considers they may most usefully serve” (Article R. 132-2). The Principal Advocate-General and the advocates-general “speak on behalf of Principal State Counsel in the divisions to which they have been appointed” (Article L. 132-3). In important cases their submissions are communicated to Principal State Counsel, who, if he is not in agreement and the advocate-general refuses to amend them, may delegate another advocate-general or make submissions himself at the hearing (Article R. 132-3). It appears, however, that that provision has never been applied and that in practice the advocates-general are, therefore, free to decide on the tenor of their submissions (see the “Pourvoi en cassation” article cited above).
In his speech of 6 January 1995 (referred to above) Mr Jéol explained: “[the] value of the work [of the advocate-general], which is performed after the reporting judge has completed his task, is as a ‘second opinion’. Either the advocate-general agrees with the report, in which eventuality the decision to be taken will be clearer, or he disagrees, and will have triggered the necessary debate. In all cases his role is somewhat ‘maieutic’.”
76. The advocate-general’s submissions do not have to be in writing.
77. The list of hearings is fixed weekly. A single advocate-general deals with all cases on the list for the week he is on duty. He informs the relevant lawyers practising in the Conseil d’Etat and Court of Cassation, who, if they wish to make oral submissions, must advise the president before the hearing.
78. A few days before the hearing a preparatory “meeting” is held between the president and the senior judge of the division and the advocate-general on duty for that week; they systematically review the cases on the list and exchange views (see the “Pourvoi en cassation” and “Ministère Public et Cour suprême” articles cited above and the speech given on 10 January 1997 by Mr Burgelin, Principal State Counsel at the Court of Cassation, entitled “L’avocat général à la Cour de cassation et la Convention européenne de sauvegarde des Droits de l’Homme”, Gazette du palais, 2324 May 1997). It appears to be customary after the meeting for the advocate-general to inform the lawyers acting in the case of the tenor of his submissions (see the speech entitled “L’avocat général à la Cour de cassation et la Convention européenne de sauvegarde des Droits de l’Homme” cited above).
In parallel, the reporting judge’s report is studied in detail by the offices of the president and the senior judge, which give a reasoned opinion in writing. Their opinion, together with the submissions of the advocate-general, are communicated to the reporting judge a few days before the hearing (see the “Pourvoi en cassation” article cited above).
79. Hearings of the Criminal Division are held in public and the procedure is the same as that in the other courts (Article 601 of the Code of Criminal Procedure).
The procedure before the Court of Cassation is nevertheless in written form; the parties’ lawyers are not required to appear at hearings. In the Criminal Division there is an oral hearing only in the (rare) cases where the parties’ lawyers have expressly requested one.
At the hearing the reporting judge is the first to address the court. He reads out his report but does not disclose his recommendations. If there are to be oral submissions, counsel for the appellant addresses the court first followed by counsel for the respondent; they may not submit any new legal argument. The advocate-general is the last to address the court; he makes submissions that are confined to legal issues and may concern the consideration of a ground of appeal raised by the court of its own motion (Article 602 of the Code of Criminal Procedure; and see the “Pourvoi en cassation” article cited above). It would appear that where oral submissions are made it is customary to allow the parties to reply to the advocate-general’s submissions, either orally or by a note addressed to the court in deliberations (see the speeches of Mr Jéol and Mr Burgelin referred to above).
80. After the public hearing, the members of the court deliberate in private. The reporting judge gives his opinion; the other judges and the president then express their views. Following a vote on whether the recommendations of the report should be adopted, the draft judgment, which each judge will have received eight days beforehand, is then considered (Article 603 of the Code of Criminal Procedure; and see also the “Pourvoi en cassation” article cited above).
The advocate-general generally attends the deliberations. In that connection, Mr Burgelin explained in his speech of 10 January 1997 (cited above): “... practice on this point is settled. If it is an important case that has (exceptionally) been pleaded by counsel, the advocate-general leaves the courtroom at the same time as the parties and the public in order clearly to demonstrate that the judges deliberate alone. In ordinary cases, the advocate-general usually remains in his seat but does not take part in the debate. His presence results from purely practical considerations relating to the number of cases, which is often substantial, to be heard at each sitting. It has no special signification” (see also Mr Jéol’s speech referred to above).
81. The judgment in its adopted form is then finalised and delivered at a public hearing, in most cases immediately after the deliberations.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104704
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF VADIM KOVALEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3;Violation of Art. 5-3
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1975 and lives in Rostov-on-Don.
6. On 12 February 2004 criminal proceedings were instituted against the applicant, at the material time Deputy Head of the Transport Safety Department, and he was arrested on suspicion of bribe-taking. The arrest took place in the absence of the lawyer. A search was carried out at the flat where he was staying. The applicant was released on the same day.
7. The applicant challenged the lawfulness of the institution of the criminal proceedings against him and of his arrest. However, on 3 August 2004 and 8 February 2005 respectively the Rostov Regional Court in the final instance dismissed his claims.
8. The applicant further challenged the lawfulness of the search carried out at his flat. On 14 February 2004 the Leninskiy District Court of Rostov-on-Don held that the search had been carried out in compliance with the domestic law. The applicant alleged that he had not been informed of the above decision until 18 May 2004. Thus, he had been prevented from lodging an ordinary appeal against it. Later, the applicant tried to initiate a supervisory review of the decision of 14 February 2004. However, on 31 May 2004 the Rostov Regional Court found that there were no grounds for quashing the decision of 14 February 2004.
9. On 10 March 2004 the Leninskiy District Court of Rostov-on-Don remanded the applicant in custody. The decision read as follows:
“... From the material submitted by the prosecution, it follows that [the applicant] was charged with several particularly serious offences, and there are grounds to suspect him of having committed other similar crimes ... Besides, as it follows from the submitted material, during the search carried out at the applicant’s flat on 12 February 2004, [the applicant’s wife] went to the balcony and threw out [documents], suggesting that she was therefore trying to hide material evidence from the investigation ... This gives grounds to believe that, if not detained, [the applicant] may interfere with the proper administration of justice by destroying or hiding evidence, preventing the investigative authorities from uncovering other instances of his illegal activities, as well as putting pressure on those witnesses who had not yet been identified or questioned.
