ITEMID: 001-58280
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF SÜREK v. TURKEY (No. 2)
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;Luzius Wildhaber;Paul Mahoney
TEXT: 8. The applicant is a Turkish citizen who was born in 1957 and lives in Istanbul.
9. At the material time, the applicant was the major shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish limited liability company which owns a weekly review entitled Haberde Yorumda Gerçek (“The Truth of News and Comments”), published in Istanbul.
10. The issue dated 26 April 1992 contained a news report providing information given at a press conference by a delegation - which included two former Turkish parliamentarians Leyla Zana and Orhan Doğan, Lord Avebury and a member of the Anglican Church - on its visit to Şırnak village, in the wake of tensions in the area.
The news report included an article reporting the Governor of Şırnak as having told the delegation that the Şırnak Chief of Police had given an order to open fire on the people.
It further rendered a dialogue between Leyla Zana, Orhan Doğan and İsmet Yediyıldız, a Gendarme Commander.
The relevant part of the report read:

“Gendarmerie Regiment Commander İsmet Yediyıldız:
‘Your blood would not quench my thirst…’
While the British delegation and Diyarbakır MP Leyla Zana, Şırnak MP Orhan Doğan and Bismil District Governor Mehmet Kurdoğlu managed to persuade the people of Tepe village, which was blockaded by the security forces, after talking to them for a while and telling them that permission had been obtained for them to get the bodies of their dead, an interesting conversation took place between Diyarbakır Security Director Ramazan Er and Gendarmerie Regiment Commander İsmet Yediyıldız.
The conversation between the MPs Leyla Zana and Orhan Doğan on the one hand and Colonel İsmet Yediyıldız on the other hand was recounted by Leyla Zana as follows:
Colonel Yediyıldız: What business do you have here? There had been nobody here until you arrived. You have come and stirred things up again.
Leyla Zana: No, Sir. The situation had been extremely tense before we arrived. We have come with the District Governor and are trying to calm down the tension here. Here is the District Governor.
Colonel Yediyıldız: No, that’s not true. We saw when we were flying by helicopter that there was nobody here before. People gathered when you arrived.
Orhan Doğan: No, you can ask the District Governor if you like. (Meanwhile, District Governor Mehmet Kurdoğlu was also being told off.)
Colonel Yediyıldız: Do you know who these dead people are?
Orhan Doğan: Yes, they are our children, the children of all of us.
Colonel Yediyıldız: No, these are not our children, they are your children.
Orhan Doğan: But my Colonel ...
Colonel Yediyıldız: Do not call me your colonel. I am not your colonel. Your blood would not quench my thirst. You should also be honest and freely admit that my blood would not quench your thirst. Right now I could kill you like a rat. Your death would give us pleasure. Your blood would not quench my thirst.
Leyla Zana: If the problem can be solved by killing us, then here are our people; let’s go among them and you kill us and this problem is solved.
Colonel Yediyıldız: No, I would not kill you now. I would kill you after disgracing you in the eyes of the people.”
11. On 29 May 1992 the Public Prosecutor at the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi) charged the applicant, being the owner of the review, with revealing the identity of officials mandated to fight terrorism and thus rendering them terrorist targets. The charges were brought under section 6 of the Prevention of Terrorism Act 1991 ("the 1991 Act"; see paragraph 16 below).
12. In the proceedings before the Istanbul National Security Court the applicant denied the charges and advanced the following arguments in his defence. The news report had been published with the aim of informing the public of the events which had occurred during the 1992 Newroz celebrations. It had been based on a joint press declaration by former deputies Leyla Zana and Orhan Doğan and an English delegation, during their visit to south-east Turkey. By virtue of the fact that section 6 of the 1991 Act contained an absolute prohibition on the disclosure and dissemination of the identity of officials appointed to fight terrorism, it enabled officials to abuse their authority, violate the law and subject citizens to ill-treatment. The right to receive and impart information, including information concerning acts of officials, was fundamental in a democratic society. Section 6 of the 1991 Act contravened not only the Turkish Constitution but also Article 10 of the Convention.
13. In a judgment of 2 September 1993 the National Security Court convicted the applicant under section 6 of the 1991 Act and sentenced him to pay a fine of 54,000,000 Turkish lira. It noted that the news report had contained an allegation to the effect that the Governor of Şırnak had stated to the visiting delegation that the Şırnak Chief of Police had given an order to open fire on the people. It had further affirmed that a gendarme commander had stated to Orhan Doğan in Leyla Zana’s presence "[y]our death would give us pleasure. Your blood would not quench my thirst". By having disclosed the identity of these officials, the publication had rendered them targets for terrorist attack.
14. The applicant appealed, reiterating his defence before the National Security Court. He also argued that the press declaration at issue had already been reported in other newspapers and magazines and that the incriminated news report had added nothing to these.
15. On 10 December 1993 the Court of Cassation dismissed the appeal. It upheld the cogency of the National Security Court's assessment of the evidence and its reasoning for rejecting the applicant's defence.
16. The relevant provisions of the Prevention of Terrorism Act 1991 read as follows:
“It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person’s ... identity is divulged, provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target.
It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to print or publish declarations or leaflets emanating from terrorist organisations.
…
Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the sales of the previous issue if the periodical appears monthly or less frequently, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched.2 However, the fine may not be less than fifty million Turkish liras. The editor of the periodical shall be ordered to pay a sum equal to half the fine imposed on the publisher.”
17. The relevant provisions of domestic law governing the organisation and procedure of the National Security Court are quoted in paragraphs 3233 of the Sürek no. 1 v. Turkey judgment, which is being delivered on the same date as the present judgment.
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84011
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: TAHER v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Mr Ibrahim M Taher, is a Swedish national of Iraqi origin who was born in 1953 and lives in Linköping. The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 July 2000 the applicant arrived in Sweden from Iraq. On 28 September 2000 he was granted a permanent residence permit. He was not considered to be a refugee but a person “otherwise in need of protection”. He was granted Swedish citizenship on 10 August 2005.
On 4 January 2001, Zamrod Jamil Abdulqadir, a woman born in 1956, and six children, allegedly born in 1985, 1985, 1986, 1988, 1990 and 1993, respectively, applied for residence permits at the Swedish Embassy in Tehran, on the grounds that they were the wife and children of the applicant.
Ms Abdulqadir was interviewed at the Embassy on 3 April 2001 and 4 February 2002. She could not give a precise date of her alleged marriage with the applicant, only that it had been in the spring of 1982. No marriage certificate was submitted. She claimed that they had never thought that it was important to have their marriage registered. At the request of the interviewer, Ms Abdulqadir agreed to a bone age test of the four eldest children. This test, which was performed by a radiologist at the Iranian Medical Council No. 2692 on 5 February 2002, showed that all the children tested were at least 19 years old.
In a letter to the Migration Board of 11 May 2001, the applicant claimed that his marriage to Ms Abdulqadir had not been registered as the war between Iraq and Iran had made it impossible to visit the relevant authorities.
On 29 April 2002 the Migration Board (Migrationsverket) rejected the applications for residence permits. It found that the marriage between the applicant and the woman had not been registered in Iraq and considered that the four eldest children had to be considerably older than 18 years. Moreover, falsified documents and incorrect statements had been submitted by the woman and the children. The Board referred, inter alia, to their identity cards, all with the same registration and page numbers and containing information which was inconsistent with the claim that the marriage had not been registered. It stated that it could not be ascertained from the information submitted whether the applicant and the woman belonged to the same family, to different families or were in any way related. Noting that it was up to the persons requesting a residence permit to submit full and correct information, the Board concluded that the woman and the children had failed to show that they were related to the applicant.
Ms Abdulqadir and the children appealed to the Aliens Appeals Board (Utlänningsnämnden). They submitted a marriage certificate, according to which the applicant and the woman had been married on 25 December 1982. They argued that there had been a misunderstanding regarding the question whether the marriage had been registered or not; the applicant and Ms Abdulqadir had only meant that the marriage certificate was missing. Furthermore, the applicant requested that a new bone age test be performed.
On 8 January 2003 the Appeals Board informed the applicant that the Swedish authorities would not perform a new bone age test. However, he was invited to pay for a test himself and submit the test results. The applicant subsequently replied that he did not intend to have a new medical investigation performed.
On 13 February 2003 the Appeals Board rejected the appeal. It noted that the applicant and Ms Abdulqadir, during the investigation at the Migration Board, had stated that they had not been able to register their marriage with the Iraqi authorities due to the war between Iraq and Iran. However, in their appeal, they had stated that the marriage had in fact been registered but that they had misunderstood the question put to them and had had the impression that the fact that they did not have a certificate meant that no registration had been made. The Appeals Board found their statements contradictory and concluded that the explanation given in the appeal was no more credible than the information given at first instance. It further stated that Iraqi identity documents had a low value as evidence and, as such, did not prove the identity of the holder. In conclusion, the Board considered that the documents submitted did not prove the alleged identities and family ties. Moreover, the age of the four eldest children had not been confirmed.
On 2 April 2003 Ms Abdulqadir and the children filed new applications with the Swedish Embassy in Tehran. On 22 October 2003 the Embassy held a third interview with her and also briefly interviewed the children. She stated that the marriage certificate had been obtained in 2002 but had not been available at the time of her second interview at the Embassy. She had not obtained it earlier as the applicant had told her that it was not necessary for the first interview.
