ITEMID: 001-23131
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: ISMAIL EBRAHIM and SERHAN EBRAHIM v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The first applicant is a stateless person of Palestinian origin. He was born in Lebanon in 1981. The second applicant is his mother. She is a naturalised Dutch national of Palestinian origin and was born in Lebanon in 1961. The applicants, who are currently both residing in the Netherlands, are represented before the Court by Ms L. Mentink, a lawyer practising in Alkmaar. The respondent Government are represented by their Agents, Mr R.A.A. Böcker and Mrs J. Schukking, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
After the death of the first applicant’s father, who was active for the Palestine Liberation Organisation (“PLO”) in Lebanon, the second applicant married A.E. Ebrahim, the brother of her husband. Between June 1982 and November 1983, the latter was detained by the Israeli authorities because of his PLO activities. After his release, he was accused by the PLO of espionage for Israel. In 1986, A.E. Ebrahim and his family, consisting of the two applicants and a baby born in the meantime, left Lebanon for Germany, where they applied for asylum.
After having stayed in Germany and subsequently Denmark, the family moved to the Netherlands where, on 24 May 1991, the second applicant (also on behalf of her children) and her husband applied for asylum or, alternatively, a residence permit on humanitarian grounds. On 16 March 1992, the State Secretary of Justice rejected these requests. The objection filed by the couple was rejected by the State Secretary on 16 September 1992. On 22 October 1992, the second applicant and her husband filed an appeal against the decision of 16 September 1992 with the Judicial Division (Afdeling Rechtspraak) of the Council of State.
During their stay in the Netherlands, in the course of which three more children were born to the couple, serious tensions arose between the first applicant and his stepfather. In the latter’s opinion, the first applicant misbehaved by, inter alia, playing truant and having undesirable friends. He felt that he had no longer any authority over the first applicant. After the first applicant had broken into his school where he committed acts of vandalism, his stepfather decided to send him temporarily back to Lebanon. The second applicant thought that the first applicant would only go to Lebanon for a short period in order to become acquainted with his native country and culture. On 25 October 1994, without having been granted a re-entry visa (terugkeervisum) the first applicant travelled to Lebanon, where he moved in with his maternal grandmother in a refugee camp in SouthLebanon. The first applicant’s school and the Netherlands immigration authorities were informed of this fact.
On 17 July 1995, pending the appeal proceedings before the Judicial Division, and in accordance with Dutch policy in asylum cases that have not been dealt with within a certain time span, the State Secretary informed the second applicant and her husband that the objections against their residence in the Netherlands had been withdrawn and that instructions had been issued to provide them and the second applicant’s minor children with a residence permit. The second applicant and her husband subsequently withdrew their appeal pending before the Judicial Division.
On 1 September 1995, the second applicant reapplied for a residence permit on humanitarian grounds. This permit, also valid for her minor children living with her, was granted on the same day.
On an unspecified date the second applicant and her husband filed a petition for naturalisation. In this petition, they further requested the conaturalisation (medenaturalisatie) of their four minor children. This request did not include the first applicant. By Royal Decree (Koninklijk Besluit) of 16 November 1996, the second applicant, her husband and their four children were granted Dutch citizenship.
Wishing to return to the Netherlands, the first applicant requested the Netherlands authorities in Lebanon on 23 October 1997 for a temporary residence permit (machtiging tot voorlopig verblijf) on grounds of family reunification.
On 23 July 1998, as his visa application remained undetermined, the first applicant filed an objection (bezwaar) with the Minister of Foreign Affairs (Minister van Buitenlandse Zaken) against the implied refusal (fictieve weigering) to grant him a temporary residence permit.
On the same day, the first applicant further requested the President of the Hague Regional Court (arrondissementsrechtbank) to issue an interim measure (voorlopige voorziening) ordering the Minister of Foreign Affairs to issue a temporary residence permit or a laissez-passer allowing him to travel to the Netherlands together with the second applicant, who at that time was visiting him in Lebanon.
On 14 August 1998 the Hague Regional Court set a deadline of 10 September 1998 for the Visa Department (Visadienst) of the Ministry of Foreign Affairs to determine the first applicant’s request for a visa.
On 2 September 1998, in the context of the objection filed on 23 July 1998, the second applicant was heard by a commission of the Immigration and Naturalisation Department (Immigratie- en Naturalisatiedienst) concerning the first applicant’s request to enter the Netherlands. At that hearing, she declared inter alia that the first applicant had been sent to Lebanon after family tensions had arisen in the Netherlands because of the first applicant’s westernisation. It was thought desirable that he learn his language and culture and become acquainted with his family living in Lebanon.
In an undated decision taken on or around 10 September 1997, the Minister of Foreign Affairs rejected the first applicant’s objection of 23 July 1998. On 17 September 1998, the first applicant filed an appeal against this decision with the Hague Regional Court. He further requested the President of the Hague Regional Court to issue an interim measure allowing him to travel to the Netherlands.
On 6 November 1998, the President of the Hague Regional Court rejected the request for an interim measure. The President did not find it established that the first applicant’s situation was of such gravity that he should be allowed to enter the Netherlands as a matter of urgency.