[The applicant] did not provide any medical documents certifying that his state of health prevented him from being held in detention ...”
10. The applicant’s detention interrupted the inpatient treatment he had meanwhile been undergoing for an aggravated chronic kidney condition (acute pyelonephritis).
11. On 22 March 2004, on appeal, the Rostov Regional Court upheld the detention order of 10 March 2004, finding that it had been lawful and justified.
12. On 7 May 2004 the Leninskiy District Court, citing the gravity of the charges against the applicant, extended his detention until 12 June 2004. On 19 May 2004, on appeal, the Rostov Regional Court upheld the above decision.
13. On 9 June 2004 the Leninskiy District Court extended the applicant’s detention until 12 August 2004. The court held as follows:
“... [The applicant] is charged with several particularly grave crimes committed by an organised group; until now, the investigating authorities have not identified all those involved in the criminal activities in respect of which [the applicant] has been charged; [the applicant] knows the persons in question. In view of the above, the court considers that, if not detained, the applicant might threaten witnesses and destroy the evidence, thereby obstructing justice ...”
14. The applicant appealed, claiming that the above decision was groundless. In particular, the applicant did not know any of the witnesses, all the relevant documents were seized by the investigating authorities, the applicant was suspended from work, his access to documents was restricted and the key to his office was confiscated. Furthermore, the applicant stated that he had no criminal record, that he had a permanent place of residence and a family, that, prior to his detention, he had been undergoing medical treatment for pyelonephritis but that the treatment had been interrupted and thus the condition had been aggravated and that others involved in the case had been given more lenient preventive measures.
15. On 30 June 2004, on appeal, the Rostov Regional Court upheld the lawfulness of the decision of 9 June 2004 without considering the arguments put forward by the applicant.
16. On 10 August, 8 September and 9 November 2004 the Leninskiy District Court extended the applicant’s detention until 12 September, 12 November and 12 December 2004 respectively. The court again referred to the gravity of the charges against the applicant and the risk that he might put pressure on witnesses or otherwise obstruct justice.
17. On 25 August, 20 September and 19 November 2004 respectively, the Rostov Regional Court upheld the above decisions on appeal.
18. On 10 December 2004 the pre-trial investigation was completed and the criminal case against the applicant and four other co-defendants was referred for trial to the Rostov Regional Court. The applicant remained in detention.
19. On 21 December 2004 the Rostov Regional Court scheduled a preliminary hearing for 29 December 2004. The issue of the applicant’s detention was left unexamined.
20. On 29 December 2004 the Rostov Regional Court adjourned the preliminary hearing until 12 January 2005. The issue of the applicant’s detention was again left unexamined.
21. On 12 January 2005 the Rostov Regional Court held the preliminary hearing, and on 13 January 2005 the court ordered that the preventive measure applied to the applicant should remain unchanged.
22. On 1 March 2005 the applicant made an application for release, which on 2 March 2005 was dismissed by the Rostov Regional Court with reference to the absence of sufficient grounds for altering the preventive measure.
23. On 7 June 2005 the Rostov Regional Court maintained the applicant’s custodial measure and extended it until 11 September 2005. The court reasoned its decision by the fact that the criminal case against the applicant was being examined at the final stage of the judicial investigation, that the applicant was charged with several particularly serious offences and that, if released, he might abscond or otherwise obstruct the administration of justice.
24. On 11 August 2005, on appeal, the Supreme Court of Russia upheld the lawfulness of the above extension order.
25. Prior to the applicant’s trial, some details of the applicant’s criminal case were disclosed by the local media.
26. On 8 September 2005 the Rostov Regional Court convicted the applicant of abuse of office, bribe-taking and forgery and sentenced him to eight years’ imprisonment.
27. On 22 December 2005 the Supreme Court of Russia modified the qualification of the crimes committed by the applicant and reduced the sentence to four years’ imprisonment.
28. From 15 March 2004 to 21 April 2006 the applicant had been held in remand prison IZ-61/1 of Rostov-on-Don (Следственный Изолятор ИЗ-61/1 Главного управления Федеральной службы исполнения наказаний по Ростовской области). Throughout this period the applicant had been held in cells nos. 50, 55, 116, 120, 121, 122, 126, 179 and household service units (жилые секции отряда хозяйственного обслуживания) nos. 156 and 159.
29. As regards the cells’ measurements and the number of inmates detained therein together with the applicant, the Government submitted as follows.
(a) cell no. 50 measuring 15.2 square metres accommodated up to 4 detainees;
(b) cell no. 55 measuring 16.1 square metres accommodated up to 4 detainees;
(c) cell no. 116 measuring 56.2 square metres accommodated up to 14 detainees;
(d) cell no. 120 measuring 15.9 square metres accommodated up to 4 detainees;
(e) cell no. 121 measuring 16 square metres accommodated up to 4 detainees;
(f) cell no. 122 measuring 15.9 square metres accommodated up to 4 detainees;
(g) cell no. 126 measuring 44.5 square metres accommodated up to 12 detainees;
(h) cell no. 179 measuring 32.8 square metres accommodated up to 8 detainees;
(i) household unit no. 156 measuring 44.2 square metres accommodated up to 18 detainees; and
(j) household unit no. 159 measuring 31.3 square metres accommodated up to 10 detainees.
30. In each cell the applicant had an individual bed and had been provided with bedding (a mattress, a pillow, a blanket, two bed sheets, a pillowcase and a towel) and tableware (a spoon, a mug and a plate).
31. Each cell had windows measuring at least 1.2 by 0.9 meters. The windows had been barred from both the inside and the outside. The access of fresh air and day light had not been restricted. The level of natural lighting had corresponded to the established sanitary norms and allowed the inmates to read and write.