On 16 June 2004 the new applications for residence permits were rejected by the Migration Board, which found that no new circumstances had emerged.
In an appeal to the Aliens Appeals Board, new documents were submitted, including a certificate issued by the Iraqi Embassy in Stockholm on 3 August 2004. The certificate stated that, according to a marital contract issued by the Iraqi Ministry of Justice, the applicant and Zamrod Jamil Abdulqadir had been married on 25 December 1982.
On 20 December 2004 the Appeals Board rejected the appeal. Notwithstanding the certificate from the Iraqi Embassy, it found no reason to change its previous decision.
On 24 May 2006 the applicant submitted yet another application to the Migration Board on behalf of his alleged family members. In a letter of 15 June 2006, the Board requested that the applicant contact the family in order to make an appointment at a Swedish embassy abroad for an interview and to prove their identities. On 4 October 2006 the application was dismissed as the requested information had not been provided within the prescribed three-month period and the application had not been pursued.


ITEMID: 001-102149
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GJYLI v. ALBANIA
IMPORTANCE: 4
CONCLUSION: Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. On 9 July 2005 the applicant was dismissed from work. Considering his dismissal arbitrary, he challenged it before the Durrës District Court (“the District Court”). The applicant did not seek an award of pecuniary damage.
7. By a judgment of 27 September 2005, which became final, the District Court found the dismissal void due to a flawed procedure and ordered the applicant’s reinstatement. That judgment was never enforced.
8. In separate proceedings, which were pending before the domestic courts by the time this Court adopted the principal judgment, the applicant sought payment of salary arrears since 9 July 2005.
9. By a decision of 10 November 2009, the Supreme Court found in the applicant’s favour as regards his request for payment of salary arrears. Since the employer had paid the applicant salary arrears for the period between 9 July 2005 and 31 December 2006, the Supreme Court found that the employer had to pay the applicant salary arrears for the period between 1 January 2007 and 23 January 2009, the date on which the applicant had retired.
10. Until 24 March 2010 the applicant had been paid salary arrears in the amount of 931,728 Albanian leks (ALL) for the period between 1 January 2007 and 31 March 2008. To date, the remainder of salary arrears (ALL 1,000,000 for the period between 1 April 2008 and 23 January 2009) has not been paid to the applicant.


ITEMID: 001-90402
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF JOSEPH GRANT v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 4. The applicant was born in Jamaica on 15 September 1960 and he is currently living there again.
5.
6. The applicant and one of his two brothers arrived in the United Kingdom in 1974 to join their mother who was already there. His brother was granted British citizenship in 2004. A third brother was born in the United Kingdom. His mother and two brothers continue to live in the United Kingdom. He has no surviving relatives in Jamaica.
7. In 1983 the applicant had a son, Leon, by a British national. He has a grandchild by this son. In 1984 the applicant had a second son, Ryan, by a second British woman. Also in 1984 he began a relationship with a third British national which lasted twelve years. They had a daughter, Naomi, who has born in 1996 and is now twelve years of age. During this time the applicant had a third son, Nathan, by another woman. Nathan is now eighteen years of age.
8. Although the applicant has never lived with any of his children, he claims that he is in regular contact with all of them and in particular sees his daughter on average three times a week. Although she is now married, the applicant remains in contact with the mother of his daughter.
9. The applicant was first convicted on 17 July 1985, when he was fined GBP 15 for shoplifting. The following year he was fined a further GBP 25 after a second conviction for shoplifting, and in 1988 he was fined GBP 100 following convictions for criminal damage and assaulting a police officer. On 21 September 1989 the applicant was convicted of supplying a controlled drug. He was sentenced to 15 months’ imprisonment. Following this sentence, the applicant was considered for deportation by the Secretary of State for the Home Department. Following representations by the applicant that the drug in question was cannabis with a value of GBP 3 (equivalent to EUR 5), on 14 March 1990 the Secretary of State wrote to the applicant advising him that deportation action would not be pursued and warning him that if he came to the adverse notice of the Immigration Service in the future his deportation would again be considered.
10. The applicant subsequently became addicted to heroin. Between 30 December 1991 and 24 May 2006 he was convicted 32 times for 52 offences, including driving offences, assaulting a police officer, assault occasioning actual bodily harm, criminal damage, possession of an offensive weapon, possession and supply of controlled drugs and theft. The applicant received sentences of fines, suspended sentences, community service orders and occasionally prison sentences which at no time exceeded twelve months. He maintains that these convictions were connected with his drug abuse and, while they included convictions for the possession of crack cocaine and heroin and theft in order to feed his drug habit, he has never sold drugs.
11. On 29 January 2003 he pleaded guilty to robbery at Leeds Crown Court. In sentencing the applicant, the trial judge noted that the normal sentence for robbery would have been three to four years’ imprisonment but, given the facts in the case and the applicant’s guilty plea, he imposed a sentence of twelve months’ imprisonment. He made no recommendation regarding the applicant’s deportation from the United Kingdom.
12. On 24 April 2006, at Leeds Magistrates’ Court, the applicant was convicted of three counts of theft and breach of a conditional discharge for possessing a controlled drug.
13. On 30 May 2006 the Secretary of State for the Home Department made a deportation order against the applicant stating that, in view of his conviction for robbery of 29 January 2003, it was conducive to the public good to do so.
14. The applicant appealed to the Asylum and Immigration Tribunal (“the AIT”), relying, inter alia, on Article 8 of the Convention. He argued that, in light of his extensive private and family life in the United Kingdom and the length of his stay there, the decision to deport him was a violation of Article 8. In its determination of 19 October 2006, the AIT dismissed the applicant’s appeal. It accepted that the applicant enjoyed family life in the United Kingdom but held that the relevant judgments of the European Court of Human Rights finding a violation of Article 8 in deportation cases could be distinguished on the facts. The AIT concluded:
‘We therefore consider that, although there will be a breach of the Appellant’s family life if deported to Jamaica, this will not be disproportionate in terms of being conducive to the public good.’
15. The applicant applied for reconsideration of the AIT’s decision. On 6 November 2006, a Senior Immigration Judge refused the application, holding that the AIT had clearly considered the applicant’s contact with all his children and was well aware of the length of time the applicant had been living in the United Kingdom. She found the AIT’s reasons to be adequate, proper and intelligible.
16. The applicant’s application for statutory review was dismissed by the High Court on 31 January 2007. On 12 November 2007 the applicant was deported to Jamaica.
Section 5(3)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision on the grounds, inter alia, that the decision is incompatible with the Convention.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
The Rules relating to the revocation of a deportation order are contained in paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended), supplemented by Chapter 13 of the Immigration Directorates Instructions (“IDIs”). There is no specific period after which revocation will be appropriate although Annex A to Chapter 13 of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal. Cases which will normally be appropriate for revocation 3 years after deportation include those of overstayers and persons who failed to observe a condition attached to their leave, persons who obtained leave by deception, and family members deported under section 3(5)(b) of the Immigration Act 1971. With regard to criminal conviction cases, the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “spent” under section 7(3) of the Rehabilitation of Offenders Act 1974. Paragraph 391 of the Rules, however, indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. This is expanded on in Annex A to Chapter 13 of the IDIs, which indicates that revocation would not normally be appropriate until at least 10 years after departure for those convicted of serious offences such as violence against the person, sexual offences, burglary, robbery or theft, and other offences such as forgery and drug trafficking.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-75454
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF GRANT v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;No separate issue under Art. 14 +P1-1 or P1-1;Pecuniary damage - financial award;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza
TEXT: 7. According to the applicant’s birth certificate, she is male. She served in the army for three years from the age of 17 and then worked as a police officer. Aged 24, she gave up attempting to live as a man, and had gender reassignment surgery two years later. She has presented as a woman since 1963, is identified as a woman on her National Insurance card and paid contributions to the National Insurance scheme at the female rate (until 1975, when the difference in rates was abolished). In 1972 she became self-employed and started paying into a private pension fund.
8. By a letter dated 22 August 1997, the applicant applied to the local government benefits office for State pension payments. She wished these to commence on 22 December 1997, her 60th birthday. Her application was refused by a decision of the Adjudication Officer issued on 31 October 1997. He stated that she had applied “too early”, and was only entitled to a State pension from the age of 65, the retirement age applicable to men.
9. Her appeal against this decision was heard by Birmingham Social Security Appeal Tribunal on 12 March 1998, which dismissed it on the basis of established case-law. At this time she claimed that she was no longer able to work due to a spinal collapse fracture of osteoporotic origin.
10. On 1 October 1998 the applicant submitted her appeal to the Social Security Commissioner. Leave to appeal was granted but, by a decision of 1 June 2000, her appeal was dismissed following an oral hearing. The Commissioner felt compelled to follow previous decisions and also held that the DSS had not entered into an agreement to treat the applicant as a woman.
11. In the light of the judgments of 11 July 2002 given by the Grand Chamber in Christine Goodwin v. the United Kingdom ([GC], no. 28957/95, ECHR 2002-VI) and I. v. the United Kingdom ([GC], no. 25680/94), in which the Court found that the Government’s continuing failure to take effective steps to effect the legal recognition of the change of gender of post-operative transsexuals was in breach of Article 8, the applicant wrote to the Office of Social Security on 12 July 2002 asking for her case to be reopened. The Commissioner notified her on 14 August 2002 that leave to appeal to the Court of Appeal had been granted.
