ITEMID: 001-71349
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SKUBENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Zoryana Bortnovska
TEXT: 9. The applicant was born in 1953 and lives in Kyiv. He is a former employee of the Institute of Semiconductor Physics of the Academy of Sciences of Ukraine (the “ASU”).
10. Between 1991 and 1995 the applicant, who was already a tenant of studio No. 35/5 in a communal apartment, petitioned various Ukrainian authorities seeking the right to reside in studio No. 35/6, which had become vacant in January 1995. By a decree of 10 July 1995, the Leningradsky District Council of Kyiv (the “LDC”) granted Mrs V.M.K. (a private person) the right to use that studio.
11. On 30 August 1995 the applicant lodged complaints with the Leningradsky District Court of Kyiv (the “Leningradsky Court”), seeking Mrs V.M.K.’s eviction from the studio. He also requested the court to issue him with a certificate granting him the right to occupy it.
12. On 22 November 1996 the Leningradsky Court rejected the applicant’s claims as being unsubstantiated. On 5 February 1997 the Kyiv City Court quashed this judgment and remitted the case for fresh consideration.
13. In December 1997 the applicant lodged his complaints with the Leningradsky Court against the ASU and the LDC, seeking to quash the decree of 10 July 1995 and to be allocated studio No. 35/6. By a judgment of 4 December 1997, the court quashed the decree of 10 July 1995 and recognized the applicant’s right to use the studio. The court ordered the respondents to take all necessary measures for the applicant’s enjoyment of his residential premises and the enforcement of the judgment of 4 December 1997. The judgment became final on 14 December 1997.
14. In January 1998 the applicant lodged the writ of execution with the Leningradsky District Execution Service of Kyiv. As a result, the certificate of Mrs V.M.K. granting her the use of studio No. 35/6 was annulled.
15. On 6 February 1998 the applicant lodged the writ of execution with the Starokyivsky District Execution Service of Kyiv (the “Starokyivsky Execution Service”) to oblige the ASU, one of the owners of the apartment, to certify that he could use studio No. 35/6. The execution proceedings were instituted on 23 February 1998.
16. Between April 1998 and February 1999, the applicant lodged several complaints with the Leningradsky Court, the Starokyivsky District Court of Kyiv (the “Starokyivsky Court”), the Kyiv City Court, the General Prosecution Service and the Kyiv Department of the Ministry of Justice, complaining about the failure of the Execution Service to enforce the judgment of 4 December 1997.
17. On 1 September 1998 the Starokyivsky Execution Service initiated administrative proceedings against the Logistics Director of the ASU who had failed to execute the judgment given in the applicant’s favour.
18. On 10 September 1998 the Logistics Department of the ASU informed the applicant and the Starokyivsky Court that the applicant had received the keys and free access to studio No. 35/6 in May 1998.
19. On 23 September 1998 the Starokyivsky Court fined the Logistics Director of the ASU for failure to comply with the judgment of 4 December 1997.
20. The Director appealed against this decision as he did not have the power to issue a certificate for the use of the apartment, which power lay with the LDC. The Kyiv City Court allowed the Director’s appeal on 4 November 1998. On 29 December 1998 the Starokyivsky Court dismissed the petition of the Starokyivsky Execution Service of 1 September 1998 by which it had initiated administrative proceedings against the Logistics Director of the ASU.
21. On 5 August 1999 the applicant was dismissed from his position at the ASU for alleged failure to appear at work for a lengthy period of time.
22. On 6 August 1999 the ASU issued resolution No. 1041 granting the applicant the use of studios Nos. 35/5 and 35/6. They also petitioned the LDC to issue a certificate (ордер) for the applicant’s use of those studios.
23. On 28 September 1999 the LDC issued decree No. 1329 authorising the applicant to use apartments Nos. 5 and 6 situated at 14, Dobrokhotov Street in Kyiv.
24. On 12 October 1999 the Kyiv Department of Justice informed the applicant about the execution of the judgment of 4 December 1997.
25. On 20 October 1999 the LDC issued a certificate (ордер на квартиру) to the applicant recognising his right to use the aforementioned apartments.
26. On 29 October 1999 the applicant informed the Court that the certificate for the use of the appartment was invalid as it concerned apartments No. 5 and 6, but not studios Nos. 35/5 and 35/6, specified in the judgment of the Leningradsky Court.
27. In January 2001 the ownership title of appartment No. 35 belonging to the ASU was transferred to the LDC.
28. In July 2003 the applicant was informed by the Communal Residence Department of the LDC that he would be provided with a certificate for his residential premises.
29. On 7 August 2003 the LDC issued decree No. 1411 acknowledging the applicant’s right to use studio No. 35/6 and issued him with a certificate of use on 2 September 2003.
30. The relevant provisions of the domestic law and practice are cited in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004) and the admissibility decision in the present case (Skubenko v. Ukraine, no. 41152/98, 6 April 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58024
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF MAUER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 6-3-c;Not necessary to examine Art. 6-3-d;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: R. Pekkanen
TEXT: 9. The applicant is an Austrian national born in 1953 and resident in Vienna. He has a taxi business.
10. On 4 March 1988 a car identified as belonging to the applicant was seen to drive through a red traffic-light.
11. On 15 May 1988 the Federal Police Authority (Bundespolizeidirektion) in Vienna sent the applicant a letter ordering him to disclose the identity of the driver.
12. On 20 May 1988 the Vienna Federal Police Authority imposed a fine of 800 Austrian schillings (ATS) with forty-eight hours’ imprisonment (Arrest) in default on the applicant by way of a provisional penal order (Strafverfügung) for having failed to comply with his obligation as registered owner (Zulassungsbesitzer) of a car to disclose the identity of the driver at a particular time, contrary to section 103 (2) of the Motor Vehicles Act (Kraftfahrgesetz) 1967 (see paragraph 22 below).
13. The applicant states that he tried to submit a written appeal at a police station, or in the alternative to declare his objections orally, but the officers at the police station refused to cooperate.
14. When the Federal Police Authority proceeded to the enforcement of the provisional order, the applicant referred to this refusal. The authority thereupon instituted ordinary penal administrative proceedings which - after a hearing of the applicant - led to a penal order (Straferkenntnis) on 21 April 1989 imposing a fine of ATS 800 (again with forty-eight hours’ imprisonment in default) and ordering the applicant to pay costs to an amount of ATS 80.
15. The applicant appealed to the Vienna regional government (Amt der Landesregierung), which on 12 June 1989 quashed this penal order as being null and void on the ground that the applicant had not effectively raised objections against the initial provisional penal order. The latter order accordingly remained valid.
16. The applicant lodged a complaint regarding this decision with the Administrative Court (Verwaltungsgerichtshof), which on 18 October 1989 dismissed the appeal without a hearing (section 35 (1) of the Administrative Court Act) and confirmed the decision of the regional government. It found that the refusal of the police to accept his written appeal had not deprived the applicant of the possibility to lodge it; he could still have dropped it into the letter-box or sent it by post.
17. On 6 August 1987 officers of the Vienna police found that a tyre on one of the applicant’s taxis had too low a tread. They drew up a report and confiscated the car’s number plates and logbook.
18. On 20 September 1988 the Vienna Federal Police Authority, having heard the applicant, fined him ATS 500 for failure to comply with his duties as the registered owner of a motor vehicle (see paragraph 21 below), with thirty hours’ imprisonment in default.
19. The applicant appealed to the Vienna regional government, which confirmed the decision of the Federal Police Authority on 21 April 1989.
20. The applicant filed a further appeal to the Administrative Court on 9 June 1989, complaining, inter alia, that the regional government had refused to hear the evidence of witnesses whom he had sought to bring forward.
The Administrative Court dismissed this appeal on 13 December 1989 without a hearing and ordered the applicant to pay ATS 2,760 costs. Its reasoning reflected the finding that the further evidence which the applicant had wished to put forward was in any event irrelevant.
21. Under section 103 (1), first sub-paragraph, of the Motor Vehicles Act 1967, the registered owner of a motor vehicle is responsible for maintaining the vehicle in such a way as to comply with the Act or delegated legislation.
Section 7 (1) of the Act requires motor vehicles to be equipped with appropriate tyres for the type of vehicle. Regulation 4 (4) of the Motor Vehicle (Implementation) Regulations (Kraftfahrzeuggesetz-Durchführungsverordnung) requires the tyres of the type of vehicle at issue in the present case to have a tread at least 1.6mm high over their entire surface.
22. Section 103 (2) of the Act entitles the competent authority, inter alia, to require the registered owner to communicate the name and address of the person who has used the vehicle at a specific time.
23. Under section 134 (1), first sub-paragraph, it is an administrative offence (Verwaltungsübertretung) not to comply with the above-mentioned provisions, punishable by a fine of up to ATS 30,000 or up to six weeks’ imprisonment in default.
