ITEMID: 001-97733
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: GIUSTO, BORNACIN AND V. v. ITALY
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The first applicant, Mr Alessandro Giusto, and the second applicant, Ms Maria Chiara Bornacin, are a married couple and are both Italian nationals. They were both born in 1974 and live in Cogoleto (Genoa). Before the Court they stated that they were also acting on behalf of V. (the third applicant), a Belarusian national who was born on 25 May 1996 and currently lives in Belarus. The first two applicants signed powers of attorney authorising Mr A. Lana and Mr A. Saccucci, lawyers practising in Rome, to represent them before the Court. No power of attorney was signed either by the third applicant or by her statutory guardian.
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 2003 the first two applicants submitted a request to the non-governmental association Onlus Liguria Mare to put up a child from the area affected by the Chernobyl nuclear disaster. On 28 June 2003 the couple took in the third applicant for the first time. V.'s father was unknown, while her mother, who had been deprived of parental responsibility, was dead. V., who had been declared eligible for adoption, was living in an orphanage (Internat) in Vileika (Belarus).
V. stayed with the first two applicants on a regular basis, for three months in summer and two months in winter. The first two applicants visited her in Belarus for periods of approximately two weeks in between her trips to Italy. The couple maintained that they had spent about eighteen months with V. during the past three years, developing a relationship similar to that between parents and their children.
On 17 August 2004 the Genoa Youth Court declared the first two applicants fit for international adoption. However, they were unable to adopt V. because in October 2004 Belarus decided to suspend all international adoption procedures.
On 12 December 2005 Italy and Belarus signed a bilateral protocol in which Belarus undertook to conclude, by 1 March 2006, some one hundred and fifty adoption procedures pending with the Minsk Adoption Centre. The first two applicants instructed the Onlus Liguria Mare association to take the relevant steps concerning their application for adoption, while continuing to look after V. for about five months a year. By September 2006 only forty adoption procedures had been dealt with by the Minsk Adoption Centre.
According to the first two applicants, whenever she arrived to stay with them, V. was bruised, had trouble sleeping and her behaviour was bordering on autistic. Those disorders would subside once the child had spent a certain amount of time in Italy, but would reappear as the date of her return to Belarus drew nearer. This was confirmed by a report issued on 30 January 2006 by a psychologist, Dr B., who found, among other things, that the symptoms in question appeared to “demonstrate the child's extreme suffering as a result of her precarious situation and highlight[ed] the urgent need to provide her with stable living conditions among the family who have de facto adopted her”.
Furthermore, in 2004 the first two applicants had noticed cigarette burns on V.'s abdomen. Having been advised not to report the matter to the Italian authorities, they simply informed the director of the Vileika orphanage. In 2005 V. told the second applicant that the oldest boy in the orphanage had forced her and other girls to join in a game in which the girls had been undressed, tied up, kissed and bitten. According to a report drawn up on 10 March 2005 by Dr B., although the acts of violence suffered by V. “were not explicitly connected by her to the sphere of sexuality, they at least caused a state of confusion regarding displays of affection”.
Before leaving for the 2006 summer holidays, V. allegedly told the second applicant on the telephone that she had found a way to remain in Italy: killing herself and becoming an angel. The personnel responsible for taking V. from the airport to the first two applicants' home confiscated razor blades in V.'s possession. According to the first two applicants, she was intending to use them to commit suicide. V. subsequently attempted to drown herself, but her plan was thwarted when other people intervened.
During the 2006 summer holidays, V. told the second applicant that on several occasions she had been undressed, tied to a chair or bed, burned with cigarettes or lighters and forced to have oral or anal intercourse. The first two applicants suggested that V. visit another Belarusian child named Jacob, who was born on 31 March 1995 and was staying with a family in the Piedmont region. V. reacted hysterically to that suggestion. She then explained that in the Vileika orphanage she had been sexually abused by several people, including Jacob. It appears that Jacob confirmed that fact. In a report drawn up on 13 July 2006 Dr B. found the two children's versions of events to be credible. He added that V.'s suicidal fantasies were not the result of depression but an expression of the child's “magical thought” in response to her feeling of helplessness.
A file on the matter was opened by the Turin public prosecutor's office. A gynaecological examination performed on V. on 11 July 2006 revealed slight abnormalities and a doctor noted the presence of “multiple haematomas [resulting] from bruising” to the child's thorax and abdomen. It was suggested that V. undergo therapy.
On 28 June 2006 the first two applicants applied to the Genoa Youth Court to adopt V.
In an order of 22 August 2006, the text of which was deposited at the registry on 31 August 2006, the Youth Court refused the application. It observed that international adoption was subject to an adoption order by the Belarusian authorities. The court added that the information of which it had been made aware might have justified urgent measures under Articles 9 and 10 of the Hague Convention of 5 October 1961; however, such measures already formed the subject of separate proceedings. In any event, the Belarusian authorities had to be informed of the need to conclude adoption procedures as a matter of urgency where children had been materially and morally abandoned.
In the meantime, in a memorandum of 9 August 2006 the Belarusian Ministry of Education had expressed strong concern about the “improper conduct” of Italian families seeking to keep Belarusian children with them. It added that hearings held in the absence of official representatives of the children's interests (a State-appointed guardian and the Belarusian Consul) were unlawful, and demanded V.'s immediate repatriation. It also stated that the conduct referred to above was jeopardising the implementation of joint humanitarian projects.
On 11 August 2006 the Belarusian Embassy asked the Genoa Youth Court to order the immediate repatriation of V. In an appended note the Belarusian National Adoption Centre criticised the judicial decisions taken by the Italian authorities as being liable to undermine relations between the two States. It asserted that the children had been placed under psychological duress by the host families. If a decision to place V. in the care of an Italian family had been taken, the National Adoption Centre demanded that it be revoked.
On 16 August 2006 the Genoa Youth Court ordered that V. be entrusted to the care of Cogoleto District Council, which was to maintain her placement with the first two applicants. The court also instructed the Cogoleto social services and the mental-health and neuropsychiatry departments to “assume responsibility for the child's situation through assessment, diagnosis and treatment”. In addition, Cogoleto District Council was to submit a report by 30 October 2006.
The court observed in particular that there was strong evidence that V. had been subjected to “sexual and other forms of violence” at the Vileika orphanage. Furthermore, as indicated by reliable sources, the child's behaviour gave rise to fears of serious and irreversible consequences if she was not given “immediate therapy”. Accordingly, measures for her protection were required pursuant to Article 9 of the Hague Convention.
On 25 August 2006 V. met two Belarusian doctors at the Cogoleto District Council offices. According to a report by the District Council's head of social services, V. arrived at the meeting in the second applicant's arms and showed signs of stress as soon as the applicant had gone away. V. stayed close to the Italian staff, gave very brief replies to the questions and sometimes spoke in Italian. She firmly refused to take her clothes off.
In a memorandum dated 25 August 2006 the Belarusian Embassy provided the Genoa Youth Court with a “comprehensive psychological, educational and medical rehabilitation programme” for V. The programme, approved by the Belarusian Ministry of Education, was to be carried out at the State Social and Pedagogical Centre in Minsk. The Belarusian Embassy undertook to inform the Italian Government periodically of the progress of V.'s rehabilitation.
The programme in question contained a five-page description of the recreational and sports activities planned for V., her diet, the health checks and psychological counselling she would receive, and the persons responsible for each stage of her rehabilitation.
In a memorandum dated 31 August 2006 the Belarusian Embassy informed the Italian Government that the Belarusian authorities had taken urgent steps to clarify the situation in the Vileika orphanage. They undertook to keep the Italian Government informed of the outcome of their enquiries. V. would be placed in a specialist rehabilitation centre, thus avoiding a return to the orphanage in question. In addition, a medical and psychological rehabilitation programme had been devised and the Youth Court had been notified of its contents. Italy would be informed of any developments in the programme.
Moreover, Belarusian medical specialists had examined V. and had ruled out the possibility that her repatriation might affect her physical or mental health. She would be accompanied on the journey by specialist personnel.
In the light of the above factors, the Belarusian Embassy considered that there was no objective justification for V. to remain in Italy. It requested the Italian authorities to take action by 8 September 2006. Failing that, Belarus would be obliged to suspend international adoptions with Italy and programmes for visits there by Belarusian children.
Before the Court, the applicants produced a document dated 1 September 2006 by which the Italian Ministry of Justice had forwarded to the Genoa Youth Court the memorandum of 31 August 2006 from the Belarusian Embassy. The document of 1 September read:
“Ministry of Justice The Minister's Office
N. 102/41 Rome, 1 September 2006
To the Genoa Youth Court To the Turin Youth Court For information: to the Ministry of Foreign Affairs For information: to the Ministry of Social Solidarity For information: to the Ministry of Family Policies For information: to the Commission for Intercountry Adoption attached to the Prime Minister's Office
Re.: Transmission of memorandum no. 149/1 dated 31 August 2006 from the Embassy of the Republic of Belarus
For information, and fully respecting the powers of [your] judicial authority, we hereby forward you memorandum no. 149/1 sent today to [our] Ministry by the Embassy of the Republic of Belarus concerning the cases of the children ... and [V.], [who are the subject] of proceedings pending before the Genoa and Turin Youth Courts.