12. On 5 September 2002 the Department for Work and Pensions refused to award the applicant a State pension in light of the judgment in Christine Goodwin.
13. In the Court of Appeal, the applicant sought, inter alia, a declaration that she was entitled to her full retirement pension from her 60th birthday, and damages for breach of the Human Rights Act 1998, in force from 2 October 2000. Meanwhile, on 22 December 2002, the applicant reached the age of 65 and her pension payments began.
14. By agreement, her case was adjourned to await the House of Lords judgment in Bellinger v. Bellinger. In that case the claimant, a transsexual, sought a declaration of validity in respect of a marriage contracted following gender reassignment surgery. By a decision of 10 April 2003, their Lordships, whilst finding the Government’s continuing failure to legislate to be a breach of Articles 8 and 12, deemed the formulation of legal norms to remedy that breach best left to Parliament ([2003] WLR 1174). Further, the House of Lords disapproved of attempts to seek recognition even in the clearest cases on the basis that (a) eventually a line would have to be drawn and (b) such demarcation required detailed consideration by the legislature of the likely social consequences. Following this decision, the applicant was advised by her legal representative that the prospects of persuading the Court of Appeal to depart from the Bellinger judgment, and thus of obtaining an effective remedy, were nil. If proceedings were continued, she would further risk punitive costs orders. Accordingly, the applicant consented to a court order dismissing her appeal with no order as to costs. The Government further refused to make any ex gratia payment of a sum representing her lost State pension.
15. On 26 April 2005 the applicant was issued with a Gender Recognition Certificate following her application under the Gender Recognition Act 2004 which had come into force on 1 July 2004 (see paragraphs 30-31 below).
16. A transsexual continues to be recorded for social security, National Insurance and employment purposes as being of the sex recorded at birth.
17. The DSS registers every British citizen for National Insurance (NI) purposes on the basis of the information in their birth certificate. Non-British citizens who wish to register for NI in the United Kingdom may use their passport or identification card as evidence of identity if a birth certificate is unavailable.
18. The DSS allocates every person registered for NI with a unique NI number. The NI number has a standard format consisting of two letters followed by three pairs of numbers and a further letter. It contains no indication in itself of the holder’s sex or of any other personal information. The NI number is used to identify each person with an NI account (there are at present approximately 60 million individual NI accounts). The DSS is thereby able to record details of all NI contributions paid into the account during the NI account-holder’s life and to monitor each person’s liabilities, contributions and entitlement to benefits accurately. New numbers may in exceptional cases be issued to persons, for example, under the witness protection scheme or to protect the identity of child offenders.
19. NI contributions are made by way of deduction from an employee’s pay by the employer and then by payment to the Inland Revenue (for onward transmission to the DSS). At present employers will make such deductions for a female employee until she reaches the pensionable age of 60 and for a male employee until he reaches the pensionable age of 65. The DSS operates a policy for male-to-female transsexuals whereby they may enter into an undertaking with the DSS to pay direct to the DSS any NI contributions due after the transsexual has reached the age of 60 which have ceased to be deducted by the employer in the belief that the employee is female. In the case of female-to-male transsexuals, any deductions which are made by an employer after the age of 60 may be reclaimed directly from the DSS by the employee.
20. In some cases employers will require proof that an apparent female employee has reached, or is about to reach, the age of 60 and so entitled not to have the NI deductions made. Such proof may be provided in the form of an Age Exemption Certificate (form CA4140 or CF384). The DSS may issue such a certificate to a male-to-female transsexual where such a person enters into an undertaking to pay any NI contributions direct to the DSS.
21. Documents received to date do not explain why National Insurance payments at the lower female rate were accepted from the applicant between 1963 and 1975.
22. A male-to-female transsexual was, prior to 4 April 2005, only entitled to a State pension at the retirement age of 65 applied to men and not the age of 60 which is applicable to women. In those circumstances, a full pension was payable only if she had made contributions for 44 years as opposed to the 39 years required of women.
23. A person’s sex for the purposes of pensionable age was prior to 4 April 2005 determined according to biological sex at birth. This approach was approved by the Social Security Commissioner (a judicial officer, who specialises in social security law) in a number of cases.
24. In the R(P) 2/80 case, a male-to-female transsexual claimed entitlement to a pension at the age of 60. The Commissioner dismissed the applicant’s appeal and stated at paragraph 9 of his decision:
“(a) In my view, the word ‘woman’ in section 27 of the [1992 Social Security Contributions and Benefits] Act means a person who is biologically a woman. Sections 28 and 29 contain many references to a woman in terms which indicate that a person is denoted who is capable of forming a valid marriage with a husband. That can only be a person who is biologically a woman.
(b) I doubt whether the distinction between a person who is biologically, and one who is socially, female has ever been present in the minds of the legislators when enacting relevant statutes. However that may be, it is certain that Parliament has never conferred on any person the right or privilege of changing the basis of his National Insurance rights from those appropriate to a man to those appropriate to a woman. In my judgment, such a fundamental right or privilege would have to be expressly granted.
...
(d) I fully appreciate the unfortunate predicament of the claimant, but the merits are not all on her side. She lived as a man from birth until 1975, and, during the part of that period when she was adult, her insurance rights were those appropriate to a man. These rights are in some respects more extensive than those appropriate to a woman. Accordingly, an element of unfairness to the general public might have to be tolerated so as to allow the payment of a pension to her at the pensionable age of a woman.”
25. On 1 June 2000 this decision was followed by a Commissioner determining the applicant’s appeal.
26. By 11 July 2002, when the Grand Chamber gave judgment in Christine Goodwin, the Government had instituted plans to eradicate the difference between men and women concerning the age of entitlement to State pensions. Section 126 of the Pensions Act 1995 provides for the State pensionable age to increase progressively, beginning in 2010 and reaching complete equalisation of the pensionable age at 65 by 2020.
27. Up to 15 October 2002, the Government had received 101 applications from transsexual people seeking to have their birth certificate changed. An Interdepartmental Group on Transsexual People was reconvened and reported to Ministers. On 13 December 2002 the Government announced draft legislation and a commitment to legislate as soon as possible.
28. In its Bellinger judgment published on 10 April 2003 (see above), the House of Lords did not expressly deal with the issue of pension entitlements, but took cognisance of the Government’s concession that domestic legislation failing to recognise the acquired gender of transsexual people infringed Articles 8 and 12 of the Convention.
29. On 14 April 2003 the Government confirmed in response to a parliamentary question that proposed legislation would include rights to claim a State pension from the date of legal recognition of the new gender.
30. The Gender Recognition Act 2004 has been adopted by Parliament since the introduction of this application. It received the Royal Assent on 1 July 2004. Under the Act, individuals who satisfy certain criteria are able to apply to a Gender Recognition Panel for a Gender Recognition Certificate. From the date of the grant of such a certificate, which is prospective in effect, an individual is afforded legal recognition in their acquired gender. In particular, social security benefits and the State retirement pension are paid according to the acquired gender.
31. From 4 January 2005, the Secretariat to the Gender Recognition Panel has been in operation and receiving applications. The Panel itself came into legal existence on 4 April 2005, from which date certificates could be issued.
32. On 2 October 2000 the Human Rights Act 1998 came into force, permitting the provisions of the Convention to be relied on in domestic proceedings in the United Kingdom.
VIOLATED_ARTICLES: 8


ITEMID: 001-89623
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF CEMALETTIN CANLI v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1969 and lives in Ankara.
6. In 1990 he was prosecuted for his alleged membership of an illegal organisation, namely Dev-Genç (“Revolutionary Youth”) but was acquitted on 25 September 1990. Another set of criminal proceedings brought against him under Article 141 of the Criminal Code for membership of another illegal organisation, namely Dev-Yol (“Revolutionary Path”), were discontinued in 1990 following the repeal of that provision.
7. On 23 August 2003 the applicant was on his way to a demonstration in Ankara, organised by the Confederation of Public Workers’ Unions. He was arrested by the police, who allegedly beat him up. He was taken to a police station. A police report drawn up the same day stated that the applicant had a previous record for terrorist related activity in 1990.
8. On 24 August 2003 the Ankara prosecutor filed an indictment, accusing the applicant and 25 other persons of contravening the Demonstrations Act, and charged them with the offences of damaging State property and resisting arrest by using force.
9. While the criminal proceedings were pending before the Ankara Criminal Court of First Instance (hereinafter “the Ankara court”), a police report entitled “information form on additional offences” (Ek Suç Bildirme Formu) was submitted to the Ankara court. In the report, under the heading “Records of Guilt” (Suçluluk Kayıtları), were two entries concerning the applicant which read as follows:
“1- Member of Dev-Yol, 14/03/1990, Political Offences Branch [of the Police], 3371;
2- Member of Revolutionary Youth, 2/11/1990, Political Offences Branch [of the Police], 14034”.
10. The report, which also included the applicant’s fingerprints, address and birth registry details, had been drawn up in accordance with Article 12 of the Police Regulations on Fingerprinting, which empowered the police to keep such details on persons accused or convicted of certain offences.