On 19 May 1999, following a hearing held on 18 February 1999, the Hague Regional Court declared the first applicant’s appeal of 17 September 1998 partly founded. Although the Regional Court agreed with the Minister of Foreign Affairs that, under the Netherlands immigration rules, the first applicant did not qualify for a temporary residence permit on grounds of family reunification, it held, as to the first applicant’s complaint under Article 8 of the Convention, that the preparation of the decision taken by the Minister of Foreign Affairs had been negligent and that this decision lacked sufficient reasoning. It was found that the Minister had failed to examine the question of the Netherlands’ positive obligations under Article 8 of the Convention in a satisfactory manner, in that a number of important elements had not, or not sufficiently, been taken into account. Consequently, it quashed the impugned decision and ordered the Minister of Foreign Affairs to take a new decision.
As none was taken within the prescribed statutory delay of six weeks, the first applicant filed an appeal on 5 July 1999 with the Hague Regional Court against this failure and requested accelerated proceedings (versnelde behandeling).
In the course of the hearing held on 29 July 1999, the first applicant further requested the President of the Hague Regional Court to issue an interim measure allowing him to travel to the Netherlands. In its decision of 6 August 1999, the Hague Regional Court ordered the Minister of Foreign Affairs to determine the first applicant’s objection of 23 July 1998 within a period of ten weeks. It rejected the applicant’s other claims.
On 29 October 1999, the first applicant again appealed to the Hague Regional Court as no fresh decision had been taken within the set time-limit and requested accelerated proceedings.
In its decision of 30 November 1999, the Hague Regional Court noted that no new decision had been taken by the Minister of Foreign Affairs. It further noted that, on 24 November 1999, the second applicant had been heard by a commission of the Immigration and Naturalisation Department but apparently this hearing did not result in a determination of the first applicant’s objection. In the absence of a new decision on the merits of the objection, the Regional Court could only find that the Minister of Foreign Affairs had again failed to determine the objection timely. Consequently, it declared the first applicant’s appeal founded and ordered the Minister to determine the first applicant’s objection within two weeks.
On 14 December 1999 the Minister of Foreign Affairs rejected the first applicant’s objection of 23 July 1998. The Minister recalled that, in its decision of 19 May 1999, the Hague Regional Court had accepted that the first applicant did not qualify for a residence permit on grounds of family reunification under the relevant domestic immigration rules. Insofar as the first applicant relied on Article 8 of the Convention, the Minister accepted that there was family life between the first applicant and his family living in the Netherlands, but did not find that there were such facts or circumstances which might give rise to a positive obligation on the Government to grant the first applicant a residence permit. On this point the Minister considered that the fact that the first applicant’s family had lived in the Netherlands since 1991 and held the Netherlands nationality did not in itself create such an obligation.
Further noting that the choice to return the first applicant to Lebanon for a year had apparently been a conscious one, the Minister considered that the applicants should have realised that this choice entailed a risk that the first applicant would not be readmitted to the Netherlands. Having noted, inter alia, that the second applicant had visited the first applicant several times in Lebanon, the Minister did not find it established that there were any objective obstacles to the exercise of the applicants’ family life in Lebanon. As to the fact that the first applicant’s siblings held the Netherlands nationality and were attending school in the Netherlands, the Minister held that this was a subjective rather than an objective obstacle for the exercise of family life elsewhere. Finally, noting that the first applicant had attained the age of eighteen in the meantime, and that, as from a young age, he had taken independent decisions, including the termination of his schooling and his relocation within Lebanon, the Minister held that the first applicant could be regarded as being quite capable of maintaining himself, and concluded that the general interests of the Netherlands in pursuing a restrictive immigration policy outweighed the applicants’ interests.
The first applicant filed an appeal with the Hague Regional Court, before which a hearing was held on 17 March 2000.
In its decision of 7 April 2000, the Hague Regional Court rejected the appeal. It accepted the finding of the Minister that it had not been established that, on the basis of his personal circumstances, the applicant could not be expected to remain in Lebanon and should be admitted to the Netherlands on humanitarian grounds. It did not find it established that the first applicant was in fact wanted by El Fatah and for that reason was continuously forced into hiding, as he had alleged. Noting that the first applicant was housed and financially supported by his uncle, that other members of his family are living in Lebanon and that the second applicant could continue to provide him with support, the Regional Court concluded that the finding of the Minister could not be regarded as unjust.
As to the argument raised under Article 8 of the Convention, the Regional Court concluded that, in the light of its findings as to the first applicant’s personal situation, the interests of the Netherlands Government in pursuing a restrictive immigration policy outweighed the applicants’ interests in exercising their family life in the Netherlands. The Regional Court did not find it established that there were any objective obstacles preventing the applicants from enjoying their family life in Lebanon. It noted on this point that the asylum request of the first applicant’s stepfather had been rejected but that he had subsequently obtained a residence permit because of a special policy allowing asylum seekers to remain when asylum proceedings had lasted more than three years. The Regional Court further rejected the argument that the siblings’ integration into Dutch society should be regarded as an objective obstacle to the whole family’s return to Lebanon.