The memorandum, after recapitulating the requests made by the above judicial authorities, which have apparently been fully satisfied, mentions the possibility of suspending international adoptions with Italy and programmes for the rehabilitation (risanamento) of Belarusian children [in Belarus] if the two children are not returned to the Republic of Belarus by 8 September 2006.
In order to facilitate communication with the Belarusian Embassy in Italy and with the authorities to which this [memorandum] is being forwarded for information, notification of the decisions taken is expected forthwith.”
The President of the Genoa Youth Court replied to the above letter on 5 September 2006. He stated that the Belarusian Embassy and Consulate had on several occasions contacted the Youth Court, which had always informed them of any decisions. The court was aware of the sensitive nature of the matter. On account of V.'s state of health, the court had entrusted her to the case of Cogoleto District Council. That decision had not been taken in connection with an adoption procedure; on the contrary, an application for the child's adoption under section 44 of Law no. 184/1983 (adoption in special cases) had been rejected. The reply by the President of the Youth Court further stated:
“As soon as her health allows, in the opinion of the medical team looking after her, the child will return to Belarus, with due regard to the relevant provisions and the relations between the two States.
It should also be noted that the letters we have been sent by the Embassy sometimes employ surprisingly peremptory language and indicate some confusion between the issue of adoption and the urgent procedures followed in accordance with Articles 9 and 10 of the Hague Convention of 5 October 1961, cited above.
While it is aware of the serious implications referred to in the memorandums from the Belarusian Embassy, the court is clearly unable to order the transfer of a child against the appropriate medical advice.”
According to a report drawn up on 5 September 2006 by a child neuropsychiatrist, Dr S., V. was very tense and anxious about her possible repatriation, which she viewed in dramatic terms, mentioning suicidal intentions. She had said that she had been sexually abused in Belarus by boys aged eighteen or nineteen who had found their way into the orphanage. V. showed that she had a deep relationship of trust with the first two applicants, whom she regarded as her own parents. In her opinion, her family was in Italy. Dr S. considered it necessary to continue the sessions with the child. Although she was probably fit to be “transported” in physical terms, she was not psychologically fit, because the frustration of her expectations was likely to cause trauma that would be difficult to overcome, resulting in permanent damage to her psychological and emotional stability.
In a note of 5 September 2006 to the President of the Genoa Youth Court, the Commission for Intercountry Adoption attached to the Prime Minister's Office stated that, while it appreciated and accepted the court's decision and the initiatives taken by the Belarusian authorities to protect V., it wished to “offer the broadest, most practical means of cooperation to facilitate the repatriation” of V. After confirming the Belarusian authorities' consent to V.'s being accompanied by an Italian doctor, the commission said that it was awaiting “notification of the decisions taken by the court as regards the steps to be taken to ensure the child's repatriation on the scheduled date”.
In an order of 6 September 2006, the text of which was deposited at the registry on 7 September 2006, the Genoa Youth Court set aside its decision of 16 August. It stated that the first two applicants were authorised to accompany V. on her journey back to Belarus or, failing that, to join her there and remain, with the local authorities' consent, for “as long as was deemed appropriate”. Lastly, the court asked the Ministry of Foreign Affairs, the Ministry of Family Policies and the Commission for Intercountry Adoption to inform it periodically of any developments concerning the child's treatment and compliance with the Hague Convention in her case.
The court observed firstly that the Belarusian authorities had devised a detailed programme of treatment for V., making it possible for her, at her request, to stay in contact with the first two applicants. In addition, Belarus had undertaken not to prevent the first two applicants and Italian doctors from entering and staying in its territory. Accordingly, the Italian authorities were under an obligation to cooperate with their Belarusian counterparts in the child's best interests as guaranteed by the Hague Convention, to which both States were parties. The court observed at the same time that V. was “physically fit” to travel to Belarus, but that her immediate separation from her host family and doctors might cause her psychological trauma.
On 8 September 2006 the first two applicants were contacted by the Cogoleto carabinieri, who reproached them for failing to attend an appointment scheduled for V.'s repatriation. According to the applicants, they had not been informed of the order of 6 September 2006, which was not served on their lawyer until 11 September. They also refused to disclose V.'s whereabouts, for her own protection. Proceedings were instituted against them for false imprisonment of a minor.
On 11 September 2006 the Genoa Youth Court directed that V. was to be found as soon as possible and placed in a care home for as long as was strictly necessary to arrange for her repatriation. In addition, it prohibited V. from being entrusted to the care of anyone other than the persons indicated by the Belarusian authorities, and confirmed that she should be accompanied to Belarus by Dr B. and Dr S.
On 22 September 2006 the first two applicants appealed against the order of 6 September 2006. They sought a stay of execution of the decision in issue, which was immediately enforceable.
On 26 September 2006 the carabinieri found V. in Valle d'Aosta, in the company of the first two applicants' mothers. She was transferred to an institution run by nuns in Genoa. The first two applicants were initially not told the name of the institution and were subsequently not allowed to contact V.
According to the first two applicants, pressure was put on them by the State Secretary for Justice and the Bishop of Savona (who claimed to be acting on behalf of the Minister of Justice) to withdraw their appeal.
The hearing in the Genoa Court of Appeal was held on 28 September 2006. The representative of Belarus asserted that it was no longer possible for V.'s repatriation to take place under the conditions initially set by the Youth Court; in particular, the first two applicants could not accompany V. or keep in contact with her.
According to the applicants, at the end of the hearing the Court of Appeal informed their lawyers that the decision would be delivered “in a few days”. It did not rule on the first two applicants' request for a stay of execution of the order appealed against.
On 29 September 2006 at about 5 p.m. V., accompanied by Dr B. and Dr S., was taken by taxi to Genoa Airport. She was escorted by a car with carabinieri inside. According to the first two applicants, the taxi driver said that V. had been screaming and crying throughout the journey.
On the same day at about 8.10 p.m. the first two applicants discovered on television that V. had been transferred to the airport. They went to the airport, together with their lawyers. They also contacted two other lawyers from Rome – their representatives before the Court – asking them to submit a request for interim measures under Rule 39 of the Rules of Court. The request was duly submitted but it arrived at the Court at about 10 p.m., by which time V. was already on board the aircraft bound for Minsk. The applicants subsequently withdrew their request, which the Court was therefore not required to examine.
The first applicant was initially informed that a flight for Minsk had taken off at 8.40 p.m. In fact, the flight, with V. on board, did not leave Genoa until approximately 9.20 p.m. After a stop in Milan, it continued its onward journey to Minsk at about 11 p.m.
On 30 September 2006 at about 12.55 p.m. the Genoa Court of Appeal deposited with the registry an order by which it dismissed the applicants' appeal. It appears from the case file that that decision had been adopted on 28 September 2006.
The Court of Appeal observed that the order appealed against had been made by the Genoa Youth Court in an unusual factual context. In particular, on 12 August 2006 the Belarusian Embassy had sought V.'s repatriation. When interviewed the following day by the Cogoleto carabinieri, she had stated that she had been subjected to violence in her own country and did not wish to return there. Furthermore, on 16 August 2006 the Youth Court had noted, among other things, that V. showed signs of “profound psychological suffering”. On 25 August 2006 V. had been examined by two Belarusian doctors, in the presence of Italian specialists including a psychologist. She had replied to the questions in Italian and had refused to take her clothes off; as a result, only a superficial and external examination had been possible.
The Belarusian Embassy had then stated that the programme of treatment devised for V. was in her interests and that any refusal to repatriate her would have “serious repercussions” for relations between the two countries as regards visits by Belarusian children to stay with Italian families. At the same time, Cogoleto District Council had suggested extending V.'s stay in Italy, stating that it was willing to provide the necessary assistance to that end. The neuropsychiatrist who had treated V. had said that the sudden removal of the child from what she regarded as her own environment would entail serious risks.
The Court of Appeal explained that under the relevant provisions of Belarusian law, guardianship of V. was assumed by the director of the institution in which she had been placed.
The first two applicants had agreed, as part of a cooperation scheme between Italy and many other States, to take in a foreign child for several months a year, for humanitarian purposes. Contact with the foreign care homes had been arranged by non-governmental organisations. V. had stayed three times with the first two applicants, a couple who had been declared fit to adopt a foreign child. V. had developed excellent relations with the couple in question, to such an extent that she wished to remain in Italy with them and saw them as her “parents”. Indeed, such aspirations were fairly common, since it was natural for children who did not have a family and came from less wealthy countries than Italy to find that Italian couples gave them the comfort and affection they needed. Difficulties thus frequently arose when the time came for the children to return to their own country.
In the instant case, the ties between V. and the first two applicants were especially intense and this deep attachment, when set against her troubled experiences in the orphanage, had caused the child to attempt suicide in order to avoid being repatriated.