32. The cells had been illuminated with 100 watt filament lamps, which had been on from 6 a.m. to 10 p.m. on weekdays and from 7 a.m. to 11 p.m. on weekends and holidays. At night-time the cells had been lit by 75 watt security lights with tinted glass shades. Security lights had not disturbed the inmates’ sleep.
33. All cells had been equipped with extractor fans and a heating system, both functioning properly at the relevant time. The average winter temperature in the cells did not go below +18 degrees Celsius, and the average summer temperature did not go above +23 degrees Celsius.
34. The applicant had received food of adequate quality in accordance with the established legal norms.
35. The applicant had not applied for medical assistance during his stay in the remand prison.
36. In support of their submissions the Government provided several certificates issued by the director of IZ-61/1 on 21 June 2010, the results of a laboratory examination of the microclimate of the cells (illumination, temperature, relative air humidity and air circulation) in 2004-2006 and statements by wardens (although not dated). The Government further annexed to their submissions copies of documents certifying that registration logs of the detention facility had been destroyed due to the expiry of the time-limit for their storage.
37. As regards the cells’ measurements and the number of inmates detained therein the applicant submitted as follows:
(a) cell no. 50 where the applicant had been held from January to mid-July 2005 measured approximately 7 square metres and housed from 6 to 9 detainees;
(b) cell no. 55 where the applicant had been held from August 2004 to January 2005 measured approximately 7 square metres and housed from 6 to 8 detainees;
(c) cell no. 116 where the applicant had been held from mid-July to the beginning of September 2005 and from mid-September to mid-December 2005 measured approximately 30 square metres and housed up to 24 detainees;
(d) cell no. 120 where the applicant had been held during two days in January 2005 measured approximately 7 square metres and housed from 6 to 8 detainees;
(e) no specifics were provided for the cell no. 121 where the applicant had been held during one day in January 2005;
(f) cell no. 122 where the applicant had been held during a week in the beginning of September 2005 and from mid-December 2005 to mid-February 2006 measured approximately 7 square metres and accommodated 6 detainees;
(g) cell no. 126 where the applicant had been held from April to August 2004 measured approximately 30 square metres and accommodated over 26 detainees;
(h) cell no. 179 where the applicant had been held from March to April 2004 measured approximately 22.5 square metres and accommodated up to 16 detainees;
(i) no specifics were provided for household units nos. 156 and 159.
38. The appalling sanitary condition of the cells had been aggravated by the arrangement of the lavatory, elevated by 0.7 meters above the floor level and separated on one side by a 1-meter-high brick or steel partition. As a result a person using the toilet was in plain view of his cellmates.
39. The 1-hour outside walks had not been available on the days when the applicant had been taken to participate in investigative actions or court hearings. Likewise, on such days the applicant had been deprived of shower, normally available once a week. In the period from January to September 2005 when the applicant had been participating in the hearing of his case, he had waited up to three-four weeks to take a shower.
40. Besides two superficial medical checkups no other medical assistance had been provided to the applicant.
41. For a summary of the relevant domestic law and Council of Europe documents see Veliyev v. Russia, no. 24202/05, §§ 100-115, 24 June 2010.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-22646
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: FEDERACION NACIONALISTA CANARIA v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Federación Nacionalista Canaria, is a federation of political parties which was founded on 14 August 1998 and is based in Arrecife (Lanzarote). It was represented before the Court by Mr F. Fernández Camero and Ms J.M. Fernández de las Heras, lawyers practising in Lanzarote.
On 18 June 1999 general elections to the legislative assembly of the Autonomous Community of the Canary Islands took place. The applicant federation submitted various observations on the results issued by certain polling stations in the constituency of the island of Lanzarote.
On 19 June 1999 the applicant federation lodged a complaint on the matter with the Canary Islands Electoral Council, which dismissed the complaint in a decision of 20 June 1999.
On 21 June 1999 the applicant federation lodged an ordinary appeal against that decision with the Central Electoral Council, which dismissed the appeal in a decision of 23 June 1999.
On 28 June 1999 the Canary Islands Electoral Council announced the names of the candidates who had been elected to the eight seats representing Lanzarote in the regional legislative assembly. The applicant federation, which had obtained 28.13% of the valid votes cast in the Lanzarote constituency, was not awarded any seats in the regional assembly. Nor was it awarded any seats in respect of the other constituencies of the Autonomous Community of the Canary Islands, although it had obtained 4.81% of the valid votes cast in the Autonomous Community as a whole.
The applicant federation applied to the Canary Islands High Court of Justice for judicial review of the election results, alleging that there had been irregularities and claiming approximately 100 additional votes, which it maintained had not been counted. In a judgment of 22 September 1999 the court dismissed the application. It stated, firstly, that it had no jurisdiction to rule on the applicant federation’s objections concerning the thresholds for parliamentary representation (barreras electorales) laid down in the Canary Islands’ Statute of Autonomy. Next, it examined the applicant federation’s allegations of irregularities in the vote count and upheld the decisions which the electoral councils had taken to the federation’s detriment. Thirdly, it added that the other alleged irregularities, which had not been sufficiently established, did not form a basis on which the elections could be declared void or the list of elected candidates amended in accordance with the applicant federation’s wishes.
The applicant federation lodged an appeal with the Constitutional Court (recurso de amparo) on the basis of Article 23 § 2 of the Constitution. In a decision of 8 October 1999 the Constitutional Court dismissed the amparo appeal. It held:
“The application of statutory thresholds or exclusion clauses has been endorsed by this court’s case-law as a means of refining the principle of proportionality, a ‘guiding imperative’ that shapes, but does not predetermine, the decision-making freedom of a democratic legislature, with a view to avoiding the excessive and dysfunctional fragmentation of Parliament, thereby facilitating governance and the work of the parliamentary bodies ... representing the various political forces...
Consequently, the imposition of an electoral threshold or barrier – that is to say, a requirement that a fixed percentage of the vote must be obtained for candidates to be eligible to take part in the distribution of seats in accordance with established models – cannot be said to infringe the rights enshrined in Article 23 of the Constitution (the right to participate in public affairs and the right of access to public posts on equal terms).
