ITEMID: 001-80871
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BABUNIDZE v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Bondo Archilovich Babunidze, is a Russian national who was born in 1952 and lives in Rostov-on-Don. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 2002 Mr N. lodged an action against the applicant seeking repayment of a loan. The Myasnikovskiy District Court of the Rostov Region listed the first hearing for 11 March 2002. The applicant informed the District Court that he was unable to attend because he was in hospital. He asked for a stay of the proceedings.
The hearing of 11 March 2002 was adjourned and rescheduled for 19 March 2002. According to the Government, the District Court sent a summons to the applicant notifying him of the hearing. According to the applicant, he was not summonsed to that hearing.
On 19 March 2002 the Myasnikovskiy District Court upheld Mr N.’s action in the applicant’s absence and ordered that the applicant should repay him the loan and interest thereon. Mr N.’s representative attended the hearing and made oral submissions.
On 15 May 2002 the Rostov Regional Court quashed the judgment and remitted the case for fresh examination.
The President of the Rostov Regional Court lodged an application for supervisory review of the judgment of 15 May 2002. On 4 July 2002 the Presidium of the Rostov Regional Court, by way of supervisory-review proceedings, quashed the judgment of 15 May 2002 and upheld the judgment of 19 March 2002.
On 14 October 2003 the Supreme Court of the Russian Federation, on a petition by the applicant for supervisory review, quashed the judgment of 4 July 2002 and upheld the judgment of 15 May 2002. The Supreme Court, in so far as relevant, held as follows:
“...it appears from the case materials [that] the first-instance court examined the case in the absence of the defendant.
The judgment of the Myasnikovskiy District Court of the Rostov Region was quashed on appeal, and the case was sent for re-examination. The judgment of the appellate court stated that the judgment of the [District] court was to be quashed because it had been made in violation of the requirements of Article 157 of the RSFSR Code of Civil Procedure. In particular, there was no evidence in the case file that Mr Babunidze had received a telegram containing information on the date of the hearing, which is a ground for quashing a judgment according to paragraph 2 of Article 306 of the RSFSR Code of Civil Procedure.
...
The judgment of 4 July 2002 of the Presidium of the Rostov Regional Court should be quashed because it was issued in violation of the procedural legal norms.
Pursuant to Article 106 of the RSFSR Code of Civil Procedure, in force at the material time, parties to the proceedings and their representatives should be informed by a court summons about the time and place of a court hearing or about other procedural actions...
A summons should be served on the parties and their representatives in such a way [as to ensure] that they have enough time to prepare their case and arrive at the court.
Pursuant to Article 157 of the RSFSR Code of Civil Procedure, where a party fails to appear and there is no evidence that he/she was properly summonsed, the court hearing is to be adjourned.
Pursuant to Article 308 § 2 of the RSFSR Code of Civil Procedure, examination of a case in the absence of a party which was not properly notified of the date and place of the court hearing is an unconditional ground for the quashing of a judgment.
There is no evidence in the file that Mr Babunidze was notified of the time and place of the court hearing, [and] thus the appeal judgment by which the District Court’s judgment, made in violation of Article 157 of the RSFSR Code of Civil Procedure, was quashed, is lawful and substantiated. The Presidium of the Rostov Regional Court had no grounds for quashing it. ”
The case file was returned to the Myasnikovskiy District Court. After receiving the case file, the court fixed several hearings. According to the Government, the applicant was summonsed to the hearings but failed to appear on every occasion. In particular, the District Court fixed five hearings in June 2005, five in July 2005, three in August and four in September 2005. The applicant did not attend, motioning the District Court to stay the proceedings because he was undergoing outpatient treatment for hypertension.
The District Court listed a hearing for 3 October 2005. The applicant again asked the District Court to adjourn the hearing, alleging that he had sustained an injury and could not attend.
The District Court asked the hospital for information on the applicant’s state of health. On 6 October 2005 the hospital replied that the applicant had complained to a doctor about pain in a knee-joint and that that injury was not serious enough to have prevented him from participating in the hearing of 3 October 2005.
The following hearing was fixed for 10 October 2005. The District Court sent a telegram to the applicant’s home address, notifying him of the hearing. The telegram could not be delivered because the applicant was not at home. A postman left a notice in the applicant’s mail box, informing him about the telegram and noting that it had been sent by the District Court. The applicant failed to retrieve the telegram.
On 10 October 2005 the Myasnikovskiy District Court held a hearing. The applicant did not attend. The District Court considered that he had been properly summonsed and delivered judgment in Mr N.’s favour. The District Court held, in particular:
“By virtue of Article 113 of the RF Code of Civil Procedure, parties to the proceedings are to be summonsed to a hearing by a letter sent by registered mail with an acknowledgment of receipt, by a court summons with an acknowledgment of receipt, by a telegram, by phone or fax or by any other means which can guarantee the recording of the fact that the summons was sent and was received by the party. Parties must inform the court of changes to their address during the proceedings. If a party fails to notify the court of such a change, a court summons is to be sent to the addressee’s last known address and is considered to be delivered even if the addressee no longer lives or resides there (Article 118 of the Code of Civil Procedure).
At the last court hearing in which the defendant participated on 23 May 2005, he indicated the following address as his residence... This circumstance is also confirmed by the address certificate of 12 September 2005, enclosed in the case file. Under Article 118 of the Code of Civil Procedure, the applicant was under an obligation to inform the court of any change in his address during the proceedings, but did not do this.