24. For a description of the relevant domestic procedure, reference is made to the Umlauft v. Austria judgment of 23 October 1995 (Series A no. 328-B, pp. 34-36, paras. 14-23).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-67272
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF DRAGOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Christos Rozakis
TEXT: 4. The applicants were born in 1933 and 1936, respectively and live in Zadar, Croatia.
5. In September 1991 the second applicant’s vehicle was requisitioned by the Croatian Army.
6. In August 1992 she was informed that the vehicle had been destroyed.
7. On 18 August 1995 she instituted civil proceedings before the Zadar Municipal Court (Općinski sud u Zadru) seeking damages from the Republic of Croatia for her damaged vehicle.
8. Pursuant to the Civil Obligations (Amendments) Act 1999 (Zakon o dopunama Zakona o obveznim odnosima, Official Gazette no. 112/1999, hereinafter “the 1999 Act”), the Zadar Municipal Court stayed the proceedings on 23 November 1999.
9. The proceedings resumed on 24 October 2003 pursuant to the “Damage Caused by Members of the Croatian Army and Police during the Homeland War Act 2003” (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika Hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003, hereinafter “the 2003 Act”).
10. The applicants claimed that members of the Croatian Army damaged their house in Vodice, Croatia, in mid-1992.
11. On 22 August 1995 they instituted civil proceedings before the Šibenik Municipal Court (Općinski sud u Šibeniku) seeking damages from the Republic of Croatia for their damaged house.
12. On 20 May 1999 the Šibenik Municipal Court rejected their claim.
13. The applicants appealed against that judgment.
14. Pursuant to the 1999 Act, the Šibenik Municipal Court stayed the proceedings on 10 December 1999. The applicants appealed against that decision. On 6 March 2000 the Šibenik County Court (Županijski sud u Šibeniku) rejected their appeal.
15. The proceedings resumed on 2 September 2003 pursuant to the 2003 Act.
16. On 31 May 2004 the Šibenik County Court quashed the judgment of 20 May 1999 and remitted the case to the Šibenik Municipal Court for a retrial.
17. The Civil Obligations (Amendments) Act 1999 (Zakon o dopunama Zakona o obveznim odnosima, Official Gazette no. 112/1999, hereinafter “the 1999 Act”) entered into force on 6 November 1999. It provided, inter alia, that all proceedings instituted against the Republic of Croatia for damage caused by members of the army and the police during the war were to be stayed until the matter has been regulated by special legislation. The Act also imposed an obligation on the Government to submit to the Parliament such special legislation no later than 6 May 2000.
18. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides:
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
19. The “Damage Caused by Members of the Croatian Army and Police during the Homeland War Act 2003” (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika Hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003, hereinafter “the 2003 Act”) entered into force on 31 July 2003. It provides that proceedings which were stayed pursuant to the 1999 Act will resume and defines circumstances in which the Republic of Croatia is liable for damage caused by the army and the police during the war.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5623
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 1998
DOCNAME: PADIN GESTOSO v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr José Manuel Padin Gestoso] is a Spanish national who was born in 1954 and lives in Cambados (Pontevedra province). Before the Court he was represented by Mr M. García Montes, of the Madrid Bar.
The facts, as submitted by the applicant, may be summarised as follows.
On 17 November 1989, acting on the basis of statements made by a criminal turned informer, Mr R.P.R., in the context of criminal investigations into international drug trafficking conducted by the Audiencia Nacional’s central investigating judge no. 5, the public prosecutor’s office lodged a criminal complaint against a number of people, including the applicant, suspected of drug trafficking.
By a decision of 27 November 1989 central investigating judge no. 5 declared the criminal complaint lodged by the public prosecutor’s office admissible and ordered a number of investigative measures. However, contrary to Article 118 of the Code of Criminal Procedure, the investigating judge did not inform the applicant that the complaint concerning him had been declared admissible.
By a decision of 9 June 1990 central investigating judge no. 5 ordered the commencement of ordinary proceedings (incoación de sumario ordinario) against several persons, including the applicant.
On 11 June 1990 the investigating judge ordered that the proceedings be kept secret for one month, ordered the persons charged, including the applicant, to be detained pending trial in solitary confinement and appointed a lawyer to act for them under the legal aid scheme during the time they were to spend in solitary confinement. By a decision of 6 August 1990 the judge rescinded the solitary confinement.
By a decision of 19 February 1992 central investigating judge no. 5 declared the investigation closed and committed the forty-seven persons charged for trial before the Criminal Division of the Audiencia Nacional. By a decision of 29 October 1992 the Criminal Division of the Audiencia Nacional ordered that counsel for all the accused, including the applicant, be supplied with a complete copy of the investigation file, which ran to more than eighty volumes, so that they could make a provisional classification of the offences.
After the exchange of various pleadings and other procedural steps, the trial began on 20 September 1993. It lasted until 24 May 1994. The trial followed the following distinct phases: from 21 September to 29 November 1993 all but five of the accused gave evidence; the witnesses gave evidence between 29 November 1993 and 14 February 1994; the expert reports were examined between 14 and 22 February 1994; the written evidence was examined between 28 February and 16 March 1994; the oral submissions of the prosecution, the civil parties and the defence lasted from 23 March to 23 May 1994. The accused spoke last.
In a judgment delivered at a hearing on 27 September 1994 after proceedings at which all parties were represented the Audiencia Nacional found the applicant guilty of the offence of drug trafficking (Articles 344, 344 bis A, § 3, and 344 bis B of the Criminal Code), sentenced him to nine years’ imprisonment and fined him 50,000,000 pesetas. The applicant was found guilty of participating with other co-defendants, including one P., in the acquisition of a suitable boat to bring more than 400 kilos of cocaine into Spain.
The applicant appealed on points of law to the Supreme Court, alleging the breach of Article 118 of the Code of Criminal Procedure on account of the fact that he had not been notified of the criminal complaint against him. He argued that the fact that he had not been informed of the proceedings against him had infringed the rights of the defence. He also alleged an infringement of his right to the presumption of innocence.
By a judgment of 7 December 1996 the Supreme Court dismissed the appeal. With regard to the argument relating to the fact that the applicant had not been notified by central investigating judge no. 5 that he had declared the criminal complaint against him admissible, the Supreme Court ruled as follows:
“At the beginning of the proceedings, when the results of the criminal investigations begun in Galicia were transmitted to central investigating judge no. 5, the public prosecutor lodged a complaint against various persons identified by their surnames and forenames. That complaint was declared admissible (admisible) in a decision of [27] November 1989, but this decision was not brought to the attention of the persons named as suspects (querellados), so that Article 118 of the Code of Criminal Procedure was clearly contravened, as the appellants maintained and the impugned judgment admitted. There then followed judicial and police investigations consisting in substance in a large number of statements made by the initial complainant, who decided after committing the offences to provide information, and who on a number of occasions accompanied police officers to various locations in Galicia in order to obtain accurate information on events, places and persons involved in large-scale hashish and cocaine trafficking operations which had taken place and were continuing.
It can readily be understood that in order to investigate such offences it was important to act without the persons implicated being informed of the investigations. Offences of this type, committed by large-scale organisations with extensive connections, including international links, require investigative work by police and judges to be conducted without the persons implicated being aware of it. If in the present case the persons implicated had been informed in accordance with Article 118 it is obvious that the investigation would not have been possible.
...
Quite clearly, as has been observed already, a criminal investigation conducted without the knowledge of the suspected offenders may be particularly necessary in connection with offences committed by organised gangs, as is the case with drug trafficking at the start of the distribution process, and this is authorised by the Code of Criminal Procedure in Article 302 thereof ...
...
Thus, in the present case, the investigating judge had the power to conduct investigations, without informing the persons under investigation, into the serious offences of drug trafficking which formed the subject of the public prosecutor’s complaint. But in order to do so he should have ordered the proceedings to be kept secret for one month, duly justifying any extensions necessary, in accordance with the above-mentioned Article 302 and the case-law of the Supreme Court cited. But he did not do so and it is accordingly evident that there was a procedural irregularity in that respect, as the impugned judgment admits.
The Court now turns to the question what the consequences of such a procedural irregularity should be.
...
The situation in this case is similar to the one considered in the Constitutional Court’s recent judgment no. 100/1996 of 11 June 1996, and the solution to the problem must be the same, that is to find that the defence was not materially hindered because those charged were examined as such and were able to consult the file with full knowledge of the investigations conducted well before the close of the investigation, so that they had time to inspect the content of the investigation file and request any investigative measure during that stage of the proceedings, that is before the time-limit for such requests.
...
... as stated in the ‘As to the law’ section of the impugned judgment ..., P. (the criminal turned informer), the protagonist throughout the initial inquisitorial stage, was questioned at length with the result of almost wholly invalidating the evidence for the prosecution, which initially consisted of the statements he had made on his own initiative alone, with only the investigating judge and the public prosecutor being present, without anyone else being informed ... Accordingly, those statements are not declared null and void since, as will be seen, no-one’s interests were harmed by them ... as they were used only to the extent that they benefited the other accused, regard being had to their contradictory and vague nature ...
