ITEMID: 001-108480
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF DI SARNO AND OTHERS v. ITALY
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed;Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home;Respect for private life) (Substantive aspect);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations) (Procedural aspect)
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
TEXT: 6. Thirteen of the applicants live in the municipality of Somma Vesuviana, in Campania (Italy). The other five work there.
7. From 11 February 1994 to 31 December 2009 a state of emergency (stato di emergenza) was in place in the Campania region, by decision of the then Prime Minister, because of serious problems of solid urban waste disposal.
8. From 11 February 1994 to 23 May 2008 the management of the state of emergency was entrusted to “deputy commissioners” appointed by the Prime Minister and assisted by assistant commissioners. Nine high officials – including four presidents of the region of Campania and the head of the civil emergency planning department of the Prime Minister’s Office – were appointed deputy commissioners.
9. From 23 May 2008 to 31 December 2009 the management of the state of emergency was entrusted to an under-secretariat in the Prime Minister’s Office under the head of the civil emergency planning department.
10. Regional Law no. 10 of 10 February 1993 (“Law no. 10/93”) laid down guidelines for the adoption of a waste disposal plan in Campania which was to treat urban solid waste and recyclable materials and halve the number and capacity of landfill sites – with the help of compacting and sorting techniques – between 1993 and 1995.
11. On 9 June 1997 the President of the Region, having been appointed deputy commissioner, drew up a regional waste disposal plan. Among other things, it provided for the construction of five incinerators – four of which would be built on land in the municipalities of Marcianise, Battipaglia, Giugliano and Nola-Marigliano (the last two of these were to serve the municipalities where the applicants lived), and the fifth on a site to be determined at a later date – and also five main landfill sites and six secondary sites.
12. On 12 June 1998 the President of the Region, acting as deputy commissioner, issued a call for tenders for a ten-year concession to operate the waste collection and disposal service in the province of Naples. According to the specifications, the successful bidder would be required to ensure the proper reception of the collected waste, its sorting, conversion into refuse-derived fuel (combustibile derivato da rifiuti – “RDF”) and incineration. To that end, it was to construct and manage three waste sorting and RDF production facilities and set up an electric power plant fuelled by RDF, by 31 December 2000.
13. When the tendering process ended on 20 March 2000, the concession was awarded to a consortium of five companies: Fisia Impianti S.p.A. (main contractor), Impregilo S.p.A., Babcock Kommunal GmbH, Deutsche Babcock Anlagen GmbH and Evo Oberhausen AG (subcontractors).
14. Under the terms of a service concession agreement signed on 7 June 2000, the five successful companies undertook to build two RDF production centres in Caivano and Tufino in 300 days, starting on 10 and 14 April 2000 respectively, and another in Giugliano in 270 days, starting from 30 March 2000. The RDF-fuelled power plant to be built in Acerra was to be built in 24 months, starting from a date to be determined later.
15. In the meantime, on 22 April 1999 the deputy commissioner had issued a call for tenders for the waste disposal service concession in Campania. The concession was awarded to FIBE S.p.A. a consortium of companies formed specially for the purpose. On an unspecified date they formed a company called FIBE Campania S.p.A.
16. Under the concession agreement signed on 5 September 2001, FIBE S.p.A. was to build and manage seven RDF production centres and two electric power plants fuelled by RDF. It was also required to ensure the proper reception, sorting and treatment of the waste collected in the region and transform 32% of it into RDF and 33% into compost, and produce 14% of non-recyclable waste and 3% of ferrous waste.
17. In January 2001 the closure of the Tufino landfill site resulted in the temporary suspension of waste disposal services in the province of Naples. To help control the situation the mayors of the other municipalities in the province authorised the storage of the waste in their respective landfill sites on a temporary basis, under section 13 of Legislative Decree no. 22 of 5 February 1997 ...
18. From the end of 2001 to May 2003 seven RDF production centres were built, in Caivano, Pianodardine, Santa Maria Capua Vetere, Giugliano, Casalduni, Tufino and Battipaglia.
19. On 22 May 2001 the urban waste collection and transport service of the municipality of Somma Vesuviana was entrusted to a consortium of two companies: C.I.C.-Clin Industrie Città S.p.A. and Ecologia Bruscino S.r.l. On 26 October 2004 the management of the service was handed over to M.I.T.A. S.p.A., a publicly-owned company.
20. In 2003 the Naples Public Prosecutor’s Office opened a criminal investigation (RGNR no. 15940/03) into the management of the waste disposal service in Campania since the signature of the concession contracts on 7 June 2000 and 5 September 2001.
21. On 31 July 2007 the public prosecutor’s office requested the committal for trial of the administrators and certain employees of Fisia Italimpianti S.p.A., FIBE S.p.A., FIBE Campania S.p.A., Impregilo S.p.A. and Gestione Napoli S.p.A. (“the companies”), as well as the deputy commissioner in post from 2000 to 2004 and several officials from his office, on charges of fraud, failure to perform public contracts, deception, interruption of a public service or utility, abuse of office, misrepresentation of the facts in the performance of public duties and conducting unauthorised waste management operations, committed between 2001 and 2005.
22. The members of the companies concerned were accused, inter alia, of having, with the complicity of the deputy commissioner and of officials from his office, failed in their contractual duty to receive and process the region’s waste. The companies themselves were accused of having delayed and in some cases interrupted the regular reception of the waste collected in the RDF production centres, causing refuse to pile up in the streets and the temporary storage sites provided by the mayors or the deputy commissioner.
23. The public prosecutor’s office also accused the companies of having (1) produced RDF and compost by means not provided for in their contracts; (2) failed to carry out the requisite RDF energy recovery operations pending the construction of the RDF power station; (3) subcontracted the transportation of the processed waste produced by the RDF production centres, in breach of the terms of the concession contract; and (4) stocked pollutants from the production of RDF on illegal sites with no effort to protect the environment.
24. The public officials concerned by the committal request were accused of having falsely attested that the companies in question had complied with the laws and contractual provisions governing waste disposal, authorised the opening of non-regulation waste disposal sites, the temporary storage of the RDF pending the opening of the power stations, and the dumping of pollutants produced by RDF production plants, and authorised derogations from the contractual specifications governing RDF production.
25. On 29 February 2008 the preliminary investigation judge ordered the accused to be committed for trial and scheduled the hearing before the Naples Court to be held on 14 May 2008.
26. Legislative Decree no. 245 of 30 November 2005, which subsequently became Law no. 21 of 27 January 2006, provided for the termination of the contracts governing waste disposal in Campania signed by the deputy commissioner in 2000 and 2001, and for the urgent organisation of a new call for tenders. In order to guarantee continuity of service, the companies already under contract were required to continue their activities until the new call for tenders was over, but only until 31 December 2007.
27. An initial call for tenders, issued on 27 March 2006 by the deputy commissioner then in post, failed for lack of sufficient valid tenders.
28. On 2 August 2006 the deputy commissioner issued a new call for tenders for a twenty-year concession.
29. Legislative Decree no. 263 of 9 October 2006, which subsequently became Law no. 290 of 6 December 2006, appointed the head of the civil emergency planning department to the post of deputy commissioner in charge of the waste disposal crisis in Campania. When the second call for tenders was annulled the deputy commissioner was instructed to sign new contractors to handle waste disposal.
30. On 28 March 2007 the regional authorities passed Law no. 4, providing for the creation of a regional division of the waste disposal scheme, a regional waste disposal observatory, a fully comprehensive regional waste management plan, a regional plan for special waste management, including dangerous waste, and a regional plan to clean up polluted sites.
31. On 6 July 2007 the Prefect of Naples was appointed deputy commissioner in charge of the waste disposal crisis.
32. Legislative Decree no. 61 of 11 May 2007, which subsequently became Law no. 87 of 5 July 2007, authorised the creation, in the municipalities of Serre (Salerno), Savignano Irpino (Avellino), Terzigno (Naples) and Sant’Arcangelo Trimonte (Benevento), of landfill sites with a special derogation from the statutory environmental protection and health and safety standards, and prohibited the creation of new waste disposal sites, in particular in the municipalities of Giugliano in Campania, Villaricca, Qualiano and Quarto (Naples), at least until the region had been cleaned up. The law made the deputy commissioner responsible for rapidly identifying new companies to collect and dispose of waste.
33. On 21 November 2007 a third call for tenders was issued. It failed because not enough tenders were received.
34. On 28 December 2007 the deputy commissioner drew up a regional plan for urban waste in Campania, in keeping with section 9 of Legislative Decree no. 61/07. It comprised a crisis resolution strategy based inter alia on the development of selective waste collection, transparency in the life cycle of waste, the rationalisation and upgrading of the existing structures – in particular at least one of the RDF production centres –, the creation of structures for producing compost, and the use of new technologies and methods for the biological treatment of waste.
35. On 19 April 2008 the publicly-owned company Pomigliano Ambiente S.p.A. was put in charge of collecting and transporting organic waste in the municipality of Somma Vesuviana.