Furthermore, the prior allocation, regardless of population size, of a set number of seats to each constituency of an electoral region, is not unconstitutional... Quite apart from the ‘guiding imperative’ referred to above, other constitutionally valid concerns, such as the need to ensure, for geographical or, indeed, demographic reasons, that all the territorial areas making up the electoral region are adequately represented, serve in themselves as justification for the electoral system in question. The system established by the Statute of Autonomy, whereby the number of residents per seat must lie within specified limits in each of the constituencies, is in no way manifestly disproportionate or arbitrary.
The appeal is therefore inadmissible and the reasons given for the application of electoral legislation in the judgment appealed against are sufficient from a constitutional standpoint.”
“1. Parliament (Cortes Generales) shall represent the Spanish people and shall be composed of the Congress of Deputies and the Senate.
2. Parliament shall exercise the legislative power of the State...”
“By virtue of the ... Constitution, each Autonomous Community shall have as its basic institutional law a Statute, which the State shall recognise and protect as an integral part of its legal system.”
“1. The Autonomous Communities may exercise powers in the following areas:
(i) organisation of their institutions of self-government;
...”
“Responsibilities not expressly conferred on the State by the Constitution may fall to the Autonomous Communities, in accordance with their Statutes. ...”
“1. In matters within the State’s field of competence, Parliament may endow all or some of the Autonomous Communities with powers to enact legislative provisions for themselves in accordance with the principles, bases and guidelines set out in national legislation. ...
2. The State may, by means of an institutional Act, transfer or delegate to the Autonomous Communities powers within its own sphere of competence that are, by their very nature, capable of being transferred or delegated. ...”
“In the Statutes approved by means of the procedure laid down in the foregoing Article, the institutional organisation of the Autonomous Community shall be based on: a legislative assembly elected by universal suffrage according to a system of proportional representation that also ensures that the various geographical areas of the Community are represented; a Governing Council with executive and administrative functions; and a President, who shall be elected by the assembly from among its members and appointed by the King, and who shall preside over the Governing Council and act as the supreme representative of the Autonomous Community and the ordinary representative of the State within the Community. ...”
“1. Parliament, the representative body of the people of the Canary Islands, shall be composed of regional deputies (autonómicos) elected by direct universal suffrage in an equal, free and secret ballot.
2. The electoral system shall be one of proportional representation.
3. The number of deputies shall be neither lower than 50 nor higher than 70.
4. The islands of Hierro, Fuerteventura, Gran Canaria, Gomera, Lanzarote, La Palma and Tenerife shall each form an electoral constituency.”
“...
2. ... in accordance with Article 9 of this Statute, and save where a law passed by a two-thirds majority of the members of the Canary Islands’ legislative assembly provides otherwise, the only lists to be taken into account shall be those of the parties or coalitions that have obtained the greatest number of valid votes in each of the constituencies and the other [lists] that have obtained at least 30% of the valid votes cast in a single constituency or, adding together the votes for each constituency, at least 6% of the valid votes cast in the Autonomous Community as a whole.”


ITEMID: 001-57438
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1988
DOCNAME: CASE OF BERREHAB v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;No violation of Art. 3;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: C. Russo
TEXT: 7. Mr. Berrehab, a Moroccan citizen born in Morocco in 1952, was permanently resident in Amsterdam at the time when he applied to the Commission.
His daughter Rebecca, who was born in Amsterdam on 22 August 1979, has Netherlands nationality. She is represented by her guardian, viz. her mother, Mrs. Koster, who is likewise a Netherlands national.
8. After marrying Mrs. Koster on 7 October 1977, Mr. Berrehab sought permission to stay in the Netherlands where he had been for some time already. The Ministry of Justice granted him permission on 25 January 1978 "for the sole purpose of enabling him to live with his Dutch wife", and then renewed it until 8 December 1979.
From November 1977 Mr. Berrehab worked for a self-service shop. On 9 March 1978, a work permit was issued to him under the Aliens (Work Permits) Act 1964 (replaced since 1 November 1979 by the Employment of Aliens Act). This permit was renewed on 18 October 1979. From April 1981 to April 1983 Mr. Berrehab was employed by a cleaning firm.
9. On 8 February 1979, his wife sued for divorce. The Amsterdam Regional Court (Arrondissementsrechtbank) granted the divorce on 9 May 1979 on the ground of the irretrievable breakdown of the marriage, which was dissolved by registration of the decision in the Civil Registry of Amsterdam on 15 August 1979. By an order of 26 November 1979, the Amsterdam Regional Court appointed Mrs. Koster guardian of her daughter, Rebecca, who had been born in the meantime, and appointed the girl’s father as an auxiliary guardian (toeziende voogd). On 5 February 1980, it ordered the latter to pay the Child Welfare Council 140 guilders a month as a contribution to the cost of maintaining and educating his daughter.
When Rebecca was born, her father and Mrs. Koster agreed to ensure that the child had frequent, regular contacts with her father. On 27 February 1984, they had a notary legalise an agreement between them as to arrangements for these contacts and certify that over the previous two years Mr. Berrehab had seen his daughter four times a week for several hours each time.
10. On 7 December 1979, Mr. Berrehab made an application for renewal of his residence permit. The head of the Amsterdam police refused the application on the same day, stating that it would be contrary to the public interest to renew the permit, regard being had to the fact that Mr. Berrehab had been allowed to remain in the Netherlands for the sole purpose of living with his Dutch wife, which condition was no longer fulfilled on account of the divorce.
By letter of 26 December 1979, Mr. Berrehab asked the Minister of Justice to review this decision. He pointed out among other things that he needed an "independent" residence permit in order to fulfil his moral and legal obligations as a father. He said he had sufficient means of subsistence and that he was in a position to bear part of the costs of Rebecca’s upbringing and education.
11. The Minister did not reply within the statutory period of three months, which under Netherlands law constituted an implied rejection of the request.