In conclusion, the failure to comply with Article 118 of the Code of Criminal Procedure had no bearing on the truth and probative value of the incriminating evidence, the evidence which, in the final analysis, secured the convictions, and was considered with all the proper safeguards ...”
The Supreme Court also held that the trial courts had based their finding of the applicant’s guilt and his conviction on a large body of evidence on which the defence had had the opportunity to comment in court.
The applicant lodged a recurso de amparo against this judgment with the Constitutional Court, alleging the violation of Article 24 §§ 1 and 2 of the Spanish Constitution (right to a fair trial and respect for the presumption of innocence). By a decision of 30 June 1997, served on the applicant on 14 July 1997, the Constitutional Court dismissed the appeal as being manifestly ill-founded. With regard to the complaint of a breach of Article 118 of the Code of Criminal Procedure, the Constitutional Court held that despite the fact that the investigating judge had failed to comply with the provision in question the result of this breach of the law had not been to deprive the applicant for all practical purposes of his right to due process since from the time when he was charged (imputado) he had been informed of all the steps taken and had had the opportunity of submitting whatever arguments he thought pertinent in his defence and of requesting whatever investigative measures he thought might be useful to counterbalance the investigations initially carried out without his involvement. With regard to the complaint of an infringement of the presumption of innocence, the Constitutional Court held that, in accordance with its case-law, the right to be presumed innocent was not infringed where conviction by a court after a criminal trial was based on the incriminating statement of a co-accused, given that the trial courts had expressly found that the statement in question was not prompted by invalid motives, and where the statement was corroborated by other evidence, which the trial courts had described as fundamental, namely the confrontation between P. (the criminal turned informer) and A.P. (another co-accused). The fact that the applicant had not had access to the recording of that confrontation was without any constitutional relevance given that the applicant had not alleged any omissions from the transcript of the recording placed in the investigation file nor specified in what way his knowledge of any such missing elements might have been decisive for the preparation of his defence.
“Anyone accused of an offence may exercise the rights of the defence by taking part in the proceedings, of whatever type, from the time when he is first informed of their existence, whether he has been detained pending trial, has been the subject of any other preventive measure, or has been charged with an offence, and to that end he shall be informed of this right.
Where a criminal complaint or any procedural step resulting from criminal charges being preferred against one or more named suspects is ruled admissible, this decision shall be brought to the attention of the persons concerned immediately.”
“The parties to the proceedings may inform themselves what steps have been taken and participate in all procedural steps.
However, notwithstanding what is provided in the previous paragraph, if the offence is against the public interest the investigating judge, on a proposal from the public prosecutor’s office or any party to the proceedings, or of his own motion, may order that the proceedings be kept wholly or partly secret from all parties for a period not exceeding one month...”


ITEMID: 001-80219
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MATYJEK v. POLAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1+6-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1935 and lives in Warsaw, Poland.
7. Following the entry into force of the Law of 11 April 1997 on disclosing work for or service in the State's security services or collaboration with them between 1944 and 1990 by persons exercising public functions (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne) (the “1997 Lustration Act”) the applicant, who was a member of the Sejm at the time, declared that he had not collaborated with the communist-era secret services.
8. On 1 June 1999 the Commissioner of the Public Interest (Rzecznik Interesu Publicznego) applied to the Warsaw Court of Appeal (Sąd Apelacyjny) to institute proceedings in the applicant's case on the grounds that he had lied in his lustration declaration by denying his cooperation with the secret services. On 14 June 1999 the applicant was notified that the lustration proceedings had been instituted.
9. On 16 September and 25 October 1999 the court held hearings in camera.
10. On 17 December 1999 the Warsaw Court of Appeal, acting as the firstinstance lustration court, found that the applicant had been a deliberate and secret collaborator with the Security Service (Slużba Bezpieczeństwa, “the SB”) and had therefore lied in his lustration declaration. The court relied, inter alia, on an expert opinion prepared by the Department of Criminology and Chemistry of the State Security Bureau (Zakład Kryminalistyki i Chemii Urzedu Ochrony Państwa) which had confirmed the authenticity of the applicant's signature on a document in his file. The operative part of the judgment was served on the applicant on 3 January 2000. However, the reasoning was considered “secret” and, in accordance with Article 100 § 5 of the Code of Criminal Procedure, could only be consulted in the secret registry of that court.
11. The applicant lodged an appeal. He argued that the SB must have registered him as a secret collaborator without his knowledge or consent. The applicant maintained that his contacts with the Civil Militia (Milicja Obywatelska) and an SB agent whom he had known personally had been purely private and had never taken the form of conscious collaboration. The applicant also requested to call more witnesses, in particular the friend on whom he had allegedly reported to the SB, and that an independent opinion be ordered from an expert who did not belong to an agency of the State Security Bureau.
12. On 17 February 2000 the Warsaw Court of Appeal, acting as the secondinstance lustration court, dismissed the applicant's appeal. The court established, inter alia, that it was impossible to hear the SB officer who had allegedly recruited the applicant as he had died. The court again informed the applicant that, due to the confidential nature of the case, the written reasoning for the judgment would not be served on him but could be consulted in the secret registry.
13. On 20 April 2000 the applicant lodged a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy).
14. On 10 October 2000 the Supreme Court quashed the Court of Appeal's judgment and remitted the case to the second-instance court. The Supreme Court found that the applicant's request to call two additional witnesses had been disregarded, which constituted a serious procedural shortcoming.
15. On 11 December 2000 the Commissioner of the Public Interest applied to the Warsaw Court of Appeal to request the Head of the State Security Bureau to lift the confidentiality restrictions in respect of the documents in the case file.
16. On 20 December 2000 the Head of the State Security Bureau lifted the confidentiality restrictions in respect of the applicant's personal record (teczka osobowa) that had been included in the case file.
17. On 19 January 2001 the Warsaw Court of Appeal held a hearing at which it examined the witnesses called by the applicant.
18. On 25 January 2001 the Warsaw Court of Appeal quashed the impugned judgment and remitted the case to the first-instance court.
19. Subsequently, the court requested the State Security Bureau to submit additional documents to it. On 28 March 2001 the Bureau transmitted to the court personal information concerning some officers of the security services. On 30 May 2001 the court received from the State Security Bureau additional documents concerning the applicant, namely excerpts from the files of the former Civil Militia (Milicja Obywatelska).
20. On 1 June 2001 the court held a public hearing at which it heard the applicant. A subsequent hearing on 28 June 2001 was only partly public as the court decided to examine witnesses in camera on the ground that they would testify on matters involving State secrets. The court further ordered the preparation of an expert opinion by the Institute of Criminology of Warsaw University.
21. On 8 October 2001, on the Commissioner's request, the State Security Bureau submitted to the court more documents from the file of another secret collaborator, “R”, but which related to the applicant.
22. On 4 December 2001 another hearing was held, in camera. On the same day the Warsaw Court of Appeal gave judgment, finding that the applicant had lied in his lustration declaration.
23. The applicant appealed, reiterating inter alia, that as a member of the national sports team, he had automatically been employed at the Civil Militia, a fact which should have been taken into consideration by the trial court.
24. On 2 October 2002 the Warsaw Court of Appeal dismissed his appeal.
25. On 16 May 2003 the Supreme Court dismissed a cassation appeal lodged by the applicant.
26. According to the domestic law in force at the material time, the judgment of the Court of Appeal of 17 February 2000 was considered final. Therefore, on that date the applicant lost his mandate as a Member of Parliament. The applicant is prevented from being a candidate in elections and from holding other public functions for a period of 10 years.
27. On 3 August 1997 the 1997 Lustration Act entered into force. The relevant provisions of this Act, in the version in force at the material time, are the following:
Section 3 reads, in so far as relevant:
“1. Persons exercising public functions within the meaning of this law are: the President of the Republic of Poland, deputies, senators ... judges, prosecutors and barristers...”
28. Section 4 provides the following definition of the term “collaboration”:
“1. Collaboration within the meaning of this law is intentional and secret collaboration with operational or investigative branches of the State's security services as a secret informer or assistant in the process of gathering information.
2. Collaboration within the meaning of this law is not an action which was obligatory under the law in force at the material time. ...”
29. Section 6 concerns the obligation to submit a “lustration declaration”:
“1. Persons in the categories listed in section 7 of this law shall submit a declaration concerning work for or service in the State's security services or collaboration with these services between 22 July 1944 and 10 May 1990 (hereafter called 'the declaration').”
Section 7 provides:
“Declarations shall be submitted by
...
2) candidates for election as deputy or senator...”
Section 40 requires such a declaration to be submitted also by those who at the date of entry into force of the 1997 Lustration Act are holding a public function.