Those tribulations had aroused strong reactions among the public, but that did not mean that the legal context of the present case could be disregarded. V.'s trips to Italy had not been intended to provide her with a new family. If the first two applicants had wished to take steps to that end, they should have applied to adopt V. in accordance with the procedure set out in the protocol between Italy and Belarus. Failing that, their position was that of assistants to the institution in which V. had been placed. In such circumstances, they lacked the capacity to appeal against the Genoa Youth Court's decision, which could have been challenged only by the institution in question, V.'s guardian or State Counsel's office. The first two applicants did not have any parental responsibility over V. and were therefore not “parties” to the judicial proceedings concerning her.
That fact would have been sufficient to dismiss the appeal. However, in view of the media attention attracted by V.'s story, the Court of Appeal considered it necessary to point out that, even assuming that the first two applicants had had locus standi, their allegations could not in any event have been upheld.
The Court of Appeal was competent to order measures to protect V. under Article 9 of the Hague Convention, provided that the child was in Italian territory and in danger. The Italian judicial authorities ceased to have jurisdiction once Belarus had taken the “steps demanded by the situation”. This was borne out by case-law of the Court of Cassation (judgment no. 1 of 9 January 2001). The relevance and sufficiency of the measures taken by the Belarusian authorities could be assessed by the Italian courts from a formal standpoint only; moreover, the courts in question had rightly adjourned consideration of the situation until the experts responsible for examining V. had submitted their conclusions.
Nevertheless, under the New York Convention on the Rights of the Child, all children were entitled to receive such care as was necessary for their well-being and to live in conditions guaranteeing their balanced development. In order to observe those principles, the Court of Appeal had a duty to ensure that V.'s repatriation would not be traumatic and that the psychological aspect had been taken into account.
In the instant case the Genoa Youth Court had laid down appropriate arrangements for the child's repatriation and Italy and Belarus had concluded agreements on that basis. The Court of Appeal thus reaffirmed that two Italian specialists should have “planned” the repatriation in conjunction with their Belarusian counterparts. The first two applicants could have been involved in such cooperation in V.'s interests, in accordance with the procedure suggested by the Youth Court for further elaboration by the Italian and Belarusian central authorities.
It was true that Belarus had stated that it was “not very receptive” towards the first two applicants; that, however, was not a factor that could alter the Court of Appeal's conclusions. It had not proved necessary to interview V., seeing that she had already been interviewed and made her wishes clear. Summoning the child would have caused unnecessary trauma at a later stage.
The Court of Appeal stated, lastly, that during the drafting of the statement of reasons for its order, it had learned informally that V. had already been repatriated on the initiative of the Belarusian authorities, under different conditions from those set out by the Youth Court. The Youth Court's new order, adopted after the first two applicants had failed to hand over V., was said to have justified that act. The Court of Appeal, before which only an appeal against the order of 6 September 2006 had been brought, was unable to make an assessment in that regard.
On 12 October 2006 the doctors who had accompanied V. to Belarus returned to Italy. They submitted a report to the Genoa Youth Court stating that the child was in good psychological and physical health. The report was not sent to the first two applicants, who learned of its contents through the media. On 18 October 2006 they asked to be given access to it and to make copies, but their request was refused by the Genoa Youth Court on the ground that the Court of Appeal's decision indicated that the first two applicants did not have locus standi in the proceedings concerning V.'s repatriation.
According to information supplied by the first two applicants on 18 October 2006, they had not received any news from the Italian authorities by that date as to V.'s state of health and had been unable to contact her, even by telephone. “Indirect” information had reached them through the Belarusian authorities. In addition, the director of the orphanage in Vileika had stated that V.'s allegations of being ill-treated in his institution were false. Accordingly, V. would be able to return to the orphanage in question after completing her psychological and educational rehabilitation programme.
Following a request by the Registry, the first two applicants submitted fresh information on 18 December 2006 as to V.'s circumstances. They stated that, since lodging their application, they had had no contact with the child and had not received any news of her health. However, they had learned through the media that V. was living with Mr and Mrs Z., forty kilometres from Minsk. The Z. family were also looking after V.'s thirteen-year-old brother, S. The Belarusian authorities had apparently given the first two applicants cause to hope that they might be able to adopt V. The newspapers had also reported that V. had been given assurances about her return to Italy, which was said to be imminent. However, the first two applicants were not in possession of any evidence that steps to that end had been taken by Belarus. In addition, on several occasions V. had apparently reiterated her desire to live in Italy with the first two applicants.


ITEMID: 001-77567
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF IRINA FEDOTOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6 on account of the quashing of two judgments;Not necessary to examine the allegation of procedural unfairness in the supervisory-review proceedings;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1966 and lives in the town of Penza.
5. According to the applicant, in December 1997 she lodged an action against the electricity supplier, seeking to have her home connected to the electricity supply network and asking for compensation for non-pecuniary damage.
6. On 17 July 1998 the Leninskiy District Court of Penza found for the applicant. That judgment was quashed on appeal on 1 December 1998 and re-examination of the case was ordered.
7. On 15 April 1999 the Leninskiy District Court dismissed the action. The judgment became enforceable on 22 June 1999 when the Penza Regional Court upheld it on appeal.
8. On 28 April 2000 the Presidium of the Penza Regional Court, acting upon the applicant's request, quashed the judgments of 15 April and 22 June 1999, by way of supervisory-review proceedings, and remitted the case for a fresh examination.
9. On 24 August 2000 the Leninskiy District Court partly allowed the applicant's action and ordered that the company connect the applicant's home and pay her 1,000 Russian roubles (RUR, approximately 40 euros) in compensation. The judgment was upheld on appeal on 17 October 2000.
10. Enforcement proceedings were opened and on 22 January 2001 the applicant received the awarded compensation, but the company refused to connect her home because it did not meet certain technical requirements. Thus, the applicant complained to a court that the bailiffs had failed to enforce the judgment of 24 August 2000, as upheld on appeal on 17 October 2000.
11. On 23 January 2001 the Zheleznodorozhniy District Court of Penza held that the bailiffs had been inactive in securing the execution of the judgment in the part concerning provision of electricity. The District Court furthermore informed the applicant of the possibility of lodging a separate civil claim for damages against the local treasury. It appears that the applicant did not lodge such a claim.
12. On 29 December 2001 the company connected the applicant's home to the electricity network.
13. On 21 March 2002 a Deputy President of the Supreme Court of the Russian Federation introduced an application for supervisory review of the judgments of 24 August and 17 October 2000.
14. On 26 April 2002 the Presidium of the Penza Regional Court quashed the judgments of 24 August and 17 October 2000 by way of supervisory review and remitted the matter for a fresh examination. The Presidium held that the District and the Regional courts had incorrectly assessed the facts of the case and misinterpreted the relevant legal norms.
15. On 25 June 2002 the Leninskiy District Court dismissed the applicant's claims. On 10 September 2002 the Penza Regional Court upheld the judgment. However, the applicant was not ordered to repay the compensation of RUR 1,000 and her house was not disconnected from the electricity network.
16. The applicant lodged an application before the European Court of Human Rights, complaining about a violation of her rights in the course of the abovementioned domestic proceedings. On 19 December 2002 she received an empty envelope from the Court. The applicant complained to the Leninskiy District Court about unlawful actions of the Penza post office. On 31 January 2003 the District Court instructed her to correct certain defects of her statement of claim by 6 February 2003. That instruction was upheld on appeal on 18 February 2003. There is no indication that the applicant fulfilled the courts' instructions and apparently no further action has been taken.
VIOLATED_ARTICLES: 6


ITEMID: 001-78692
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: BEN EL MAHI AND OTHERS v. DENMARK
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The first applicant, Mr Mohammed Ben El Mahi, is a Moroccan national who was born in 1953 and lives in Morocco. He represents the second applicant, the Moroccan National Consumer Protection League, and the third applicant, the Moroccan Child Protection and Family Support Association. They were all represented before the Court by Mr E. Ludot, a lawyer practising in Rheims, France.
s, may be summarised as follows.
On 17 September 2005 a privately owned Danish newspaper, Politiken, ran an article under the headline “Profound fear of criticism of Islam” (Dyb angst for kritik af islam). It reported on the difficulties encountered by the writer of a children’s book entitled The Koran and the Life of the Prophet Muhammad (Koranen og profeten Muhammeds liv) in finding an illustrator for the book.
On 30 September 2005 another privately owned Danish newspaper, Morgenavisen Jyllands-Posten, published twelve cartoons, most of which were caricatures of the Prophet Muhammad. The most controversial of the cartoons showed the Prophet Muhammad with a bomb in his turban. In the middle of the page carrying the cartoons was an explanatory text by the newspaper’s cultural affairs editor which stated, inter alia, as follows:
“Some Muslims reject modern secular society. They demand special status, insisting on special consideration of their own religious feelings. This is incompatible with secular democracy and freedom of expression, where one has to be prepared to put up with scorn, mockery and ridicule. While this is not always agreeable or pleasant to watch, and does not mean that religious feelings can be made fun of at any price, that is a minor consideration in the present context ... we are on a slippery slope, with no one able to predict where self-censorship will lead. That is why Morgenavisen Jyllands-Posten has invited members of the Danish Newspaper Illustrators’ Union to draw Muhammad as they see him ...”