Mr. Berrehab consequently appealed, on 23 April 1980, to the Litigation Division (Afdeling Rechtspraak) of the Raad van State. He stated that he could not see how the grant to him of a residence permit could be prejudicial to the national interest, particularly since he was under various legal obligations as a father and he had been able to support himself since 1977 by working. At the hearing on 14 March 1983, he claimed that the impugned decision infringed Article 8 § 1 (art. 8-1) of the Convention on the ground that it prevented him from remaining in contact with his daughter whom he saw regularly four times a week.
The Raad van State dismissed his appeal on 9 May 1983. It recalled in the first place that, under section 11(5) of the Aliens Act of 13 January 1965 (Vreemdelingenwet - "the 1965 Act"), renewal of a residence permit could be refused in the public interest. As the Minister of State for Justice had pointed out, Mr. Berrehab no longer satisfied the condition upon which the grant of his residence permit depended; consequently, the refusal appealed against could be justified under section 11(5). As for Mr. Berrehab’s obligations to his daughter, the Raad van State held that the fulfilment thereof did not serve any vital national interest and that those obligations subsisted independently of his place of residence. It added that four meetings a week were not sufficient to constitute family life within the meaning of Article 8 (art. 8) of the Convention and that the impugned decision would, moreover, not necessarily entail a break in relations between the child and her father, as the latter could remain in contact with his daughter by agreement with his ex-wife.
12. On 30 March 1983, Mr. Berrehab was dismissed by his employer with effect from 15 April. He was, furthermore, arrested on 28 December 1983 for the purpose of his deportation. He made an urgent application (kort geding) to the presiding judge of the Amsterdam Regional Court, but withdrew it shortly after the execution of the impugned deportation order on 5 January 1984; on 18 January, the presiding judge accordingly held that there was no ground on which to give a decision.
In 1984, Rebecca and her mother spent two months with Mr. Berrehab and his family in Morocco. On 28 August 1984, Mr. Berrehab applied to the Netherlands Embassy in Rabat for a three-month residence permit. After an initial refusal he obtained a visa valid for one month, for the purpose of enabling him to exercise his rights of access. Accordingly, he went to the Netherlands on 27 May 1985 where he requested an extension of his visa until the following 27 August. His request having been turned down on 6 June, he lodged an appeal with the Raad van State, accompanied by an urgent application. Hearing the latter application, the President of the Litigation Division decided, on 20 June, that the applicant should be treated - subject to a condition which is not relevant to this judgment - as if he had been granted a visa valid until 27 August.
13. On 14 August 1985, Mr. Berrehab remarried Mrs. Koster in Amsterdam. On 9 December 1985, the Ministry of Justice granted him permission (which he had sought on 29 August) to reside in the Netherlands "for the purpose of living with his Dutch wife and working during that time".
14. The Netherlands authorities pursue a restrictive immigration policy. The authorities, however, permit exceptions prompted, inter alia, by the wish to honour the obligations flowing from the Convention, by the country’s economic well-being and by humanitarian considerations, including the reuniting of families.
The entry requirements and the grounds on which aliens may be expelled are laid down primarily in the 1965 Act and its implementing regulations. In addition to these legal provisions, there is the "Circular on Aliens" (Vreemdelingencirculaire), which is a body of directives drawn up and published by the Ministry of Justice.
The right to stay is therefore governed in principle by sections 8-11 of the Act. A prolonged stay requires the authorisation of the Minister of Justice or a body acting under his control. A refusal to grant an authorisation must be accompanied by a statement of the reasons on which it is based. An appeal lies to the Minister of Justice and then, if need be, to the Raad van State. An application is usually granted - normally for one year - only if the individual’s presence serves an essential national interest or if there are compelling humanitarian grounds.
Foreigners married to a Netherlands national fall into the latter category; they may obtain a residence permit "in order to live with their spouse" in the Netherlands and, if appropriate, "in order to work there during that time".
15. This policy, however, has changed over the years. Foreigners coming to live with their husbands or their wives were initially granted resident status and a conditional residence permit. That status was forfeited if the marriage in respect of which it was granted was dissolved, in which case the foreigner had to leave the country.
In order to enhance the position of foreigners lawfully established in the Netherlands, the Minister of State for Justice felt it necessary to soften the line followed in this respect. Under the terms of the "Vreemdelingencirculaire" (Chapter B 19, paragraph 4.3), foreigners who had been married for more than three years and had lived with their spouses in the Netherlands for at least three years prior to the dissolution of their marriage were enabled to apply for an "independent" residence permit; the underlying idea was that after that length of time they would have forged sufficient links with the country for it to be unnecessary to make their status subject to conditions.
It was subsequently thought advisable to make further changes in the regulations in favour of this category of foreigner. The requirement of three years’ marriage was retained but the requisite period of residence was reduced to one year. The purpose of this relaxation was to improve the often precarious position of divorced women, particularly those of Mediterranean origin; it was felt that they ought to be permitted to stay in the Netherlands with a status independent of that of their former husbands.
This policy was later refined still further, when it was decided that even where the aforementioned conditions were not met, overriding humanitarian considerations might justify the grant to a foreigner of authorisation to remain on Netherlands territory on an independent residence permit, for example if he had close links with the Netherlands or with a person resident there. According to the Government, this was an exceptional measure that was rarely applied.
16. As far as the Netherlands case-law on aliens is concerned, a distinction must be drawn between the courts hearing urgent applications - the civil courts up to and including the Court of Cassation at last instance - and the court conducting a full examination of the merits of the case, namely the Litigation Division of the Raad van State.
While the Court of Cassation in its decisions in other fields, such as the right of access, had already favoured a fairly broad conception of "family life" (see in particular the leading case decided on 22 February 1985, in Nederlandse Jurisprudentie, 1986, no. 3), the Litigation Division of the Raad van State had tended to take a narrower view. Its decision in the instant case is fully in line with that tradition. Several of its most recent decisions, however, suggest that it is going to adopt the principle laid down in a Court of Cassation judgment of 12 December 1986 concerning aliens, from which it emerges that cohabitation is not a sine qua non of "family life" for the purposes of Article 8 (art. 8) of the Convention (Nederlandse Jurisprudentie, 1988, no. 188).