11. On 27 January 2004 the applicant submitted a complaint to the prosecutor and brought to the prosecutor’s attention his acquittal in 1990 of the offence of membership of the illegal organisation Dev-Genç, and the discontinuation in 1990 of the criminal proceedings concerning his alleged membership of Dev-Yol. The applicant drew attention to the fact that the Police Regulations on Fingerprinting also required the police to include in their records any acquittals or discontinuations of criminal proceedings. He asked the prosecutor to prosecute the police officers who had neglected their duties by failing to comply with the Regulations.
12. In his complaint the applicant further argued that the police report as it stood infringed his right to the presumption of innocence protected by Article 6 of the European Convention on Human Rights. He was a sociologist and the author of a number of publications. He drew the attention of the prosecutor to the national press which had reported that “one of the persons arrested [in the demonstration] was a member of Dev-Genç”. He submitted that he was now regarded as a member of illegal organisations and this had adverse effects on his professional life and was detrimental to his psychological integrity.
13. On 11 February 2004 the prosecutor dismissed the applicant’s request for the police officers to be prosecuted. The prosecutor considered that the officers had not attempted to mislead anyone; all they had done was to forward to a criminal court official records of past incidents concerning the applicant.
14. The applicant lodged an objection against the prosecutor’s decision and argued that the prosecutor had not examined or even mentioned in his decision the Regulations in question before deciding not to prosecute the police officers. He further complained that his rights under the European Convention on Human Rights, in particular his rights to a fair trial and to respect for his private and family life, had been breached.
15. The applicant’s objection was rejected by the Sincan Assize Court on 17 March 2004.
16. On 8 December 2005 the applicant was acquitted in the criminal proceedings which had been brought against him on 24 August 2003 (see paragraph 8 above).
17. According to Article 230 of the Criminal Code in force at the time of the events, it was an offence for a public servant to delay in carrying out or to omit to carry out his or her duties.
Moreover, according to Article 26 of the Police Regulations on Fingerprinting, all decisions relating to the accusations mentioned in police reports – such as decisions rendered by prosecutors not to prosecute, court decisions on acquittals, and decisions to discontinue criminal proceedings – should also be included in the reports and a certified copy of such decisions should be attached to them. Competent authorities requiring information on the person in question should be provided with the reports as well as with the decisions relating to the accusations mentioned in them.
The Council of Europe has examined questions of data protection and concluded the Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data. It came into force on 1 October 1985 and its purpose is “to secure ... for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy with regard to automatic processing of personal data relating to him” (Article 1), such personal data being defined in Article 2 as “any information relating to an identified or identifiable individual”.
VIOLATED_ARTICLES: 8


ITEMID: 001-81213
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: BUONPANE v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto
TEXT: The applicant, Mrs Agatina Buonpane, is an Italian national, who was born in 1963 and lives in Runkel. She is represented before the Court by Mr Georg Königstein, a lawyer practising in Brechen-Niederbrechen.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant owed 81,875.18 DEM (German marks) to more than twenty creditors. She had made an unsuccessful attempt to obtain discharge of the residual debt on the basis of a debt reorganisation plan. However, the majority of the creditor’s refused to agree to this plan.
On 8 May 2000 the applicant applied for legal aid with a view to initiating insolvency proceedings and achieving discharge of residual debt.
On 10 May 200 the Limburg District Court (Amtsgericht) dismissed her request. Leaving the question undecided whether the legal aid provisions contained in the Code of Civil Procedure (Zivilprozessordnung) applied to insolvency proceedings, it considered that in the present case the proposed proceedings did not have sufficient prospects of success, since more than half the named creditors had refused to approve the applicant’s debt reorganisation plan. Pursuant to Section 309 § 1 of the Insolvency Statute (Insolvenzordnung), the insolvency court could not replace their objection by approval and the insolvency proceedings had to be considered as having failed.
The applicant appealed against this decision. She maintained that if she were refused legal aid in the insolvency proceedings, she would be deprived of the possibility to proceed to the subsequent procedural steps provided for by the Insolvency Statute, namely the opening of insolvency proceedings and the grant of discharge for thee residual debt after the expiry of the period of good payment behaviour. To make a difference in insolvency proceedings between debtors who were able to pay the court costs and others who were unable to do so, would exclude the less privileged from being granted a discharge for the residual debt and breach their right to access to court.
On 28 June 2000 the Limburg Regional Court (Landgericht) dismissed the appeal. It pointed out that the question of legal aid in insolvency proceedings, including the proceedings relating to discharge of residual debt, was controversial. Unlike bankruptcy proceedings where, in the absence of any positive effect for the debtor, legal aid had to be refused for lack of sufficient prospects of success within the meaning of Section 114 of the Code of Civil Procedure, insolvency proceedings could have a positive outcome for the debtor, namely to give the debtor the opportunity to achieve a discharge of the residual debt in accordance with Section 1 of the Insolvency Statute. However, this advantage could only be granted if previously an unsuccessful attempt had been made to settle out of court with the creditors on a basis of a plan and subsequently insolvency proceedings conducted until at least the discontinuation of the proceedings. In the present case the plan for the settlement of debts submitted by the applicant had not been approved by more than half the creditors. Their approval could not be replaced by the court. The out of court settlement proceedings must therefore be considered as having failed.
The Regional Court added that in any event Sections 114 seq. of the Code of Civil Procedure were not applicable in consumer insolvency proceedings although there were no specific rules excluding the applicability of these provisions. However, the drafting history of the Insolvency Act made it clear, on the other hand, that the legislator did not intend to include expressly provisions on legal aid in the new law. A clarification of this situation had not occurred. The Regional Court pointed out that it was not its task to decide on the question whether such a clarification would be desirable, in particular having regard to the absence of sufficient financial means of most of the debtors and the purpose of discharging them from their remaining debts pursuant to Section 1 of the Insolvency Act.
On 22 August 2000 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as panel of three judges, decided not to entertain the applicant’s constitutional complaint considering that it did not raise any constitutional issue of fundamental importance and that there was no appearance of a violation of the applicant’s basic rights
The Insolvency Statute (Insolvenzordnung) came into force on 1 January 1999. The law distinguishes between regular insolvencies and consumer insolvencies (simplified proceedings). The procedure is initiated at the request of the debtor or of a creditor if the debtor is insolvent. One of the major amendments in the context of the new insolvency law was the introduction of a special consumer insolvency procedure. If the debtor is a natural person, he or she may be discharged from his or her remaining debts. In accordance with the Insolvency Statute as amended on 1 January 2001, natural persons, who are not able to pay the costs of the insolvency proceedings, may be granted a delay in paying the costs. This facilitates the opening of insolvency proceedings which are in turn a precondition for achieving a discharge of residual debt. A central issue, namely the granting of legal aid, is still unresolved.
The consumer insolvency procedure consists of three phases:
1. The debtor must seek an out of court-settlement with the creditors. Only if all creditors agree the plan the proceedings may be completed at this stage.
2. If his attempt to reach an agreement is unsuccessful, the court insolvency proceedings follow. The court attempts once more to arrive at an agreement between the creditors and the debtor on the basis of a debt reorganisation plan. The debtor must submit files detailing his or her assets and income, together with a list of creditors and their claims, to the court. Furthermore the debtor must prove that all attempts to secure an agreement with the creditors have failed. Where the majority of creditors agree to the plan, the court may substitute the approval of individual creditors under certain conditions.
3. After the opening of insolvency proceedings claims are examined and validated. The debtor’s assets are liquidated by a trustee appointed by the court. If the debtor settles with the creditors to the best of his ability, he is discharged from his remaining debts after a period of good payment behaviour. This period will be usually seven years.


ITEMID: 001-113758
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF PUZYREVSKIY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial)
JUDGES: Elisabeth Steiner;Julia Laffranque;Peer Lorenzen
TEXT: 4. The applicant was born in 1949 and lives in Sredniy Urgal, a village in the Khabarovsk region.
5. In 2004 the applicant lodged a court action against a private company seeking compensation for pecuniary and non-pecuniary damage sustained as a result of actions of company’s employees.
6. On 7 July 2004 Verkhnebureinskiy District Court (Khabarovsk Region) dismissed the applicant’s action as unfounded.
7. The applicant appealed against the judgment of 7 July 2004. His statement of appeal was received by the District Court on 21 July 2004.
8. On 4 August 2004 the District Court sent the case file, with the applicant’s appeal statement enclosed, to the Khabarovsk Regional Court (“the Regional Court”). On the same day the District Court sent a letter to the applicant confirming that his case had been transferred to the Regional Court and informing him that an appeal hearing had been scheduled for 10.00 a.m. on 12 August 2004. It follows from the stamp marks on the envelope that the letter was dispatched on 5 August 2004 and arrived at the applicant’s local post office on 9 August 2004.
9. On 12 August 2004 the Regional Court held a hearing, which the applicant did not attend. The Regional Court upheld the judgment of 7 July 2004, endorsing the District Court’s reasoning. The company’s representative attended the appeal hearing and made submissions.
10. On 19 August 2004 the head of the post office replied to the applicant’s complaint about the delays in delivery of mail that the District Court’s letter of 4 August 2004 had been delivered to the applicant only on 16 August 2004 by the fault of one of the employees of the post office.