On 6 January 2001, the first applicant travelled on a false passport via Senegal to Belgium intending to continue to the Netherlands. He was arrested in Belgium and placed in aliens’ detention.
He subsequently applied for asylum in Belgium. On 9 January 2001, via his lawyer in the Netherlands, the first applicant requested the Netherlands authorities to take over his asylum request from Belgium. On 11 January 2001, the first applicant’s lawyer further filed a new request for a temporary residence permit for the first applicant.
After the Belgian authorities had rejected the first applicant’s request for asylum, he was expelled to Senegal on 16 February 2001.
Upon his arrival in Senegal, the first applicant was detained as he held no documents allowing him to stay in Senegal. The Senegalese authorities allowed him to telephone the second applicant. On 19 February 2001, the first applicant – via his lawyer in the Netherlands – informed the Netherlands authorities of his situation, requesting them to intervene and allow him to travel to the Netherlands. After the second applicant had sent money to Senegal, the first applicant was released on 9 March 2001 and was told to leave Senegal within three months. On 16 May 2001, the first applicant travelled to the Netherlands, where he has resided since.
On 14 June 2001, the Minister of Foreign Affairs rejected the first applicant’s application of 11 January 2001 for a temporary residence permit, finding that such a permit cannot be granted when the person concerned has already entered the Netherlands. The first applicant’s objection to this decision, in which he only argued that he should be regarded as exempted from the obligation to have a temporary residence permit and did not raise any arguments concerning the reasons for the rejection of 14 June 2001, was dismissed by the Minister of Foreign Affairs on 31 July 2001. Although an appeal against this decision could be filed with the Regional Court, it does not appear that the first applicant availed himself of this possibility.
In the meantime, on 28 February 2001, the first applicant’s lawyer requested the Hague Regional Court to declare that, on the basis of the Royal Decree of 16 November 1986 and at that time being a minor son of the second applicant, the first applicant is a Dutch national.
On 1 August 2001, following a hearing held on 4 July 2001, the Hague Regional Court rejected the first applicant’s request. It noted that the first applicant had already left for Lebanon when his mother, stepfather and their children were granted a Dutch residence permit and that, subsequently, the second applicant and her husband were granted Dutch nationality, it being stipulated that Dutch nationality was withheld from minor children who did not hold a Dutch residence permit. On this point the Regional Court also noted that the request for naturalisation, resulting in the Royal Decree of 16 November 1996, had not included the first applicant. It therefore concluded that no misunderstanding could have arisen about the first applicant’s exclusion from the naturalisation decision. It further rejected as unestablished the first applicant’s argument that, in departing for Lebanon, he had not intended to alter his principal place of residence (hoofdverblijf) in the Netherlands or to sever his family tie. On this point the Regional Court noted that, at the time of naturalisation, the first applicant had already resided for two years in Lebanon with different relatives. In addition, the Regional Court took into account the reasons for his return to Lebanon given by the second applicant before the commission of the Immigration and Naturalisation Department, namely family tensions caused by his westernisation, and the need for him to learn the language and the culture, and to become acquainted with his family in Lebanon.
The admission, residence and expulsion of aliens were regulated at the material time by the Aliens Act 1994 (Vreemdelingenwet), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act 1994 Implementation Guidelines (Vreemdelingencirculaire; “the Guidelines”), being directives drawn up and published by the Ministry of Justice.
On 1 April 2001, the Aliens Act 2000 entered into force – replacing the 1994 Aliens Act – along with a new Regulation on Aliens and new Guidelines.
The Netherlands authorities pursue a restrictive immigration policy in view of the high population density in the Netherlands and the problems to which this gives rise. In general and under the legal rules in force until 1 April 2001, aliens are only granted admission for residence purposes if: (a) the Netherlands are obliged under international law to do so; (b) this serves the “essential interests of the Netherlands”, e.g. economic or cultural interests; and (c) there are “cogent reasons of a humanitarian nature” (Chapter A4/5.3 of the Guidelines). No right to admission to the Netherlands can be derived from the fact that a non-Dutch national is living there without a residence permit.
An alien wishing to enter and stay in the Netherlands for more than three months must have a temporary residence permit. An application for such a permit can be made to the Netherlands authorities in the alien’s country of origin. The resident in the Netherlands with whom an alien seeking admission is planning to stay, can also apply to the chief of the local police for an official opinion. An application for a temporary residence permit is determined on the basis of the same requirements as a residence permit. These requirements differ depending on the grounds on which an alien seeks admission and residence.
The policy for admission for family reunification purposes was at the relevant time laid down in Chapter B1/5 of the Aliens Circular. This provides, insofar as relevant, that a residence permit for the purposes of family reunification may be granted in respect of minor children of a Dutch national when, inter alia, the children factually belong to his/her family and the family ties with the parent already existed abroad and have been maintained. Family ties are considered to have been severed by the longterm integration of the child into another family when the parents no longer exercise parental authority and no longer provide for the costs of the upbringing and care of the child.