On 12 October 2005 the ambassadors of eleven Muslim-majority countries, referring, inter alia, to the cartoons, asked for a meeting with the Danish Prime Minister to discuss what they perceived as an “ongoing smear campaign in Danish public circles and the media against Islam and Muslims”. It appears that the government refused their request in writing, citing the following reasons:
“Freedom of expression has a wide scope and the Danish Government has no means of influencing the press. However, Danish legislation prohibits acts or expressions of opinion of a blasphemous or discriminatory nature. The offended party may bring court proceedings against the authors of such acts or expressions of opinion, and it is for the courts to decide in individual cases.”
On 29 October 2005 several Muslim organisations in Denmark reported Morgenavisen Jyllands-Posten to the Danish police, maintaining that it had violated the provisions of the Criminal Code concerning blasphemy and insult on the basis of race or religious orientation.
By a decision of 6 January 2006, the regional public prosecutor for Viborg (Statsadvokaten i Viborg) decided not to initiate criminal proceedings against the newspaper. The Muslim organisations appealed against that decision to the Director of Public Prosecutions (Rigsadvokaten), who upheld the decision on 15 March 2006, giving the following reasons.
“Decision on possible criminal proceedings in the case of Jyllands-Posten’s article ‘The face of Muhammad’
...
2. The article in Jyllands-Posten
The article in Jyllands-Posten was published in the newspaper’s Friday issue of 30 September 2005 and was advertised on the front page of the newspaper by one of the drawings from the article. The drawing was accompanied by text explaining that the newspaper had invited members of the Danish Newspaper Illustrators’ Union to draw Muhammad as they saw him; that, out of about forty illustrators, twelve had responded to the invitation; and that the drawings were published under the illustrators’ names. ... The introduction to the article is headed ‘Freedom of expression’ ... The introduction to the article reads as follows:
‘The comedian Frank Hvam recently admitted that he did not dare openly “to take the piss out of the Koran on TV”. An illustrator asked to portray the Prophet Muhammad in a children’s book wishes to do so anonymously, as do the western European translators of a collection of essays critical of Islam. A leading art museum has removed a work of art for fear of reactions from Muslims. This theatre season, three satirical shows targeting the President of the United States of America, George W. Bush, are playing, but not a single one about Osama bin Laden and his allies. Finally, during a meeting with Prime Minister Anders Fogh Rasmussen of Denmark’s Liberal Party, an imam urged the government to use its influence over the Danish media so that they drew a more positive picture of Islam.
The examples cited above give cause for concern, regardless of whether there is any foundation for people’s fears. The fact is that those fears exist and lead to self-censorship. The public space is being intimidated. Artists, authors, illustrators, translators and theatre people are therefore steering a wide berth around the most important meeting of cultures of our time – the meeting between Islam and the secular society of the West rooted in Christianity.’
The following section, entitled ‘Ridicule’, is taken from the article:
‘Some Muslims reject modern secular society. They demand special status, insisting on special consideration of their own religious feelings. This is incompatible with secular democracy and freedom of expression, where one has to be prepared to put up with scorn, mockery and ridicule. It is therefore no coincidence that people living in totalitarian societies are sent to jail for telling jokes or for critical portrayals of dictators. As a rule, this is done with reference to the fact that it offends people’s feelings. In Denmark, we have not yet reached that stage, but the examples cited above show that we are on a slippery slope, with no one able to predict where self-censorship will lead. ... That is why Morgenavisen Jyllands-Posten has invited members of the Danish Newspaper Illustrators’ Union to draw Muhammad as they see him.’ ...
The twelve drawings are as follows:
Drawing 1: The face of a man whose beard and turban are drawn within a crescent moon and with a star, symbols normally used for Islam.
Drawing 2: The face of a grim-looking bearded man with a turban shaped like an ignited bomb.
Drawing 3: A person standing in front of an identity parade consisting of seven people, including a caricature of Pia Kjærsgaard [leader of the Danish People’s Party] and five men wearing turbans. The person in front of the lineup is saying: ‘Hmm... I can’t quite recognise him... ‘
Drawing 4: A bearded man wearing a turban, standing with a halo shaped like a crescent moon over his head.
Drawing 5: Five stylised female figures wearing headscarves, with facial features depicted as a star and a crescent moon. The caption reads: ‘Prophet! You crazy bloke! Keeping women under the yoke!’
Drawing 6: A bearded man wearing a turban, standing with the support of a staff and leading an ass by a rope.
Drawing 7: A man with beads of sweat on his brow, sitting under a lamp and looking over his left shoulder as he draws a man’s face with his head covered and with a beard.
Drawing 8: Two bearded men wearing turbans and armed with a sword, a bomb and a gun, running towards a third bearded man wearing a turban. He is reading a sheet of paper and gesturing them to hold off, with the words: ‘Relax folks! It’s just a sketch done by a non-believer from southern Denmark.’
Drawing 9: A teenage boy with dark hair, dressed in trousers and a striped top printed with the text ‘The Future’, standing in front of a blackboard, and indicating with a pointer the Arabic text written on it. The words ‘Mohammed, Valby School, 7A’ are written on an arrow pointing at the boy.
Drawing 10: A bearded man, standing, wearing a turban and carrying a sword; his eyes are hidden by a black bar. Standing at his sides are two women wearing black gowns, with only their eyes visible.
Drawing 11: A bearded man wearing a turban, standing on clouds with arms outspread, saying: ‘Stop, stop, we’ve run out of virgins!’ Waiting in front of him is a row of men in tatters with plumes of smoke over their heads.
Drawing 12: A drawing of a man wearing glasses and a turban with an orange in it. The turban bears the words ‘Publicity Stunt’. The man is smiling as he shows a picture portraying a ‘matchstick man’ with a beard and wearing a turban.
3. The Director of Public Prosecutions’ assessment ...
Article 140 of the Danish Criminal Code provides that any person who, in public, mocks or scorns the religious doctrines or acts of worship of any lawfully existing religious community in this country is liable to a term of imprisonment not exceeding four months.
The provision is part of the rules of criminal law, the interpretation of which varies depending on what is generally considered to be accepted usage or other form of expression in Danish society. In this connection it should be noted that frank and informal debate is not unusual in Denmark, where even offensive and insulting expressions of opinion are widely accepted.
It should also be noted that, when it was adopted in 1930, Article 140 of the Danish Criminal Code was intended to afford protection in respect of the most serious offences against religious feelings; this was also implicit in subsequent debates held in the Danish parliament in 1973 and 2005 regarding the necessity for the provision. It has also been reflected in practice, as only three prosecutions have been brought for breaches of this provision since 1930, the most recent of which, in 1971, led to an acquittal.
An assessment of the drawings described above and the article in the light of the provisions of Article 140 of the Danish Criminal Code involves deciding whether they amount to mockery or scorn of Islam’s religious doctrines or acts of worship. ...
As regards ... ‘religious doctrines or acts of worship’, it should first be noted that the expressions of opinion falling within the scope of the Criminal Code cover the internal and external religious life of a religious community, that is, the doctrines (a creed, if any, and the central texts of the religion) and the institutions, practices, persons and things (ritual acts, etc.) by which the acts of worship of the community take place. However, according to the preparatory legislative material for the Criminal Code, the concepts concerned do not encompass religious feelings which are not tied to a community’s religious doctrines or acts of worship, including doctrines of an ethical or social nature or similar.
The concept of ‘mockery’ covers ridicule and is an expression of lack of respect or derision of the object of mockery. ‘Scorn’ is an expression of contempt for the object that is scorned. It must be assumed that these words imply ridicule or contempt with a certain element of abuse, just as it is clear from the preparatory legislative material for the Criminal Code that punishment can be imposed only in ‘serious’ cases.
The religious writings of Islam cannot be said to contain a general and absolute prohibition on drawing the Prophet Muhammad.
The basic assumption must be that, according to Hadith (the written narratives of the life of the Prophet and guidelines for the conduct to be observed by Muslims), there is a prohibition in Islam against depicting human figures, which also includes depicting the Prophet Muhammad. Not all Muslims comply consistently with the ban on depiction, as there are pictures of Muhammad dating from earlier times as well as the present day. However, in these cases the Prophet is depicted respectfully, in some instances without facial features.
It cannot then be assumed that a drawing of the Prophet Muhammad in general will be contrary to the religious doctrines and acts of worship of the religion as practised today, even if certain groups within the religion comply fully with the ban on depiction. For that reason alone, a drawing of the Prophet Muhammad cannot in itself constitute a violation of Article 140 of the Danish Criminal Code.
However, some of the drawings in question which, according to the headline, illustrate ‘The face of Muhammad’ are not merely a depiction of the Prophet Muhammad, but a caricature of him.
Depending on the circumstances, a caricature of such a central figure in Islam as the Prophet Muhammad may imply ridicule of or be considered an expression of contempt for Islamic religious doctrines and acts of worship. An assessment of whether this is the case must be made in the light of the text accompanying the drawings.