36. A new crisis situation developed at the end of 2007. Tons of waste were left to pile up for weeks in the streets of Naples and other towns in the province, including those where the applicants lived (see list appended).
37. On 11 January 2008, by order no. 3639/08, the Prime Minister appointed a senior police officer deputy commissioner. His task was to open the landfill sites provided for in Legislative Decree no. 61/07 and to locate new waste storage and disposal sites, with the assistance of the police and the army. The order also invited the municipalities in the region to prepare plans for the selective collection of waste.
38. Legislative Decree no. 90 of 23 May 2008, which subsequently became Law no. 123 of 14 July 2008 (on “Extraordinary measures in response to the waste disposal crisis in Campania and subsequent civil protection measures”) – appointed the head of the civil emergency planning department to the post of undersecretary of State to the Prime Minister’s Office and made him responsible for managing the crisis until 31 December 2009, in place of the deputy commissioner. The undersecretary was authorised to open ten new landfill sites in the region, including two in Terzigno and Chiaiano, with a special derogation from the statutory environmental protection and health and safety standards.
39. Legislative Decree no. 90/08 also authorised the treatment of certain categories of waste at the RDF-fuelled power plant in Acerra – against the opinion submitted on 9 February 2005 by the environmental impact assessment committee – and the construction of RDF-fuelled power plants in Santa Maria La Fossa (Caserta) and in Naples and Salerno.
40. The Legislative Decree handed over ownership of the waste sorting and treatment sites to the provinces of Campania but provisionally left it to the army to manage the sites.
41. Paragraphs 4 and 7 of section 2 of the decree classified the sites, the zones, the plants and the headquarters of the waste management services “strategic national interest zones” placed under the supervision of the police and the army. The armed forces were asked to help organise the implantation of the sites and the collection and transport of waste.
42. Section 2, paragraph 9, classified preventing, obstructing or hindering waste disposal as the punishable offence of interruption of a public service.
43. Lastly, the Legislative Decree instructed the undersecretary of State to ensure that the municipalities complied with the objectives for the selective collection of urban waste laid down in the 28 December 2007 regional plan for urban waste in Campania.
44. Legislative Decree no. 172 of 6 November 2008, which subsequently became Law no. 210 of 30 December 2008 (on “Extraordinary measures in response to the waste disposal crisis in Campania and urgent environmental protection provisions”) provided for the possibility, in the territories affected by the state of emergency regarding waste disposal, of mayors, provincial presidents, municipal or provincial councillors and municipal or provincial commission members being dismissed by decree of the Minister of the Interior in the event of serious neglect, inter alia, in their duty to plan and organise the collection, transport, processing, elimination and selective sorting of waste. It also provided, in the same territories, for special criminal sanctions to punish, inter alia, (1) the illegal dumping or burning of waste; (2) the unauthorised collection, transport, processing, elimination and sale of waste; (3) the creation and management of illegal landfill sites and the mixing of dangerous and non-dangerous waste.
45. According to the information submitted by the Government, which the applicants did not dispute, two landfill sites had already been opened in Savignano Irpino and Sant’Arcangelo Trimonte at the end of October 2009, others were on the point of opening in Chiaiano, Terzigno and San Tammaro, and preliminary work was under way with a view to opening a site at Andretta (Avellino). The finishing touches were being put to the RDF-fuelled power plant in Acerra, a call for tenders for the construction of an RDF-fuelled power plant in Salerno had been issued and a site for an RDF-fuelled power plant in the province of Naples had been chosen. From 14 January to 1 March 2008 269,000 tonnes of waste were removed from the streets of the region’s towns and 79,000 tonnes of RDF were stored. Five hundred and thirty municipalities introduced the selective collection of waste in compliance with order no. 3639/08.
46. On 3 June 2008, pursuant to order no. 3804/09 issued by the Prime Minister and following the approval of a selective waste collection programme, a call for tenders for the waste collection service in the municipality of Somma Vesuviana was won by L’Igiene Urbana S.r.l.
47. On 15 March 2009, by order no. 3746, the Prime Minister urged the provinces of the region to set up semi-public companies to run the waste storage sites, landfills and waste disposal, processing and recycling plants.
48. In 2006, on an unspecified date, the Naples Public Prosecutor’s Office opened a criminal investigation (RGNR no. 40246/06) into the waste disposal operations organised on a temporary basis by FIBE S.p.A. and FIBE Campania S.p.A. during the transition period following the termination of the concession contracts.
49. On 22 May 2008, at the request of the prosecutor’s office, the preliminary investigation judge at the Naples Court placed compulsory residence orders on the managing directors of FIBE S.p.A. and FIBE Campania S.p.A., several of the companies’ executives and employees, the people in charge of the waste sorting centres run by Fisia Italimpianti S.p.A., the manager of the Villaricca landfill, representatives of the FS Cargo S.p.A. transport company and several officials from the deputy commissioner’s office.
50. The accused were charged, inter alia, with conspiring in the illegal trafficking of waste, forgery of official documents, deception, misrepresentation of the facts in the performance of public duties, and organised trafficking of waste.
51. On an unspecified date in 2008 the Naples Public Prosecutor’s Office opened a criminal investigation (RGNR no. 32722/08, nicknamed “Rompiballe”) into the waste disposal operations carried out after December 2005. According to the information supplied by the Government, which the applicants did not dispute, the investigation, which was still pending on 26 October 2009, concerned a number of offences against the environment and the public authorities and targeted several employees of FIBE S.p.A. and other companies in the consortium, as well as officials from the deputy commissioner’s office.
52. On 22 March 2005 the Commission of the European Communities (“the Commission”) brought an action for non-compliance against Italy before the Court of Justice under Article 226 of the Treaty establishing the European Community (“TEC”) (case no. C-135/05). Criticising the existence of a large number of illegal and unsupervised landfill sites in Italy, the Commission alleged that the Italian authorities had failed to honour their obligations under Articles 4, 8 and 9 of Directive 75/442/EEC on waste, Article 2 § 1 of Directive 91/689/EEC on hazardous waste and Article 14, letters (a) to (c), of Directive 1999/31/EC on the landfill of waste.
53. In its judgment of 26 April 2007 the Court of Justice noted “the general non-compliance of the tips [with the] provisions”, observing, inter alia, that the Italian Government “does not dispute the existence ... in Italy of at least 700 illegal tips containing hazardous waste, which are therefore not subject to any control measures”.
54. It concluded that the Italian Republic had failed to fulfil its obligations under the provisions cited by the Commission, because it had failed to adopt all the necessary measures to ensure that waste was recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and to prohibit the abandonment, dumping or uncontrolled disposal of waste.
55. On 3 July 2008 the Commission brought a new action for noncompliance against Italy under Article 226 TEC (case no. C-297/08).
56. In a judgment of 4 March 2010 the Court of Justice, while noting the measures taken by Italy in 2008 to tackle the “waste crisis”, referred to the existence of a “structural deficit in terms of the installations necessary for the disposal of the urban waste produced in Campania, as evidenced by the considerable quantities of waste which [had] accumulated along the public roads in the region”.
It held that Italy had “failed to meet its obligation to establish an integrated and adequate network of disposal installations enabling it ... to [ensure the] disposal of its own waste and, in consequence, [had] failed to fulfil its obligations under Article 5 of Directive 2006/12”. According to the Court of Justice, that failure could not be justified by such circumstances as the opposition of the local population to waste disposal sites, the presence of criminal activity in the region or the non-performance of contractual obligations by the undertakings entrusted with the construction of certain waste disposal infrastructures. It explained that this last factor could not be considered force majeure, because “the notion of force majeure require[d] the non-performance of the act in question to be attributable to circumstances, beyond the control of the party claiming force majeure, which [were] abnormal and unforeseeable and the consequences of which could not have been avoided despite the exercise of all due diligence”, and that a diligent authority should have taken the necessary precautions either to guard against the contractual non-performance in question or to ensure that, despite those shortcomings, actual construction of the infrastructures necessary for waste disposal would be completed on time. The Court of Justice also noted that “the Italian Republic [did] not dispute that the waste littering the public roads totalled 55,000 tonnes, adding to the 110,000 tonnes to 120,000 tonnes of waste awaiting treatment at municipal storage sites”. Concerning the environmental hazard, the Court of Justice reiterated that the accumulation of waste, regard being had in particular to the limited capacity of each region or locality for waste reception, constituted a danger to the environment. It concluded that the accumulation of such large quantities of waste along public roads and in temporary storage areas had given rise to a “risk to water, air or soil, and to plants or animals” within the meaning of Article 4(1)(a) of Directive 2006/12, had caused “a nuisance through noise or odours” within the meaning of Article 4(1)(b), and was likely to affect “adversely ... the countryside or places of special interest” within the meaning of Article 4(1)(c) of that Directive. As to the danger to human health, the Court of Justice noted that “that the worrying situation of accumulation of waste along the public roads [had] exposed the health of the local inhabitants to certain danger, in breach of Article 4(1) of Directive 2006/12”.