11. On 27 September 2004 the Regional Court sent to the applicant a copy of the judgment of 12 August 2004.
12. For a summary of relevant domestic law, as worded at the material time, see Gusak v. Russia (no. 28956/05, § 20, 7 June 2011).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78636
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: YILDIZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Sinan Yıldız and Şidar Sönmez are Turkish nationals who were born in 1977 and 1979 respectively. They both live in Tunceli. They were represented before the Court by Mr H. Aygün and Mr Ö. U. Kaplan, lawyers practising in Tunceli.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 14 January 2001 the applicants were arrested and placed in police custody by officers from the anti-terrorism branch of the Tunceli Security Directorate, on suspicion of involvement in the activities of an illegal armed organisation, namely the TKP/ML (Türkiye Komünist Partisi-Marksist Leninist, the Turkish Communist Party-Marxist Leninist).
Following their arrest, the applicants signed a form whereby their rights as detainees were explained to them. The form included a right to request the assistance of a lawyer. However, as they were arrested on suspicion of having committed a crime falling within the jurisdiction of State Security Courts, it was noted in the form that they could only have access to legal assistance if they were subsequently detained on remand or a court decided to prolong their detention in police custody.
On 18 January 2001 the applicants were questioned by the police about their activities in the illegal organisation. The first applicant explained that the TKP/ML was an illegal party which supported communism. He stated that he was not a member of this party but he was involved in the activities of its youth branch. He maintained that, in order to help the organisation, he had distributed a newspaper called Revolutionary Democracy, tried to convince people to become members of the TKP/ML and sprayed slogans on walls. He further admitted that he had attended the funeral of F.K., who had burnt himself to protest against F-type prisons.
In his police interrogation the second applicant stated that the aim of TKP/ML was to undermine the constitutional order and to replace it with a Marxist-Leninist regime. He explained that he had been involved in the formation of the youth branch of this organisation in Tunceli. He also admitted that, in order to protest against F-type prisons, he had taken part in hunger strikes and painted slogans on walls. He further stated that he had participated and chanted slogans at the funeral of F.K.
On 19 January 2001 the applicants were brought before the public prosecutor, where they repeated their statements taken by the police.
The same day the applicants were brought before the investigating judge at the Tunceli Magistrate’s Court. Before the judge, the first applicant accepted his statements given before the public prosecutor, whereas the second applicant denied his earlier statements. The investigating judge ordered that both applicants be placed in detention on remand.
The applicants and four others filed a petition with the court requesting their release pending trial. On 23 January 2001 the court dismissed their request.
In an indictment dated 20 February 2001, the public prosecutor initiated criminal proceedings against the applicants and 25 others before the Malatya State Security Court, accusing them, inter alia, of membership of an illegal armed organisation. The prosecution asked the court to sentence the applicants pursuant to Article 168 of the Criminal Code. Both applicants were represented before the court by two lawyers.
On 27 March 2001 the applicants denied their statements given in police custody, as they alleged that they had been signed under duress. They accepted their statements given before the investigating judge at the Tunceli Magistrate’s Court. One of the applicants’ lawyers requested the court to release the applicants pending trial as the only evidence against them was their statements given in police custody, which were taken under duress. The court dismissed the request and ordered the continuation of the applicants’ detention on remand.
On 19 June 2001 the court heard a witness who stated that he did not know the applicants. The applicants’ lawyers, who were present in the court, did not put any questions to this person.
On 9 April 2002, considering the applicants’ concurring statements given in police custody, their confessions made before the public prosecutor and the judge at the magistrate’s court, the statements of other accused given during the criminal proceedings, and the confrontation which had taken place between the accused and the witnesses, as well as other relevant evidence such as photographs taken of the incidents, video recordings and the incident reports, the Malatya State Security Court found the applicants and two others guilty of aiding and abetting an illegal organisation, and sentenced them each to three years and nine months’ imprisonment pursuant to Article 168 of the Criminal Code. It acquitted 23 other accused.
On 12 November 2002 the Court of Cassation upheld the judgment of the Malatya State Security Court, finding that the applicants’ grounds of appeal were unfounded.


ITEMID: 001-96885
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: DIALLO v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Ms Fatoumata Binta Diallo, is a French national who was born in 1976. She is represented before the Court by Jonas Lundberg, a lawyer practising in Gothenburg. The Swedish Government (“the Government”) were represented by their Agent, Ms Charlotte Hellner of the Ministry for Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Upon the applicant’s entry into Sweden (Gothenburg) on 24 February 2006, the customs authorities found her to be in possession of 988.6 grams of heroin, wrapped in two parcels in her suitcase.
4. She was interrogated from 4.05 p.m. until 4.35 p.m. by a customs officer (AS). According to the report, the interview was held in French and the applicant did not wish a lawyer to be present. No interpreter was present. The applicant explained that the parcels had been given to her by a named female friend (YB) at Charles de Gaulle Airport to be delivered to YB’s brother, who lived in Stockholm, and whom the applicant had met several times in Paris. The brother was supposed to pick her up in his car and take her to Stockholm. The applicant was to stay in his apartment over the weekend. The purpose of her stay in Sweden was tourism. The packages contained a product to wash money. She did not know that the parcels contained drugs.
5. Subsequently, at 4.50 p.m. the applicant was arrested.
6. The applicant was interrogated again in the customs office from 7.45 p.m. until 8.45 p.m. by a customs officer (SR). The interview was held in French with the assistance of an authorised interpreter on the telephone. The applicant added various details, for example that she did not have the address of the said brother, but had his telephone number on her telephone. The applicant also made changes to her previous statement, notably that she could not get a place on the plane from Paris to Stockholm, so she had to go to Gothenburg. From there she intended to go to Stockholm by train and the said brother was supposed to pick her up at the railway station in Stockholm. She was supposed to stay in a hotel in Stockholm. The brother was supposed to show her the town. The applicant also stated that YB had told her that the parcels contained a product to be used to wash discoloured notes. The record stated that it was read out to the applicant and approved by her.
7. The following day, from 2.35 p.m. to 3.40 p.m. a third interview was held with the applicant and SR, during which a lawyer and a French-speaking interpreter were present. During that interview SR reminded the applicant about the statement provided during the second interview, including her statement that she thought that the content of the packages was a product to be used to wash discoloured notes. The applicant added that she had heard YB, who was actually a man, speak to two other men at the applicant’s workplace about a product to be used to wash discoloured notes and for this reason she believed that the packages contained such a product. The applicant intended to visit her cousin in Stockholm, but the cousin did not know about her visit. At the restaurant where the applicant worked, YB had heard her mention her forthcoming trip and the day before her trip, she bought the ticket, and by chance YB called her the same day and asked her to take the parcels to the named person in Stockholm. YB came to the airport in Paris on 24 February 2006 and gave her the parcels. She had not asked what they contained because she trusted YB. According to the record, the statement was read out to the applicant who approved it.
8. Criminal proceedings were initiated against the applicant before the District Court (Mölndals tingsrätt) and the applicant was heard with the assistance of an interpreter during various pre-trial hearings about whether she should remain in detention on remand. During the trial hearing on 26 May 2006, with the assistance of an interpreter, the applicant stated, inter alia, that she had been going to visit her cousin in Stockholm. She had mentioned her forthcoming trip to YB who was a respectable and regular customer at the restaurant where she worked. It was he who had asked her to take the parcel to the named person in Stockholm. The latter, whom the applicant had seen a few times at the restaurant, was supposed to call her when she arrived in Stockholm. She had had no idea that the parcel contained drugs. When the customs officers had told her this, she could not believe it and proposed that it could be anything, for example “a product to wash money”. She had been misunderstood during the first interview because no interpreter had been present, and during the second interview, the interpreter had “not been good either”.
9. A customs officer, GE, was heard as a witness. She described the applicant’s reaction when passing through customs. She added that since the applicant could not speak English or Swedish and the customs officers at the customs desk could not speak French, they had had to use sign language. Thereafter, SA was summoned and interviewed the applicant.
10. By a judgment of 26 May 2006 the District Court found the applicant guilty of drug trafficking. It found it established that she was aware that the packages contained narcotics, but did not find it substantiated that the applicant had known what kind of narcotics the packages contained or that she had a precise idea of the quantity. The applicant was therefore sentenced to one year and six months’ imprisonment. In addition she was expelled from Sweden for five years.
11. Both the applicant and the prosecution appealed against the judgment to the Court of Appeal (Hovrätten för Västra Sverige), before which both the applicant and the witnesses, GE and AS, were heard. AS was of the view that she and the applicant had communicated well during the first interview held on 24 February 2006 and that there had been no need for an official interpreter. She had spoken clearly and slowly and asked the applicant several questions in order to make sure that they had understood each other. AS considered herself sufficiently skilled to conduct the interview in French, which she had learned at school. Moreover, she had lived in a French-speaking home for eight years because her former husband was French and spoke French to their children. AS maintained that, during the first interview, the applicant had said that the packages contained a product to wash money. At the same time the applicant had rubbed her hands as if washing them with soap. The applicant insisted that she had never said anything about washing money and that AS must have misunderstood her in that respect. What she had intended to say was that she needed to go to the toilet. The applicant also alleged that the parcels had been on top of her clothes in her suitcase. GE maintained that they had been found among the applicant’s clothes.