Having regard to the above considerations, the court finds that under Article 118 of the Code of Civil Procedure, the summons in the form of the telegram which was sent to the defendant’s last known address, was delivered to him and considers it possible to examine the case in Mr Babunidze’s absence, in accordance with Article 167 of the Code of Civil Procedure.”
The applicant appealed against the judgment, alleging defective notification of the hearing of 10 October 2005. The Rostov Regional Court accepted the statement of appeal and fixed a hearing for 30 November 2005. The applicant was summonsed. However, he asked the Regional Court to adjourn the appeal hearing on account of his ill-health.
On 30 November 2005 the Rostov Regional Court upheld the judgment of 10 October 2005 in the applicant’s absence. It addressed in detail the applicant’s complaint about the defective notifications to the hearings before the District Court. The Regional Court again confirmed that the telegram had been sent to the applicant, notifying him of the hearing on 10 October 2005. It had not been delivered because the applicant had not been at home. He had not responded to the note about the telegram. Furthermore, the applicant had been aware that the hearing of 3 October 2005 had been adjourned at his request, submitted on the same day. He had had an opportunity to ask the District Court about the date of the following hearing but had failed to do so.
Furthermore, the Regional Court pointed out that, during the re-examination of the case following the quashing of the judgment of 4 July 2002, the applicant had failed to attend more than fifteen hearings over the previous five months. He had been properly summonsed to every one of them and had had an opportunity to appoint a representative. However, he had persistently lodged motions for adjournment on the ground that he had been undergoing outpatient treatment. At the same time, he had not submitted any evidence showing that he had been unable to take part in the hearings due to his state of health. Furthermore, the applicant had not attended the hearing on 3 October 2005, complaining about an injury, although it subsequently became clear that he had been fit to take part. The Regional Court concluded that the applicant had abused his procedural rights and had procrastinated in the proceedings. The District Court had had no choice but to issue the judgment in his absence.
The Regional Court dismissed the request for an adjournment of the appeal hearing, holding as follows:
“On 30 November 2005 Mr Babunidze did not attend the appeal hearing before the Rostov Regional Court. He filed a written petition for an adjournment of the appeal proceedings on the ground that he was ill. He submitted a certificate issued on 29 November 2005 by Rostov town hospital no. 9, confirming that Mr Babunidze had several illnesses, including hypertension, stenocardia, etc., on the basis of which he was recommended for outpatient treatment.
The representative [of the plaintiff] objects to the adjournment, insisting that the defendant systematically defaults, referring to various illnesses from which he suffers, and that he intentionally procrastinates in the examination of the present case.
In accordance with Article 354 of the Code of Civil Procedure, by virtue of which the absence of a party properly notified of the date and place of a court hearing does not prevent an appellate court from examining the case, and having regard to the fact that there is no evidence that [Mr Babunidze’s] illnesses and the state of his health on 30 November 2005 prevented him or his representative from participating in the hearing (under Article 48 of the Code of Civil Procedure the defendant has a right to participate in the appeal proceedings himself or through some form of representation, including an advocate, but [the applicant] did not consider it necessary to make use of such a right), the [Regional] court decides to reject the request [for an adjournment].”
1. The RSFSR Code of Civil Procedure of 11 June 1964 (in force until 1 February 2003):
“Parties and their representatives are to be notified by court summonses of the date and place of a court hearing or certain procedural actions ...
A summons is to be served on parties and their representatives in such a way [as to ensure] that they have enough time to appear at the hearing and prepare their case...
Where necessary, parties and their representatives... may be summonsed by a phone call or a telegram.”
“Summonses are to be sent by mail or by courier. The time when the summons was served on an addressee is to be recorded on the summons and on its copy, which is to be returned to the court...”
“The summons is to be served on a person against his/her signature, made on a copy of the summons, which is to be returned to the court...”
“A civil case is to be heard in a court session with mandatory notification to all parties to the case...”
“If a party to the case fails to appear and there is no evidence that the party was duly summonsed, the hearing is to be adjourned.
If the party was duly notified of the date and place of the court hearing, the hearing is to be adjourned if the court considers that the reason for the absence is valid.
A party is to inform the court of the reasons for his/her absence and provide evidence confirming the validity of the excuse. A court may examine a case in the defendant’s absence if he/she did not provide information concerning the reasons for his/her absence, if the court considers that the excuse for the absence is invalid or if the defendant intentionally delays examination of the case.
A party may ask the court to examine the case in his/her absence and to provide him/her with a copy of the judgment...”
“Grounds for the quashing of a court judgment on appeal and for remittance of a case for fresh examination by a first-instance court are:
...
(4) violation or incorrect application of substantive and procedural legal norms...”
“Violation or incorrect application of procedural legal norms shall only serve as a ground for the quashing of a judgment if such a violation led or could have led to incorrect determination of the case.
A judgment is to be quashed if:
...
(2) a court examined a case in the absence of a party which had not been notified of the date and place of a hearing...”
2. The Code of Civil Procedure of the Russian Federation (in force from 1 February 2003):
“1. Parties... are to be summonsed to court by a letter sent via registered mail with an acknowledgment of receipt, a court summons with an acknowledgment of receipt, a telegram, by phone or fax or by any other means of communication which guarantee recording of the fact that the court summonses or notifications were received by the parties.
2. A court summons is a form of court notification. Parties are notified by court summonses of the date and place of a court hearing or of particular procedural actions...