30. Section 17 et seq. concerns the office of the Commissioner of the Public Interest. It reads, in so far as relevant:
“1. The Commissioner of the Public Interest (Rzecznik Interesu Publicznego), hereafter called 'the Commissioner', represents the public interest in lustration proceedings.”
Section 17(d) provides, in so far as relevant:
“1. The duties of the Commissioner shall include in particular
i) analysing the lustration declaration submitted to the court;
ii) collecting information necessary for a correct assessment of the declaration;
iii) lodging an application with the court with a view to initiating lustration proceedings;
....
2. In carrying out his duties enumerated in points 1 and 2 above, the Commissioner may require to be sent or shown the relevant case files, documents and written explanations, and if necessary may hear witnesses, order expert opinions or conduct searches; in this respect, and as regards the duties described in section 17(1), the provisions of the Code of Criminal Procedure concerning the prosecutor shall likewise apply to the Commissioner.”
31. Section 17(e) provides:
“The Commissioner, his deputies and the authorised employees of his office shall have full access to documentation and other information sources, regardless of the form in which they were recorded, provided that they were created before 10 May 1990 by
1. The Minister of Defence, the Minister of the Interior, the Minister of Justice, the Minister of Foreign Affairs, or by the services under their authority; or
2. The Head of the State Security Bureau.”
32. Sections 19 and 20 refer to the Code of Criminal Procedure. Section 19 reads as follows:
“Matters not covered by this law and relating to lustration proceedings, including the appeal and cassation phase, shall be governed by the Code of Criminal Procedure.”
The amendment to section 19, which entered into force on 8 March 2002, provides that the proceedings can also be conducted in camera on an application by the person subject to lustration. This provision replaced the one contained in section 21(4), which provided that the court could decide to conduct the proceedings in camera of its own motion or on an application by a party.
Section 20 provides:
“The provisions of the Code of Criminal Procedure relating to the accused shall apply to the person subject to lustration (hereafter called 'the subject').”
33. Section 23 provides for service of the judgment:
“1. The court's judgment, together with the written reasons, shall be served on the parties to the proceedings without delay....”
Section 28, amended with effect from 8 March 2002, provides:
“A final judgment finding that the declaration submitted by the subject was untrue shall be published immediately in the Official Law Gazette (Dziennik Urzędowy RP Monitor Polski) if
1) no cassation appeal has been lodged within the prescribed time-limit; or
2) the cassation appeal has been left unexamined; or
3) the cassation appeal has been dismissed.”
34. Section 30 lists the consequences of the judgment for a person subject to lustration who has submitted an untrue declaration. It reads, in so far as relevant:
“1. A final judgment finding that the subject has submitted an untrue declaration shall result in the loss of the moral qualifications necessary for exercising public functions, described according to the relevant laws as: unblemished character, immaculate reputation, irreproachable reputation, good civic reputation, or respectful of fundamental values. After 10 years the judgment shall be considered to be of no legal effect.
2. A final judgment finding that the subject has submitted an untrue declaration shall entail dismissal from the functions exercised by that person if the moral qualifications mentioned above are necessary for exercising it.
3. A final judgment finding that the subject has submitted an untrue declaration shall deprive that person of the right to stand for election as President for a period of 10 years.”
On 8 March 2002 sub-section 4 was added, which provides:
“The consequences enumerated in sub-sections 1-3 above shall take place if
1) no cassation appeal has been lodged within the prescribed time-limit; or
2) the cassation appeal has been left unexamined; or
3) the cassation appeal has been dismissed.”
35. Article 100 § 5, which concerns delivery of a judgment, provides:
“If the case has been heard in camera because of the substantial interests of the State, instead of reasons notice shall be served to the effect that the reasons have actually been prepared.”
36. Article 156, which deals with access to the case file, in so far relevant provides as follows:
“1. The court files pertaining to a case shall be made available to the parties, their defence counsels, legal representatives and guardians who shall have possibility to obtain copies from them. Other persons may access the case file provided that the president of the court agrees to it.
2. Upon a request from the accused or his defence counsel, photocopies of the documents of the case shall be provided at their expense.
3. The president of the court may on justifiable grounds, order certified copies to be made from the files of the case.
4. If there is a danger of revealing a state secret, inspection of files, making certified copies and photocopies shall be done under conditions imposed by the president of the court or by the court. Certified copies and photocopies shall not be released unless provided otherwise by law....”
37. Section 2 (1) of the 1982 Protection of State Secrets Act (Ustawa o ochronie tajemnicy państwowej i służbowej), which was in force until 11 March 1999, read as follows:
“A State secret is information which, if divulged to an unauthorised person, might put at risk the State's defence, security or other interest, and concerns in particular:
...
2) organisation of the services responsible for the protection of security and public order, their equipment and working methods, and the data enabling the identification of their officers and persons collaborating with the security services...”
38. Section 86 of the 1999 Protection of Classified Information Act (Ustawa o ochronie informacji niejawnych), in its relevant part, provided as follows:
“2. Persons referred to in section 21 (1) [those authorised to sign the document and to assign a confidentiality rating], or their legal successors in relation to documents containing information classified as a State secret, created before 10 May 1990, shall within 36 months from the date of enactment of this Act, review these documents with the purpose of adjusting their current security classification to the classifications provided by this Act. Until then, these documents shall be considered classified under the provisions of paragraph 1 unless otherwise provided by law...”
Appendix No. 1 to the Act provided, in so far as relevant:
“I. Information that can be classified as «top secret»:
21. information concerning documents that make it impossible to establish data identifying officers, soldiers or employees of State bodies, services and institutions authorised to engage in operational activities or on the resources that they use in their operational activities.”
Section 52 (2) of the 1999 Act concerned organisation of the secret registry. It provided in so far as relevant:
“Documents marked “top secret” and “secret” (ściśle tajne i tajne) can be released from the secret registry only if the recipient can secure the protection of those documents from unauthorised disclosure. In case of doubts regarding the conditions of protection, the document can be made available only in the secret registry.”
39. The following are extracts from Parliamentary Assembly of the Council of Europe Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems:
“9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services...
11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or decommunisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now.
12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy.
13. The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process. Please see the "Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law" as a reference text.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3


ITEMID: 001-88783
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF YUSUPOVA AND ZAURBEKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);No violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 7. The applicants were born in 1958 and 1983 respectively and live in Grozny, the Chechen Republic.
8. The first applicant was married to Abdulkasim Zaurbekov, born in 1951. They had four sons – Arbi, born in 1978, Alavdi, born in 1982, Ayndi, born in 1983 (the second applicant), and Magomed-Salakh, born in 1995, and lived in Grozny, Chechnya.
9. Between 15 August and 16 October 2000 Abdulkasim Zaurbekov worked as a crane operator at the Temporary Office of the Interior of the Oktyabrskiy District of Grozny (временный отдел внутренних дел Октябрьского района г. Грозного, “the Oktyabrskiy VOVD”) under a short term employment contract.
10. On 16 October 2000 the Oktyabrskiy VOVD informed Mr Zaurbekov that his contract could not be extended due to lack of funds and invited him to collect his salary the next day.
11. On 17 October 2000 around 11 a.m. Abdulkasim Zaurbekov and the second applicant arrived at the Oktyabrskiy VOVD. The former entered the premises of the VOVD to get his wages, while the latter waited in the car in front of a security barrier 200 – 300 metres from the main entrance.
12. After having waited for a while, the second applicant enquired twice about his father with the officers at the barrier, who told him to wait. Around 7 p.m., when it got dark, the second applicant again enquired about his father and the police officers responded that there were “no civilians left” on the premises of the VOVD. The second applicant then returned home.
13. The applicants have had no news of Abdulkasim Zaurbekov since.
14. Since 18 October 2000 the applicants have repeatedly applied in person and in writing to various public bodies, including the Oktyabrskiy VOVD, district and city military commander’s offices, prosecutors at various levels, special police units in Chechnya (отряды милиции особого назначения), the Chechen Department of the Federal Security Service (Управление по Чеченской Республики Федеральной службы безопасности, “the Chechen Department of the FSB”), local and regional administrative authorities and the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic (Специальный представитель Президента РФ по обеспечению прав и свобод человека и гражданина в Чеченской Республике). In their letters to the authorities the applicants referred to the facts of their relative’s disappearance and asked for assistance and details of an investigation. Most of these enquiries remained unanswered, save for formal responses by which the applicants’ requests were forwarded to various prosecutor’s offices.
15. On 18 October 2000, in the morning, the applicants and other relatives visited the Oktyabrskiy VOVD and enquired about Abdulkasim Zaurbekov. The first applicant’s sister-in-law and another relative were admitted onto the premises of the VOVD and talked to Mr S., the Head of the Oktyabrskiy VOVD. The latter said that he was unaware of Abdulkasim Zaurbekov’s whereabouts, that there had been no grounds for his detention and that there was no such person among the detainees kept in the Oktyabrskiy VOVD. He added that Abdulkasim Zaurbekov had left the premises of the VOVD after he had received his salary.