12. By judgment of 26 July 2006 the Court of Appeal convicted the applicant of drug trafficking with heroin and sentenced her to nine years’ imprisonment. Moreover, the ban on her entry into Sweden was set to expire on 1 July 2016. In its reasoning, the following was stated:
“The Court of Appeal initially notes that the packages were not so large or heavy that they could not easily have been sent via normal post. Compared to normal postal services, the manner in which the packages were sent entailed a great deal more work and expense. [YB] had to travel to Charles de Gaulle airport to hand over the packages to [the applicant] [who in turn] - in a country with which she is not familiar – had to contact a person whom she had indeed seen on two occasions as a guest at the restaurant, but for whom she had no address and whom she could only contact by calling the number she had been given. Any reasonable person would have wondered about the reason for such an odd procedure.
[The applicant] has stated that she did not know what the bag with the packages contained. The question, then, is how far we can trust her statements. The investigation has revealed that the packages were discovered packed separately in amongst the clothes that were in the luggage. Therefore, [the applicant’s] statement that she had placed the plastic bag with its contents at the top of the bag is incorrect. In view of the fact that the packages were not found packed together in a plastic bag when the inspection was carried out, she must - as the District Court found - also have held the packages themselves in her hands.
Moreover, the interview conducted by [AS] revealed that [the applicant], when questioned following the customs check, claimed that the packages contained a substance used for washing money. This makes her story contradictory, as she herself claimed not to know anything about the contents. The fact is that there is no reason to assume that [AS], who says that she asked several control questions, could have misunderstood what [the applicant] said.
[The applicant] has said that she received a telephone number for [the contact person in Stockholm] at Charles de Gaulle airport. The investigation of her mobile telephone revealed, however, that she had already received a call lasting just over one minute from the same telephone number in October 2005. [The applicant] has confirmed that she received this call, as the investigation has shown, but claims that no conversation whatsoever took place. The circumstances suggest that [the applicant] has had more extensive contact with [the contact person in Stockholm] than she is willing to admit. [The applicant], who says that she is not acquainted with Sweden and that she was going to visit a relative in Stockholm at an address she did not know, has been extremely vague about why she travelled specifically to Gothenburg.
In the light of the information given above, [the applicant’s] statements cannot be trusted.
Instead, the circumstances surrounding the import of these packages are such that [the applicant] must have realised that there was a very high risk that she was involved in drug smuggling. The Court of Appeal refers here, above all, to the remarkable way in which the two smallish packages were imported into Sweden, and to the fact that both [YB] and [the contact person in Stockholm] were people of whom [the applicant] had little knowledge. Despite this, she failed to ask what the packages contained and took them with her to Sweden hidden in her luggage. No information has emerged that suggests that she would have refused to take the packages if she had known that they contained drugs, or if she had known that they contained as dangerous a drug as heroin. In this case, it must be assumed that she was indifferent to whether the packages contained heroin, and she is therefore to be regarded as having had the intention of carrying out the act of which she is accused. This is to be judged as drug smuggling, an aggravated offence.”
13. Leave to appeal was refused by the Supreme Court (Högsta domstolen) on 5 October 2006.
14. Section 3 of the Act on Penalties for Smuggling (lagen om straff for smuggling, SFS 2000:1225; hereinafter “the 2000 Act”) provides that a person who imports goods which are subject to a specific prohibition or condition for import, and who intentionally contravenes the prohibition or condition by failing to report the goods for customs clearance, shall be sentenced for smuggling to a fine or imprisonment for a period not exceeding two years. Where such smuggling relates to drugs, a sentence of imprisonment for a period not exceeding three years shall be imposed (section 6, paragraph 1). In the case of the offence being judged as aggravated, a sentence of imprisonment should be imposed for a period of at least two years and not exceeding ten years (section 6, paragraph 3). Particular consideration shall be given to whether the act related to a particularly large quantity of narcotics, whether the act formed part of a step in an activity that was conducted on a large scale or professionally, or whether the activity or act was otherwise of a particularly dangerous or unscrupulous nature (ibid).
15. Chapter 5, section 1 of the Swedish Code of Judicial Procedure (rättegångsbalken, SFS 1942:740; hereinafter “the 1942 Code”) set out that with some exceptions, Swedish is the language to be used in Swedish courts. There is no express prohibition on the use of a foreign language during part or the whole of a main hearing. However, to hold a hearing in a language other than Swedish would be contrary to the rule that court hearings shall be open to the public (see Chapter 5, section 1).
Chapter 5, section 6 of the 1942 Code contains rules on the use of interpreters in court, which are considered to apply by analogy to preliminary crime investigations in general. The provision states, inter alia, the following. If a party, a witness, or any other person who shall be heard by the court is incapable of understanding and speaking Swedish, an interpreter may be engaged to assist the court. If a public interpreter for the language in question serves at the court, he shall be assigned. Otherwise, the court shall assign a suitable person to assist as interpreter in the case.
16. In crime-fighting activities by analogy the Swedish Customs apply section 8 of the Administrative Procedure Act (förvaltninglagen; SFS 1986:223; hereinafter “the 1986 Act”), which states that when an authority is dealing with someone who does not have a command of the Swedish language, or who has a severe hearing impairment or speech impediment, the authority should use an interpreter when needed. During their basic training, all customs officers are informed about section 8 of the 1986 Act and how it applies to the activities of the Swedish Customs. In practice, the assessment of the need for assistance by an interpreter is made on a case-by-case basis having regard to relevant circumstances such as the nature of the case, its level of importance to the individual and the customs officer’s knowledge of the foreign language at issue.
Immediately after a seizure (beslag) has been made, a short initial hearing is often held by one of the customs officers in connection with the customs control at the border. If a non-Swedish speaker is involved, the customs officers present at the time decide among themselves whether any of them has sufficient skills in the relevant language to conduct the hearing. The purpose of this initial hearing is primarily to inform the person in question about the suspicions against him or her and his or her right to be represented by defence counsel. After the initial hearing, the case is normally taken over by a customs investigator. It is only in rare cases that such an investigator holds a hearing that involves the use of a foreign language without the assistance of an authorised interpreter. Authorised interpreters are engaged, directly or indirectly, via established and approved interpreting agencies.


ITEMID: 001-4783
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: HAMER v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Dutch national, born in 1958, and resides in Leidschendam.
On 7 July 1997, the Municipal Executive (Burgemeester en Wethouders) of Leidschendam ordered the applicant to remove a garden house and a 1,80 metre high garden fence, which the applicant had built without a construction permit as required under the Act on Housing (Woningwet), or to reduce the height of the fence to one metre. He was further informed that, in accordance with Article 136 of the Act on Municipalities (Gemeentewet), failure to comply with this order would entail a penalty of NLG. 450 per week for the garden house and NLG. 450 per week for the fence, not exceeding a total amount of NLG. 9,000.
The applicant’s objection (bezwaar) against the decision of 7 July 1997 was rejected by the Municipal Executive on 7 January 1998. As regards the garden fence, the Municipal Executive noted that, under Article 43 § 1 (j) of the Act on Housing, a construction permit is required for fences higher than one metre. Although the applicable rules did allow exemptions, no exemption could be granted in the applicant’s case given the local urban development situation, the dominant character of the fence and the fact that, according to the local Commission on External Appearance of Buildings (Welstandscommissie), the fence did not comply with the reasonable requirements of external appearances of buildings (“redelijke eisen van welstand”). The applicant’s subsequent appeal to the Administrative Law Division of the Regional Court (Arrondissementsrechtbank) of The Hague was rejected on 7 May 1998.
By letter of 21 June 1998, the applicant filed an appeal against the decision of 7 May 1998 with the Administrative Law Division (Afdeling Bestuursrechtspraak) of the Council of State. In this letter the applicant informed the Administrative Law Division that, in the meantime, the garden house had been moved to a different - for the municipal authorities acceptable - place on his premises. As regards the decision concerning the fence the applicant invoked, inter alia, Article 8 of the Convention and in this context argued that this fence had been built on his property in order to protect the privacy of his family. He explained that the aim of the fence was to protect his pets, plants and bushes from footballs of soccer playing children landing in his garden, and to block the irritating lights from cars passing by and the strong light from the central hall of the nearby home for the elderly.
In its decision of 5 March 1999, the Administrative Law Division rejected the applicant’s appeal. It noted that, according to Article 43 of the Act on Housing, no construction permit is required for a fence built outside the building line (rooilijn) if its height does not exceed one metre. As the applicant’s premises lie on a corner of two streets and as the fence, which was higher than one metre, had been built outside the front building line, the Municipal Executive was competent to issue the order for removal. It further held that it had not been established that the fence qualified for legalisation.
The Administrative Law Division also rejected the applicant’s argument under Article 8 of the Convention, holding that the submitted aim of the fence, namely to prevent children’s footballs from ending up on the applicant’s premises, was insufficient for a finding that the applicant’s right to respect for his private life or home came into play.


ITEMID: 001-89273
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF OLIMPIA-MARIA TEODORESCU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1908 and lived in Sebeş.
5. In 1950, a house and 1,460 sq. m of appurtenant land situated in Cluj-Napoca, Calea Turzii no. 26, the property of the applicant’s parents, were seized by the State under Decree no. 92/1950 on nationalisation.
6. On 24 July 1996 the applicant claimed compensation for the property under Law no. 112/1995. She states that she has not received any compensation.
7. On an unknown date the property was divided into several parts. It appears from the documents in the file that the property, made up of two constructions and appurtenant land, was divided into five apartments and two plots of appurtenant land of 1,058 sq. m and 116 sq. m respectively.