3. A summons is to be served on parties in such a way [as to ensure] that they have enough time to prepare their case and to appear at the hearing.
4. A court notification, addressed to a party, is to be sent to an address indicated by that party or his/her representative. If a party does not reside at the indicated address, the court summons may be sent to his or her place of work...”
“1. Court summonses and notifications are to be sent by mail or delivered by a person whom the court authorises to deliver them. The time of service is to be recorded as laid down by post office regulations or on a document which is to be returned to the court.
2. With a party’s consent, a judge can serve him/her with summonses or notifications to be delivered to another party. A person authorised by the judge to deliver a court summons or another notification is to return a counterfoil of the summons or a copy of the notification bearing the addressee’s signature recording receipt.”
“1. A court summons ... to a person is to be served on him or her against his or her signature on a counterfoil of the summons, which is to be returned to the court...
...
4. If the current place of residence of an addressee is unknown, an entry to this effect is to be made on the court summons, showing the date and time of the attempted service and the source of the information.”
“Parties are to inform the court of any change in their address in the course of the proceedings. If no such notification is provided, court summonses or notifications are to be sent to the addressee’s last known address and are considered to be delivered even if the addressee no longer lives or resides there.”
“When a defendant’s place of residence is unknown, the court begins examination of a case once it has received information to that effect from the defendant’s last known place of residence.”
“1. Parties are to inform the court about the reasons for their absence and provide evidence confirming the validity of the reasons.
2. If a party to the case fails to appear and there is no evidence that the party was duly summonsed, the hearing is to be adjourned. If a party was duly notified of the date and place of a court hearing, the hearing is to be adjourned if the court considers that the reason for the absence is valid.
...
4. A court can examine a case in the absence of a defendant duly notified of the date and place of a court hearing if he/she did not provide valid reasons for his/her absence and did not ask the court to adjourn the examination of the case.
5. Parties can ask a court to examine a case in their absence...”


ITEMID: 001-98811
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: STAPLETON v. IRELAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Robert Stapleton, is an Irish national born in 1943. He did not communicate his current address to the Court. He was represented before the Court by Mr E. Gillet, Ms L. Levi and Mr S. Engelen, lawyers practising in Brussels.
2.
3. The applicant lived in the United Kingdom until 1985, when he and his family took up residence in Spain. In the early 1990s the family moved to France and, in 1994, to Ireland. A magistrates’ court in the United Kingdom issued a warrant for the applicant’s arrest on 15 January 2004, following which the United Kingdom (“the issuing State”) issued a European arrest warrant on 29 July 2005. The warrant concerned thirty charges of fraud allegedly committed by him between 1978 and 1982. The United Kingdom authorities maintained that they did not know of the applicant’s whereabouts until 2001.
4. On 14 September 2005 the Irish police (Ireland being “the executing State”) arrested the applicant pursuant to the European arrest warrant. He was released on bail on 16 September 2005. In defence of the surrender proceedings before the Irish High Court, the applicant argued that the European arrest warrant was not in accordance with the law, did not contain offences corresponding to those in Ireland, that his surrender was prohibited by section 37 of the European Arrest Warrant Act 2003 (“the 2003 Act”) as it would be incompatible with Articles 3 and 6 of the Convention, and that the delay in pursuing charges undermined his capacity to defend himself and breached section 40 of the 2003 Act.
5. By a judgment dated 21 February 2006, the High Court accepted the applicant’s argument that the delay at that stage (of up to twenty-seven years) had been such as to create a real risk that the applicant would not receive a fair trial, so that his surrender had to be refused in accordance with section 37 of the 2003 Act. The remaining grounds were rejected on their merits, except the ground concerning section 40 of the 2003 Act which it found was unnecessary to examine.
6. As regards the delay, the Irish High Court found that, pursuant to section 37 of the 2003 Act, the applicant enjoyed a Convention and constitutional right to a trial within a reasonable time, a right he was entitled to rely on and:
“... have protected on the first occasion on which it becomes relevant for argument, and it is not a matter to be postponed so that it can be ventilated at some date in the future in another country, and after the [applicant] has been returned in custody to that place. Section 37 of the 2003 Act mandates that this court shall not order the surrender of a requested person if to do so would not be compatible with this State’s obligations under the Convention or its Protocols or would constitute a breach of any provision of the Constitution. Under each instrument the [applicant] enjoys the right to a trial in due course of law, including within a reasonable period of time. There is in my view no meaningful distinction to be drawn between surrendering the respondent to the requesting State to face a trial which would be either unfair or not within a reasonable time, and him actually facing such a trial.”