The Court of Cassation recently had before it a case similar to the present one. A court of appeal, hearing an urgent application, had held that where a foreigner threatened with expulsion pleads the right to respect for his own and his child’s family life, the onus is on him to show that the minor’s interest is sufficiently important to outweigh the State’s interest. On appeal, the Court of Cassation quashed the decision on 18 December 1987 (Rechtspraak van de Week, 1988, no. 9). It fell to be decided whether "family life" existed between the alien and his child, and the Court of Cassation began by emphasising that the child was a legitimate one. It went on:
"For the duration of the marriage, there existed between Garti and his son a relationship that amounted to family life within the meaning of Article 8 (art. 8) of the ... Convention .... Neither the cessation of cohabitation nor the divorce ended that relationship. It must also be noted that, as Garti claimed and as the Court of Appeal apparently regarded as having been established, Garti and his son remained in close touch after the cessation of cohabitation."
The decision was quashed on the ground, inter alia, that the appeal court had lost sight of the fact that:
"if, in such a case, the expulsion of a foreigner must be regarded as an interference with his right to respect for family life within the meaning of Article 8 (art. 8) ..., the sole means of determining whether that interference is justified or may be justified is to weigh, in the light of the facts of the case and the policy directives (beleidsregels) in force, the seriousness of the interference with the right of the foreigner concerned and his minor child to respect for their family life against the interests served by those policy directives, and in so doing one may, in order to assess the seriousness of the interference, have regard notably to the length of time during which those concerned have lived together, to the nature and degree of intensity of the contacts maintained after cohabitation came to an end and to whether it is the parent or the child who is threatened with expulsion".
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-93333
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF WOZNIAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1968 and lives in Gdańsk.
6. On 20 July 2001 the applicant was remanded in custody by the Gdańsk Regional Court on suspicion of murder. The court held that there had been a risk that the applicant might obstruct the proceedings or abscond, given the severity of the penalty he faced.
7. Later, several other persons were detained and charged in connection with the same investigation conducted by the Gdańsk District Prosecutor’s Office. The charges against the applicant were also extended.
8. The applicant’s detention was subsequently prolonged on the following dates: 11 October 2001, 10 January, 18 April, 17 September 2002, 28 January, 2 July, 1 October, 30 December 2003, 3 February, 21 April, 7 December 2004, 24 February, 9 June 2005, 29 May and 21 September 2006. The courts relied mainly on the reasonable suspicion that the applicant had committed the offences in question and on he might obstruct the proceedings. Regard was also had to the number of suspects and the need to obtain further evidence.
9. During the investigation and the trial the applicant filed several unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention.
10. From 20 March 2002 until 9 May 2002 and from 17 February 2003 until 18 March 2003 the applicant served prison sentences imposed in other sets of criminal proceedings against him.
11. On 14 June 2004 the Gdańsk Regional Court delivered a judgment in the case. The applicant appealed.
12. On 24 February 2005 the Gdańsk Court of Appeal partly quashed the first-instance judgment in respect of the applicant, sentenced him to 6-years’ imprisonment in respect of some of the charges, and remitted the remainder of the case for retrial.
13. Between 2005 and 2007 the Gdańsk Regional Court held fourteen hearings in the case.
14. The applicant was released on 14 May 2007. The Gdańsk Regional Court found that the necessary pieces of evidence had been obtained and the case was at its final stage, so there was no need to prolong the applicant’s detention.
15. The proceedings are pending.
16. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
VIOLATED_ARTICLES: 5


ITEMID: 001-101678
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF STOYANOVI v. BULGARIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 2 (procedural aspect)
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicants were born in 1946 and 1938 respectively and live in Kazichene.
6. On 27 May 1998 their son, Mr Rosen Stoyanov, born in 1967, a parachute instructor in the Bulgarian Army, died when performing a parachute jump from a Mi-17 helicopter during a training exercise of the Ministry of the Interior's Special Anti-Terrorism Squad.
7. Six paratroopers were scheduled to jump on that day. Before getting into the helicopter they were examined by a doctor who confirmed that they were physically fit. The helicopter took off at 1 p.m. and several minutes later reached a height of about 1,100 metres. Immediately before the start of the parachute jumps Chief Sergeant T., in charge of the jumps, instructed the helicopter's pilots to speed up. The pilots responded “You have it”. It is unclear what the exact speed thus reached was, because, as it was established later, the helicopter's device recording the parameters of the flight had not been loaded with a tape.
8. One of the paratroopers, Mr G., jumped first. Immediately after the jump, his body was thrust back by the air stream and his head passed about 20 centimetres from the left rear tyre of the helicopter.
9. The applicants' son jumped four seconds later. Immediately after the jump, his head hit the left rear tyre of the helicopter and he became unconscious. His body fell freely and hit the ground.
10. Four seconds later the next paratrooper, Mr V., jumped. His head also hit the left rear tyre of the helicopter and he became unconscious. Sixty to seventy metres from the ground he regained consciousness and attempted unsuccessfully to open his parachute. His body also hit the ground.
11. After the accidents with the applicants' son and Mr V. the parachute jumps stopped and the helicopter landed. The two bodies were located soon afterwards.
12. On 27 May 1998 the Ministers of the Interior and Defence appointed a ten-member commission to investigate the reasons that had led to the fatal accident. The commission, which included paratroopers, doctors and other experts, conducted inspections, interviewed witnesses and examined documents. On 6 June 1998 it presented an interim report proposing, with a view to establishing properly the circumstances of the accident, that an experiment with a dummy being thrown from a helicopter at different speeds be carried out and that the helicopter's manufacturer be asked for additional technical information. However, it appears that none of these actions was taken.
13. On 24 June 1998 the commission submitted its final report. It established that after Chief Sergeant T. had instructed the crew to speed up (see paragraph 7 above), the helicopter had increased its speed from about 150 to about 200 km/h. This estimation was based on ground control data.