16. The first applicant’s sister-in-law also managed to look through an attendance register (журнал регистрации посетителей) in which she found an entry to the effect that Abdulkasim Zaurbekov had entered the building at 11.20 a.m. on 17 October 2000. There was no entry confirming that Abdulkasim Zaurbekov had ever left the Oktyabrskiy VOVD.
17. During the first week after Abdulkasim Zaurbekov’s disappearance the first applicant talked to several people who had allegedly seen her husband on the premises of the Oktyabrskiy VOVD on 17 October 2000. In particular, the first applicant met a police officer Nikolay, who told her that Abdulkasim Zaurbekov had assisted him in repair work that day and had then gone to the accounting office to receive his salary, having promised to come back, but had never returned. The first applicant also talked to two workers who told her that they had been engaged in repair work on the VOVD premises on 17 October 2000 and had seen Abdulkasim Zaurbekov enter the VOVD between 12 noon and 1 p.m., but had not seen him leave.
18. The first applicant talked to a representative of the military prosecutor of the Chechen Republic who promised to find out whether her husband was being held at the military base of Khankala. A few days later the representative informed the first applicant that he had only been able to search for her spouse at the military units, and Abdulkasim Zaurbekov was not detained there. The official further stated that he had had no access to other branches of the armed forces and therefore had been unable to check at the Main Intelligence Department (Главное разведывательное управление), or the locations of a special fast deployment team (специальный отряд быстрого реагирования) and a special police unit.
19. According to the first applicant, while searching for her husband she had found out that a number of persons had been ill-treated by officers of the Oktyabrskiy VOVD or had disappeared after having been detained there.
20. On 20 October 2000 the Oktyabrskiy VOVD commenced an inquiry into Abdulkasim Zaurbekov’s disappearance.
21. On 28 October 2000 the Oktyabrskiy VOVD decided to dispense with criminal proceedings in the absence of evidence that any crime had been committed against Abdulkasim Zaurbekov.
22. On 8 November 2000 the Grozny prosecutor’s office (прокуратура г. Грозного) quashed the above decision and opened criminal case no. 12260. In January 2002 the first applicant found out that this criminal case had been instituted in connection with her husband’s murder.
23. According to the applicants, after the investigation had been opened the first applicant had regularly visited the Grozny prosecutor’s office to enquire about the measures taken. In the applicants’ submission, Mr B., the Prosecutor of Grozny, and Mr L., the investigator in charge, had told the first applicant to stay at home, as they themselves would visit her there. They had also promised to bring police dogs to search for her husband, but had never done so. In reply to the first applicant’s request to have certain VOVD officers questioned before they left for their permanent place of residence in another region of Russia, Mr L. had answered that it would be easier to interrogate the officers there.
24. On 12 November 2000, after their secondment had finished, Mr B. and Mr L. left Chechnya for their permanent place of residence.
25. By letters of 11 and 18 November 2000 the prosecutor’s office of the Chechen Republic (прокуратура Чеченской республики,) referred the first applicant’s applications to the Grozny prosecutor’s office.
26. On 5 December 2000 the Chechen Department of the FSB informed the first applicant that their officers had not detained her husband and had no information about his whereabouts. The first applicant’s application had been transmitted to the Grozny prosecutor’s office.
27. At some point in December 2000 the first applicant received information to the effect that her husband had been kept at the military base of Khankala. According to the first applicant, in response to her request to verify this information, Mr Sh., the then investigator in charge, stated that he was “afraid of going to Khankala”, as he himself “might disappear there”.
28. On an unspecified date in November – December 2000 another investigator of the Oktyabrskiy VOVD, Mr Lap., told the first applicant that according to the information he had, Abdulkasim Zaurbekov was dead. He refused to provide any further explanation however.
29. On 24 January 2001 the Administration of the Chechen Republic referred the first applicant’s application to the military prosecutor of military unit 20102 (военная прокуратура – войсковая часть 20102).
30. By a decision of 15 February 2001 the first applicant was declared a victim in criminal case no. 12260. The applicant submitted a copy of this decision.
31. On 15 July 2002 criminal case no. 12260 was joined with three other cases opened in connection with the disappearance of residents of Grozny at various times in 2000.
32. In a letter of 30 June 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that the criminal investigation into the murder of their relative had been instituted under Article 105 § 1 of the Russian Criminal Code, as “there [was] no such criminal offence as ‘disappearance’ in the Russian Criminal Code” and therefore criminal cases in connection with disappearances were, as a general rule, opened under the said Article.
33. In the applicants’ submission, the investigation into their relative’s disappearance had been discontinued and resumed on several occasions. The respective decisions had never been served on any of them, and they had only been notified of them when the first applicant visited the Grozny prosecutor’s office. According to the first applicant, in breach of superior prosecutors’ orders the investigating body had never interrogated the officers in charge of the Oktyabrskiy VOVD.
34. Referring to the information provided by the Prosecutor General’s Office, the Government submitted that, on 8 November 2000, criminal proceedings under Article 105 § 1 of the Russian Criminal Code (murder) had been instituted in connection with Abdulkasim Zaurbekov’s disappearance. The preliminary investigation in this case had been suspended due to a failure to establish those responsible on 8 January, 29 February, 28 April, 9 November and 19 December 2001, 30 January and 11 October 2002, 15 April, 23 May, 4 August, 22 October and 25 December 2003, 27 November 2004 and 8 September 2005, and then resumed on 29 January, 28 March, 9 October, 19 November and 30 December 2001, 11 July and 15 November 2002, 28 April, 30 July, 22 September and 25 November 2003, 15 October 2004, 12 July and 20 September 2005 respectively. On the latest occasion the investigation had been stayed on 30 November 2005 and then resumed on 9 July 2007. According to the Government, the case was now being investigated by the Grozny prosecutor’s office under the supervision of the Prosecutor General’s Office.
35. The Government further submitted that the first applicant had been questioned on 20 November 2000, 15 February and 13 October 2001. According to them, there was no evidence in the transcripts of the first applicant’s interview that she had ever made statements to the effect that her husband had been kept at the military base in Khankala. They further submitted that the first applicant had been granted the status of victim on 15 February 2001. The authorities had also questioned the second applicant on 29 November 2000 and his sister on an unspecified date.
36. In the Government’s submission, in the period between 2002 and 2005 the authorities had questioned over 80 officers of the law-enforcement agencies of the Khanty-Mansiysk Region who at the relevant time had been serving at the Oktyabrskiy VOVD. The Government disclosed the names of some of the witnesses and indicated some of the dates on which witness statements had been obtained, but did not produce copies of transcripts of witness interviews. According to the Government, the officers had been shown Abdulkasim Zaurbekov’s photograph for identification. They had stated that the applicants’ relative had never been held in the temporary isolation unit of the Oktyabrskiy VOVD. Officer S., who at the material time had been the acting head of the Oktyabrskiy VOVD, had made positive reference to the applicants’ relative and stated that during the search the investigators had obtained information to the effect that Abdulkasim Zaurbekov could have been killed by members of illegal armed groups for refusing to collaborate with them. Officer B. had stated that on the day of Abdulkasim Zaurbekov’s disappearance he had seen the latter walking outside the territory of the Oktyabrskiy VOVD in the direction of a local market. The Government also submitted that the investigating authorities had twice questioned officer D., who had taken the decision of 28 October 2000 to dispense with criminal proceedings in connection with Abdulkasim Zaurbekov’s disappearance (see paragraph 21 above), but did not specify which statements officer D. had made.
37. According to the Government, the investigating authorities had also seized and examined documents from the Oktyabrskiy VOVD pertaining to the relevant period, in particular financial documents concerning payments by the Oktyabrskiy VOVD to Abdulkasim Zaurbekov, and registers of persons held in its temporary isolation unit in September – October 2000. The Government did not submit copies of these documents or apprise the Court of their contents.
38. In the Government’s submission, the investigating authorities had also sent a number of queries to the law-enforcement agencies of the various regions of Russia. They had obtained information to the effect that no criminal proceedings had ever been brought, nor had any special measures ever been taken, against Abdulkasim Zaurbekov and that he had never been arrested or detained by any of them. The authorities had also taken a number of steps aiming at establishing Abdulkasim Zaurbekov’s whereabouts.
39. In April 2005, when the application was communicated to them, the Government were invited to produce a copy of the investigation file in criminal case no. 12260 opened in connection with the disappearance of the applicants’ relative. Relying on information obtained from the Prosecutor General’s Office, the Government replied that the investigation was in progress and that the disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure since the file contained information of a military nature and personal data concerning the witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data concerning the witnesses], and without the right to make copies of the case file and to transmit it to others”. In August 2005 the Court reiterated its request and suggested that Rule 33 § 3 of the Rules of Court be applied. In reply, the Government again refused to produce the investigation file for the aforementioned reasons.