7. Moreover, the Irish High Court found that it was in just as good a position as the United Kingdom courts to determine whether the applicant could receive a fair trial after such a lapse of time since that assessment was considered on the balance of probabilities. The applicant’s case was unique: even with the greatest expedition thereafter he was likely to stand trial thirty years after the alleged offences at the earliest. There came a time, in the High Court’s view, when no matter who was responsible for the major part of the delay, the lapse of time had to give rise to an assumption of prejudice, even if a court were to conclude that the assertion of actual prejudice was weak. Where the Irish High Court was in a position to conclude that no person could be expected to defend himself adequately after such a period of time (excluding sexual offences to which special considerations applied), it would be incompatible with the State’s obligations under the Convention for it to order his return to the issuing State in the hope that his rights would be vindicated there. Indeed, the High Court was not convinced that the applicant had the same probability of staying his proceedings in the United Kingdom as he would have in Ireland because, if his absence from the United Kingdom could be interpreted as a delay imputable to him, he was unlikely to succeed in his application in the United Kingdom to stay the proceedings. The jurisprudence of the British courts which had been opened to the Irish High Court indicated that there was not the same regard for a free-standing right to an expeditious trial in the United Kingdom even in the absence of actual prejudice. The High Court went on:
“I cannot accept that the rights of the [applicant] under the Constitution would not be contravened by his being surrendered at this point in time to face trial on these charges, and I do not believe that it would be appropriate to expose him to the hazard that his rights might not be vindicated there in the same manner in which they would in my view in this jurisdiction. That is not an indication in any way that this court does not have the high level of confidence in the neighbouring jurisdiction which is referred to in the [Council] Framework Decision [2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between member States – “the Framework Decision”]. That aspiration, if I can call it that for the moment, was not sufficient for the Oireachtas to decide that it was unnecessary to enact section 37 of the 2003 Act. The Framework Decision itself states that it respects fundamental rights, and that it does not prevent member States from applying its constitutional rules of, inter alia, due process. I do not read that as being confined to the process of extradition, especially when read in conjunction with section 37.”
8. Since the High Court operating under the 2003 Act could not be constrained by prior extradition jurisprudence, the alleged excessive delay was to be considered under broad constitutional principles and not to be confined to whether it had been shown that an order to surrender would be “unjust, invidious or oppressive”. The High Court continued:
“In my view the length of the lapse of time, as I have already stated, is so long, including a period from at least 1994 to 2005 when the respondent was living in this country and for which I regard the authorities in the United Kingdom to be very largely to blame, that all other considerations which may be laid against the respondent pale into insignificance. There comes a time, and twenty-eight years since the date of alleged commission of a fraud is within this concept, that it must be presumed that it is simply not possible to guarantee a fair trial, no matter how assiduous the trial judge may be to ensure that the jury is appraised [sic] and properly instructed as to the potential for delay to dull the memory and prevent the marshalling of evidence.
No trial after twenty years can be a trial within any concept of reasonable expedition, even allowing for the time in Spain up to 1993/1994. But that apart, it must be assumed in a case of this kind, and in the light of the evidence set forth by the respondent in his affidavits, that memories of detail will have faded if not disappeared, and this will apply equally to any witness who may still be available to be called either by the prosecution or by the respondent. He has sworn that certain witnesses are deceased or their whereabouts are unknown to him. He must be given the benefit of the doubt in this regard. ... There is evidence ... that files are by now destroyed.
But even if actual prejudice was not established to the required degree, and I lean in favour of the view that it has been, I am completely satisfied that the lapse of time since 1978/1982 to the present time and any further date at which a trial would likely take place, goes way beyond any time by which a fair trial within a reasonable time can take place in respect of these offences. This is not a case in which the time question is in any way marginal. It can be presumed that the respondent is prejudiced, and the sheer length of time which has passed renders to a large extent irrelevant the allegation that the respondent may have deliberately absented himself from the United Kingdom around 1984/1985 in order to escape the attentions of the authorities arising from the liquidation of his companies.”
9. The Supreme Court disagreed and allowed the appeal by judgment dated 26 July 2007. It identified the essential issue as being the extent to which the Irish courts should apply their own case-law as regards delays in criminal proceedings in the context of surrender requests. The parties agreed that section 40 of the 2003 Act was not relevant as it applied to charges that were statute-barred, which was not the case in the present proceedings.
10. The Supreme Court, referring to the case-law of the Court of Justice of the European Communities, noted that it had to interpret section 37 of the 2003 Act so far as possible in the light of, and so as not to be in conflict with, the provisions of the Framework Decision (Case C-105/03, Pupino [2005] ECR I-5285). The cornerstone of the entire system was the principle of mutual recognition of judicial decisions and mutual trust of the legal systems of the other member States. There was no relevant distinction between the applicable Convention and constitutional provisions, both referring to the right to a fair trial.
11. Article 1 § 3 of the Framework Decision, read with the recitals thereto (notably recitals 6 and 10) as well as Article 6 §§ 1 and 2 of the Treaty on European Union (as interpreted in Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633) meant that the courts of the executing State, when deciding whether to make an order for surrender, had to proceed on the assumption that the courts of the issuing State were obliged to respect Convention rights. The High Court was mistaken in considering that the applicant was entitled to have his right to a speedy trial considered on the “first occasion”, namely, in the Irish Courts. The High Court was also mistaken as to the identified possible differences between the level of protection in the British and Irish jurisdictions as regards speedy trial and, indeed, in seeking parity of criminal procedure in the receiving State: the Supreme Court could not see that any differences discerned by the High Court between the right to seek a prohibition of trial in the British and the Irish courts could amount to an infringement of the right to a fair trial, or fair procedures, whether by reference to the Convention or to the Constitution. It continued:
“[t]hey certainly did not amount, as per criteria established in prior Irish case law, to ‘a clearly established and fundamental defect in the system of justice of [the] requesting State’.”
12. The Supreme Court found that on the facts of the case, the applicant could seek a remedy in the United Kingdom based on the very long period of time which had elapsed since the alleged commission of the offences. Moreover, it would be demonstrably more efficient and appropriate for this to be done in the State where the prosecuting and police authorities, witnesses and material evidence was more readily available and where points of British domestic law (jurisprudential or otherwise) could be relied upon more advantageously. Accordingly, the High Court had erred in refusing the applicant’s surrender.