Aliens who are allowed to remain in the Netherlands pending a decision on their residence status may under certain conditions, with the consent of the Dutch authorities, return to their countries of origin for short periods. If they meet the requirements, being at least compelling reasons of a humanitarian nature, such as a serious illness or the death of close relatives, they may be granted a re-entry visa, which affirms the right of the holder to return to the Netherlands. No re-entry visas for a temporary return to their country of origin are granted to asylum seekers.


ITEMID: 001-101899
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KARULIS v. LATVIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Jānis Karulis, is a Latvian national who was born in 1953. He is currently serving a prison sentence in Latvia. The applicant is represented by Ms. I. Lielpinka, a lawyer practising in Rīga. The respondent Government are represented by Mrs I. Reine.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 3 August 1999 the applicant was arrested and taken into custody on suspicion of a murder of his former co-inmate S., committed in 1996.
4. Questioned as a suspect, the applicant pleaded guilty to inflicting bodily injuries on the victim. The applicant contended that during their dispute S. threatened him with an axe. Aiming to hit the axe out of S’s hands, the applicant took a metal bar and accidentally hit S. on the head. Afterwards he hit S. three more times until the latter fell to the ground and let go of the axe.
5. Questioned as an accused the applicant, contended that S. had attacked him and, in order to defend himself, the applicant hit S. on the head until the latter fell to the ground.
6. On 7 December 1999 the applicant’s girlfriend O.B. was questioned as a witness and the testimony was video-recorded. She told that the murder took place in the applicant’s house where, after having a fight with S., the applicant took a metal bar and hit the victim in head. Then S. fell to the ground and the applicant continued to hit him on the head and face. After realizing that S. was dead, the applicant buried him in the garden.
7. During the pre-trial investigation O.B. refused to be cross-examined with the applicant, contending that the latter had threatened her. According to the materials of the case, in June 1998 she complained to the Olaine Police Department that the applicant had beaten her and injured her with a knife. At a later stage the criminal proceedings, which where instituted against the applicant at the O.B.’s complaint, were discontinued at O.B.’s request.
8. Upon the conclusion of the preliminary investigation, the applicant’s criminal case was transmitted to Rīga Regional Court. Throughout the first- and second-instance court proceedings the applicant was represented by state-appointed defence counsel, a member of the Latvian Bar Association.
9. The hearing of the applicant’s criminal case at Rīga Regional Court was held on 27 to 29 March 2001.
10. On 27 March 2001, at the beginning of the trial, the court observed that a summons sent to witness O.B. was returned to the court with a notice that she did not live at that address.
11. The applicant subsequently insisted on the attendance of witness O. B. In addition, for the first time the applicant asked the court to summon witness Z. on behalf of the defence. The applicant explained that during the pre-trial investigation he had not referred to this witness because he had expected that O.B. would refer to him. The applicant contended that witness Z. went to see him the day after the events at issue took place.
12. The court decided to commence adjudication of the criminal case and to leave the request open concerning witness O. B.
13. During the court adjudication the applicant confessed that he had inflicted bodily injuries on the victim, however, he contended that he had done so to defend himself against attack by the victim, who was allegedly holding an axe.
14. The court further questioned witness B. who testified, as he had during the pre-trial investigation, that the applicant had told him that he [the applicant] had won a fight with the victim and had buried the body. Further, disregarding the applicant’s objections, the court read out the statements made by O. B. during the pre-trial investigation, and also viewed a video record of O.B.’s statements. The applicant commented that O.B’s testimony was false, without providing detailed arguments as to which statements were false.
15. At 3.10 p.m. on 28 March 2001 the court announced a break in the adjudication of the criminal case and adopted a decision that the Olaine Police Department should bring witness O.B. to court compulsorily at 10 a.m. on 29 March 2001.
16. On 29 March 2001 the Olaine Police department informed the court that they had visited two addresses in Olaine and that O. B. could not be found at either of them.
17. As to witness Z., the court noted that it could not establish the exact whereabouts of the witness. The court also mentioned that witness Z. had not been referred to by the applicant during the pre-trial investigation and, according to the materials in the case file, he was not an eyewitness, therefore the request to summon this witness was dismissed.
18. On 30 March 2001 Rīga Regional Court found the applicant guilty of murder and sentenced him to twelve years’ imprisonment. The court recognised that the applicant’s statements concerning the circumstances of his fight with S. and the alleged necessity of self-defence (see paragraph 5) were inconsistent with his earlier testimony (see paragraph 4), O.B.’s statements and the expert report which described the multiple serious facial injuries inflicted on S. The court established that by hitting S. several times on the head and face the applicant intended to murder him. The court also relied on statements by witness B. given during the pre-trial investigation and the trial, and statements by a policeman on duty at the time.
19. The applicant appealed against the first-instance court judgment, asking for witnesses O. B. and Z. to be summoned for examination. He complained that the first-instance court had found him guilty taking into account solely the incriminating statements of witness O. B., whom he could not challenge or question.
20. On 5 September 2001 the Supreme Court summoned witness O.B. again, by sending the summons to another address, where she might possibly be located. On 10 September 2001 the summons was returned to the court with an indication that the addressee could not be reached there.