...
68. Section 4 of Legislative Decree no. 90 of 24 May 2008 empowers the administrative courts to determine disputes concerning waste disposal activities in general, including when they are carried out by public authorities or the like. The powers of the administrative courts extend to disputes over rights protected by the Constitution.
69. In a claim for damages brought by a group of residents on 5 May 2008 – prior to the entry into force of section 4 of Legislative Decree no. 90/08 – against the city of Naples and the company responsible for waste disposal there, the Naples Civil Court noted that only the administrative court could examine the case and adopt any urgent interim measure within the meaning of section 21 of Law no. 1034 of 6 December 1971 (instituting the regional administrative courts).
70. By two judgments delivered on 21 May and 23 November 2009, the Court of Cassation, sitting as a full court, held that the administrative court had jurisdiction to examine claims for compensation brought by the residents of a municipality against the authorities responsible for the collection, treatment and elimination of waste.
71. Article 4 of Directive 75/442/EEC of the Council of the European Union, of 15 July 1975, on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, reads as follows:
“Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:
— without risk to water, air, soil and plants and animals,
— without causing a nuisance through noise or odours,
— without adversely affecting the countryside or places of special interest.
Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.”
72. The relevant provision of Article 2 of Council Directive 91/689/EEC on hazardous waste, of 12 December 1991, reads as follows:
“1. Member States shall take the necessary measures to require that on every site where tipping (discharge) of hazardous waste takes place the waste is recorded and identified.
...”
73. Council Directive 1999/31/EC on the landfill of waste, of 26 April 1999, contains the following provisions:
Member States shall take measures in order that landfills which have been granted a permit, or which are already in operation at the time of transposition of this Directive, may not continue to operate unless ... :
(a) with a period of one year after the date laid down in Article 18(1) [that is, at the latest, by 16 July 2002], the operator of a landfill shall prepare and present to the competent authorities, for their approval, a conditioning plan for the site including the particulars listed in Article 8 and any corrective measures which the operator considers will be needed in order to comply with the requirements of this Directive ...;
(b) following the presentation of the conditioning plan, the competent authorities shall take a definite decision on whether operations may continue on the basis of the said conditioning plan and this Directive. Member States shall take the necessary measures to close down as soon as possible ... sites which have not been granted ... a permit to continue to operate;
(c) on the basis of the approved site-conditioning plan, the competent authority shall authorise the necessary work and shall lay down a transitional period for the completion of the plan. ...”
“1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than two years after its entry into force [that is, by 16 July 2001]. They shall forthwith inform the Commission thereof.
...”
74. The relevant provisions of Directive 2006/12/CE of the European Parliament and of the Council of 5 April 2006 on waste read as follows:
“1. Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:
(a) without risk to water, air or soil, or to plants or animals;
(b) without causing a nuisance through noise or odours;
(c) without adversely affecting the countryside or places of special interest.
2. Member States shall take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.
1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of disposal installations, taking account of the best available technology not involving excessive costs. The network must enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually, taking into account geographical circumstances or the need for specialised installations for certain types of waste.
2. The network referred to in paragraph 1 must enable waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health.”
75. By virtue of the precautionary principle enshrined in Article 174 of the Treaty establishing the European Community, the lack of certainty regarding the available scientific and technical data cannot justify States delaying the adoption of effective and proportionate measures to prevent a risk of serious and irreversible damage to the environment. The Community’s case-law has applied this principle mainly in cases concerning health, whereas the Treaty refers to the principle only in connection with the Community’s environmental policy. According to the case-law of the Court of Justice of the European Communities (“ECJ”), “where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent” (ECJ, 5 May 1998, United Kingdom/Commission, case C-180/96, ECR I-2265, and ECJ, 5 May 1998, National Farmers’ Union, C-157/96, ECR I-2211).
...
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-57818
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF ZANGHÌ v. ITALY (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Pecuniary damage - claim dismissed
JUDGES: C. Russo;N. Valticos
TEXT: 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 16 February 1990. It originated in an application (no. 11491/85) against the Italian Republic lodged with the Commission by an Italian national, Mr Claudio Zanghì, on 16 April 1985.
2. For the facts of the case, reference should be made to paragraphs 9-14 of the judgment delivered on 19 February 1991 (Series A no. 194-C, p. 45). In that judgment the Court found a violation of Article 6 para. 1 (art. 6-1) of the Convention because civil proceedings brought on 3 April 1982, though not complex, remained pending (ibid., pp. 46-47, paras. 18-21 of the judgment, and point 1 of the operative provisions). The Court did not deem it necessary to consider also the complaint based on Article 1 of Protocol No. 1 (P1-1) (ibid., p. 47, paras. 22-23 of the judgment, and point 2 of the operative provisions).
3. Mr Zanghì did not make any pecuniary claim in respect of the violation of Article 6 para. 1 (art. 6-1), nor did he seek reimbursement of the costs and fees incurred in the proceedings before the Commission and the Court. He did, on the other hand, seek compensation in the amount of 7,950,000 Italian lire for pecuniary damage sustained as a result of the alleged breach of Article 1 of Protocol No. 1 (P1-1).
The Court dismissed this claim as matters stood, as it was still possible that the national courts would make reparation for the financial consequences of failing to try the case within a reasonable time (ibid., pp. 47-48, paras. 24-26 of the judgment and point 3 of the operative provisions).
4. In a judgment of 31 May 1990, which was filed in its registry on 25 June 1990 and became final on 26 September 1991, the Catania Court of Appeal found against Mrs D. and awarded the respondent, Mr Zanghì, compensation in the amount of 298,000 lire, representing the value of a parcel of land that had been unlawfully occupied by Mrs D.
The applicant informed the European Court’s registry of this decision on 24 May 1991 and supplied the text on 27 January 1992.
5. On 18 September 1991, as authorised by the President, Mr Zanghì filed his claim for just satisfaction.
On 11 and 23 March 1992 observations were received from the Government and the Commission respectively; the applicant replied to them on 21 April.
6. On 23 September 1992 the Court re-entered the case in its list and decided not to hold a hearing.
7. As Mr R. Ryssdal was unable to attend the deliberations on 1 February 1993, his place as President of the Chamber was taken by Mr J. Cremona (Rule 21 para. 5, second sub-paragraph); Sir Vincent Evans, substitute judge, replaced Mr Ryssdal as a member of the Chamber (Rules 22 para. 1 and 24 para. 1).


ITEMID: 001-66646
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF KUSMIEREK v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1943 and lives in Bielawa, Poland.
6. Between 18 and 21 February 1992 “Ekspres Sudecki”, a local newspaper, published letters of certain M.W. and A.P. The authors accused the applicant, at the time the Deputy Mayor of Bielawa, of fraud and called him a “liar”.
7. On 6 March 1992 the applicant brought a private prosecution on charges of libel against M.W. and A.P. to the Dzierżoniów District Court (Sąd Rejonowy).
8. The trial began on 18 May 1992. The court adjourned the hearing due to the absence of one of the defendants.
9. Further hearings were listed for 8 and 30 June, 20 July, 20 August and 22 September 1992, 11 February and 28 April 1993, but most of them were adjourned because of the parties' or their lawyers' absence.
10. On 20 May 1993 the Court adjourned the trial because the defendants had failed to appear.
11. The next hearing, set down for 24 June 1993, was cancelled because of the absence of the lay judge.
12. Further hearings, scheduled for 8 July 1993, 25 March 1994, 31 May and 14 June 1995 were adjourned because of the absence of the defendants, their counsel, a witness and the applicant. The court decided to impose a fine on one of the witnesses who had failed to appear.
13. At the hearing on 29 June 1995 the defendants' counsel informed the court that he would not represent them any longer.
14. On 20 July 1995 the trial was adjourned because the defendants had failed to appear. The court ordered that both defendants be subjected to police supervision in order to ensure the proper course of the proceedings.
15. On 18 October 1995 the court lifted police supervision in respect of M.W.
16. A hearing set down for 1 March 1996 was adjourned since the defendants and a witness had failed to appear before the court. The court ordered that A.P. be detained on remand to ensure his presence at hearings.
17. A hearing scheduled for 29 March 1996 was adjourned because M.W., the applicant and witnesses had failed to appear.
18. On 4 April 1996 M.W. challenged the impartiality of all the judges sitting in the Dzierżoniów District Court. The challenge was dismissed as unfounded by the Wałbrzych Regional Court (Sąd Wojewódzki) on 24 May 1996.
19. At a hearing on 5 April 1996 the Dzierżoniów District Court decided to re-hear evidence due to the change of the composition of the court. It also lifted A.P.'s detention and ordered that he be subjected to police supervision.
20. Hearings scheduled for 26 September and 10 October 1996 were adjourned because of M.W.'s and his counsel's absence.
21. On 24 October 1996 the court held a hearing.
22. The next hearing, which was to be held on 7 November 1996, was adjourned because A.P. had failed to appear. The court ordered that he be brought to the court by the police for the next hearing.