13. While it was not strictly necessary to rule on the effect of the applicant’s “very substantial contribution” to the lapse of time, the Supreme Court found, inter alia, that the major part of the delay was from 1985 to 2001 when the applicant was absent from the United Kingdom and his whereabouts were unknown to the British authorities. The applicant, in its view, bore entire responsibility for that delay. On this basis alone the Supreme Court would have rejected the applicant’s opposition, based on the delay to date, to his surrender.
14. The Supreme Court therefore made an order for the applicant’s surrender to the British authorities.
15. Before the applicant could be surrendered by Ireland to the United Kingdom he absconded. His current whereabouts are unknown but he is represented by the above-mentioned lawyers practising in Brussels, who submit on his behalf that he cannot return to Ireland where his family resides because he would be arrested and surrendered to the United Kingdom.
16. Following the receipt of the applicant’s request for an interim ruling under Rule 39 of the Rules of Court to prevent his extradition to the United Kingdom, on 21 December 2007 the President of the Fourth Section of the Court decided that the request did not fall within the scope of Rule 39 and refused the interim measure requested.
17. Article 6 §§ 1 and 2 of the Treaty on European Union provide as follows:
“1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the member States.
2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the member States, as general principles of Community law.”
18. The Framework Decision provides for the execution in any member State (“the executing State”) of a judicial decision made in another member State (“the issuing State”) for the arrest and surrender of a person for the purpose of criminal proceedings (or the execution of a custodial sentence). The Preamble to the Framework Decision provides in its relevant parts as follows:
“Whereas:
...
5. The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.
6. The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the ‘cornerstone’ of judicial cooperation.
...
8. Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the member State where the requested person has been arrested will have to take the decision on his or her surrender.
...
10. The mechanism of the European arrest warrant is based on a high level of confidence between member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the member States of the principle set out in Article 6 § 1 of the Treaty on European Union, determined by the Council pursuant to Article 7 § 1 of the said Treaty with the consequences set out in Article 7 § 2 thereof.
...
12. This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.
This Framework Decision does not prevent a member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.”
19. The relevant parts of Article 1 provide as follows:
“...
2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.”
20. The 2003 Act was enacted to give effect to the Framework Decision. Section 37 is entitled “Fundamental rights” and section 37(1) reads in its relevant part as follows:
“A person shall not be surrendered under this Act if:
(a) his or her surrender would be incompatible with the State’s obligations under:
(i) the Convention; or
(ii) the Protocols to the Convention;
(b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the reason that the offence specified in the European arrest warrant is an offence to which section 38(1)(b) applies);
...”


ITEMID: 001-85720
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FERENCIC-STOILOVA v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Ms Jasna Ferenčić-Stoilova, is a Croatian national who lives in Zagreb. She was represented before the Court by Mr M. Sučević, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
Following her dismissal from work in 1991, the applicant brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) against her former employer, “Alkaloid” Skopje, a pharmaceutical company with its headquarters in the Former Yugoslav Republic of Macedonia, seeking her reinstatement and payment of her salary for the period of her unemployment. At a hearing held on 24 January 1992 the counsel for the defendant company refuted the applicant’s submissions, relying, inter alia, on the defendant company’s Collective Agreement (hereafter “the Agreement”). The relevant part of the transcript of the hearing reads as follows:
“... The existing Collective Agreement between the firm ‘Alkaloid’ Skopje and its employees allows the employer to dismiss an employee who has not attained 85% of [required] working results.”
On 7 February 1992 the defendant company submitted a copy of the Agreement written in Macedonian and a translation into Croatian of pages 1, 13, 14, 37, 38 and 41. These pages contained translations of sections 1, 44, 45, 46, 47, 11, 112, 113, 119, 120, 121 and 122 of the Agreement.
At a hearing held on 30 June 1992 the Municipal Court issued a decision, the relevant part of which read as follows:
“...
Counsel for the plaintiff is invited to consult the original copy of the Collective Agreement, which was submitted as enclosure 5A in the case file no. PR-5149/91.”
It appears that neither the applicant nor her counsel made any comments on the Agreement.
On 1 March 1994 the applicant’s claims were accepted. However, upon an appeal by the defendant company, on 10 October 1995 the Zagreb County Court (Županijski sud u Zagrebu) quashed the part of judgment concerning payment of salary and upheld the part concerning the applicant’s reinstatement. The original proceedings were thus divided into two sets of separate proceedings.
In respect of the appellate judgment upholding the applicant’s reinstatement, the defendant company lodged an appeal on points of law (revizija) with the Supreme Court on 12 February 1996 challenging the lower courts’ judgment on the grounds of procedural defects and errors in applying the relevant substantive law, without relying in any respect on its Collective Agreement. The applicant filed her reply on 17 April 1996. The Supreme Court dismissed the defendant company’s appeal on points of law on 26 September 1996. However, upon a constitutional complaint by the defendant company, on 28 November 2001 the Constitutional Court quashed the Supreme Court’s decision and remitted the case to the Supreme Court.
On 15 October 2003 the Supreme Court reversed its previous decision and upheld the applicant’s dismissal. The relevant part of the Supreme Court’s judgment reads as follows:
“... section 123 paragraph 2 of the defendant’s Collective Agreement expressly provides that provisions [of the Employment Rights Act] concerning dismissal are not to be applied in cases where the employment has been terminated due to [the employee’s] inability to perform the duties of a certain post or failure to achieve the required working results.”