21. On 24 October 2001 at the beginning of the hearing the court observed that witness O.B. had not appeared. The applicant referred to a letter of an unspecified date from O.B., addressed to him, in which O.B. had expressed willingness to testify before the court. It appears that the letter did not contain an address for the witness.
22. When asked by the court, the applicant did not object to adjudication of the appeal on the merits.
23. During the appeal hearing, the applicant testified that he had inflicted bodily injuries on the victim and that “probably it was not necessary to hit him so many times”. As to O.B.’s testimony the applicant commented that O.B. had probably not seen that the victim had an axe. During the trial the applicant refused to watch the video statement given by witness O.B.
24. On 24 October 2001 the Criminal Chamber of the Supreme Court upheld the judgment, finding that the first-instance court had thoroughly analysed the evidence available and had expressly indicated in its judgment which facts it considered to be established as well as the reasons for its conclusion.
25. The applicant submitted a cassation appeal against the decision of the second-instance court. He complained that his procedural rights had not been observed because he could not question witness O.B.
26. On 5 December 2001 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law as manifestly ill-founded, at a sitting held in camera. It considered that the applicant had not demonstrated the existence of arguable grounds which would justify holding a hearing in the cassation proceedings. The Senate concluded that O.B.’s witness statements had been sufficiently examined by the first- and second-instance courts. The Senate did not establish that there had been any violations of procedural and substantive law which would have stood in the way of a thorough, complete and objective investigation of the case.
27. The relevant provisions of the Code of Criminal Procedure (Latvijas Kriminālprocesa Kodekss), applicable at the material time (in force until 1 October 2005), are found in Pacula v. Latvia, no. 65014/01, §§ 34-39, 15 September 2009, and Ž. v. Latvia, no. 14755/03, § 56, 24 January 2008.


ITEMID: 001-61342
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF FEDERICI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicants were respectively born in 1927 and 1929 and live in Rome.
5. They are the owners of a flat in Rome, which they had let to L.S.
6. In a registered letter of 19 February 1990, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1991 and asked him to vacate the premises by that date.
7. In a writ served on the tenant on 28 December 1990, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.
8. By a decision of 9 May 1991, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992.
9. On 12 February 1993, the applicants served notice on the tenant requiring him to vacate the premises.
10. On 16 April 1993, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 6 May 1993.
11. Between 6 May 1993 and 7 December 1999, the bailiff made twelve attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.
12. On 6 June 2000, the applicants recovered possession of the flat.
13. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
14. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
15. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
16. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
17. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
18. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages”.
19. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law n. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
20. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
21. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-100271
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF IORGOV v. BULGARIA (no. 2)
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3 (substantive aspect);No violation of Art. 5-4;Remainder inadmissible
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1957. He is currently serving a life sentence in Pleven, following the commutation of the death penalty to which the courts sentenced him.
7. An initial application lodged by the applicant led to the finding of a violation of Article 3 of the Convention because of the severity of the regime and conditions of detention imposed on him in Sofia prison between 1990 and 1998 (Iorgov v. Bulgaria, no. 40653/98, 11 March 2004). The present case concerns events subsequent to the commutation of the applicant's death penalty in 1999 to one of life imprisonment and his transfer to Pleven prison.
8. Between 1976 and 1987 the applicant was convicted on one count of rape, two of robbery, one of aggravated robbery and one of disturbing public order (хулиганство). As a result he was given three prison sentences and spent a total of eight years and eight months in prison before being released on 14 March 1989.
9. On 4 August 1989 he was arrested near the border between Bulgaria and Yugoslavia. In the course of the ensuing investigations he confessed to having murdered three minors not far from his town, Gulyantsi, on 17 July 1989, and explained that he had intended to leave the country illegally in order to avoid conviction. On 8 August 1989 he was remanded in custody.
10. In the criminal proceedings against him he was charged with the murder of the three children, aged 12, 10 and 8 respectively, with the attempted rape of one of the three victims, with attempting to leave the country illegally and with four counts of trespassing followed by rape committed between 1984 and 1989. In a judgment of 9 May 1990 the Pleven Regional Court found him guilty of the murder of the three children, of the attempted rape of one of the victims, of attempting to leave the country illegally, and of rape committed in 1984 after unlawful entry into the victim's home.
11. On the strength of the evidence produced, the court established the circumstances of the the triple murder as follows. The applicant, a lorry driver, had known the three victims because he had spent some time with their families on a festive occasion. On 17 July 1989 he was asked to transport part of the harvest from the fields around Gulyantsi. That afternoon he chanced upon the three children playing by a river not far from the town. He persuaded them to get into his lorry and drove them to a wood ten kilometres away. There, he tied up the youngest two and tried to rape the girl, who was 12 years old. Then, fearing that they would report him, he strangled the children one by one. To make sure they were dead, he kicked each child in the head several times and slit their throats with a knife. The same day he returned to the scene of the crime and buried the three bodies.