The article states that fear of Muslim reaction has led to self-censorship in a number of specific cases and to artists, authors and others avoiding expressing themselves about the cultural meeting between Islam and secular Western societies with their roots in Christianity. The next paragraph states first that some Muslims reject modern secular society and demand special status, insisting on special consideration of their own religious feelings. It then continues: ‘This is incompatible with secular democracy and freedom of expression, where one has to be prepared to put up with scorn, mockery and ridicule. While this is not always agreeable or pleasant to watch, and does not mean that religious feelings can be made fun of at any price, that is a minor consideration in the present context.’
From the section that follows, it appears that it was on this basis that Jyllands-Posten invited members of the Danish Newspaper Illustrators’ Union to draw Muhammad as they saw him.
Based on this text, the basic assumption must be that Jyllands-Posten commissioned the drawings for the purpose of sparking a provocative debate as to whether, in a secular society, special regard should be paid to the religious feelings of certain Muslims.
The drawings referred to in paragraph 2 above as drawing 1, drawing 3, drawing 4, drawing 6, drawing 7, drawing 9, drawing 11 and drawing 12 are either neutral in their expression or do not seem to be an expression of derision or spiteful, ridiculing humour. Therefore, in the opinion of the Director of Public Prosecutions, these drawings cannot be considered to constitute criminal offences under Article 140 of the Danish Criminal Code.
Drawings 5 and 10 deal with the position of women in Muslim society and therefore relate to social conditions in those societies and the lives of their members. On this basis the drawings cannot be considered to contain expressions of opinion concerning Islamic religious doctrines or acts of worship, and consequently do not amount to punishable offences under Article 140 of the Danish Criminal Code.
The two armed figures in drawing 8 could be seen to be an illustration of an element of violence in Islam or among Muslims. However, the man standing up, who could be a depiction of Muhammad, is denying that there is any reason for anger and speaking in soothing tones, which must be taken to be a rejection of violence. Hence, this drawing cannot be considered either as an expression of mockery or scorn of Islamic religious doctrines or acts of worship; see Article 140 of the Danish Criminal Code.
Drawing 2, showing the face of a grim-looking man with a turban shaped like an ignited bomb, could be understood in several ways.
If Muhammad is taken to be a symbol of Islam, the drawing could be understood to mean that violence or bomb attacks have been committed in the name of Islam. The drawing could therefore be seen as a contribution to the current debate on terror and as an expression of the view that religious fanaticism has led to terrorist acts. Understood in this way, the drawing cannot be considered to express contempt for the Prophet Muhammad or the Islamic religion, but should be considered as an expression of criticism of Islamic groups who commit terrorist acts in the name of religion. On this basis, the drawing is clearly not in violation of Article 140 of the Danish Criminal Code.
The drawing could also be taken to depict the Prophet Muhammad as a violent person and as a rather intimidating or frightening figure.
Historical descriptions of the Prophet’s life show that, in propagating their religion, he and his followers were involved in violent conflicts and armed clashes with persons and population groups who did not join Islam, and that many Muslims and others lost their lives as a result.
Even against this historical background, a depiction of the Prophet Muhammad as a violent person must be considered an incorrect depiction if the Prophet is shown with a bomb as a weapon, which in today’s context might be understood to imply terrorism. This depiction might with good reason be understood as an affront and insult to the Prophet, who represents an ideal for believing Muslims.
However, such a depiction is not an expression of mockery or ridicule, and almost certainly not of scorn within the meaning of Article 140 of the Danish Criminal Code. The concept of scorn covers contempt and debasement, which in their usual meaning would not cover situations depicting a figure such as that shown in drawing 2, regardless of how the illustration might be understood or interpreted.
...
4. Conclusion
As is clear from points 3.2 and 3.3 ..., the Director of Public Prosecutions does not find any grounds for changing the decision reached by the regional public prosecutor for Viborg and therefore concurs in the decision, pursuant to section 749(2) of the Danish Administration of Justice Act, to discontinue the investigation with regard to Article 140 and Article 266 (b) of the Danish Criminal Code.
Although there are no grounds for instituting criminal proceedings in this case, it should be noted that both provisions of the Danish Criminal Code – and also other criminal-law provisions, for example with regard to defamation of character – place restrictions on freedom of expression. Article 140 of the Danish Criminal Code protects religious feelings against mockery and scorn and Article 266 (b) protects groups of persons against scorn and degradation on account of, inter alia, their religion. To the extent that publicly made expressions of opinion fall within the scope of these rules there is, therefore, no free and unrestricted right to express opinions about religious subjects.
In stating that it is incompatible with the right to freedom of expression to demand special consideration for religious feelings and that one has to be prepared to put up with ‘scorn, mockery and ridicule’, the article in Jyllands-Posten does not therefore accurately describe the law as it stands.”
Around this time and subsequently, the publication of the cartoons (and their reproduction in some other countries) caused international controversy, protests, demonstrations and consumer boycotts, notably in the Muslim world.
Various Muslim organisations initiated civil proceedings for defamation against Morgenavisen Jyllands-Posten before the Århus City Court (Retten i Århus) which, in a judgment of 26 October 2006, found against them.


ITEMID: 001-61149
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF PESCADOR VALERO v. SPAIN
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant is a Spanish national who was born in 1941 and lives in Albacete. He is a law graduate and is employed by the University of Castilla-La Mancha (UCLM).
9. By a decision of 11 July 1996, the rector of UCLM ordered that the applicant be dismissed as director of administrative and service personnel (gerente) of the university campus at Albacete, a post to which he had been appointed by the rector himself in 1985. On 30 July 1996 the applicant applied to the Higher Court of Justice of Castilla-La Mancha for special judicial review of that decision, relying on the right to judicial protection of his fundamental rights in accordance with the Protection of Fundamental Human Rights Act (Law no. 62/1978 of 26 December 1978). By a decision of 18 November 1996, the court dismissed the application as unfounded.
10. In parallel, on 17 September 1996, the applicant had lodged an ordinary application for judicial review of the 11 July 1996 decision with the Higher Court of Justice of Castilla-La Mancha. The case was referred to the First Section of the court, whose President was J.B.L. During the hearing of the application, the Section, presided over by J.B.L., issued several orders.
11. On 14 May 1998 the applicant lodged an application with the Administrative Division of the Higher Court of Justice. Explaining that he had discovered that Judge J.B.L. was associate professor of law at UCLM and was receiving emoluments in that capacity, he applied for his removal in accordance with sections 219 and 223(1) of the Judicature Act (Ley Orgánica del Poder Judicial – “the LOPJ”) and requested the court to take evidence on the point in accordance with section 225(4) of the LOPJ. By a decision of 21 May 1998, the plenary Administrative Division of the Higher Court of Justice rejected the application for the judge’s removal for the following reasons:
“Section 223(1) of the LOPJ lays down the condition that the removal must be applied for as soon as the grounds for removal are known. If the grounds are known prior to the dispute, the application for removal must be lodged at the start of the proceedings, failing which the application will be inadmissible.
It is this last legal effect which applies in the present case, namely the inadmissibility of the application for removal of the judge of this Division, Mr J.B.L., since he has been for several years, and in any event had been long before the disputed decisions were taken, associate professor at the University of Castilla-La Mancha (which is essentially the ground for his removal). This fact cannot have escaped the attention of someone who was, until July 1996, the manager of the university campus at Albacete .
Moreover, given that the application was drafted, in [the applicant’s] own words, ‘as soon as he became aware of the ground [for removal]”, he should have adduced evidence to that effect, namely that he had become aware only very recently and not prior to the dispute that J.B.L. was associate professor at the University of Castilla-La Mancha. However he provided no such evidence.
Accordingly, an application for removal should have been lodged as soon as the applicant had been advised of the composition of the Division whose President was the person being challenged. As that was not done, the application is inadmissible.”
12. By a judgment on the merits of 10 May 1999, the First Section of the Administrative Division of the Higher Court of Justice, composed of three judges and presided over by Judge J.B.L., dismissed his application for judicial review and ruled that the decision of UCLM of 11 July 1996 to dismiss the applicant as manager of the university campus was lawful.
13. Relying in particular on Article 24 § 1 of the Constitution (right to a fair trial), the applicant lodged an amparo appeal with the Constitutional Court. The applicant pleaded the right to have his case heard by an independent and impartial tribunal and complained of the rejection of his application for the removal of Judge J.B.L., which he had sought as soon as he had become aware of the professional relations between that judge and UCLM. He submitted that he had not known the judge in his capacity as professor, and that he had had no reason to come across him in the course of his administrative duties at the university. In that connection, he observed that questions concerning the university teaching staff were the responsibility of the rector and were dealt with centrally at Ciudad Real, whereas he worked in Albacete. As manager of the Albacete campus, his duties were limited to the university’s administrative and service personnel. He concluded that to require him to prove a negative, namely that he had not previously known J.B.L., was to ask him to “prove the impossible”. Accordingly, the applicant considered that the Higher Court of Justice had not given him a fair hearing.
14. By a decision of 10 April 2000, the Constitutional Court dismissed the amparo appeal as ill-founded for the following reasons:
“... Article 24 § 1 of the Spanish Constitution is infringed only if the court concerned reaches an unreasonable, manifestly wrong or arbitrary conclusion concerning a legal ground of inadmissibility ... In the present case, such defects cannot be inferred from the fact that [the applicant] was presumed to have known that one of the judges was an associate professor.