8. On 31 October, 15 November and 10 December 1996, and 3 February and 27 March 1997 the State sold the five apartments to the then tenants. It appears from the file that the two plots of appurtenant land were not made the object of a sale.
9. On 3 March 2000 the Cluj Court of Appeal by a final decision allowed the applicant’s action for annulment of the State’s title to property, acknowledged that the nationalisation of the building and of the 1,460 sq. m of land appurtenant to it had been unlawful and ordered restoration in the name of the applicant’s parents.
10. On 4 June 2001 the applicant requested the court to find that the sales by the State on 10 December 1996 and 3 February 1997 of apartments nos. 1 and 2 respectively, situated on Calea Turzii no. 28, were null and void. According to the applicant, she did not request the annulment of the sale of the other apartments, considering the action pointless in so far as the constant practice was to dismiss this kind of action.
On 4 September and on 27 November 2002 respectively the Cluj Court of Appeal by final decisions dismissed the two actions by the applicant to declare null and void the sales by the State. The court considered that the sales had complied with the provisions of Law no. 112/1995 and that the former tenants had made the purchase in good faith.
11. On 2 August 2001 the applicant made two different requests under the Law no. 10/2001 governing immovable property wrongfully seized by the State, seeking restitution in kind or compensation of the parts of her property situated in Cluj, Calea Turzii nos. 26 and 28 and of the appurtenant land.
12. On 12 June 2007 the Cluj-Napoca Town Council, by two decisions, proposed that the applicant be given compensation under Law no. 247/2005. The Town Council mentioned that the apartments and the land claimed in kind were in the possession of third parties.
So far, she has not received any compensation.
13. The relevant legal provisions and jurisprudence are described in the judgments Brumărescu v. Romania ([GC], no. 28342/95, §§ 31-33, ECHR 1999VII); Străin and Others v. Romania (no. 57001/00, §§ 19-26, ECHR 2005VII); Păduraru v. Romania (no. 63252/00, §§ 38-53, 1 December 2005); and Tudor v. Romania (no. 29035/05, §§ 15-20, 17 January 2008.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-57876
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF BARBERÀ, MESSEGUÉ AND JABARDO v. SPAIN (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo
TEXT: 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") and by the Spanish Government ("the Government") on 12 December 1986 and 29 January 1987, respectively, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It originated in three applications (nos. 10588/83-10590/83) against the Kingdom of Spain lodged with the Commission under Article 25 (art. 25) by three Spanish nationals, Mr Francesc-Xavier Barberà, Mr Antonino Messegué and Mr Ferrán Jabardo, on 22 July 1983.
2. In a judgment of 6 December 1988 ("the principal judgment"), the Court found a violation of Article 6 para. 1 (art. 6-1) of the Convention. In view of the belated transfer of the applicants from Barcelona to Madrid to face trial, the unexpected change in the court’s membership immediately before the beginning of the trial, the brevity of the trial and, above all, the fact that very important pieces of evidence were not adequately adduced and discussed at the trial in the applicants’ presence and in public, the proceedings in question, taken as a whole, did not satisfy the requirements of a fair and public hearing (Series A no. 146, pp. 26-39, paras. 51-91, and point 5 of the operative provisions).
3. As the issue of the award of just satisfaction was not yet ready for decision, the Court, in the principal judgment, reserved the whole of this question. It invited the Government and the applicants to submit to it in writing, within three months of the delivery of the judgment, their observations on the matter and in particular to inform it of any agreement reached between them (ibid., pp. 38-39, paras. 92-93 and point 7 of the operative provisions).
4. On 2 March 1989, the Government filed a memorial in which they replied to the claims that the applicants had lodged in 1987 (ibid., p. 38, para. 92) and drew attention, inter alia, to the fact that under Spanish law, as it then stood, the proceedings could not be reopened and restitutio in integrum was impossible.
In a letter of 4 April 1989 the applicants informed the Registrar that, on 30 March 1989, they had lodged an application with the Audiencia Nacional to have the judgment of that court of 15 January 1982 set aside. They accordingly requested the Court to stay the proceedings concerning the application of Article 50 (art. 50) until the national court had given judgment. On 2 May they submitted observations in reply to the Government’s memorial.
On 20 September 1989, after consulting the Agent of the Government and the Delegate of the Commission, the President agreed to stay the proceedings. On several occasions he renewed this decision pending the outcome of the various proceedings brought in Spain with a view to having the judgment of 15 January 1982 set aside. On 3 January 1992 the applicants requested that the Strasbourg proceedings be resumed as the Constitutional Court had quashed their convictions. On 25 June the President requested the Agent of the Government for information on the progress of the domestic proceedings. In the light of that information, on 26 November the Court decided to resume its examination of the question within six months.
5. The domestic proceedings conducted subsequent to the principal judgment included the following decisions:
(a) on 29 June 1989 the Audiencia Nacional decided to transmit the file to the Criminal Division of the Supreme Court after having found that it lacked jurisdiction. It ordered a stay of execution of the sentences imposed on the applicants by the judgment of 15 January 1982 and their immediate release;
(b) on 14 July 1989 the Audiencia Nacional decided to attach conditions to the applicants’ release, namely an obligation to report to a judge twice a month and a prohibition on leaving Spanish territory;
(c) on 4 April 1990 the Supreme Court gave a judgment dismissing the applicants’ application to have the original judgment set aside and revoking the stay of execution of their sentences;
(d) on 5 April 1990 the Audiencia Nacional ordered that they be returned to prison;
(e) on 20 July 1990 the Constitutional Court gave a judgment staying the execution of the Supreme Court’s judgment of 4 April 1990. It ordered that the applicants be released subject to the conditions laid down in the Audiencia Nacional’s decision;
(f) on 16 December 1991 the Constitutional Court set aside the judgment of the Supreme Court and allowed the applicants’ application of 30 March 1989 (see paragraph 4 above). It ordered the reopening of the trial in the Audiencia Nacional;
(g) on 30 October 1993, in a judgment which has become final, the Audiencia Nacional acquitted the applicants, finding that there was insufficient evidence.
6. On 25 June 1993 the President requested the applicants to submit a memorial summarising and updating their claims for just satisfaction. The Registrar received this memorial on 2 August and the Government’s observations in relation thereto on 14 December. On 3 and 4 February 1994 respectively the applicants filed additional observations and the Delegate of the Commission lodged his comments.
7. On 24 March 1994 the Court decided that, in the circumstances of the case, it was not necessary to hold a hearing.


ITEMID: 001-57899
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF BONER v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland
TEXT: 6. The applicant, Mr Anthony Boner, is a British citizen born in 1960. He lives in Glasgow, Scotland.
On 14 December 1989 three masked men, armed with a shotgun and a knife, carried out a robbery at a post office in Glen Village, Falkirk, Scotland, in the course of which they assaulted three post-office employees. They also caused damage to a motor car.
Following investigations, Mr Boner and two other men were arrested and remanded in custody. The applicant was indicted on a charge of assault and armed robbery, a charge of wilful damage and three charges relating to firearms. Between 29 March and 10 April 1990 he stood trial in the High Court of Justiciary sitting in Edinburgh.
7. The applicant received legal aid for the preparation of his defence and for his representation by counsel at the trial.
8. During the trial a prosecution witness, Mrs G., entered the courtroom prior to giving evidence and spoke to one of the applicant’s co-accused, against whom charges had been dropped. When Mrs G. was called to give evidence, the applicant’s counsel objected on the basis of her earlier presence in court. The trial judge adjourned the case and instructed prosecuting counsel to make further inquiries into the matter so that it could be determined whether Mrs G.’s attendance was due to any negligence or failure on the part of the Crown. Prosecuting counsel informed the judge that inquiries had revealed no fault on the part of anyone for whom the Crown bore responsibility. This was not disputed by the applicant’s counsel, who, moreover, was unable to give any indication as to how Mrs G.’s evidence could be affected by her earlier presence in court. The trial judge accordingly took the view that no injustice would be done by Mrs G.’s examination. Finding that the relevant legal conditions were satisfied (see paragraph 17 below), he therefore exercised his discretion and permitted her to give evidence. Subsequently, counsel for the applicant had the opportunity to cross-examine Mrs G. on the matter of her attendance in court.
In her evidence, Mrs G. stated that the applicant had been at her home the evening before the robbery and had spoken of robbing the post office. The following morning he had left the house and returned later with a bag, in a state of nervousness. Other evidence against the applicant included the fact that a shotgun and various items stolen from the post office were found on the applicant’s premises. In addition, a different witness identified Mr Boner as being one of the robbers and Mrs G.’s statement was supported by her 9-year-old daughter.
9. The jury found the applicant guilty on all the charges. Taking account of his numerous previous convictions, the judge sentenced him to eight years’ imprisonment.
10. On 17 April 1990 the applicant, through his solicitor, lodged an intimation of intention to appeal against conviction.
11. Mr Boner instructed new solicitors, who asked a different counsel to advise on the prospects of an appeal and to draft a note of appeal.
In his opinion dated 10 June 1990 counsel stated his view that the only possible ground of appeal related to the "admissibility of the evidence of Mrs G." and to the question "that the trial judge erred in exercising discretion in allowing her to be present". However, he conceded that he had not been provided with sufficient information to be able properly to base an opinion or to frame grounds of appeal. Notwithstanding this acknowledgement he did draft a note of appeal which contained six grounds, the first two of which concerned the trial judge’s decision to admit the witness. This note of appeal was filed by the applicant’s solicitors on 13 June 1990.