In a subsequent constitutional complaint the applicant argued, inter alia, that the Supreme Court had relied on the defendant company’s Collective Agreement although it had not been discussed in the proceedings before the lower courts (the trial and the appellate court) and she had therefore never had an opportunity to submit any comments on it, since the Supreme Court decided cases in closed sessions. A copy of the complete text of the Agreement had never been sent to her. On 8 December 2005 the Constitutional Court rejected the applicant’s complaint finding, inter alia, that the Agreement had been submitted by the defendant company in another set of proceedings between the same parties.
On 3 June 1998 the Zagreb Municipal Court gave a fresh judgment accepting the applicant’s claim.
The first-instance judgment was upheld by the Zagreb County Court on 7 March 2000.
In the course of those proceedings, on 5 April 2000 the defendant company filed a copy of the Agreement, translated into Croatian.
A subsequent appeal on points of law by the defendant company was declared inadmissible by the Supreme Court on 16 May 2002.
On 13 July 2004 the defendant company requested the Municipal Court to annul the stamped endorsement certifying final adjudication (hereinafter “the final adjudication endorsement” - klauzula pravomoćnosti) as well as the certificate on enforceability (potvrda ovršnosti) of the judgment of 3 June 1998. On 18 October 2004 the Municipal Court annulled the certificate on enforceability, but dismissed the request concerning the final adjudication endorsement. The applicant filed an appeal and on 27 March 2007 the County Court upheld the part of the first-instance decision dismissing the request that the final adjudication endorsement be annulled and quashed the part where the annulment of the certificate on enforceability had been granted. It remitted the case to the Municipal Court where the proceedings are still pending.
The relevant parts of the Civil Procedure Act (Official Gazette nos. Official Gazette nos. 53/91, 91/92 and 112/99 – Zakon o parničnom postupku) read as follows:
An appeal on points of law (revizija) shall be lodged with the court that adjudicated at first instance ...
The president of the first-instance court chamber shall forward a copy of a timely, complete and admissible appeal on points of law to the opponent, who shall file his or her reply within fifteen days ...
...
After the reply has been filed, or after the time-limit has expired, the first-instance court judge ... shall forward the appeal on points of law and the reply, if filed, together with the case file directly to the Supreme Court.
...
An appeal on points of law shall be decided upon without a hearing by the Supreme Court.


ITEMID: 001-101645
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ZUBAL v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The applicant was born in 1939 and lives in Bratislava.
6. On 20 June 2005 a judge of the Trenčín District Court issued a warrant for a search of the applicant's home under Articles 82 § 1 and 83 § 1 of the Code of Criminal Procedure.
7. The decision was issued at the request of a public prosecutor. It stated that criminal proceedings had been brought in January 2004 against several persons suspected of having produced and sold forged paintings. The applicant had bought one such painting in 2003. It was therefore considered likely that he had it in his house. Accordingly, there was a suspicion that there was an object on the premises which was important for the purposes of the criminal proceedings.
8. The police arrived at the applicant's house at 6 a.m. on 22 June 2005 to carry out the search. The applicant was on holiday in Egypt. His partner's son, who was eighteen years old, was present and, according to the police record, he was requested under Article 84 of the Code of Criminal Procedure to hand over the painting. He informed the police that the painting was unlikely to be in the house and expressed the view that it might be at the premises of the applicant's company, that is, at a different address. All the rooms of the applicant's house were visually searched between 6.10 and 6.45 a.m. by four policemen, in the presence of the applicant's partner's son and a third person who was not involved in the case. The painting in issue was not found.
9. Upon his return on 24 June 2005, the applicant complained to the Ministry of the Interior, the Ministry of Justice and the General Prosecutor's Office, alleging that the search had been inappropriate. He argued, in particular, that he had purchased the painting through an auction house and that it had been open to the prosecuting authorities to ask him for it. The search had interfered with his right to respect for his private life, as he had been on holiday and had had to make the necessary arrangements through his lawyer, and because his reputation had been compromised at his place of residence. The applicant also complained that the police had damaged his good name in that they had interviewed the employees of his company about his private collection of paintings.
10. On 20 July 2005 the applicant lodged a complaint with the Constitutional Court. Relying on Article 8 of the Convention, he argued that he was an injured party and that he had no interest in concealing the painting, which he had bought at an auction. He was himself interested in having its origin established. He would have cooperated with the prosecuting authorities if requested. However, those authorities had not contacted him prior to the search. The applicant alleged a breach of Article 84 of the Code of Criminal Procedure. He also complained that the police who had searched his flat had later attempted, without authorisation, to search his private art collection, which was held at a different location, and had interviewed the employees of the applicant's company, thereby damaging his good name and reputation.
11. On 9 August 2005 the police contacted the applicant and requested, under Article 78 of the Code of Criminal Procedure, that the painting be handed over to them. The applicant complied with the request immediately.
12. On 29 March 2006 the Constitutional Court dismissed the applicant's complaint on the following grounds. To the extent that the applicant complained about the warrant and the search, he should have sought redress within the framework of the criminal proceedings in which he had the standing of an injured party. The question of the justification for the search was within the scope of the powers of the criminal court dealing with the case. The applicant could have asked that court to conclude, in its reasons for the decision on the merits of the case, that the warrant and the search had breached his fundamental rights and freedoms. Such a finding would have entitled the applicant to claim damages under Act no. 514/2003, which governed liability for damage caused in the context of the exercise of public authority.