40. On 3 May 2007 the application was declared partly admissible. At that stage the Court once again invited the Government to submit the investigation file and to provide information concerning the progress of the investigation. In August 2007 the Government informed the Court of the latest dates on which the investigation had been suspended and reopened and produced a copy of the decision of 9 July 2007 by which the investigation had been resumed.Grozny of the Chechen Republic, which had been staffed with police personnel of the Khanty-Mansiysk Region. The decisions went on to say that on 17 October 2000 Abdulkasim Zaurbekov had arrived, along with the second applicant, at the Oktyabrskiy VOVD for his wages and “entered the territory of the Oktyabrskiy VOVD unimpeded, following which he did not return, that is to say, went missing”.
41. The Government did not furnish the Court with any other documents from the case file.
42. For a summary of the relevant domestic law see Kukayev v. Russia, no. 29361/02, §§ 67-69, 15 November 2007.
VIOLATED_ARTICLES: 13
2
3
5
NON_VIOLATED_ARTICLES: 13
3


ITEMID: 001-89891
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ADAMYAN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Valerian Ashotovich Adamyan, is a Russian national who was born in 1943 and lives in Yekaterinovka, a village in the Saratov Region. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant leads a group of workers who build roads in the Saratov Region. In the early 1990s they organised themselves as Private Enterprise “Saturn” (ИЧП «Сатурн»). The applicant allegedly was the sole owner of Saturn.
In 1995 and 1997 Saturn won three civil actions against its customer – Yekaterinovskoye State Road Construction Enterprise “Dorotdel” (Екатериновское государственное дорожное ремонтно-строительное предприятие «Доротдел»).
On 16 November 1995 the Commercial Court of the Saratov Region awarded Saturn 10,389,958 Russian roubles (RUB) in damages and costs. This judgment became binding on 16 December 1995 and was enforced on 14 May 1996.
On 16 November 1995 the Commercial Court of the Saratov Region awarded Saturn RUB 21,680,976 in damages and costs. This judgment became binding on 16 December 1995 but has not been enforced.
On 14 April 1997 the Commercial Court of the Saratov Region awarded Saturn RUB 11,141,866 in damages and costs. This judgment became binding on 14 May 1997 but has not been enforced.
In 1997 Saturn was declared bankrupt and liquidated. In 2005 Dorotdel was subjected to insolvency proceedings.
Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months.


ITEMID: 001-58161
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF BERNARD v. FRANCE
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected;No violation of Art. 6-1;No violation of Art. 6-2
JUDGES: R. Pekkanen
TEXT: 10. In the course of a judicial investigation into a charge brought against Mr Bernard on a number of counts of armed robbery, an investigating judge at Nevers ordered two expert opinions on him: a psychiatric report from a Dr Guggiari and a medical and psychological report from a Dr Debitus.
11. On 13 July 1988 Dr Guggiari submitted his report, in which he concluded:
“As the subject does not accept that he is either ill or guilty, he cannot be regarded as curable. From what illness should he be cured?
His social and affective environment will play a far greater role in his rehabilitation than any medical or psychiatric treatment, which he refuses.
All things considered, his chances of rehabilitation appear to be considerably compromised by both his criminal record and his personality.”
12. The applicant requested a second opinion, which the investigating judge commissioned on 19 May 1989 from a Dr Dumoulin.
13. On 24 June 1989 Dr Dumoulin filed his report, which contained the following passage:
“Mr Bernard is a gangster (from the English word ‘gang’, which denotes the members of a criminal conspiracy). The conduct of the operation shows (see the case file)
(a) that it was very well planned:
- customers unaware that staff were being threatened (raiders not masked), - ‘remarkable calm’ of the raiders, who wore gloves and were armed, - booby-trapped bundles not stolen, - cash dispenser loaded for the weekend, - raiders checked that security camera was a dummy.
(b) that it was the work of an experienced team:
- numerous bank robberies committed according to the same pattern by the same men, - Mr Bernard is practically a weapons expert and has the advantage of the commando training he received when he did his national service in the marines.
All Mr Bernard’s major offences (both past and present) fall into the category of organised crime, sharing the following features:
- formation of a criminal organisation, - aggravated robberies committed by armed criminals, - targets chosen to bring immediate, large gains.
Mr Bernard is not a casual offender, but a real professional. In addition to hold-ups, it seems that his criminal activities have spread into new fields (see the other charges). The back-up provided by his accomplices (the gang) is essential, as they provide both material support, in the form of vehicles, safe houses, alibis etc., and moral support, since the recklessness of each member makes the group bolder and incites the others to repeat their crimes while controlling the risks better.
Mr Bernard’s responsibility is aggravated by many factors, for example:
- he is a habitual reoffender, - he employs violence, threatening people with weapons, - he acts in association with accomplices…
At no time did Article 64 of the Criminal Code apply to him.
Mr Bernard is always highly dangerous because of his sang-froid and his criminal determination. He showed his astuteness throughout the investigation – as he did when committing the offences – and during our interview, constantly denying that he took part in them. He cannot be intimidated by the judiciary. His dangerousness even seems to be directed towards the judges investigating his cases. He claims that Mr Roussel and Miss C. Enfoux were appointed to persecute him and makes alarmingly virulent verbal attacks on them. This dangerousness is intensified by his habitual use of firearms.
Mr Bernard’s extreme dangerousness makes the following special measures essential:
- he must be permanently banned from carrying weapons of any kind, including those whose sale is not controlled, - he must be placed on permanent probation after his release from prison, - imprisonment in an open prison is unthinkable, - inside prison he must be kept under special surveillance, in view of the likelihood that he will attempt to escape (high-security wing or similar).
Mr Bernard is liable to a criminal penalty, which must be directly proportionate to his extreme dangerousness.
Mr Bernard is not curable by criminal treatment (he is not in any case a suitable case for medical treatment). A number of sentences have not been sufficient to attenuate his delinquent behaviour. On the contrary, he adopts an omnipotent and defiant attitude which is reinforced still further by his imprisonment. His sthenia (aggressive attitude) is unbounded. He feels invincible.
Treatment by means of a criminal penalty is only a social-protection measure aimed at preventing the certain repetition of serious offences.
Mr Bernard can never be rehabilitated. His allegiance to the world of organised crime seems irreversible. No sentence can be heavy enough to break his spirit; he will always try to escape from prison or strengthen his links with other criminals there. He is certain to reoffend, as is proved by his criminal record.”
This report was served on the applicant on 18 July 1989. He requested a third opinion, but on 25 July 1989 the investigating judge refused this request.
14. In the course of a separate investigation concerning an attempted escape the same judge ordered a psychiatric report and once again appointed Dr Dumoulin.
After this report had been filed Mr Bernard requested a second opinion, but this request was refused by the investigating judge on 15 September 1989. The applicant appealed on 25 September 1989 but, in an order of 3 October 1989, the President of the Indictment Division of the Bourges Court of Appeal refused him leave to appeal to that Division.
15. The applicant was committed for trial before the Rhône Assize Court in a judgment delivered by the Indictment Division of the Lyons Court of Appeal on 11 October 1991. The Indictment Division observed that Mr Bernard had initially admitted his involvement in an armed robbery in which 430,350 French francs (FRF) had been stolen on 5 June 1987 from a branch of Crédit Agricole in Nevers. It further noted that the applicant had been picked out by witnesses from a five-man identity parade as the person who had stood guard at the door during the robbery. The Indictment Division also found that the investigation had yielded sufficient evidence tending to establish that the applicant had robbed a branch of Crédit Agricole in Le Mans of FRF 190,000 on 26 November 1986, with the aggravating circumstance that the offence had been committed with the assistance or threatened use of a weapon.
16. At the trial on 9 June 1992, after the experts had given evidence, Mr Bernard’s lawyer requested in his submissions that a formal note be entered in the record to the effect that the experts had stated an opinion on the question of the applicant’s guilt.
17. In an interlocutory decision of 12 June 1992 the Assize Court dismissed the applicant’s lawyer’s request for the evidence of two experts examined during the trial to be ruled inadmissible, on the following grounds:
“Whereas one of the lawyers of the defendant Bernard Jean-Paul requested in his submissions that a formal note be entered in the record to the effect that the expert Dumoulin had stated: ‘The facts themselves prove that he is dangerous’ and that the the expert Guggiari had stated: ‘As he does not accept that he is either ill or guilty, he cannot be regarded as curable’
and that those experts had therefore stated an opinion at the trial on the question of Bernard Jean-Paul’s guilt;
And whereas it was submitted that the evidence given by those experts should be ruled inadmissible;
Whereas, while the experts were giving evidence, Bernard Jean-Paul’s lawyer noted down certain statements or isolated phrases which they are alleged to have made and which, it is submitted, prove that they stated an opinion on the question of Bernard Jean-Paul’s guilt;
But whereas these statements or isolated phrases, even if they were spoken, have been taken out of context and do not establish that the experts prejudged the merits of the case or expressed their opinion as to the defendant’s guilt, especially as, while giving their evidence, they were always careful to specify that they were stating their conclusions concerning offences which Bernard Jean-Paul denied committing;
…”
18. On 12 June 1992 the Assize Court sentenced the applicant to ten years’ imprisonment for armed robbery.
19. Mr Bernard appealed on points of law. He submitted in his appeal, among other arguments, that the experts’ comments had infringed the principle of the presumption of innocence, according to which they were under a duty not to express their opinion as to a defendant’s guilt.