12. The court sentenced him to death for the murder of the three children, considering that, under the circumstances, that was the only penalty that fulfilled the purpose of criminal repression set forth in Article 36 of the Criminal Code: this was an exceptionally serious crime, with several aggravating circumstances (the victims were all young children and had been killed in a particularly cruel manner in order to cover up another crime – the rape of one of them), and the accused had already been convicted of other crimes, but the sentences he had served had not had the desired deterrent effect. The court's decision was upheld by the Supreme Court on 24 October 1990. The applicant then submitted a request for the revision of the judgment, which was rejected on 8 April 1994.
13. The last executions of convicts sentenced to death in Bulgaria took place in November 1989. On 20 July 1990 the National Assembly placed a moratorium on all executions of prisoners sentenced to death. On 23 December 1998 the National Assembly abolished capital punishment and replaced it in the Criminal Code with a new penalty, life imprisonment without commutation (доживотен затвор без замяна). By a decree of 25 January 1999, the Vice-President of Bulgaria commuted the death sentences of the 19 convicts who had been awaiting execution since the introduction of the moratorium, including the applicant, to sentences of life imprisonment without commutation.
14. On 3 November 2009, when news of the parties was last received, the applicant was still in Pleven prison. He had already served twenty years and three months of his life sentence.
15. On 27 April 1999 the applicant was transferred to Pleven prison. In a decision of 5 July 1999 the Veliko Tarnovo Court of Appeal ordered him to be placed under the strictest regime, the “special regime”. It based its decision on section 127b of the Execution of Sentences Act.
16. The applicant was placed in the section of the prison reserved for prisoners serving life sentences, located on the third floor and separated from the rest of the building by a locked door. It comprised six cells, a corridor and a bathroom with lavatories.
17. Each cell measured 4.50 m² and was separated from the neighbouring cells by two solid metal panels, and from the corridor by iron bars. The dividing panels jutted out about 30 inches past the bars, making visual contact between the prisoners impossible. Each cell had a metal bed and bedside table. A metal plate welded to the bars served as a table and another, welded to the bed served as a bench. There was a shelf on the wall for the detainees' clothes.
18. The only daylight came from the windows in the corridor, which were too small to provide sufficient light or ventilation. There was a fluorescent lamp, controlled by the warder, on the ceiling outside each cell. At night light was provided by a 60-watt electric bulb fixed to the end of the metal partition panel, out of reach of the detainees. It was left on all night, but the light it gave out was not bright enough to read or write by. There was a window in the bathroom, but it was covered with a metal plate. Heating was provided by radiators attached to the corridor walls, about two yards from the cell bars.
19. The applicant went to shower once a week, and that was his only access to hot water. He was allowed to use the sanitation facilities in his detention quarters three times a day. The rest of the time he had to use a plastic bucket as a toilet.
20. The applicant had the right to one hour's exercise in the open air per day. Until the beginning of 2002 prisoners serving life sentences were taken out for their open-air exercise one by one, handcuffed and escorted by guards. It was then decided to take them out two at a time, still in handcuffs, and after a while the use of handcuffs was dropped. In 2002 the applicant and the other prisoners serving life sentences were allowed to play table tennis once a week in the activity room adjacent to their quarters. They were also allowed to watch a film and see a priest once a week. From 18 October 2000 onwards the prison authorities allowed the applicant to work in his cell, folding envelopes.
21. In October 2003, at the applicant's initiative, the prison governor took certain steps to improve the detention conditions of prisoners serving life sentences: the cells were left open between 5.30 a.m. and 8 p.m., allowing the prisoners to communicate and to use the lavatory when necessary, and giving them access to running water. The metal plate over the bathroom window was removed to let the daylight in. The electric light bulbs were moved closer to the cells and the metal wall by the applicant's bed was covered with insulating material.
22. In 2003 and 2004 the applicant's detention regime was relaxed twice in succession. On 6 April 2004 he joined a group of ordinary prisoners and left the quarters reserved for prisoners serving life sentences. Since that date he has been sharing a 23 m² cell with five other prisoners. The door of the cell is left open in the daytime and he can talk to the other prisoners in his group in the corridor.
23. According to a report by the Director General of Prison Administration presented by the Government, the applicant regularly took part in sporting activities (table tennis, football, volleyball) and in the organisation of various concerts and festivities on national holidays, at Easter and over the Christmas season. He regularly spoke to his close relatives on the telephone and received parcels from them. Since 2 April 2007 he has worked as a cleaner in charge of the cells on the third floor of the prison.
24. The applicant suffers from back pain (discopathy), for which he was treated in hospital in 2000. According to him, the pain subsequently grew worse and on 13 February 2002 he was examined by a doctor, who recommended physiotherapy. He received no such treatment and complained about it to the Minister of Justice. In a letter of 4 April 2002 the Director General of Prison Administration informed the applicant that the treatment recommended was not the usual method for treating his condition and, as he was under medical supervision, medicine could be administered to him in Pleven prison.
25. According to a report by the director of the prison's medical centre, presented by the Government, the applicant consulted neurology specialists about his back pains on several occasions. In 2003 he apparently underwent thorough medical examinations which revealed no complications.
26. In March 2003, following a skin infection, the applicant underwent surgery at the Sofia prison hospital. He was there from 15 March to 18 April 2003. The doctors noted an improvement in his health by the time he left the hospital. The applicant says that since he was transferred to a shared cell he has had no particular health problems.