23. At the hearing on 15 November 1996 M.W.'s counsel asked the court to allow him time to inspect new documentary evidence and to adjourn the trial.
24. The proceedings were subsequently stayed because the applicant's lawyer was ill.
25. A hearing scheduled for 29 January 1998 was adjourned because of the absence of M.W., his lawyer and witnesses.
26. The court resumed the proceedings at a hearing on 19 February 1998. It also imposed a fine on one of the witnesses who had failed to appear.
27. On 6 March 1998 the court held that the conduct of M.W. made it impossible for it to try the case and decided to sever the charges against him. On the same day M.W.'s counsel refused to represent him any longer.
28. A hearing set down for 19 March 1998 was adjourned because a witness had not appeared.
29. A hearing scheduled for 9 April 1998 was cancelled due to the judge's absence.
30. On 23 April 1998 the Dzierżoniów District Court convicted M.W. as charged and ordered that he publish an official apology to the applicant in a local newspaper. It also conditionally discontinued the proceedings against A.P.
31. Both defendants appealed against that judgment.
32. On 27 October 1998 the Wałbrzych Regional Court quashed the first-instance judgment and remitted the case.
33. On 3 March 1999 the Dzierżoniów District Court discontinued the proceedings against both defendants, as the statutory period of limitation for imposing a sentence had expired.
34. On 9 March 1999 the applicant appealed against that decision.
35. The case was again remitted on 20 July 1999.
36. On 25 August 1999 the Dzierżoniów District Court stayed the proceedings because A.P. had absconded and a warrant to search for him by a “wanted notice” had been issued.
37. Hearings set down for 5 April and 7 May 2001 were adjourned due to the defendants' absence.
38. On 6 June 2001 the Dzierżoniów District Court discontinued the proceedings on the same grounds as before.
39. The Świdnica Regional Court upheld that decision on 7 September 2001.
40. Article 178 of the Criminal Code 1969 (which is no longer in force and was repealed and replaced by the so-called “New Criminal Code”), as applicable at the material time, reads as follows:
“§ 1. Anyone who imputes to another person, a group of persons or an institution such behaviour or characteristics, which may debase them in the public opinion or expose to loss of the trust necessary for a certain position, occupation or a type of activity, shall be liable to imprisonment not exceeding 2 years, a restriction of liberty or a fine.
§ 2. Anyone who raises or makes public untrue allegation about behaviour or characteristics of another person, a group of persons or institutions in order to debase them in the public opinion or expose to loss of the trust necessary for a certain position, occupation or a type of activity, shall be liable to imprisonment not exceeding 3 years.
...
§ 4. The prosecution takes place under a private bill of indictment.”
41. At the material time the rules governing detention on remand were contained in Part VI of the Code of Criminal Procedure of 1969 (repealed and replaced by the so-called “New Code of Criminal Procedure” of 6 June 1997) entitled “Coercive measures” (Środki przymusu). Under Article 235 § 2 a court, in order to ensure the proper course of the proceedings, could subject an accused to police supervision. Article 217 § 1 (1) provided that detention on remand could be imposed if there was a reasonable risk that an accused would abscond or go into hiding. Article 242 § 1 stated that a fine could be imposed on a witness who failed to appear before a court when summoned. Under § 2 of that provision, a court could also order that such person be brought to a court by the police.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72255
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF REÇBER v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Just satisfaction dismissed (out of time)
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1954 and lives in İstanbul.
5. On 14 December 1995 the Kocaeli Provincial Private Administration Office (Kocaeli İl Özel İdare Müdürlüğü) expropriated a plot of land belonging to the applicant. A committee of experts assessed the value of the plot and the relevant amount was paid to her when the expropriation took place.
6. Following the applicant’s request for increased compensation, on 20 February 1998 the Gebze Civil Court of First-instance awarded her an additional compensation of 3,189,159,368 Turkish liras (TRL) plus interest at the statutory rate applicable at the date of the court’s decision.
7. On 24 November 1998 the Court of Cassation upheld the judgment.
8. On 2 March 1999 the Court of Cassation rejected the applicant’s request for rectification.
9. On 6 October 1999 the Kocaeli Provincial Private Administration paid the amount of TRL 7,049,472,900 to the applicant, interest included.
10. On 13 September 1999 the applicant lodged an application with the Court.
11. After the application was communicated to the Government, the applicant was requested to submit her observations on the merits of the case and also her just satisfaction claims until 9 September 2004. However, she failed to submit her observations within the required time-limit. She did not request any extension of time, either.
12. By registered letter of 29 May 2005 the applicant was informed that the Court had not received her observations and just satisfaction claims and that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application.
13. On 7 June 2005 the applicant submitted her observations on the merits of the case. However, she failed to submit her claims for just satisfaction.
14. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).


ITEMID: 001-61029
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF CLUCHER v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicants were born in 1954, 1956 and 1952 respectively and live in Rome.
9. The applicants are the owners of a flat in Rome, which they had let to G.D.
10. In a writ served on the tenant on 19 May 1984, the applicants communicated their intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.
11. By a decision of 15 October 1984, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 31 May 1987.
12. On 17 June 1987, the applicants served notice on the tenant requiring her to vacate the premises.
13. On 30 July 1987, they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 14 September 1987.
14. Between 14 September 1987 and 29 February 2000, the bailiff made thirty attempts to recover possession.
15. Each attempt proved unsuccessful as, under the statutory provisions providing for the suspension or the staggering of evictions, the applicants were not entitled to police assistance in enforcing the order for possession.
16. On 3 July 2000, the applicants recovered possession of their flat.
17. The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4647
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: DOMALEWSKI v. POLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish national, born in 1926 and living in Warsaw, Poland
A.
From 15 February 1947 to 31 December 1956, the applicant was an officer (funkcjonariusz) of the Ministry of Public Security (Ministerstwo Bezpieczeństwa Publicznego) and the Committee for Public Security (Komitet Do Spraw Bezpieczeństwa Publicznego).
On 31 May 1974 the Warsaw Regional Board of the Union of Fighters for Liberty and Democracy (Zarząd Wojewódzki Związku Bojowników o Wolność i Demokrację) issued a decision granting the applicant the so-called “veteran status” (uprawnienia kombatanckie) on the basis of the fact:
“ ... that he [had] served from 10 June 1944 to 9 May 1945 in the [so-called] Restored Polish Army.”
On 2 June 1976 the Board issued a decision stating that the applicant should be granted “veteran status” also in view of the fact that:
“... from 29 March 1946 to 10 February 1947 he [had taken] part in the armed struggle to consolidate the people’s power (brał udział w walkach o utrwalanie władzy ludowej).”
On 15 July 1976 the Ministry of the Interior issued a declaration stating that, from 15 February 1947 to 31 December 1956, the applicant had been an officer of the former Ministry of Public Security and the former Committee for Public Security and that, from 15 February 1947 to 31 December 1947, “he had taken part in armed fighting with the reactionary underground resistance forces” (brał udział w zbrojnej walce z reakcyjnym podziemiem).
On 29 July 1980 the Board issued a decision stating that the applicant should be granted “veteran status” since:
“From 10 June 1944 to 9 May 1945 he [had] served in the Restored Polish Army; from 5 April 1944 to 9 June1944 he [had] served in the allied armies; from 29 March 1946 to 10 February 1947 and from 15 February 1947 to 31 December 1947 he [had taken] part in the armed struggle to consolidate the people’s power.”
Later, on an unspecified date, the applicant retired and, from that date, received a retirement pension and a so-called “veteran benefit” (dodatek kombatancki), i.e. a monthly allowance to which only retired veterans were entitled.
On 22 April 1994 the Director of the Office for Veterans and Persecuted Persons (Kierownik Urzędu Do Spraw Kombatantów i Osób Represjonowanych) issued a decision divesting the applicant of the status of veteran under Section 25 § 2 (1) (a) of the Law of 24 January 1991 on Veterans and Other Victims of War and Post-war Repression (Ustawa o kombatantach oraz niektórych osobach będących ofiarami represji wojennych i okresu powojennego), read in conjunction with Section 21 § 2 (4) (a) of that Law. The reasons for this decision read:
“[The applicant] was granted “veteran status” by virtue of the decisions issued by the Union of Fighters for Democracy and Liberty on the basis of declarations [of the relevant military authorities], stating that he had taken part in the armed struggle to consolidate the people’s power and had served in the allied army. [He was later granted such a status] on the basis of a declaration issued by the Ministry of the Interior on 15 July 1976, stating that, from 15 February 1947 to 31 December 1956, he had been an officer of the former Ministry of Public Security and the former Committee for Public Security and that, from 15 February 1947 to 31 December 1947, he had taken part in armed fighting with [the so-called] reactionary underground resistance forces.
Under Section 21 § 2 (4) (a) of the Law of 24 January 1991 cited above anyone who has served in organs of the public security service shall not acquire “veteran status” [in any circumstances and for whatever other reasons].