20. On 31 March 1993 the Court of Cassation dismissed the appeal, holding that the comments referred to in that ground of appeal did not constitute a breach of the oath sworn by the experts to assist the court on their honour and according to their conscience, as provided for in Article 168 of the Code of Criminal Procedure.
21. The appointment of experts is governed by the following provisions of the Code of Criminal Procedure:
“Where a technical question arises, any investigating judicial authority or court of trial may, at the request of the prosecuting authorities, or of its own motion, or at the request of any party, order an expert report.
Where an investigating judge decides not to grant a request for an expert report, he shall make an order stating his reasons.
Experts shall undertake their assignment under the supervision of the investigating judge or other judge duly appointed by the court ordering the expert report.”
“Experts shall be chosen from the natural or legal persons appearing either in a national list drawn up by the Council of the Court of Cassation or in one of the lists drawn up by the Courts of Appeal, with the advice of the principal state prosecutor. The terms and conditions of inclusion in and removal from these lists shall be determined by a regulation of the Prime Minister. In exceptional circumstances the courts may, by means of a decision stating reasons, choose an expert who does not appear in any of these lists.”
“Upon their inclusion in one of the lists referred to in Article 157, experts shall take an oath, before the Court of Appeal for the district in which they reside or have their registered office, to assist the courts on their honour and according to their conscience. They are not required to renew that oath before each assignment.”
“Experts shall, if necessary, give evidence in court on the results of their technical investigations, after swearing to assist the court on their honour and according to their conscience...”
22. The preparation of expert reports is governed by the following provisions of the same code:
“The terms of an expert’s assignment, which is confined to examining technical matters, shall be specified in the decision ordering the expert report.”
“... In carrying out their assignment, experts shall liaise with the investigating judge or other judge; they must keep him informed of the progress of their assignment so that at any time he can take any measures that may be necessary.”
“During the course of the expert’s assignment, any party may ask the court which has ordered the report to instruct the experts to make particular enquiries or to interview any named person who is likely to be able to provide them with technical information.”
“The investigating judge shall inform the parties and their counsel of the experts’ conclusions ... In all cases, the investigating judge shall stipulate a period within which the parties must submit any observations or requests, particularly for a supplementary report or second opinion. During that period the case file shall be made available to the parties’ counsel. Where the investigating judge refuses a request, he shall do so in a decision stating reasons which must be made within one month of receipt of the request...”
“The accused or a civil party may also appeal against the orders provided for in ... the fourth paragraph of Article 167.”
23. Psychiatric reports are the subject of the following provisions:
“... Where they [the experts] consider it necessary to question the accused ... the interview shall be conducted in their presence by the investigating judge or judge appointed by the court and shall in all cases comply with the formalities and conditions provided for in Articles 118 and 119.”
“An investigating judge may prescribe a medical examination, instruct a doctor to carry out a medical and psychological examination or order any other necessary measures. If the investigating judge decides to refuse a request for such an examination by the accused or his counsel, he must do so by means of an order stating his reasons.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-2


ITEMID: 001-22394
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: A.S. v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is an Austrian national, born in 1953 and living in Bergheim. She is represented before the Court by Mr E. Salpius, a lawyer practising in Salzburg.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 June 1989 the Salzburg Regional Court (Landesgericht) started preliminary investigations (file number 26 Vr 1459/89) against the applicant and thirty-four other suspects on suspicion of large-scale fraud and breach of trust in the context of investments in a real estate fund. They were suspected of having sold so called “partial house ownership certificates” to several thousand investors with the assurance that their value was secured by real property, while in fact they had sold the real property in 1986 and misappropriated the proceeds of the sale.
On 5 July 1989 a search was carried out at the applicant’s premises and on 22 April 1991 she was heard as a suspect. Later she fled to Panama with her life companion who was also a suspect in the proceedings.
As of the beginning of 1990 the investigating judge was relieved of all other business and two junior judges completing their training period (Richteramtsanwärter) were assigned to assist him. In May 1990 one of them took over as the new investigating judge.
During the preliminary investigations, which concerned a network of more than 300 firms, about 1,800 bank accounts were examined and about 8,000 volumes of documents were seized and studied. A special computer programme was designed in order to cope with the large volume of data. Most of the time was consumed by the preparation of an expert opinion, whereby the team of accounting experts first had to clarify the balance sheets of the companies, most of which were intertwined. A change in the team of experts became necessary in 1990 due to the potential bias of some of its members. In April 1995 the experts delivered their opinion.
On 12 May 1995 the Salzburg Regional Court, upon the Public Prosecutor’s request, issued an international arrest warrant against the applicant.
On 3 June 1995 the applicant was arrested in the Netherlands and, on 13 June 1995, she was extradited to Austria where she was remanded in custody.
On 29 August 1995 the applicant was released on bail with a surety of 2 million Austrian schillings (ATS) and the withdrawal of her passport. Upon the applicant’s request, the Salzburg Regional Court reduced the amount of the surety to ATS 1 million on 4 April 1997. It also decided that her passport be returned and ordered the applicant to report to the court at regular intervals. On 22 January 1999 the applicant requested the court to lift all measures imposed on her, which request was granted on 22 May 1999.
On 13 November 1995 the proceedings against seven co-accused, against whom the indictment comprising about 500 pages had been preferred, were severed from the proceedings concerning the applicant.
On 30 April 1996 the preliminary investigations were closed and the file was sent to the Public Prosecutor for a decision under section 112 of the Code of Criminal Procedure (Strafprozessordnung), according to which the Public Prosecutor has to decide within fourteen days whether the proceedings are to be discontinued, whether they need to be supplemented or whether an indictment is to be preferred. No indictment was preferred within the prescribed time-limit since the Public Prosecutor, due to the complexity of the case, had filed several applications for supplementing the preliminary investigations. In order to comply with these applications, the preliminary investigations were re-opened.
On 27 April 1998 the applicant informed the court of the Public Prosecutor’s failure to take a decision under section 112 of the Code of Criminal Procedure within the time-limit and requested the court to inform the Principle Public Prosecutor’s Office (Oberstaatsanwaltschaft) pursuant to Section 27 § 2 of the Code of Criminal Procedure. However, the court did not comply with this request.
On 20 December 2000 all applications by the Public Prosecutor were complied with and the preliminary investigations under file number 26 Vr 1459/89 were closed. So far the Public Prosecutor has not taken a decision under section 112 of the Code of Criminal Procedure.
On 12 December 1997 the investigating judge granted the Public Prosecutor’s request of 4 September 1997 to extend and supplement the above preliminary proceedings as regards one set of facts. These proceedings were conducted under a new file number (26 Vr 2342/97). These further preliminary investigations were closed on 19 December 2000 and the file was sent to the Public Prosecutor for a decision under section 112 of the Code of Criminal Procedure. So far no decision has been taken.
It appears that a further set of preliminary investigations concerning related charges (number 26 Vr 367/91) against the applicant and other suspects, which was opened in 1990, is still pending on the ground that one expert has not yet completed his opinion.
Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows.
"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.
(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.
(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."
Section 91 of the Courts Act applies to all kind of proceedings before the ordinary courts, be it civil or criminal ones.


ITEMID: 001-5789
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: IERONYMAKIS AND OTHERS AND PLEVRAKI v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Baka
TEXT: The applicants are 104 Greek nationals whose names are held in the Court’s case-file. They are represented before the Court by Mr A. Bafakis, a lawyer practising in Heraklion (Crete).
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were hired by the Greek Air Forces and were put at the disposal of the American forces in Greece, in accordance with an agreement concluded between Greece and the United States.
In 1989 the Administrative Arbitration Court of Appeal (Δευτεροβάθμιο Διοικητικό Διαιτητικό Δικαστήριο) of Athens considered that the members of the Association of the Employees of the American Forces (Σύλλογος Εργαζομένων δια τας Δυνάμεις ΗΠΑ) were entitled to a pay rise (decision no. 39/1989).
On 9 October 1989 the Minister of Labour vested this decision with executory force (ministerial decision no. 17836/89). However, the applicants were never given the pay rise in question.
Between September 1993 and June 1994 the applicants were dismissed from their posts because the American base where they used to work closed down.