27. According to the report by the director of the prison's medical centre, the applicant consulted the prison dentist over a hundred times for different types of dental treatment between 1999 and 2004.
28. Under Articles 37 (2) and 38 of the Criminal Code (CC) as applicable prior to the abolition of capital punishment, the courts could pronounce the death penalty only for particularly serious crimes and only if they considered that the punitive and deterrent purposes of a criminal penalty could not be achieved by a lesser sentence. Until 1995 the harshest sentence after the death penalty was imprisonment, for up to 30 years in exceptional cases (Article 39 of the CC). In 1995 a new penalty was introduced: life imprisonment (доживотен затвор), defined by Article 38a (1) of the CC as “confinement of the convicted person in a prison establishment until the end of his life”. This sentence could be commuted by a court to 30 years' imprisonment after the convict had served 20 years of his sentence (Article 38a (3) of the CC).
29. The death penalty was abolished on 23 December 1998. A new penalty was introduced: life imprisonment without commutation (доживотен затвор без замяна). This penalty replaced capital punishment in the provisions of the Criminal Code. At present it is considered as an alternative to imprisonment and ordinary life imprisonment for crimes considered particularly serious, such as murder or aggravated armed robbery. The relevant part of the explanatory memorandum that accompanied the law abolishing the death penalty read as follows:
“... It is proposed in the draft law to replace the death penalty with a new penalty, life imprisonment without commutation, which differs from life imprisonment. This penalty will remove the prisoner from society, depriving him of the possibility of committing new offences, and the penalty will have a deterrent effect on other would-be offenders ...”
30. Thus, since the abolition of the death penalty, Bulgarian legislation has provided for three types of custodial penalty: imprisonment, for a period of up to thirty years, life imprisonment with a possibility of commutation, and life imprisonment without the possibility of commutation. According to the statistics produced by the respondent Government, on 15 September 2009 there were 60 people serving life sentences without the possibility of commutation in Bulgarian prisons. Another 89 prisoners were serving ordinary life sentences.
31. Under the provisions of Article 70 (1) of the CC, release on licence is applicable only to fixed-term prison sentences. Offenders sentenced to life imprisonment, with or without the possibility of commutation, are not eligible for release on licence.
32. The Code of Criminal Procedure 1974 (the CCP) and the new Code of Criminal Procedure 2006 (the NCCP) provide for the possibility for a regional court, at the request of the regional prosecutor, to commute a life sentence to an ordinary prison sentence (Articles 427 and 428 of the CCP 1974 and Articles 449 and 450 of the NCCP). The regional court gives a reasoned decision; a negative decision may be challenged in the higher courts. If the prosecutor's proposal is rejected, no further commutation request may be submitted for two years. The legislation makes no provision for the prosecuting authorities to apply for adjustment of the sentence of offenders sentenced to life imprisonment without commutation.
33. Under Article 98 point 11 of the Constitution, the power of clemency is a presidential prerogative. Article 74 of the CC, which explains the scope of this presidential power, reads as follows :
“The President may use his power of clemency to grant a pardon in respect of all or part of the sentence and, in the case of the death penalty, a sentence of life imprisonment without commutation or a sentence of life imprisonment, grant a pardon or commute the sentence.”
34. It is a discretionary power which the President has delegated to the Vice-President of the Republic. The Vice-President may decide to exercise the power, in either form, at any time while the sentence is being served. His decision is unconditional and irrevocable. Refusal by the Vice-President to exercise his power is not subject to judicial or administrative review.
35. In practice a committee of experts from the President's administration examines requests for presidential clemency and makes proposals to the Vice-President. In forming its opinion in each case the committee takes into account the position of the president's legal advisers on criminal policy and relies on the information communicated by the prison administration about the convict concerned. Before reaching a decision, the Vice-President may interview the prisoner.
36. In the period from 1 January 2002 to 31 December 2009 the VicePresident received 6,967 applications for clemency. 477 of these were granted.
37. According to a report by the Director General of Prison Administration dated 15 September 2009, submitted by the Government, prisoners serving a life sentence without commutation had submitted about a hundred applications for clemency to the successive Vice-Presidents of the Republic. None was granted. According to a letter from the head of the Vice-President's Office submitted by the Government, from 21 January 2002 to 7 September 2009 the advisory Committee received 29 applications for clemency from 16 prisoners sentenced to life imprisonment without commutation. None was granted. The letter explains that the Vice-President is not required to give reasons for his refusal, but the prisoners concerned can renew their applications for presidential clemency without any restrictions.
38. According to Article 127b of the 1999 version of the Law on the Execution of Punishments 1969, in the event of an ordinary life sentence the court was to order the offender's placement under the strictest regime, called the “special regime”. Prisoners placed under that regime were confined to locked single cells kept under special surveillance (Section 56 of the implementing regulations). Following its amendment on 25 June 2002, the Law on the Execution of Punishments expressly provided for prisoners sentenced to life imprisonment without commutation to be placed under the same prison regime as those serving an ordinary life sentence. The different regimes for custodial sentences, including the special regime, were defined in sections 49 to 65 of the Law on the Execution of Punishments.