Under Section 25 § 2 read together with Section 21 § 2 (4) (a) of the Law, anyone who has served in organs of the public security service shall be divested of such [previously acquired] status.
That being so, the present decision is justified.”
On 23 May 1994 the applicant filed an appeal with the Supreme Administrative Court (Naczelny Sąd Administracyjny), submitting that the above-mentioned decision had been issued in breach of the rule of law and based on insufficient evidence. He maintained that he had been divested of his status of veteran on the basis of a single circumstance, namely, that he had served in the organs of the public security service, even though he had never committed any condemnable, illegal or immoral act. He stressed that he had never taken part in armed fighting with the underground resistance forces but had acquired “veteran status” for his fight for independence of Poland and against the Nazis. Finally, the applicant contested the accuracy of the certificates issued by the Union of Fighters for Liberty and Democracy, stating that they were inaccurate.
On 21 February 1996 the Supreme Administrative Court held a hearing in the applicant’s case. On the same day the court gave judgment dismissing the appeal. It held that, under Sections 21 and 25 of the Law of 24 January 1991 on Veterans and Other Victims of War and Post-war Repression, no one who had previously served, or been employed in, the organs of the public security service could receive or retain the status of veteran, whatever his merits. In the instant case, it was clear that the applicant had been an officer of the former Ministry of the Public Security and the former Committee for Public Security; this fact was, in itself, sufficient under the terms of the Law of 24 January 1991 to justify the decision to divest him of his previously acquired status. The impugned decision had therefore been taken in conformity with the relevant provisions of the substantive law.
B. Relevant domestic law
The Law of 24 January 1991 on Veterans and Other Victims of War and Post-War Repression repealed the Law of 26 May 1982 on the Special Status of Veterans (Ustawa o szczególnych uprawnieniach kombatantów).
It was enacted in order to regulate the system of granting special privileges attached to the so-called “veteran status” and, partly, intended to condemn the political role played by the former Communist machinery (in particular, the so-called “Public Security Service”, “aparat bezpieczeństwa publicznego”) in establishing the Communist regime, implementing a Stalinist policy and repressing political opposition to the system. Considering that persons having served in the former organs of public security, whose task it had been, inter alia, to combat and eliminate all forms of democratic opposition, did not deserve the special privileges attached to “veteran status”, the legislator decided that they should be unconditionally deprived of that status.
The “Public Security Service” consisted of State organs, comprising the political police and special armed forces. It was patterned after the NKVD and the KGB and established (under the supervision of the NKVD) on 21 July 1944 with a view to securing Communist rule and combating, suppressing and eliminating groups of political opposition, including the post-war underground resistance against Communism and the Polish Church. In the 1950s these organs were in charge of prisons and labour camps; at that time, they were also competent to conduct criminal investigations under the rules of criminal procedure. Depending on the political circumstances, they were called by various names: “Department of Public Security” (Resort Bezpieczeństwa Publicznego), subsequently renamed “Ministry of Public Security” (Ministerstwo Bezpieczeństwa Publicznego) (July 1944-December 1954); “Committee for Public Security” (Komitet do Spraw Bezpieczeństwa Publicznego) (1954-1956); and “Security Service” (Służba Bezpieczeństwa), as a special department of the Ministry of the Interior (1956-1990; dissolved after the collapse of Communism).
The Law of 24 January 1991 also established a new public organ, the Office for Veterans and Persecuted Persons, which is competent to grant “veteran status” and has the duty to verify whether persons who have previously acquired such status meet the new statutory criteria.
Section 21 § 2 (4) (a) of the 1991 Law, as applicable at the relevant time, provided as follows:
“2. No one shall acquire “veteran status”, if:
...
(4) (a) he has served [or has been employed] in organs of the public security service. ...”
In turn, Section 25 § 2 of that Law, as applicable at the relevant time, provided the following:
“Anyone who has acquired “veteran status” on the basis referred to in Section 21 § 2 ... (4) shall be divested of such previously acquired status.”
Under the provisions of both the repealed Law of 26 May 1982 and the new Law of 24 January 1991 (Sections 12-20), veterans were (and still are) entitled to privileged status in comparison to other employees or retired persons; this status included, for example: a lower age of retirement; a particularly favourable method for calculating periods of employment; and various financial benefits paid in addition to the normal pension calculated in accordance with the rules of the general social insurance system.
At the time when the applicant was divested of his “veteran status”, a retired veteran was, inter alia, entitled to a so-called “veteran benefit” equal to 10% of the average monthly salary in the public sector; a fare discount of 50% on travel by municipal transport, rail and public long-distance buses; a special allowance covering 50% of such household expenses as electricity, gas and heating; and a discount of 50% on motor-vehicle insurance.
The loss of “veteran status” did (and does) not, however, entail any legal or practical consequences in respect of the right to receive a normal pension since, under Section 26 of the Law of 24 January 1991, a person divested of that status is still entitled to his pension calculated under the rules applicable within the general social insurance scheme.


ITEMID: 001-92451
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: RADALJAC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mrs Senka Radaljac, is a Croatian national who was born in 1945 and lives in Ploče. She was represented before the Court by Mr I. Kotromanović, a lawyer practising in Ploče. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 July 1984 the applicant’s sister, B.R., was granted a specially protected tenancy of a flat in Ploče. The flat was a studio, measuring twenty-six square metres. The applicant, who was at that time employed in Germany, registered her residence in the flat and was recognised as a household member.
The applicant’s sister died some time in 1988 and the applicant continued to occupy the flat when she was in Croatia and since 2001, when she retired, she has been living permanently in the flat.
On 2 May 1997 the applicant asked the Ploče Municipality, as the owner of the flat, to make a lease agreement on the said flat. The request was refused and on an unspecified date the Ploče Municipality brought a civil action in the Ploče Municipal Court (Općinski sud u Pločama) seeking the applicant’s eviction.
On 23 September 2003 the Municipal Court ordered the applicant’s eviction within fifteen days on the ground that the applicant had no legal basis to occupy the flat since she had not lived with her sister in the same household for the last two years preceding her sister’s death, that being a condition of acquiring a specially protected tenancy on a flat. The relevant part of the judgment reads as follows:
“Regardless of her possible strong emotional attachment to her late sister and the unselfish assistance that the plaintiff provided to her sister in various forms by caring for her [during] unpaid leaves and holidays, the plaintiff, owing primarily to the distance [of their places of] living, did not live with her sister for the two years preceding the latter’s death, and thus did not acquire a specially protected tenancy on the basis of law.”
The judgment was upheld by the Dubrovnik County Court (Županijski sud u Dubrovniku) on 29 July 2004. A subsequent constitutional complaint by the applicant of 23 September 2004 was dismissed by the Constitutional Court (Ustavni sud Republike Hrvatske) on 26 February 2007.
The relevant provisions of the Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993) read as follows:
“(1) Members of the household of the holder of a specially protected tenancy are ... persons who have lived with him or her in the past two years, including: ... [his or her] brothers and sisters ...”
The Specially Protected Tenancies (Sale to Occupier) Act (Official Gazette nos. 27/1991, 33/1992, 43/1992, 69/1992 25/1993, 26/1993, 48/1993, 2/1994, 44/1994, 47/1994, 58/1995, 11/1996, 11/1997 and 68/1998) regulates the conditions for the sale of flats let under specially protected tenancies. In general, the Act entitles the holder of a specially protected tenancy on a publicly owned flat to purchase it under favourable conditions of sale.
The relevant provision of the Act provides as follows:
“Every holder of a specially protected tenancy (hereinafter ‘the tenant’) may submit a written application to purchase a flat to the ... owner (‘the seller’) ... and the seller shall be obliged to sell the flat.
...”


ITEMID: 001-94993
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BUSINESS SI INVESTITII PENTRU TOTI v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant company is registered in Moldova.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. In 1987 a State-owned company started construction of an apartment building, with the ground floor reserved for office space. After several changes of ownership of the unfinished building, another State company (L.) was designated as its owner. A subsequent administrative decision allowed a third State company (M.) to become a co-owner of the building.
8. In 1997 L., with the apparent approval of the Department of Privatisation (“the Department”), concluded a contract with a private company (I.). The latter undertook to finish the construction works in exchange for a share of the office space on the ground floor of the building.
9. On 19 October 2000 I. concluded a contract with the applicant company, under which the applicant company would finance the construction work and in exchange become the owner of a part of the office space in the building.
10. On 27 March 2001 M. initiated court proceedings against L., I. and the Department for annulment of the 1997 contract, as interfering with its right to a part of the building.
11. On 19 November 2001 the applicant company initiated court proceedings against I., claiming damages for I.'s failure to fulfil its part of the contract in time. On 29 November 2001 the applicant company requested I. to transfer the office space to which it had rights under the contract concluded in 2000.