Ordinary procedural defects do not in themselves infringe Article 24 § 1 of the Spanish Constitution. That Article is breached only when the procedural irregularity is decisive for the rights of the defence ... It is then for the applicant to prove the significance of the alleged irregularity for the final decision ... In this case, the alleged irregularities concerning the taking of evidence cannot serve as a basis for challenging the reasons adopted by the Division [of the Higher Court of Justice] in arriving at its judgment.”
15. The Constitution
Article 24
“1. Everyone has the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests and in no circumstances may he be denied the possibility of defending himself.
2. Likewise, everyone has the right to be heard by a court established by law, the right to a defence and to the assistance of a lawyer, the right to be informed of any charges against him, the right to a public trial without undue delay and attended by all safeguards, the right to make use of evidence relevant to his defence, the right not to incriminate himself and not to confess his guilt, and the right to be presumed innocent.
...”
16. The Judicature Act
Section 217
“Judges and magistrates must withdraw and may, where appropriate, be challenged on the grounds prescribed by law.”
Section 219
“Grounds for withdrawal or, where appropriate, a challenge include:
...
9. The fact of having a direct or indirect interest in the dispute.”
Section 221
“A judge or magistrate who believes that he falls within the scope of one of the grounds set out in the preceding sections shall withdraw from the case without waiting to be challenged.
...”
Section 223
“A party wishing to challenge a judge must do so as soon as he becomes aware that a ground for challenge exists. If that party was aware of the ground for challenge prior to the dispute, he shall lodge his application at the start of the proceedings, failing which it shall be inadmissible.
...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4727
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: S.O., A.K. AND Ar.K. v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The three applicants, S.Ö, A.K. and Ar.K. are Turkish citizens of Armenian origin, resident in İstanbul They are members of Yedikule Surp Pırgıç Ermeni Hastahanesi Vakfı (the Foundation), a hospital founded by Armenians in İstanbul. Before the Court, the applicants are represented by Mr Diran Bakar and Mr Setrak Davutkan, lawyers practising in İstanbul.
The facts of the present case, as submitted by the applicants, may be summarised as follows.
A.H., who had been a patient at the Foundation, made her will in 1968 and bequeathed her real estate to the Foundation. On 19 October 1971 the Joint Civil Chambers of the Court of Cassation held that the Foundation was a “community foundation” whose charter had been definitively established in 1936. They also recalled that such foundations were only entitled to enter into transactions prescribed in their founding charter. Accordingly, the Joint Civil Chambers held that the foundation in question could not acquire property bequeathed to it by will given that the founding charter did not specify such a right.
Consequently, shortly before her death in 1976, A.H. sold her two shops in İstanbul to the first three applicants S.Ö., A.K. and Ar.K, who are members of the Foundation and donated the proceeds of this transaction to the Foundation.
On 14 August 1978, the Treasury instituted civil proceedings against the applicants in the İstanbul Civil Court of General Jurisdiction. The Treasury declared to be sole beneficiary of A.H.’s estate under Section 448 of the Civil Code, which provides that the estate of a deceased person shall pass to the Treasury if the person dies intestate and has no relatives. The Treasury also maintained that the sales contract between the first three applicants and A.H. had been signed under false pretences. It alleged that A.H.’s intention in entering into the contract was to donate her real estate to the foundation during her lifetime through the sale of her property to S.Ö., A.K. and Ar.K, who are members of the foundation. Accordingly, it requested the court to order that the shops, which had been transferred under the sales contract, be restored and that the donation to the Foundation be revoked.
On 8 April 1986 the İstanbul Civil Court of General Jurisdiction rejected the Treasury’s request on the ground that the Treasury’s claim of being the sole beneficiary of the A.H. estate required clarification. On 25 December 1986 the Court of Cassation quashed this judgment on the ground that the first-instance court should have adjourned the case for the Treasury to prove that it had a legal right over A.H.’s estate. On 24 June 1987 the Court of Cassation dismissed the applicants’ request for rectification of this decision.
On 15 October 1987 the İstanbul Civil Court of General Jurisdiction applied the decision of 25 December 1986 and decided to adjourn the case for the Treasury to prove that it was entitled to pursue it.
Later, the Treasury submitted to the court a certificate of inheritance issued by the İstanbul Magistrate’s Court in Civil Matters dated 15 December 1988 to the effect that the Treasury was the true beneficiary of the estate as A.H.’s sister had predeceased her and that A.H. had no other living relatives. Accordingly, the İstanbul Civil Court of General Jurisdiction decided to examine the merits of the case. After examining the expert report, the court stated that although there was a difference between the real value of the estate and the amount stated in the sales contract, this was not in itself sufficient to conclude that the applicants had acted under false pretences. Consequently, on 8 October 1992, the court dismissed the case on the ground that the Treasury had failed to provide sufficient evidence in support of its claims.
On 5 April 1993 the Court of Cassation quashed this judgment. Referring to the will signed on 25 March 1968 and the expert report, which stated that there was a significant difference between the real value of the estates and the amount paid to A.H., the Court of Cassation found that the first instance court had sufficient evidence before it to give a decision.
On 10 December 1993 the applicants’ request for rectification of this decision was rejected by the Court of Cassation.

On 3 March 1994 the İstanbul Civil Court of General Jurisdiction applied the decision of the Court of Cassation. The court found that the sales contract had been signed under false pretences and accordingly annulled it. Consequently it decided that the shops in issue be included in A.H.’s estate. The court dismissed the remainder of the case.

On 14 July 1994 the Court of Cassation once again quashed the decision of the first-instance court. It held that the İstanbul Civil Court of General Jurisdiction should have accepted the Treasury’s claims as a whole.
On 4 November 1994 the Court of Cassation dismissed the applicants’ request for rectification of this decision.
On 29 December 1994 the İstanbul Civil Court of General Jurisdiction applied the decision of the Court of Cassation. It decided that the will signed on 25 March 1968 and the donation made to the foundation should be annulled.
On 18 May 1995 the Court of Cassation upheld the judgment of the first-instance court.
On 9 October 1995 the Court of Cassation dismissed the applicants’ request for rectification.


ITEMID: 001-112417
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SAVITSKYY v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Fair hearing);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary and non-pecuniary damage - award
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1967 and lives in Potochyshche, Ivano-Frankivsk Region.
6. In the evening of 21 August 1998, after a working day, the applicant and his friend decided to visit a bar in the town of Horodenka before going home. The bar was located in the corner of a small park in the town. The park was in the form of a triangle with a base 70 metres long and two sides each 60 metres long.
7. According to the explanations given to the investigating authorities by the applicant, his friend and the owner of the bar (who served the applicant and the friend), each of them ordered not more than 150 millilitres of horilka (the beverage containing 40% alcohol) and a bottle of beer, together with some snacks.
8. They finished their food and drink at about 10 p.m. and left the bar. They went along the park to the nearby bus station. The applicant had come by bicycle so it was for his friend to take a bus.
9. While the applicant was seeing his friend off on the bus, his bicycle was stolen. The applicant decided to look around, as he thought it might have been a joke. After some time, as he did not succeed in finding the bicycle, he decided to call the police to inform them of the theft, and also to call his wife to tell her he was going to be late. For this purpose he crossed the park and approached the nearby petrol station, located in front of the park on the opposite side, and asked the sales assistant to let him make the calls. The sales assistant refused. Having the impression that the applicant was drunk and did not want to leave the petrol station, the sales assistant decided to call the police himself to get rid of the applicant.
10. A police patrol of three officers from the Horodenka District Police Department arrived by car and grabbed the applicant in the street near the petrol station. They pulled him into the police car and started beating him. They pulled up on the other side of the park with the lights turned off, took the applicant out of the car and continued beating him so that he fell to the ground. Then they continued to beat him while he was lying on the ground. At a certain moment the applicant received a hard blow to his back and lost consciousness. He could not remember for how much longer he was beaten after that. When he regained consciousness he could not move his legs and felt acute pain in the back. He was alone at this point and started crying from the pain.
11. A little later he noticed the police officers and a security guard from the bar approaching him. He heard one of the police officers explaining to the security guard that he should testify that the applicant was so drunk he could not even stand up.
12. The applicant was thrown into the police car and driven to the Horodenka District Hospital. While he was being examined, the police officers repeatedly demanded that the applicant stand still, but he could not, and kept falling over. In the police officers’ opinion this expressly demonstrated to the doctors the level of the applicant’s intoxication. When asked what had happened to him the applicant explained to B., a doctor, that he had been beaten up by the police officers.
13. Statements by the police officers, a police internal inquiry report of 29 September 1998, decisions of 24 November 1998 and 30 April 1999 refusing to open a criminal investigation, and a decision of 20 November 2003 terminating a criminal investigation, indicate the authorities’ version of events, as follows.