13. As to the complaint about the conduct of the police involved, the Constitutional Court held that the applicant should first have sought redress by means of a petition to a public prosecutor, pursuant to the Public Prosecution Act 2001.
14. In a letter of 28 June 2006 a public prosecutor of the General Prosecutor's Office concluded, in reply to the applicant's complaint, that the search had complied fully with the relevant law. The letter explained that a police operation had been planned for 22 June 2005, in the context of which the suspected persons had been arrested and their homes searched. For tactical reasons, the police had planned to secure all of the paintings presumed to have been forged on the same day. The search had consisted of a purely visual examination of the premises. It had been necessary as there had been a risk that the injured parties would refuse to hand over the paintings to the prosecuting authorities. In particular, they might have denied ownership of the paintings after learning that they had been forged, out of fear that they would be unable to obtain compensation from the perpetrators.
15. On 21 December 2006 the investigator concluded that no offence had been committed and discontinued the criminal proceedings concerning the alleged forgery of works of art. On 29 December 2006 the applicant lodged a complaint against that decision. He withdrew his complaint on 15 January 2007.
16. On 8 February 2007 the Trenčín Regional Prosecutor's Office ordered that new criminal proceedings concerning forged paintings should be brought in the same context. In a decision of 9 March 2007 the police started these proceedings. A witness was heard on 25 June 2007. On 29 June 2007 the criminal proceedings were stayed as no facts had been established that could have led to the prosecution of a specific person.
17. The following provisions of the Code of Criminal Procedure are relevant to the present case.
18. Article 78 § 1 states that all persons who are in possession of an object which is important for the purposes of criminal proceedings are obliged to show it to the investigator or police. Where it is necessary to secure such an object for the purposes of the criminal proceedings, the person in possession of the object must hand it over to the authorities in charge of the case.
19. In the event of a refusal, the authorities are entitled to seize the object, subject to approval by a judge, or a public prosecutor in preliminary proceedings (Article 79 § 1).
20. Pursuant to Article 82 § 1, the search of a person's home is permissible where there is a justifiable suspicion that an object which is important for the purposes of criminal proceedings is located therein or that a person suspected of an offence is hiding there.
21. Under Article 83 § 1, the search of a person's home must be ordered by a judge. The warrant must be issued in writing and indicate the reasons. It must be served on the person whose premises are to be searched. If it is not possible to do so immediately, the warrant must be served within twenty-four hours of the removal of the obstacle preventing the service of the warrant.
22. Article 84 allows for the search of premises only when it has been impossible to attain the purpose of the search by means of a prior request addressed to the person whose premises are to be searched.
23. Article 85 § 1 requires that the person whose premises are to be searched, or an adult member of his or her household, should be allowed to be present during the search. Pursuant to paragraph 2 of Article 85, the presence of a third person without any involvement in the case should also be ensured during a search.
VIOLATED_ARTICLES: 8


ITEMID: 001-91333
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MIKA v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Arunas Mika, is a Lithuanian national who was born in 1970 and lives in Kaunas, Lithuania. He was represented before the Court by Mr P. Haglund, a lawyer practising in Falköping, Sweden. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
2. The applicant went to Sweden during the summer of 2004 and started work at a factory in Jössefors. A woman, K., worked for another company but in the same factory building.
3. In the evening of 22 September 2004, K. went to the factory to carry out some extra work. At around 10.30 p.m. the alarm in the factory was activated and a security guard arrived a few minutes later. He found K. walking around, very distressed, and she told him that she had been raped. He alerted the police and called for an ambulance which took K. to hospital, after she had made a formal report to the police.
4. At the hospital K. was examined and marks on her arms were documented and photographed. A medical certificate, written by the chief physician, stated that K. had no injuries to her head or face but that she had some bruises and sore points on her arms. No injuries were discovered during the gynaecological examination. From notes made by a counsellor at the women’s clinic, who met with K. the same evening, it appeared that she had been very sad and had had difficulties eating but that she had wished to leave the hospital to go home to her daughter.
5. On the following day, the applicant was picked up by the police and questioned at the police station. The police photographed him and told him that something had happened to a woman at the factory the previous evening and he replied that he knew nothing about it. Other persons were also questioned about the incident.
6. On 24 September 2004 K. was questioned by the police about the incident and stated inter alia the following.
7. It had been her birthday on 22 September and she had been celebrating it during the day with her partner, C. They had eaten, drunk some alcohol and had had unprotected intercourse. At around 8.30 p.m. she had gone to the factory to control a machine which needed to be checked from time to time. When she had entered the factory premises, she had not seen anybody but she had noticed that there were lights on in one of the halls. She had started to work and after a while she had heard a male voice say “hello” to her. She had turned around and said hello to the man and had then turned back to face the machine. The man had grabbed her from behind and forcing her to hold still by taking a strong hold of her right arm and, using the weight of his body, had raped her. She did not know whether he had ejaculated in her but she did not think so. She had tried to kick and hit him and suddenly he had let go of her and had walked away, without uttering a word. She had recognised the man, since she had seen him 10 days earlier in the factory. She described him as having short black hair, no beard, about 180 cm tall and of average build. She estimated that he was around 30 years old but did not remember what he was wearing. However, he had carried a bag which was coloured pink, green and grey. After the man had left, she had started looking for a telephone in a state of panic and the alarm had gone off. She had run out of the building and a security guard had arrived and helped her.