12. On 6 February 2003 the applicant company initiated court proceedings against I., M., the Department of Privatisation and the Chişinău municipality, requesting confirmation of its property right over the office space claimed from I. under the contract of 19 October 2000. It noted that it had invested more than a million United States dollars (USD) in the construction of the building under that contract and that it was using the relevant office space, but that it was still unable to exercise all rights over that property as its rightful owner. It added that “due to I.'s actions, [the applicant company] was dragged into court proceedings against M., the Department, etc.” The applicant company asked the court to recognise its property right over specifically identified office space in the relevant building.
13. On 27 April 2004 the applicant company asked the court to discontinue the proceedings it had initiated against I. because the latter had accepted its claims and transferred the relevant office space. On the same day the Chişinău Court of Appeal allowed the applicant company's request.
14. Also on 27 April 2004 the Chişinău Court of Appeal rejected the claims of M. as unfounded.
15. On 8 July 2004 the Supreme Court of Justice quashed that judgment and adopted a new one, allowing M.'s claims in full.
16. The applicant company asked for a revision of the judgment of 8 July 2004. It complained that it had not been joined as a party to the proceedings, even though its property rights had been affected. Moreover, its court action lodged on 6 February 2003 had not been examined and the judgment of 8 July 2004 had prejudged the outcome of those proceedings. The applicant company emphasised that it had withdrawn only its court action against I. and not that against M. and the Department for recognition of its property right over the part of the building which it had been occupying throughout the proceedings.
17. On 16 September 2004 the Supreme Court of Justice rejected the applicant company's request for revision. It found that the applicant company was not the owner of the disputed part of the building. It also found that on 19 October 2000 I. had concluded the contract with the applicant company in bad faith, since it had been aware of the ongoing legal dispute with M. in respect of the building and of the court prohibition on continuing any construction work. The proceedings which had ended with the judgment of 8 July 2004 did not affect the applicant company's right to claim damages from I. for its actions in bad faith.
18. The court also considered that by withdrawing its claims on 27 April 2004 the applicant company had sought to have the proceedings discontinued in their entirety. It added that “since the applicant company had withdrawn the totality of its claims, but the court decided to discontinue the proceedings only in respect of one such claim, the parties have the right to ask for an additional decision discontinuing the proceedings in respect of the recognition of the property right”.
19. Article 37 of the Code of Civil Procedure, in force before 12 June 2003, reads as follows:
“...
If the legally protected rights and interests of persons not participating in the proceedings may be affected by a court judgment because of the nature of the legal relationship or applicable legal provisions, the court is obliged to join such persons to the proceedings as co-defendants or to inform them of their right to join as co-plaintiffs”.
20. Article 449 of the Code of Civil Procedure reads as follows:
“A request for revision shall be granted if:
...
(g) the court has adopted a judgment affecting the rights of persons who were not parties to the proceedings;
(h) the judgment adopted prevents the taking of a lawful decision in other proceedings; ...”.
21. In the case of Soroca mining company (see Baroul Partner-A v. Moldova, no. 39815/07, § 49, 16 July 2009), the Supreme Court of Justice, after annulling the contract for the privatisation of the mining company, also annulled all subsequent legal acts adopted on the basis of that privatisation such as the issuing of shares.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97346
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ALEKSANDR ZAICHENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-3-c;Violation of Art. 6-1;Pecuniary damage - claim rejected;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1946 and lives in the village of Lazarevo in the Jewish Autonomous Region, Russia.
6. The applicant worked as a driver for a private company.
7. It appears that at the time there were several reported cases of the company workers allegedly pouring out diesel from their service vehicles. Thus the company's director asked the competent authorities to carry out checks.
8. On 21 February 2001 while driving home in the company of another person (Mr Kh), the applicant's car was stopped and inspected by the police. Two cans of diesel were discovered in the car.
9. According to the applicant, in reply to the questioning by the police he did not tell about the purchase of the fuel because he felt intimidated and did not have a receipt to prove the purchase (see also paragraph 14 below). That is why he explained that he had poured the fuel from the tank of his service vehicle (see also paragraph 11 below).
10. Immediately, a vehicle inspection record was drawn under Article 178 of the RSFSR Code of Criminal Procedure (CCrP) in force at the material time (see paragraph 26 below). The record reads as follows:
“Vehicle Inspection Record [drawn] at Birofeld village on 21 February 2001 from 8.50 to 9.20 [pm].
Officers B and L in the presence of attesting witnesses K and P and [the applicant] have carried out an inspection of VAZ-21061 car in compliance with Articles 178 and 179 of the RSFSR Code of Criminal Procedure and have drawn this record under Article 182 of the Code.
Before the start of the inspection all the above persons have been informed of their rights to be present throughout the proceeding and to make comments in relation to the inspection...
The attesting witnesses have been informed of their obligation to attest the fact of the inspection and its results (Article 135 of the Code)...
During the inspection one passenger was present in the car; there was a white plastic can with fuel (ten litres). There was another metallic can of fuel (twenty litres) in the car boot...
The physical evidence has been seized in order to be attached to a criminal file: the plastic can with fuel (ten litres) and the metallic can with twenty litres of fuel...
Requests and comments by the participants: [the applicant] explained that he had poured out the fuel from the company premises.
I have read the record and agree with its contents.
Signatures: Officer B, attesting witnesses K and P, [the applicant], officer L.”
11. Having completed the inspection record, officer B put in writing a statement entitled “Explanations”, which included a note concerning Article 51 of the Constitution of the Russian Federation on the privilege against self-incrimination (see paragraph 21 below). The “Explanations” read as follows:
“Explanations [put in writing] on 21 February 2001 at Birofeld village.
I, officer B..., have interviewed [the applicant]...
The contents of Article 51 of the Constitution have been explained to me. {[the applicant's signature]}
I [the applicant] make the following statement. Since 1997 I have been employed as a driver by a private company. On 21 February 2001 I arrived to my workplace at 9 am. During the day I was repairing my service vehicle. In the evening I poured out thirty litres of fuel from the tank of my service vehicle. I have previously brought the cans, ten and twenty litres each, from home. After work, at around 8 pm, I was driving home in my car and was stopped by the police. The car was inspected in the presence of the attesting witnesses. I poured out the fuel for personal use.
{in the applicant's handwriting} I have read this statement. It is correct. {[the applicant's] signature.}
{Officer's B signature.}”
On the same day, both attesting witnesses made written statements, indicating that they had been present during the inspection of the car and seizure of the fuel. They confirmed that the applicant had explained that he had poured out the fuel from the company premises for personal use.
12. The applicant was not detained. On 2 March 2001 an inquirer compiled a report under a so-called record-based procedure (see paragraph 23 below) on the events of 21 February 2001. The report reads as follows:
“I, inquirer P, have examined the data concerning theft. As required under Article 415 of the RSFSF Code of Criminal Procedure, I have compiled this report, which states as follows:
At 8 pm on 21 February 2001 [the applicant]...being at work intentionally stole from his service vehicle the diesel in the amount of thirty litres. Thereby, he caused to the company pecuniary damage in the amount of 279 roubles.
His actions disclose an offence of theft punishable under Article 158 § 1 of the Criminal Code.
The above has been confirmed by the following evidence:
1. the inspection record . 2. [the applicant's] written statement. 3. Mr K's written statement. 4. Mr P's written statement...
{Inquirer P's signature}”
13. On the same day, the inquirer's superior opened a criminal case against the applicant on suspicion of theft and summoned him (see paragraph 23 below). The act of accusation read as follows:
“I, major K, having examined the [inquirer's] report and the enclosed documents, consider that there are sufficient grounds indicating that [the applicant] had committed the offence of theft punishable under Articile 158 of the Criminal Code.
Pursuant to the procedure under Article 415 § 4 of the RSFSR Code of Criminal Procedure, a criminal case should be opened against [the applicant]...
The accusation: At 8 pm on 21 February 2001 [the applicant]...being at work intentionally stole from his service vehicle the diesel in the amount of thirty litres. Thereby, he caused to the company pecuniary damage in the amount of 279 roubles.
Major K's signature
I have been informed of the nature of the accusation, the right to have access to the case file, the right to legal representation, the right to make requests and challenge the inquiring authorities' actions.
[the applicant's] signature
I have studied the case file and have read this document. I have no requests or motions. I do not require legal assistance; this decision is based on reasons unrelated to lack of means. I will defend myself at the trial.
[the applicant's] signature”
14. At the trial the applicant was represented by Mr Adamchik, a lawyer practising in Birobidjan. As follows from the trial judgment and the trial record, the applicant contended at the trial that he had purchased the fuel on or around 15 February 2001 at a petrol station; on 21 February 2001 he had put the cans in his car intending to exchange it for firewood later and went to his work; after the working day he was stopped by the police on his way home; when stopped he had not told about the purchase of the fuel because he felt intimidated and had no receipt to prove the purchase. He contended that Mr Kh, who was in his car on 21 February 2001, had seen the applicant purchase the fuel at the petrol station. At the trial the applicant was asked if the inspection record had been drawn up on the spot or in Birofeld. The applicant replied as follows:
“[The police] started to draw up the inspection record on the spot. Then a bus arrived. There was a tense situation so we left. The bus was also inspected...