39. On 1 June 2009 that Law was replaced by a new Law on the Execution of Punishments, which retained its provisions concerning the execution of the two types of life sentence. The implementing regulations defined the different prison regimes, including the special regime, and the means of execution of custodial sentences (sections 47 to 54).
40. CPT delegations visited Pleven prison in April 2002 and September 2006. The reports on the two visits were published (in English only).
41. The parts of the report on the visit in 2002 concerning the conditions of detention of prisoners serving life sentences and the medical care dispensed in prison read as follows:
“... iii. life-sentenced prisoners
92. In its previous reports, the CPT made recommendations concerning the conditions under which life-sentenced prisoners were held, and the regime applicable to them. The evidence gathered during the 2002 visit suggests that steps have been taken by the Bulgarian authorities to improve the situation of life-sentenced inmates in the light of these recommendations. In this regard, the CPT's delegation was pleased to learn of plans to progressively integrate life-sentenced prisoners into mainstream prison regimes. Pursuant to the recent amendments to the Law on the Execution of Punishments (cf. Art. 127b), the commission set up at each prison for the purpose of making decisions on prisoners' regime can decide, on the basis of individual risk assessment, to transfer life-sentenced prisoners to ordinary units with the right to participate in work, education, sport and other activities.
...
94. ... the four life-sentenced inmates at Pleven Prison ... were accommodated in individual front-grilled cells of a mere 4.5 m², in a specific section of the third floor. Access to natural light and fresh air was through small windows in the corridor situated in front of the cell; as a consequence, lighting and ventilation were poorer than elsewhere in the establishment and the cells could apparently become very hot and stuffy in summer. The cell equipment consisted of a bed, locker, table and chair; in addition, prisoners could have a personal television set.
The CPT recommends that immediate steps be taken to improve material conditions of detention of life-sentenced prisoners at Pleven Prison. These improvements should include providing larger cells (cells of 4.5 m² are unsuitable for use as prisoner accommodation) and better access to natural light and ventilation.
95. ..., life-sentenced prisoners' access to the toilet facilities was restricted to three times a day. At other times, they had to use a bucket within their cells. ...
96. ... life-sentenced inmates referred to recent improvements to their regime, involving ... the possibility of playing table-tennis. Further, ... the inmates concerned had been given some productive/creative work which they could carry out in their cells. Finally, they were now allowed to use the phone. These are all steps in the right direction.
However, life-sentenced prisoners complained about the lack of possibilities for associating among themselves and with other prisoners. The little time available for face-to-face interaction during daily outdoor exercise (which, at Pleven Prison, they took in groups of two) and recreational/sports activities did not offer adequate scope for human contact. The Committee recommends that life-sentenced prisoners at Pleven Prison be allowed to take outdoor exercise together (and not only in groups of two).
...
103. The delegation heard hardly any complaints about access to the doctor and no particular difficulties were noted as regards the transfer of prisoners to outside hospitals or other specialist medical services. However, ..., there were some complaints about the standard of treatment and care, in particular as regards the range of medication prescribed and the quality of dental care. ...”
42. The relevant provisions of the report on the 2006 visit state:
“iii. life-sentenced prisoners
98. In its previous visit reports, the CPT paid close attention to the situation of prisoners serving life sentences (see paragraph 92 of CPT/Inf (2004) 21; paragraphs 118-124 of CPT/Inf (2002 1). The delegation which carried out the 2006 visit examined progress made in this area.
99. At the time of the visit, Pleven Prison was holding 8 life-sentenced prisoners, of whom 5 were held in a special section and 3 had been placed in a unit for prisoners serving sentences under strict regime. ...
Since 2004, Pleven Prison had embarked on an “experiment” of integrating certain life-sentenced prisoners into the general prison population. At the time of the 2006 visit, three such prisoners were being accommodated in a unit for prisoners serving sentences under strict regime (and one more was expected to be moved there soon). They were held in a cell measuring some 22 m² with three other prisoners. Conditions in the cell were generally adequate (large windows, various items of furniture, elements of personalisation). One of the prisoners had a job as a cleaner and the other two occasionally made gift bags in the cell. The cell doors were open throughout the day and life-sentenced prisoners enjoyed the same rights as the remainder of prisoners under strict regime. It appeared from conversations with other prisoners and staff that the arrival of the life-sentenced prisoners in the unit had not caused any particular dissatisfaction or problems.
...
102. The “experiment” at Pleven Prison of integrating life-sentenced prisoners into the general prison population is a positive example to be followed in the rest of the country's prisons. At present, the formal criteria for changing the regime of a lifer is to have served at least 5 years under special regime (not counting the period on remand), to have good behaviour and to have formally applied for the change of regime. The CPT wishes to stress that, whereas initial segregation of a person awaiting or starting a life sentence might be deemed appropriate on the basis of individual risk assessment in a specific case, persons awaiting or serving a life sentence should not be subject to a systematic policy of segregation. ...”
NON_VIOLATED_ARTICLES: 3
5
NON_VIOLATED_PARAGRAPHS: 5-4