On 13 June 1997 the Legal Council of State considered, by majority, that the Greek Air Force was under no obligation to employ those dismissed from the American base. However, on 5 November 1997 the Deputy Minister of National Defence refused to accept the opinion of the Legal Council of State. On the contrary, he accepted the opinion of the minority to the effect that the persons concerned remained employees of the Greek Air Force.
The applicants remain unemployed.
Under the Greek legal system, the failure to conclude a collective labour agreement (συλλογική σύμβαση εργασίας) gives rise to the intervention of the Administrative Arbitration Courts. The final decisions of these courts are regulatory administrative acts (κανονιστικές διοικητικές πράξεις) which, following their approval by the Minister of Labour, have the effect of collective labour agreements. Their non-enforcement gives the interested employees an actionable claim against the State.
Several former employees of the American forces (about 150 out of 320) have brought civil actions before the ordinary courts seeking the readjustment of their salaries on the basis of decision no. 39/1989. The courts found in their favour (see, for example, decision no. 201/1989 of the First Instance Civil Court of Heraklion, upheld by decision no. 72/1993 of the Crete Court of Appeal). The State, which had originally appealed in cassation, withdrew its appeals and has already complied with the courts’ judgments.


ITEMID: 001-82674
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: EGLERT v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants, Mr Magnus Eglert and Mrs Jessica Eglert, are Swedish nationals who were born in 1966 and 1971 respectively and live in Hässleholm. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are a married couple. The second applicant has a daughter, born in 1993. According to a report by the social authorities, made after the daughter’s birth, the second applicant was not capable of forming an attachment to her daughter. The second applicant also has two sons, born in 1997 and 1998 respectively. All three children live with their respective fathers. The youngest son moved to his father after an investigation by the social authorities in February/March 2003 had led to the conclusion that his needs were not being met in the home of the applicants. Previously, the second applicant had received various forms of support from the authorities to enable her to take care of that son. The applicants also have three sons together, born in 2001, 2003 and 2006, respectively. The eldest and the youngest of the common sons live with the applicants.
On 14 September 2003 the applicants’ second son, Gabriel, was born, three months prematurely. His twin brother was dead at birth. Gabriel was thereafter treated at the hospital for serious complications. He had two cerebral haemorrhages, a serious infection and a deformation of the lungs which made it necessary for him to lie in a respirator for the first six weeks. Thereafter he was given oxygen until early January 2004. On 12 January 2004 he was released from the hospital and moved home to his parents.
On 30 October 2003 personnel at the hospital in Lund, where Gabriel had been treated until that date, reported to the Social Council (socialnämnden) in Hässleholm that there were doubts as to the applicants’ ability to take care of him. Similar observations were made at the hospital in Kristianstad, where Gabriel was treated after 30 October.
The Council started an investigation into the matter. Having consulted hospital personnel, the applicants and the contact person who had been appointed to assist the applicants, the Council concluded that there had been several serious incidents which indicated that the applicants were unable to handle unforeseen situations. While there had been no medical problems, Gabriel had been given too much food and, as a consequence, he had had to undergo a medical examination. Moreover, the applicants were, in general, unable to understand and satisfy his needs regarding hunger, sleep and peace. The hospital personnel had had to give them a lot of support and inform them repeatedly how to take care of Gabriel. The second applicant had made numerous telephone calls to the hospital, expressing anxiety about his eating and defecating habits. On 26 January 2004 she had called the hospital several times as Gabriel had been crying for an hour during the night. She had stated that the situation was too much for her and her husband and that they wished to return him to the hospital. She was told that this was possible, but that one of the parents had to stay with him, which they were unwilling to accept. The hospital personnel were also concerned about his older brother’s situation. Having regard also to the results of the investigation in February/March 2003, the Council considered that the second applicant, who was on early retirement due to psychological problems, lacked the ability to establish a safe and secure connection to her children and to stimulate them. While the first applicant, an unemployed assistant nurse, had a better contact with the children, he was not able to take care of a child as demanding as Gabriel without the support of his wife.
On 29 January 2004, having regard to the results of the investigation, the Council decided, pursuant to section 6 of the Act with Special Provisions on the Care of Young Persons (Lagen med särskilda bestämmelser om vård av unga, 1990:52; hereinafter “the 1990 Act”), to take Gabriel into public care immediately on a provisional basis. He was placed with the contact person and her husband, acting as a so-called family home. The applicants had not given their consent to this measure. The decision was confirmed by the County Administrative Court (länsrätten) in Skåne on 11 February 2004.
On 19 February 2004 the Social Council applied to the County Administrative Court for a care order concerning Gabriel under section 1 § 2 and section 2 of the 1990 Act. In the application, the Council emphasised that Gabriel was a very demanding child due to the medical complications that had occurred in connection with his birth, that he had a great need of rest and calm and that he depended on those in charge of him to observe and interpret his signals properly. The Council maintained that the applicants were not able to meet Gabriel’s needs in an adequate way.
The applicants stressed, for their part, that they had not had enough time to get over the difficult circumstances surrounding Gabriel’s traumatic birth, including the death of his twin brother, and that they had not been given the opportunity to prove that they were able to take care of Gabriel.
Following an oral hearing held on 4 March 2004, the County Administrative Court, by a judgment of 9 March 2004, granted the Social Council’s application and issued a care order. The Court agreed with the conclusions drawn by the Council and found that there was a clear risk of impairment of the health and development of Gabriel due to the applicants’ inability to satisfy his needs. According to the court, they – in particular the second applicant – were incapable of understanding and following instructions about Gabriel’s feeding and of handling more demanding situations. It considered, with some hesitation, that he could not be cared for in the applicant’s home with various support measures, as the applicants had not been able to take care of him despite having received help six hours per day from the social authorities. As the applicants did not consent to the placement in the family home, compulsory care had to be given under the 1990 Act.
On 8 June 2004 the Administrative Court of Appeal (kammarrätten) in Gothenburg, which also held a hearing in the case, upheld the County Administrative Court’s judgment. With reference to the Social Council’s report, the appellate court stressed that Gabriel needed more care and nursing than children of his age normally did and that already at the hospital there had been doubts as to the applicants’ ability to take care of him. Especially the second applicant had difficulties in understanding his needs and letting them prevail over her own wishes. According to the court, the investigation also showed that these difficulties had persisted when Gabriel had left the hospital and moved home to his parents. Among other things, there had been deficiencies in his nourishment and feeding and he had not had enough peace and rest. The court also considered that the great number of telephone calls to the hospital showed that the applicants had not been able to handle the situation. The court found that Gabriel’s father had a better parental ability than his mother. Nevertheless, the investigation did not support the conclusion that the father’s parental ability – even with the additional help from the social authorities – could compensate for the mother’s deficiencies in this respect. Further, the court observed that, at the hearing, the mother had expressed a very negative attitude towards various support measures. It concluded that it was clear that Gabriel had to be taken care of by other persons than the applicants in accordance with the Council’s care plan, namely in the family home.
On 25 August 2004 the Supreme Administrative Court (Regeringsrätten) refused the applicants leave to appeal.
Subsequently, the Social Council regularly – approximately every six months – reconsidered Gabriel’s need of continuous care. On 3 August 2004 the Council decided that he should remain in the family home. It observed that he had developed in a positive way in the family home. Noting that Gabriel visited his parents once or twice a week, the Council considered that they were still unable to understand his situation and see to his needs.
On 8 February 2005 the Social Council again decided that the compulsory care should continue. The applicants appealed to the County Administrative Court which, on 11 April 2005, following an oral hearing, upheld the Council’s decision. The court concluded that the applicants lacked the capacity to give Gabriel the care that his great special needs required. The applicants did not appeal against the judgment.
Further decisions that Gabriel should remain in the family home were taken by the Social Council on 28 June and 13 December 2005 and on 27 June 2006. The decisions were based on reports which, inter alia, concluded that Gabriel had a slow and delayed motor development and that his psychosocial development was also delayed. He needed a lot of help with most things, due to his age and his disabilities and required extensive stimulation and training in order to develop favourably. He had had regular and increased contact with his parents. While initially he had been accompanied by the foster mother on visits to the applicants’ home, he had later begun to spend time with them alone and had even stayed overnight on some occasions.
According to section 1 § 2 and section 2 of the 1990 Act, compulsory public care is to be provided if there is a clear risk of impairment of the health and development of a person under 18 years of age due to ill-treatment, exploitation, lack of care or any other condition in the home and if the necessary care cannot be provided with the consent of the young person’s custodian. The decision whether to place a young person in public care is made by the County Administrative Court following an application from the Social Council.
Under section 6 of the Act, the Social Council may order the immediate taking into care of a young person (“provisional care order”) if it is likely that he or she needs to be provided with care under this Act and a court decision in the matter cannot be awaited owing to the risks facing the young person’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented. A provisional care order shall be put before the County Administrative Court which shall rule on whether the order shall be upheld pending the court’s judgment regarding the application for public care.