14. At about 0.35 a.m. on 22 August 1998 the Horodenka District Police Department received a telephone call from a sales assistant at a petrol station that a drunk man was hanging about at the petrol station and refusing to go away. The complaint was passed on by a radio communication facility to a police patrol consisting of three officers, N., Kh. and M., who were in a car nearby. They arrived at the petrol station ten or fifteen minutes later, to find the sales assistant alone. The latter explained that the man had headed for the park. The police officers pulled up at the bar, which was located at the opposite corner of the park, and met a security guard there. They went into the park together, as they could hear cries for help. They found a man complaining of acute pain in the waist and stomach. They put him into the car; took him to the sales assistant, who identified the man as the one who had disturbed him that night; and went on to Horodenka District Hospital, where he was provided with medical treatment.
15. Upon delivery to the Horodenka District Hospital the applicant was examined and diagnosed with two fractured vertebrae and a spinal cord injury. The applicant was also diagnosed with alcoholic intoxication. However, no test for alcohol was carried out.
16. The same day he was moved to Ivano-Frankivsk Regional Hospital for surgical treatment. The applicant stayed there till 1 October 1998, following which he was moved to Horodenka District Hospital, where he stayed till 19 November 1998.
17. According to the doctor’s certificate of 3 September 1998 issued at Ivano-Frankivsk Regional Hospital, the applicant was also suffering from concussion.
18. Since that incident the applicant has been unable to walk unaided and has been designated Category 1 (the highest category) disabled.
19. At the end of 1998 the applicant’s wife began divorce proceedings. On 12 November 1999 the divorce was registered by the domestic authorities.
20. After the completion of his inpatient treatment the applicant moved to a village to live with his father, who was born in 1928.
21. At 2.05 a.m. on 22 August 1998 the Horodenka District Hospital informed the Horodenka District Police Department about the incident.
22. At about 3 a.m. on the same night, Kh. questioned the sales assistant at the petrol station and the security guard of the bar about the incident.
23. During the same day, the three police officers (N., Kh. and M.) submitted reports to the head of the Horodenka District Police Department setting out their version of the events, which corresponded to the explanations given by the sales assistant and the security guard.
24. Another police officer at the Horodenka District Police Department carried out a site inspection: he found a shoe belonging to the applicant. According to the report describing the site of the incident, part of the park border was fenced; the fence was 120 centimetres high; there was also a concrete ring five metres in diameter at the centre of the park with a fence; the height of the concrete foundation was 20 centimetres while the height of the fence, circling the ring, was 120 centimetres.
25. A few days later the police officers and the investigator at the Horodenka District Police Department once again questioned the sales assistant and the security guard, then the applicant’s friend who had been with him in the bar, the cook at the bar and three doctors at the Horodenka District Hospital, where the applicant had received treatment. The sales assistant and the security guard repeated their statements. The applicant’s friend noted that neither he nor the applicant had had any conflict with anyone in the bar. A similar statement was made by the cook. The doctors noted that, when visually examining the applicant, they did not see any bruises or other injuries on his body suggesting that he might have been beaten; when they asked the applicant about the incident, he could not explain to them what had happened to him.
26. On 29 August 1998 the applicant made a complaint to the Ivano-Frankivsk Regional prosecutor, alleging that he had been severely beaten by police officers. He claimed that the enquiries carried out by the Horodenka District Police Department and the Horodenka District Prosecutor’s Office were not objective; he had not been questioned while he could still identify the police officers; and a number of bruises had disappeared since the incident. He requested that the case be transferred to a different authority to ensure an independent investigation of the matter.
27. On 31 August 1998 a police officer from the Horodenka District Police Department questioned the applicant. The latter repeated his version of the events.
28. On 2 September 1998 the police officer questioned the owner of the bar, who said that he did not see the applicant having any conflict with anyone in the bar, but noted that at a certain moment the applicant had fallen asleep at the table and fallen off his chair.
29. On the same day the Horodenka District Police Department referred the file to the Horodenka District Prosecutor’s Office for further enquiries.
30. During September 1998 the investigator at the Horodenka District Prosecutor’s Office questioned the same people who had been questioned earlier by officers of the Horodenka District Police Department. Those witnesses essentially repeated their original statements. One of the doctors, however, specified that the applicant had told him that he had been beaten by police officers.
31. On 24 November 1998 a forensic medical expert issued a report concerning the nature of the injuries sustained by the applicant. The expert noted in the descriptive part of the report that between 22 August and 1 October 1998 the applicant was treated in the hospital for spinal injuries and concussion. In his conclusions the export noted that the vertebral and spinal cord injuries “had been caused by blunt solid objects or, possibly, by the applicant’s falling on to blunt solid objects”. He further opined that after sustaining those injuries the applicant could not move his lower limbs. He also specified that it was hardly probable that those injuries had been inflicted by a rubber truncheon or shoes.
32. The same day, 24 November 1998, the investigator refused to open criminal proceedings against the police officers, finding that the material collected in the course of “pre-investigation” enquiries did not suggest that the police officers had committed any crime in respect of the applicant. He noted that the applicant had been drunk, while the conclusions of the forensic medical expert suggested that the injuries might have been caused by the applicant’s falling on to blunt solid objects, and that it was hardly probable that the injuries had been inflicted by a rubber truncheon or shoes.
33. The applicant was not sent the last pages of the decision and could therefore not know its final reasoning. Nevertheless, the applicant challenged the decision before the supervising prosecutor’s office.
34. On 30 November 1998 the Ivano-Frankivsk Regional Prosecutor’s Office quashed the decision of 24 November 1998 as unsubstantiated, and opened a criminal investigation in connection with the grievous bodily injuries caused to the applicant by unknown persons. The prosecutor considered that the case file suggested that a crime had been committed in respect of the applicant, while the police officers who had delivered the applicant to the hospital had not taken any hot pursuit measures to catch the possible perpetrators. The case was referred to the Snyatyn District Prosecutor’s Office for the investigation.
35. Meanwhile, during September 1998, the Ivano-Frankivsk Regional Police Department carried out an internal inquiry in connection with the complaints by the applicant.
36. The inquiring officers examined the material collected by the Horodenka District Police Department in the course of “pre-investigation” enquiries, and issued a report on 29 September 1998 concluding that the applicant’s complaints were unsubstantiated.
37. On 30 December 1998 the case was assigned to an investigator at the Snyatyn District Prosecutor’s Office. The next day the investigator commenced with an inspection of the site of the incident. The investigator noted in the report that the park zone was partly fenced with a metal fence 80 centimetres high; in the centre of the park was a concrete ring with a metal fence; the concrete base of the ring was 20 centimetres high; the fence around the ring was 80 centimetres high.
38. On 31 December 1998 the applicant was given the status of victim in the proceedings and questioned about the incident. The applicant repeated his account, that he had been beaten up by the police officers. In the course of questioning he also specified that at a certain moment while he was being beaten up by the police officers he fell to the ground; when he attempted to rise, one of the officers hit him hard on the back and the applicant fell to the ground again and lost consciousness.
39. Between January and March 1999 the investigator took a number of measures in the course of the investigation. In particular, on 18 January 1999 he carried out a reconstruction of the events, with the participation of the security guard, who indicated the place where the applicant had been found lying on the ground. The investigator noted that the distance to the road, from which the park was fenced off, was twenty-four metres. The report was accompanied by photographs showing the place of the incident from different angles.
40. The investigator further questioned witnesses and the police officers involved. The police officers maintained their version of the events. One of the police officers, Kh., specified that when they had delivered the applicant to the Horodenka District Hospital Kh. had asked for particular doctors; he knew them because his parents were working at that hospital. He also noted that after he had left the hospital he had met the sales assistant and the security guard and had taken written statements from them.
41. The sales assistant also confirmed that at 3 a.m. on 22 August 1998 police officer Kh. came to see him and said that the man who had disturbed him that night, had been severely beaten up and that it was necessary for the sales assistant to make a statement. The statement was written down by the police officer and signed by the sales assistant.
42. Identification parades were held at which the applicant identified the three police officers. Confrontations were held between the applicant and the police officers at which the applicant maintained his version of events while the police officers all denied that version.
43. On 6 March 1999 the same forensic medical expert carried out another forensic medical examination of the applicant’s injuries, relying on the applicant’s medical history as recorded by the two hospitals where the applicant had been treated. The expert also stated that according to the medical history the applicant was also suffering from concussion. He further concluded that the applicant had sustained the following injuries: compressive fractures of the body of the eleventh thoracic vertebra and the body of the third lumbar vertebra (компресійний перелом тіла одинадцятого грудного хребця та тіла третього поперекового хребця); fractures of the neural arches of the eleventh thoracic vertebra (перелом дужок одинадцятого грудного хребця); fractures of the transverse processes of the first, second, third lumbar vertebrae (перелом поперечних відростків першого, другого, третього поперекових хребців); fractures of the spinous processes of the tenth thoracic vertebra and the first lumbar vertebra (перелом остистих відростків десятого грудного і першого поперекових хребців), and bruises on the back over the spinal column. These injuries resulted in paresis of the lower limbs.
44. The expert opined that the spinal fractures could have resulted from the endwise compression of the spine and bending of the trunk. These movements might have been made by the applicant falling on his heels, buttocks, or head. The bruises on the back in the area of the first and second lumbar vertebra might have been caused by blunt solid objects or by the applicant’s falling on to blunt solid objects. The expert repeated his earlier conclusion that after the injuries the applicant could not move his lower limbs.