12. Up to this point all the work had been covered by the legal aid granted for the trial. An application to extend legal aid to the appeal proceedings had been submitted in May 1990. On 25 July 1990 the Scottish Legal Aid Board ("the Board") asked the applicant to provide an opinion from counsel on the prospects of success. The earlier opinion dated 10 June 1990 was accordingly forwarded to the Board, together with a supplementary opinion from the same counsel dated 6 September 1990. In this latter opinion counsel reiterated the view that the appeal rested on the question whether Mrs G.’s evidence was admissible. However, he again stated that he had not been provided with sufficient material on which to assess the merits of the appeal. "I regret meantime I am unable to answer the fundamental question in this case", he concluded.
13. On 27 September 1990 the applicant’s solicitors informed the Board by telephone that counsel had finally decided that he could not support the application for legal aid or the appeal; that they were of the same view; and that, consequently, they could no longer act for the applicant. The terms of that telephone call were confirmed in a letter dated 2 November 1990 from the solicitors to the Board.
14. On 14 November 1990 the Scottish Legal Aid Board notified Mr Boner’s solicitors that his application for legal aid had been refused as the Board was not satisfied, as it was required to be under the relevant legislation (see paragraph 26 below), that he had substantial grounds for taking an appeal and that it was reasonable that he should receive legal aid. In a letter of 11 December 1990 to the applicant the Board added that it could not see any merit in the appeal. Despite the advice of his solicitors and counsel, Mr Boner decided to proceed with the appeal.
15. The applicant, who had no legal knowledge and had no assistance with his submissions, presented his own case on 24 January 1991 before the High Court of Justiciary, sitting in Edinburgh and acting as an appellate court. The Crown was represented by counsel. There is no indication in the record that the court required counsel for the Crown to address it.
16. The appeal court considered the first two grounds of appeal relating to Mrs G. and held that these were ill-founded and that the trial judge had approached the matter properly. As the applicant did not address the court on the remaining grounds of appeal, these were not considered by the court. It did however examine other points raised by the applicant, but reached "the clear conclusion that there was no miscarriage of justice in the case". The appeal against conviction was unanimously dismissed.
17. Under Scots law, a witness who has been present in court without the court’s permission and without consent from the opposite party may still be allowed to give evidence provided that "it appears to the court that the presence of the witness was not the result of culpable negligence or criminal intent, and that the witness had not been unduly instructed or influenced by what took place during his presence, or that injustice will not be done by his examination" (section 140 of the Criminal Procedure (Scotland) Act 1975 - "the 1975 Act").
18. The following details relate solely to the "solemn procedure", under which trial proceeds upon an indictment before a judge sitting with a jury.
19. A person convicted of a criminal charge in Scotland has an automatic right of appeal granted by statute (section 228 of the 1975 Act). No leave to appeal is required.
20. In an appeal, the appellant may ask the court to review any alleged miscarriage of justice in the proceedings in which he was convicted (section 228(2) of the 1975 Act). What is a miscarriage of justice is not defined by statute, but the term covers such matters as misdirections by the trial judge or wrong decisions on the admissibility of evidence, as well as breaches of natural justice. In any appeal, the nature of the alleged miscarriage of justice must be specified in the grounds of appeal contained in a written note of appeal, lodged within eight weeks of the date when sentence was imposed upon the appellant (section 233(1) and (2) of the 1975 Act). An appellant may not, at the appeal hearing, found any aspect of his appeal on a ground which is not contained in the note of appeal unless, exceptionally and on cause shown, he obtains the leave of the court to do so (section 233(3) of the 1975 Act).
21. An appeal is heard by a bench of not less than three judges. At the hearing of the appeal the appellant or his counsel, if he is represented, makes submissions to the court in support of the grounds of appeal. Appellants who do not have legal representation are not required to make an oral presentation: they are allowed, however, to read any material that they may have prepared or collected.
The Crown is always represented by counsel at the hearing of criminal appeals. Their duty is to act solely in the public interest and not to seek to uphold a wrongful decision. Accordingly, they will only address the court if requested to do so or if it is necessary to bring to the attention of the court some matter relevant to the appeal, whether or not favourable to the prosecution.
22. In disposing of an appeal against conviction the court may dismiss it and affirm the verdict of the trial court; set aside the verdict of the trial court either by quashing the conviction or by substituting an amended verdict of guilty; or set aside the verdict of the trial court and authorise a new prosecution (section 254 of the 1975 Act).
23. Counsel in Scotland are vested with the public office of advocate, which imposes a number of duties upon them, among which is the duty not to accept instructions to act in circumstances where, in their professional opinion, a case is manifestly unfounded, even if the client is able to pay for such representation.
The basis of this rule of professional conduct is that counsel cannot properly occupy the time of the court in advancing arguments which he knows to be without foundation.
24. The administration of legal aid in Scotland is the responsibility of the Scottish Legal Aid Board, an independent body whose members are appointed by the Secretary of State for Scotland from among counsel, solicitors and other persons with experience of the courts.
25. Legal aid which has been made available for a trial on indictment extends, in the case of conviction, to include consideration and advice by a solicitor on the question of appeal. An opinion on the prospect of the appeal can also be obtained from the counsel who acted at the trial.
Under special provisions legal aid is also available to enable the solicitor to prepare and lodge the statutory intimation of intention to appeal and, where appropriate, arrange for the opinion of counsel to be obtained as to the prospects of the appeal, and for the drafting and lodging of a note of appeal setting out the grounds of appeal.
26. To extend legal aid beyond this point a further application by the solicitor to the Legal Aid Board is required. This should include confirmation that the applicant’s solicitor is willing to act in the appeal as well as a statement of the arguments in support of the grounds of appeal and a note of the solicitor’s reasons for believing that the grounds of appeal are substantial and that legal aid should be made available.
27. The Board takes its decisions on the basis of the documents before it, which normally include copies of the note of appeal, the trial judge’s charge to the jury and the trial judge’s report on the case. The views expressed by the applicant’s solicitor and counsel will also be taken into account.
28. Although the legislation does not provide for a formal review, the Board will, as a matter of practice, when requested to do so, reconsider an application which has been refused. Such reconsideration involves the application being referred to an external reporter, who was not involved in the Board’s earlier decision and who reports to the Board on the merits of the application. Otherwise, Board decisions are subject to ordinary judicial review.
29. If the appellant proceeds with his appeal without legal aid and the court considers that, prima facie, he may have substantial grounds for taking the appeal and it is in the interests of justice that he should have legal representation in arguing these grounds, the court must immediately adjourn the hearing and make a recommendation that the Board’s decision be reviewed.
30. The practice of the court in this regard was formalised following the judgment of the European Court of Human Rights in Granger v. the United Kingdom of 28 March 1990 (Series A no. 174) by a Practice Note to this effect issued on 4 December 1990 by the Lord Justice General to all Appeal Court Chairmen and Clerks:
"In any appeal where legal aid has been refused and the court considers that prima facie an appellant may have substantial grounds for taking the appeal and it is in the interests of justice that the appellant should have legal representation in arguing his grounds, the court shall forthwith adjourn the hearing and make a recommendation that the decision to refuse legal aid should be reviewed."
31. Where such a recommendation is made, legal aid is automatically granted. To this end, the Manual of Procedure of the Scottish Legal Aid Board provides in paragraph 6.12 that:
"In these circumstances the Board will receive a letter from the High Court of Justiciary giving the details of the case where they are recommending a re-consideration of the decision to refuse. If we are asked to re-consider a decision in these circumstances, then the application should be granted automatically. The case need not be seen by a reporter or Board solicitor, but ought to be referred to the Assistant Manager for the appropriate action."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-22999
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: MADELA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Barbara Madeła, is a Polish national, who was born in 1936 and lives in Warsaw, Poland.
On 20 October 1994, J.B. (the applicant’s neighbour) lodged a claim for payment against the applicant with the Warsaw District Court (Sąd Rejonowy).
On 8 December 1994 the court held a hearing and ordered the plaintiff to submit a copy of the statement of claim.
On 3 March 1995 the court stayed the proceedings as the plaintiff failed to comply with its order.
Subsequently, on 17 May 1995, J.B.’s husband – M.B.– sued the applicant before the Warsaw District Court seeking payment.
On 4 July and 26 September 1995 the court held hearings.
At the hearing held on 21 November 1995 the court heard evidence from one witness. On 28 December 1995 the court held a hearing and heard evidence from M.B.
On 20 November 1996 the court resumed the proceedings stayed on 3 March 1995. Later, on an unknown date it also decided to join both cases.
On 24 February 1997 the court summoned the housing co-operative - “Osiedle Młodych” - to join the proceedings.
On 23 April 1997 the court held a hearing and heard evidence from one witness.
On 10 June 1997 the applicant challenged the impartiality of the presiding judge. On 7 July 1997 the court dismissed her challenge.
On 29 July 1997 the court ordered that expert evidence be obtained. On 24 March 1998 an expert submitted his report to the court.
At the hearing held on 2 June 1999 the plaintiffs withdrew their statement of claim with respect to the applicant. On the same date the court discontinued the proceedings against the applicant.