The inspection record was signed in Birofeld. It was started on the spot but was not finished there.”
15. On 20 March 2001 the applicant submitted to the court an invoice for the purchase of diesel. The court refused to accept the invoice in evidence considering that the applicant did not specify why he had not adduced that evidence at the initial stage of the questioning by the police or at the opening of the trial. The applicant, however, indicated that the invoice had been kept by his wife. It also appears that he specified the name and location of the petrol station where he had allegedly bought it and asked the court to verify this fact. It appears that the court did not follow up his request.
16. The trial court heard the applicant's wife, who claimed that she had purchased the fuel and had given one petrol can to the applicant and that the applicant had purchased the remainder. The court also questioned Mr Kh who claimed to have seen the applicant purchasing diesel. Mr Kh was with the applicant on 21 February 2001 and told the court that he had not witnessed any threats to the applicant from the police officers. The trial court refused to take those testimonies into consideration, considering that those persons were in close or friendly relationship with the defendant and that their testimonies would therefore be prejudiced.
17. Instead, the trial judge relied on the inspection record and the written statement made by the applicant on 21 February 2001, testimonies from the attesting witnesses who had been present during the inspection and seizure of fuel from the applicant's car. The court also examined a Mr F who explained there had been cases of workers pouring out diesel from their service vehicles, and thus the company's director had asked the competent authorities to carry out checks. The applicant's car was apparently stopped during one of the checks.
18. Having examined the evidence, the judge considered that as followed from the inspection record, the applicant had admitted to “have stolen” the diesel from the company premises. By a judgment of 20 April 2001, the Birobidjan District Court convicted the applicant of theft and sentenced him to a suspended sentence of six months' imprisonment. The court held as follows:
“It follows from the inspection record that two cans of diesel (thirty litres) were seized from [the applicant's] car...The applicant explained that he had stolen the diesel from the company premises...
Assessing the defendant's testimony at the trial, the court considers that it is made-up with a view to avoiding criminal responsibility for the crime committed; this testimony has not been supported by any objective evidence. The court takes into account his pre-trial testimony, from which it follows that on 21 February 2001 after the end of his working day he had poured out fuel from his service vehicle and was stopped on his way back home. This testimony is logical and corresponds to witness statement by Mr F, Mr K and Mr P, as well as to the materials in the case file.”
19. The applicant and his counsel appealed alleging that there was no proof that any diesel had been stolen from the company and that the applicant had not been apprised of the privilege against self-incrimination while the court then relied on his admissions made on 21 February 2001. In his appeal, the prosecutor considered that the applicant's acts should be reclassified as misappropriation of property. On 24 May 2001 the Court of the Jewish Autonomous Region dismissed the appeals and upheld the judgment. The court confirmed that the applicant had been convicted on the basis of his own pre-trial admission and other evidence obtained by lawful means, including the inspection record. The applicant's allegation of self-incrimination had been rightly rejected as unfounded.
20. Article 48 § 2 of the Constitution provides that an arrested or detained person or a person accused of a criminal offence should have a right to legal representation from the moment of his or her arrest, placement into custody or when charges are brought.
21. Article 51 of the Constitution provides that no one should be obliged to give evidence against himself or herself, his or her spouse or close relative. Other exemptions from the obligation to testify may be authorised by a federal statute.
22. Pursuant to Article 47 § 1 of the Code, counsel could participate in the proceedings from the date when charges were brought or when the person was arrested or detained. If no preliminary inquiry or investigation was required in the case, counsel could participate in the proceedings from the date when the case was submitted for trial (Article 47 § 2). On 27 June 2000 the Constitutional Court declared Article 47 § 1 unconstitutional as regards the limitation on legal representation before charges were brought. The Constitutional Court decided that until the relevant legislation was amended, Article 48 § 2 of the Constitution should be directly applicable with due regard to the interpretation given by the Constitutional Court.
23. Chapter 13 of the RSFSR Code of Criminal Procedure provided for a record-based pre-trial procedure in respect of a number of criminal offences. The general provisions of the Code were applicable in this procedure unless Chapter 13 of the Code otherwise provided (Article 414). 's or court'put in writing in a report.
24. Having examined the report, the inquiring authority should open a criminal case. The person concerned should be informed of the nature of the accusation and be apprised of his right to legal representation and to have access to the file.
25. Having received the file, the prosecutor should (i) submit the case to a court or (ii) order an inquiry or preliminary investigation or (iii) discontinue the case.
26. An investigator could carry out an inspection of a crime scene, location, premises, physical objects or documents in order to detect traces of the crime or other physical evidence or to determine the relevant circumstances (Article 178 of the Code). In urgent cases, the inspection could be carried out before opening a criminal case. In such cases, the case was to be opened immediately after the inspection of the crime scene.
27. A record had to be drawn up and signed by all persons who took part in the investigative measure (Articles 141 and 182 of the Code). Those persons were to be informed that they had a right to make comments (Article 141). If the suspect, accused or another participant refused to sign the record, a note to this effect should be included in the record (Article 142).
28. An accused hadcould be used as a basis for criminal charges only if his or her culpability was confirmed by the totality of evidence collected in the case (Article 77 of the Code).
29. Article 413 of the Code of Criminal Procedure, in force at the present time, provides for a possibility to re-open criminal proceedings on the basis of a finding of a violation of the Convention made by the European Court of Human Rights.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-77542
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF ÜNER v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: No violation of Art. 8
JUDGES: Anatoly Kovler;András Baka;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Giovanni Bonello;Ján Šikuta;Jean-Paul Costa;John Hedigan;Karel Jungwiert;Lech Garlicki;Loukis Loucaides;Lucius Caflisch;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Mindia Ugrekhelidze;Nicolas Bratza;Rait Maruste;Sverre Erik Jebens;Vladimiro Zagrebelsky;Wilhelmina Thomassen
TEXT: 12. The applicant was born in 1969 and lived in Turkey until 1981.
13. The applicant came to the Netherlands with his mother and two brothers in 1981, when he was 12 years old, in order to join his father who had already been living there for ten years. He was granted a residence permit (vergunning tot verblijf) which he was required to renew at one-yearly intervals until 1988, when he obtained a permanent residence permit (vestigingsvergunning).
14. On 18 January 1989 the applicant was convicted by the single-judge chamber of the Almelo Regional Court (arrondissementsrechtbank) of the offence of breach of the peace (lokaalvredebreuk), and fined 200 Netherlands guilders (NLG – 90 euros (EUR)). The same court convicted him on 30 May 1990 of violent offence against the person, committed in public (openlijke geweldpleging), and sentenced him to a fine of NLG 350 (EUR 159) and a suspended term of imprisonment of two weeks.
15. In 1991 the applicant entered into a relationship with a Netherlands national. They started living together in or around June 1991. A son was born to the couple on 4 February 1992.
16. On 30 June 1992 the applicant was convicted by the Arnhem Court of Appeal (gerechtshof) of violent offence against the person, committed in public, and sentenced to eighty hours of community service (in lieu of six months’ imprisonment).
17. During the second pregnancy of the applicant’s partner, the relationship began to suffer. In order to alleviate the situation, the applicant moved out in November 1992, but remained in close contact with both his partner and his son. The pregnancy ended in a miscarriage.
18. On 16 May 1993 the applicant was involved in a dispute in a café. He pulled a loaded gun and shot a man, wounding him in the leg. Outside the café he then got into a fight with a friend of the injured man. He pulled a second loaded gun and shot him in the head. The man died. The applicant was convicted of manslaughter (doodslag) and assault (zware mishandeling) by the Arnhem Court of Appeal on 21 January 1994 and sentenced to seven years’ imprisonment.
19. Whilst serving his prison sentence, from 17 May 1993 until 14 January 1998, the applicant took courses in computer skills, administration and accounting, and also obtained a retailer’s certificate (middenstandsdiploma). He took further courses in order to qualify as a sports instructor. His partner and son visited him in prison at least once a week and regularly more often. A second son was born to the applicant and his partner on 26 June 1996, whom he also saw every week. Both his children have Netherlands nationality and have been recognised (erkend) by the applicant. Neither his partner nor his children speak Turkish.
20. By a decision of 30 January 1997, the Deputy Minister of Justice (Staatssecretaris van Justitie) withdrew the applicant’s permanent residence permit and imposed a ten-year exclusion order (ongewenstverklaring) on him in view of his conviction of 21 January 1994 and seven-year prison sentence. The Deputy Minister considered that the general interest in ensuring public safety and the prevention of disorder and crime outweighed the applicant’s interest in being able to continue his family life with his partner, children, parents and brothers in the Netherlands.
21. The applicant lodged an objection (bezwaarschrift) against this decision, arguing that the offence in question had been committed long before, in May 1993, that he had not reoffended, that there was no indication that he would reoffend, and that his partner and children could not be expected to follow him to Turkey. Following a hearing before the Advisory Board on matters concerning aliens (Adviescommissie voor vreemdelingenzaken) on 1 July 1997, at which the applicant was assisted by an interpreter, the Deputy Minister rejected the objection on 4 September 1997 and ordered the applicant to leave the Netherlands as soon as he was released from prison.