14. Furthermore, the commission established that the helicopter, which was built in 1986, had been in a good state of technical repair, and that its equipment had been functioning well during the fatal flight. The three members of the crew were experienced and qualified. The commission established that up to 27 May 1998 Mr Rosen Stoyanov had performed 450 parachute jumps, 112 of which were from a Mi-17 helicopter. Mr V. had performed 178 jumps, 120 of which were from a Mi-17 helicopter.
15. The commission concluded that the accident had been caused by
“the inappropriate speed of the helicopter and the position of the paratroopers' bodies at the time of jumping, not in conformity with that speed”.
Additionally, the accident had been due to:
“1) incomplete coordination between the helicopter's crew and the paratroopers; 2) shortcomings in the preparation and conduct of the flight on the part of the helicopter's crew; and 3) shortcomings in the organisation and the conducting of the parachute jumps on the part of the Ministry of the Interior's Special Anti-Terrorism Squad.”
16. The commission criticised the failure of the officials responsible for the organisation of the flight to load the helicopter's recording device with a tape (see paragraph 7 above), which was against the rules.
17. Furthermore, the commission criticised Chief Sergeant T.'s failure to communicate to the crew the exact speed he needed when he requested them to speed up. Neither had the speed at which the jumps were to be performed been indicated by the officer in charge of the training (he had remained on the ground) before the helicopter took off.
18. The commission recommended various measures for the prevention of similar accidents in the future, mostly concerning the training of paratroopers and flight preparation. It is unclear whether any of them were put into practice.
19. On 30 June 1998 the commission's report was affirmed by the Minister of Defence, but not by the Minister of the Interior. Subsequently, the document was extended to the prosecuting authorities who investigated the deaths of Mr Stoyanov and Mr V. (see below).
20. On 27 May 1998 the Sofia military regional prosecutor's office opened a preliminary investigation into the accident.
21. A post-mortem examination of the bodies of the applicants' son and Mr V. was carried out on 28 May 1998. It concluded that the death had been caused by “numerous traumas incompatible with the maintenance of life”. There were no traces of alcohol or poison in the blood.
22. Nor were any traces of alcohol or poison found in the crew members' blood.
23. Colonel O., the flight captain, was questioned on 28 May 1998. He stated that the helicopter had been checked and found to be in good technical repair just before the flight. Furthermore, he stated that after Chief Sergeant T. had asked the pilots to speed up he had increased speed from 130 to 150 km/h. After the first three paratroopers had jumped, he had been told to land as two of the paratroopers' parachutes had not opened.
24. Senior Sergeant A., the flight engineer, was questioned on 1 June 1998. He also testified that the helicopter's speed at the time when the parachute jumps had started had been 150 km/h. The speed and the height had not changed during the jumps. When jumping from the helicopter, Mr G. had plunged energetically and Mr Rosen Stoyanov and Mr V. had not, which, in Senior Sergeant A.'s view, had been the reason for the fatal accident.
25. On 29 May 1998 Mr G., who had jumped before Mr Stoyanov, testified that immediately after jumping he had felt an unexpectedly strong air stream.
26. Chief Sergeant P., who had been on board the helicopter, was questioned on 29 May 1998. He explained that he had seen Mr G.'s head pass about 20 centimetres from the helicopter's left rear tyre and then Mr Rosen Stoyanov and Mr V. hit the tyre. Because of the force of the blow, Mr Stoyanov's body had turned several times in the air.
27. Lieutenant D., who had also been in the helicopter, testified that he, too, had seen Mr Rosen Stoyanov's head hit the tyre. Captain C., who had also been on board, described the position of Mr G.'s body immediately after he had jumped as “totally abnormal”.
28. Chief Sergeant T., who had been in charge of the jumps and had been scheduled to jump after Mr V., was questioned on 29 May 1998. He explained that he had not seen Mr Rosen Stoyanov and Mr V. hit the tyre but had become aware of the abnormal position of Mr V.'s body and had not jumped. He had not noticed any change in the speed, height or direction of the helicopter during the parachute jumps.
29. During the first several weeks after 27 May 1998 the investigator in charge of the case examined other witnesses, conducted inspections and collected documentary evidence.
30. On 28 May 1998 he appointed the members of the internal inquiry commission of the Ministries of the Interior and Defence (see paragraphs 12-19 above) as experts in the criminal proceedings, with the task of determining the cause of the two paratroopers' deaths. Since the experts failed to submit a report within the months that followed, on 25 November 1998 a prosecutor from the Sofia military regional prosecutor's office stayed the proceedings.
31. On several occasions in 1999 and early 2000 the Sofia military regional prosecutor's office sent letters to the Ministries of the Interior and Defence requesting that their officials appointed as experts prepare and submit a report for the purposes of the criminal proceedings.
32. On 18 April 2000 the criminal proceedings were resumed and the prosecutor in charge of the case appointed a new group of experts from the National Military University in Dolna Mitropoliya, with the task of assessing the reasons for the deaths of the applicants' son and Mr V.
33. On 25 April 2000 the experts submitted their conclusions, specifying that the information they had been given was insufficient, there being no data on the exact parameters of the flight, and also that they were not experts in parachuting; therefore, they were not able to draw up a formal expert report.
34. The experts considered that the helicopter's speed at the time of Mr Rosen Stoyanov's and Mr V.'s jumps had been between 150 and 170 km/h. However, in their view, the speed was not related to the fatal accident, which had instead been caused by the two paratroopers' jumping technique; this had not been in compliance with the respective instructions for performing parachute jumps.
35. In July and October 2000 the Sofia military regional prosecutor's office sent new letters to the Ministries of the Interior and Defence requesting again that the experts appointed on 28 May 1998 (see paragraph 30 above) draw up a formal report.
36. On 17 November 2000 the Ministry of Defence experts submitted their report. The group included four paratroopers and a doctor. The Ministry of the Interior experts did not sign the document.