45. On 16 March 1999 the investigator decided to order another forensic medical examination to clarify whether the injuries could have been caused in the way described by the applicant who had stated that he had received a hard blow on the back when he was getting up and his spine was bent.
46. On 9 April 1999 a board of forensic medical experts, having examined the relevant materials, concluded that the spinal injuries could not have been caused when the applicant was getting up and his spine was bent. They upheld the previous forensic medical expert’s opinion as to the manner in which the spinal fractures could have been sustained.
47. On 30 April 1999 the investigator adopted a decision refusing to open a criminal investigation against N., Kh. and M. in connection with the applicant’s injuries. Relying on the statements given by the police officers and other persons, the experts’ opinions and the other evidence in the file, the investigator concluded that the police officers had not been involved in injuring the applicant. The applicant was not sent a copy of that decision.
48. On 14 May 1999 the criminal case in respect of the grievous bodily injuries caused to the applicant by unknown persons was referred to the investigator of the Horodenka District Police Department for further investigation.
49. On 7 June 1999 the investigator having examined the case file and questioned the sales assistant once again, terminated the criminal proceedings holding that no crime had been committed. In particular, the investigator found that the applicant’s allegations of ill-treatment by police officers were not supported by the evidence available in the file. He referred to the experts’ opinions suggesting that the spinal injuries could not have been caused by a rubber truncheon and that they could have been sustained if the applicant had fallen back on to his heels, buttocks, or head, bending his spine in the process. A number of witnesses had confirmed that the applicant was drunk that night. The applicant had been found near the fence around the concrete ring in the centre of the park. The investigator therefore concluded that the applicant had sustained injuries as a result of his own negligence.
50. The applicant was informed of the decisions taken by the authorities on 30 April 1999 and 7 June 1999 by a letter of 28 August 2000. No copies of those decisions were enclosed.
51. The applicant continued to complain to various law-enforcement authorities about ill-treatment. He also asked different authorities to provide him with legal representation, claiming that he could not properly represent himself owing to his physical disability. The requests were unsuccessful.
52. On 13 July 2000, further to the applicant’s complaint, the national ombudsman sent a letter to the General Prosecutor’s Office asking it to consider the applicant’s allegations of inappropriate investigation of his alleged ill-treatment by police officers.
53. On 30 October 2003 the Ivano-Frankivsk Regional Prosecutor’s Office quashed the decision of 7 June 1999 terminating the criminal proceedings for the reason that the investigation had not been thorough and further measures were deemed necessary. The case was remitted for further investigation.
54. On 20 November 2003 the investigator of the Horodenkа District Police Department terminated the proceedings in the criminal case, holding that no crime had been committed. In his decision the investigator referred to the same evidence as previously and concluded that the applicant had been very drunk and had caused the injuries to himself by his own negligence when falling either from the fence separating the park from the road or the fence on the concrete circle foundation in the centre of the park.
55. Following the applicant’s request, on 30 December 2005 he was sent a copy of that decision. The applicant challenged the decision in court.
56. On 30 January 2007 the Horodenka District Court of the IvanoFrankivsk Region, considered the applicant’s claim and upheld the investigator’s decision of 20 November 2003 as substantiated, after finding that the investigation had been conducted in accordance with the domestic legislation. The applicant appealed. On 22 June 2011, after the application was communicated to the Government, the registry of the district court found that the case file had not been sent to the court of appeal.
57. On 1 July 2011 the Ivano-Frankivsk Regional Court of Appeal, after the receipt of the case file, considered the applicant’s appeal and quashed the decision of 30 January 2007. The case was remitted to the first-instance court for a fresh hearing. At a certain point the case was transferred to the Tlumach District Court of the Ivano-Frankivsk Region, for further consideration.
58. On 27 September 2011 that court refused the applicant’s claim after finding that the decision of 20 November 2003 terminating the investigation had been well reasoned and substantiated. The applicant appealed.
59. On 24 October 2011 the court of appeal quashed the decision of 27 September 2011 and remitted the case to the first-instance court for a fresh hearing.
60. On 6 February 2012 the first-instance court found that the investigation had been carried out properly and the decision of 20 November 2003 had been substantiated. It therefore rejected the applicant’s claim.
61. The applicant appealed but on 1 March 2012 he withdrew his appeal for the reason that the time-limits for criminal responsibility for the alleged crime had expired.
62. On 14 October 2005 the applicant lodged an application with the Court.
63. On 15 November 2005 the Registry of the Court asked the applicant to provide copies of the decisions taken between 1998 and 2005 opening and closing the criminal proceedings concerning his complaints of ill-treatment.
64. On 29 November 2005 the applicant requested copies of those decisions from the prosecutor’s office. He enclosed a copy of the Court Registry’s letter of 15 November 2005.
65. On 30 December 2005 the local prosecutor sent the applicant a copy of the decision of 20 November 2003. He refused the remainder of the applicant’s request, stating that the Code of Criminal Procedure did not provide the applicant with a right to receive copies of the requested decisions.
66. On 25 January 2006 the applicant instituted administrative proceedings in the local court against the local prosecutor’s office, seeking to be given copies of the procedural decisions taken by the domestic authorities between 1998 and 2005 in the course of the examination of his complaints of ill-treatment. In his claim the applicant specified that the documents had been requested by the Court in the context of the consideration of his application.
67. On 14 February 2006 the Registry of the Court asked the applicant to provide copies of all the procedural decisions taken by the domestic authorities in the course of the examination of the applicant’s complaints of ill-treatment. The Court’s Registry informed the applicant that under Article 34 of the Convention, State authorities cannot hinder the applicant in the effective exercise of his right of application to the Court.
68. On 28 May 2006 the local court refused the applicant’s administrative claim as unsubstantiated. It noted that the prosecutor’s office had acted in accordance with the Code of Criminal Procedure.
69. The applicant appealed, relying in particular on Article 34 of the Convention.
70. On 12 October 2006 the Ivano-Frankivsk Regional Court of Appeal quashed the judgment of 28 May 2006 and allowed the applicant’s claim. It found that the applicant’s access to information concerning his rights had been unlawfully restricted. The court ordered therefore that the prosecutor’s office give the copies of the requested documents to the applicant. On the same day the judgment came into force but was not executed.
71. On 5 March 2008 the applicant lodged a claim with the Ivano-Frankivsk Regional Administrative Court against the local prosecutor, the judges of the local court, and the State Treasury Department, requesting that the execution of the judgment of 12 October 2006 no longer be hindered by the defendants and seeking damages on account of failure to execute that judgment.
72. On 2 June 2009 the Ivano-Frankivsk Regional Administrative Court refused the applicant’s claim as unsubstantiated.
73. On 10 February 2010 the Higher Administrative Court rejected the prosecutor’s appeal on points of law against the judgment of 12 October 2006.
74. On 12 May 2011 the judgment of 12 October 2006 was executed. The applicant was given the copies of the procedural decisions requested, including the decision of 30 April 1999 refusing to open a criminal investigation against the police officers.
75. On 30 August 2011, in reply to the applicant’s enquiry about legal aid, the Ivano-Frankivsk Regional Department of Justice informed the applicant that the representation of citizens in criminal cases by the legal advice offices of Regional and District Departments of Justice was not foreseen by the legislative acts governing their operation.
76. The relevant provisions of the Constitution read as follows:
“Everyone has the right to respect for his or her dignity.
No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...”
“Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose his or her own defence counsel.
In Ukraine, advocacy acts to ensure the right to mount a defence against an accusation and to provide legal assistance during the determination of cases by the courts and other State bodies.”
77. The relevant provisions of the Code can be found in the in the judgment of Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 41, 42 and 44, 24 June 2010).
78. According to the preamble of that Act, it lays down the organisational and legal principles for the provision of social services to individuals who are in difficult circumstances and need outside support.
79. According to section 5 of the Act, social services shall be provided either at home or at various social institutions, including social services centres and social support centres. The same section further provides a list of social services, which include legal services, that individuals are entitled to request under that Act.
80. Section 7 of the Act states, inter alia, that social services shall be provided free of charge to individuals who cannot satisfy their needs owing to their old age, illness or disability, provided that they do not have relatives obliged to support them.
81. According to the preamble of the Act, it defines the contents of the right to free legal assistance and the way that right should be exercised; the grounds and the procedure for granting free legal assistance as well as the State guarantees in respect of free legal assistance.
82. Chapter II of the Act deals with “primary legal assistance”, which, according to section 7 of the Act, comprises the following types of legal services: provision of legal information; consultancy on legal matters; drafting applications, complaints and other legal documents (except for procedural documents); and help with gaining access to “secondary legal assistance”.
83. Chapter III of the Act deals with “secondary legal assistance”, which, according to section 13 of the Act, comprises the following types of legal services: defence against criminal charges; representation of individuals before the courts and other State authorities, local selfgovernment bodies, and other persons; drafting procedural documents.
84. The “Final and Transitional Provisions” of the Act provide for a gradual implementation of Chapter III of the Act starting from 1 January 2013.
VIOLATED_ARTICLES: 3
34
6
VIOLATED_PARAGRAPHS: 6-1