22. The applicant appealed to the Regional Court of The Hague, sitting in Zwolle, submitting that, as there was no risk of his reoffending, there was no necessity to impose an exclusion order on him and that to do so amounted to the imposition of a second penalty.
23. The applicant was released from prison on 14 January 1998 and subsequently placed in aliens’ detention (vreemdelingenbewaring) pending his deportation.
24. Following a hearing on 28 January 1998, the Regional Court rejected the applicant’s appeal on 4 February 1998. The Regional Court did not accept the applicant’s argument that the period of time that had elapsed between the date on which his criminal conviction had become irrevocable and the date on which the exclusion order had been imposed was so long that the Deputy Minister should be deemed to have acquiesced in the applicant’s continued residence in the Netherlands. Furthermore, it did not discern any facts or circumstances capable of justifying a reduction of the period for which the applicant would be excluded from Netherlands territory. The applicant’s claim that there was no risk of his reoffending was based solely on his own statements and was not supported by the facts, given that he had also been convicted of violent offences in 1990 and 1992. In addition, it did not appear that the applicant had put down roots in the Netherlands or become dissociated from Turkish society to such a degree that he would be unable to return to his country of origin. Finally, the Regional Court considered that the interference with the applicant’s family life was justified for the purposes of preventing disorder and crime.
25. The applicant was deported to Turkey on 11 February 1998. However, it appears that he returned to the Netherlands soon afterwards, as he was apprehended there on 29 May 1998. He was again deported to Turkey on 4 June 1998, and a request for a provisional stay of execution of the deportation order, which he had lodged with the Regional Court of The Hague, was declared inadmissible on 24 August 1998. He was also convicted of the offence of residing illegally in the Netherlands while subject to an exclusion order (Article 197 of the Criminal Code (Wetboek van Strafrecht)) and sentenced to three months’ imprisonment.
26. On 17 September 1998 the applicant requested that the exclusion order be revoked. The Deputy Minister of Justice refused the request on 26 October 1998 and on 13 April 2000 dismissed an objection the applicant had filed against that refusal. The applicant subsequently lodged an appeal, which was declared inadmissible by the Regional Court of The Hague, sitting in Zwolle, on 2 August 2000. No appeal lay against that decision.
27. The applicant submitted that, prior to his deportation in 1998, he had only been back to Turkey once in order to attend the funeral of his grandmother, and that he did not speak the Turkish language apart from understanding certain expressions. His only relative in Turkey was an uncle with whom he had no contact.
28. According to a report drawn up by a psychiatrist in Turkey on 9 June 1998, the applicant was suffering from psychological problems as a result of being separated from his family. In particular, not being able to see his children was making him depressed. Treatment had begun in March 1998 and was continuing, though some improvement had been noted.
29. On 29 March 2006 the applicant was discovered working at an illegal cannabis plantation in the Netherlands. He was arrested and subsequently placed in aliens’ detention. This detention was discontinued on 1 May 2006 in order to execute the judgment whereby the applicant had been sentenced to three months’ imprisonment (see paragraph 25 above). On 16 May 2006 the applicant was deported to Turkey.
30. At the relevant time the decision to withdraw the applicant’s residence permit and to impose an exclusion order on him was taken under sections 14 and 21 of the Aliens Act 1965 (Vreemdelingenwet 1965) and in accordance with the policy laid down in Chapters A4 and A5 of the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire – a body of directives drawn up and published by the Ministry of Justice). Underlying this policy is the principle that the longer an alien has lawfully resided in the Netherlands – and the stronger, therefore, his or her ties with the Netherlands are assumed to be – the more serious an offence must be before it can justify withdrawing a residence permit and excluding the alien from Netherlands territory; the authorities thus apply a sliding scale (glijdende schaal).
31. In accordance with this policy, a residence permit may be withdrawn and an exclusion order imposed on an alien who, at the time of committing the offence, has been lawfully residing in the Netherlands for more than ten but less than fifteen years – like the applicant in the present case – if he or she is sentenced to an unsuspended prison sentence of more than sixty months following a conviction for a serious, violent crime or for drug trafficking.
32. If an exclusion order is imposed on the basis of a conviction for a serious, violent crime or drug trafficking, this order will in any event be revoked, upon request, if the alien has been residing outside the Netherlands for a period of ten years and if he has not been convicted of further criminal offences (Chapter A5/6.4 of the Aliens Act Implementation Guidelines 1994).
33. A person upon whom an exclusion order has been imposed is not allowed either to reside in or to visit the Netherlands.
34. Article 15 § 2 of the Criminal Code reads:
“A convicted person sentenced to a custodial sentence for a determinate period of which more than one year is to be executed shall be granted early release when two-thirds of that sentence have been served.”
Article 15a of the Criminal Code, in so far as relevant, provides:
“1. Early release may be postponed or withheld where:
(a) the convicted person, on grounds of the inadequate development or pathological disturbance of his mental faculties, has been placed in an institution for the treatment of persons subject to an order for confinement in a custodial clinic and where continuation of treatment is required;
(b) the convicted person has been convicted in a final judgment of a serious offence for which, pursuant to Article 67 § 1 of the Code of Criminal Procedure [Wetboek van Strafvordering], detention on remand [voorlopige hechtenis] is allowed and where the offence was committed after the execution of his sentence commenced;
(c) there is evidence that the convicted person has otherwise grossly misbehaved after the execution of his sentence commenced;
(d) the convicted person evades, or attempts to evade, his sentence after its execution has commenced.
2. If the prosecuting authorities [Openbaar Ministerie] charged with the execution of the sentence consider that, on one of the grounds mentioned in the first paragraph, there is cause for postponing or withholding early release, it shall lodge a written request to that effect with the Arnhem Court of Appeal without delay. ...”
35. With regard to the various texts adopted by the Council of Europe in the field of immigration, mention should be made of the Committee of Ministers Recommendations Rec(2000)15 concerning the security of residence of long-term migrants and Rec(2002)4 on the legal status of persons admitted for family reunification, and of Parliamentary Assembly Recommendation 1504 (2001) on the non-expulsion of long-term immigrants.
36. Recommendation Rec(2000)15 states, inter alia:
“4. As regards the protection against expulsion
(a) Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights’ constant case-law, of the following criteria:
– the personal behaviour of the immigrant;
– the duration of residence;
– the consequences for both the immigrant and his or her family;
– existing links of the immigrant and his or her family to his or her country of origin.
(b) In application of the principle of proportionality as stated in paragraph 4 (a), member States should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member States may provide that a long-term immigrant should not be expelled:
– after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years’ imprisonment without suspension;
– after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years of imprisonment without suspension.
After twenty years of residence, a long-term immigrant should no longer be expellable.
(c) Long-term immigrants born on the territory of the member State or admitted to the member State before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen.
Long-term immigrants who are minors may in principle not be expelled.
(d) In any case, each member State should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.”
37. In Recommendation 1504 (2001) the Parliamentary Assembly recommended that the Committee of Ministers invite the governments of member States, inter alia:
“11. ...
(ii) ...
(c) to undertake to ensure that the ordinary-law procedures and penalties applied to nationals are also applicable to long-term immigrants who have committed the same offence;
...
(g) to take the necessary steps to ensure that in the case of long-term migrants the sanction of expulsion is applied only to particularly serious offences affecting State security of which they have been found guilty;
(h) to guarantee that migrants who were born or raised in the host country and their under-age children cannot be expelled under any circumstances;
...”
The Committee of Ministers replied to the Assembly on the matter of non-expulsion of certain migrants on 6 December 2002. It considered that Recommendation Rec(2000)15 addressed many of the concerns of the Assembly and it was thus not minded to devise any new standards.
38. Under the heading “Effective protection against expulsion of family members”, the Committee of Ministers recommended to governments in Recommendation Rec(2002)4 that, where the withdrawal of or refusal to renew a residence permit, or the expulsion of a family member, is being considered:
“...member States should have proper regard to criteria such as the person’s place of birth, his age of entry on the territory, the length of residence, his family relationships, the existence of family ties in the country of origin and the solidity of social and cultural ties with the country of origin. Special consideration should be paid to the best interest and well-being of children.”
39. In the majority of the member States of the Council of Europe, second-generation immigrants may be deported by the authorities on the ground that they have been convicted of a criminal offence. Eight member States have provided in their laws that second-generation immigrants cannot be deported on the basis of their criminal record or activities: Austria, Belgium, France, Hungary, Iceland, Norway, Portugal and Sweden. Apart from Iceland and Norway, this protection is not confined to those who were actually born in the host country but also applies to foreigners who arrived during childhood (varying from before the age of three in Austria to before the age of fifteen in Sweden).
NON_VIOLATED_ARTICLES: 8