37. On the basis of ground control data, the Ministry of Defence experts established that the helicopter's speed at the time of Mr Rosen Stoyanov's and Mr V.'s jumps had been 210 km/h. The experts were of the opinion that Mr Stoyanov and Mr V. had not committed any errors when jumping from the helicopter, but pointed out that they did not possess the expertise to assess whether the helicopter's crew had committed any errors that might have led to the tragic accident. The experts noted that the two paratroopers' parachutes had been well packed and in good repair and that the weather conditions at the time had not affected the flight.
38. On 4 February 2002 a prosecutor from the Sofia military regional prosecutor's office discontinued the criminal proceedings. Relying on witness testimony and the conclusions of the National Military University experts (see paragraph 34 above), he found that the helicopter's speed and course of flight did not change significantly during the parachute jumps and were not related to the fatal accident. He accepted that sufficient data could not be collected to assess whether the helicopter's crew had committed any errors and that the applicants' son and Mr V. had not complied with the respective instructions on performing parachute jumps.
39. On an appeal by the applicants, on 6 August 2002 the Sofia Military Court quashed the prosecutor's decision. On 28 November 2002 the Military Court of Appeal affirmed the lower court's findings. It held that the prosecutor had breached the procedural rules and that the conclusions of the National Military University experts, on which his decision had been based, could not serve as valid evidence in the case.
40. After the case was remitted to the prosecution, some of the witnesses were re-examined. On an unspecified date Chief Sergeant T., who had been in charge of the parachute jumps, explained that when he had instructed the helicopter crew to speed up he had meant a speed of about 150 km/h, as was usual. He had become aware later, apparently from the conclusions of the internal inquiry, that the speed had been above 200 km/h. He considered that this, coupled with a possible minor side inclination of the helicopter, which would have shifted the position of the left rear tyre vis-à-vis the paratroopers' bodies, had been the reason for the accident with the applicants' son and Mr V.
41. On 13 May 2003 a prosecutor from the Sofia military regional prosecutor's office requested the Ministers of the Interior and Defence to nominate seven experts in aerodynamics, aviation, meteorology and parachuting to be appointed experts in the criminal proceedings and draw up a new expert report. He received no reply.
42. On 16 June 2003 the prosecutor appointed another group of experts – a physician from the Military Medical Academy and five lecturers from the Air Transport Department of the Technical University in Sofia – with the task of assessing the reasons for the two paratroopers' deaths on 27 May 1998.
43. The experts submitted their report on 25 July 2003. They considered it scientifically impossible for Mr Stoyanov and Mr V. to have hit the helicopter's left rear tyre; in their view those blows had been “made up”. The experts considered that the two paratroopers had wrongly estimated the distance to the ground and had failed to open their parachutes in time; this had led to their deaths. Furthermore, the paratroopers had failed to comply with the relevant instructions on the position of their bodies at the time of jumping. The speed and course of the helicopter had not been related to their death.
44. On 10 June 2004 a prosecutor from the Sofia military regional prosecutor's office once again discontinued the criminal proceedings. In his decision, he referred to the expert report of 25 July 2003 and its conclusion that the applicants' son and Mr V. had not in fact hit the left rear tyre of the helicopter (see paragraph 43 above). However, he also mentioned the witness testimony indicating that these impacts had happened (see paragraphs 26-27 above). He failed to examine the apparent controversy between those two groups of evidence and to indicate which version he found plausible. He merely concluded, after describing the evidence collected in the case, that there was no appearance of a crime.
45. Upon appeal by the first applicant, on 30 June 2004 the prosecutor's decision was upheld by the Sofia Military Court. Examining the evidence collected in the case, that court dismissed the conclusion of the expert report of 25 July 2003 (see paragraph 43 above) that Mr Stoyanov and Mr V. had not hit the helicopter's left rear tyre; it considered that in this regard the testimony of the other participants in the flight was reliable. Nevertheless, the domestic court accepted the experts' conclusion to the effect that Mr Stoyanov and Mr V. had not positioned themselves correctly when they jumped. It concluded that this had been the reason for their hitting the tyre and falling to the ground. Accordingly, it upheld the prosecution's conclusion that no offence had been committed in the case.
46. Soon after their son's death, the applicants sought the compensation provided for in section 249(2) of the Armed Forces Act 1995 (see paragraph 49 below). As they had not received that sum by 2003, they brought a claim. They sought the compensation provided for in section 249(2) of the Armed Forces Act, plus interest, as provided for in section 250 (ibid.).
47. While the proceedings were pending, the Bulgarian Army paid up the compensation due, which was in the amount of 8,316.48 Bulgarian levs (BGN), the equivalent of approximately 4,300 euros (EUR). Therefore, in a judgment of 6 July 2004 the Sofia District Court only awarded the applicants the interest accrued, in accordance with section 250 of the Armed Forces Act, which amounted to BGN 427.58, the equivalent of EUR 220. That judgment was not appealed against and entered into force.
48. In September 2003 the applicants also sought indemnification from the company with which their son had been insured by the Bulgarian Army. They claimed a sum of about BGN 3,000, the equivalent of EUR 1,540. However, that indemnification was refused as they had failed to claim it within the statutory three-year time-limit from the date of their son's death.
49. Section 249(2) of that Act, in force at the relevant time, provided that the Bulgarian Army would be liable to pay compensation in the amount of twelve months' salary, to each of the heirs (spouse, children or parents) of an army serviceman who had died during military service. By section 250 of the same Act, the Army was also liable to pay any interest accrued in the event of a delay of payment.
50. Where the heirs of an army serviceman who had died during military service sought a larger amount in damages, they could, by virtue of the provision of section 249(6) of the Armed Forces Act, bring an action before the civil courts.
51. Section 1(1) of the 1988 State Responsibility for Damage Caused to Citizens Act (on 12 July 2006 its name was changed to “State and Municipalities Responsibility for Damage Act”) provides that the State is liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants committed in the course of or in connection with the performance of their duties.
52. In addition, section 45(1) of the 1951 Contracts and Obligations Act provides that everyone is obliged to make good the damage which they have, through their fault, caused to another person. Section 49 of the Act provides that a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job.
NON_VIOLATED_ARTICLES: 2