8. On the same day, 24 September 2004, the police also showed K. photographs of different men and she claimed to be “quite sure” that she recognised her assailant, pointing at a photograph which was not that of the applicant.
9. During the night of 28 September 2004 K. committed suicide by taking an overdose of medication mixed with alcohol. C. found her in their home.
10. Almost one year later, on 12 September 2005, the applicant was arrested and, on 29 September 2005, the prosecutor pressed formal charges against him for rape. According to the indictment, in the evening of 22 September 2004 the applicant had been on the factory premises and there he had, by the use of physical violence, forced K. to have intercourse with him. The prosecutor invoked various written evidence, including the medical certificate and the notes made by the counsellor (see above § 4), and requested that some witnesses be heard. Moreover, because K. was dead, the prosecutor invoked, with reference to Chapter 35, section 14, of the Code of Judicial Procedure (Rättegångsbalken), the written statement given by K. to the police on 24 September 2004.
11. The applicant denied the charge. He admitted that he had been working at the factory on 22 September 2004, but maintained that he had stopped working before 10 p.m. and had then cleaned up, taken a shower and left. He had put his work clothes in a plastic bag. He had seen no one in the premises of the building when he had left and it had been dark everywhere. He could not say whether there had been lights on in the hall where K. supposedly had been working, since the door to that hall had been closed.
12. After his arrest, a blood sample had been taken from the applicant and matched with sperm which had been found in K.’s underwear and her vagina after the rape. The DNA-test revealed with certainty that the sperm came from the applicant and not from C.
13. When confronted with this information, the applicant told the police that he had had intercourse with a woman unknown to him one or two days before 22 September 2004. He alleged that he had taken refuge in a bus shelter as it had started raining and that a woman with a dog had come up to him and started talking in Swedish. She had smelled of alcohol and, without further ado, she had sat down on top of him, unbuttoned his trousers and her own and they had had unprotected intercourse. She had then got up and left. It had all happened very quickly and he had been left bewildered. The reason why he had not recounted this incident before was that his family was about to arrive from Lithuania and he had been afraid that his wife would find out about it. Moreover, the police had not asked him about his private life during the previous interrogations and he had not known K. or who she was.
14. During the trial before the District Court (tingsrätten) in Värmland, the applicant was heard. He maintained his innocence and repeated what he had told the police during the interrogations. He further added that, when he had left the factory in the evening of 22 September 2004, he had been carrying his work clothes in a plastic bag. He did not own a bag like the one described by K. to the police. However, a work colleague had a bag similar to the one described. The applicant also stated that he had been married for 14 years and that his wife and two children had joined him in Sweden in November 2004.
15. Moreover, C., K.’s partner, testified during the trial, as did the security guard who had found K. and the counsellor from the women’s clinic. Upon request by the applicant, a forensic biologist working at the National Laboratory of Forensic Science (Statens kriminaltekniska laboratorium) also gave evidence, informing the court that, 3 to 5 days after intercourse, sperm still found in the vagina could be used to carry out a DNA-test. If a woman had been with two men, it was unlikely that DNA from only one of the men would show up on a test. Still, if DNA from only one man was found, it was not probable that the woman had had completed intercourse with someone else after the intercourse with the man whose DNA had been identified.
16. The District Court further visited the factory to see where the alleged rape had taken place.
17. On 20 October 2005 the District Court convicted the applicant of rape and sentenced him to two and a half years’ imprisonment and expulsion from Sweden with a prohibition on returning before 20 October 2010. In its judgment it held, inter alia, the following:
“It has been rendered difficult to evaluate the injured party’s statement since she could not be heard before the District Court. This does not prevent the statement, together with the other parts of the investigation, from constituting sufficient evidence of the rape having occurred. In the opinion of the District Court, the content and degree of detail of the statement are such that there is no reason to doubt the veracity of the information regarding the rape. That [K] has been subjected to abuse is further supported by what [C], [the counsellor] and [the security guard] have said about her reactions at different stages following the abuse. The medical certificate further confirms the account [K] has given about how she was physically attacked, that is, by the attacker, among other things, having taken a strong grip on her arm. The District Court finds no motive for why [K] would falsely claim to have been the victim of a crime. Neither is there any other reasonable explanation for why she would make a false statement in this regard. Thus the District Court finds that [K] was subjected to rape as she reported and as set out in the charge.
Turning to the question of [the applicant’s] guilt, the District Court makes the following assessment. Through the analysis by the National Laboratory of Forensic Science of the existence of sperm in [K’s] vagina and underwear, it must be taken as proven that the sperm came from [the applicant]. This, in turn, proves that [the applicant] had sexual intercourse with [K]. [The applicant] has claimed that he had sexual intercourse in a bus shelter with an unknown woman, who must have been [K], one or two days prior to the rape in question. Any questions to her concerning the alleged intercourse have not been possible. The information on how this sexual intercourse came about is in itself highly improbable. In addition, it is remarkable that [the applicant] did not mention the intercourse with the other woman until he had been informed about the results of the analysis by the forensic laboratory.
According to [K], [C] had an orgasm during their sexual intercourse earlier on the day of 22 September 2004. This is confirmed by what [C] said during the police interview on 11 November 2004. From the account given by [the forensic biologist], it can be concluded that, due to the fact that no sperm from [C] was found in [K], it is not likely that completed sexual intercourse took place between them after sexual intercourse between [K] and [the applicant] had occurred.
At a photograph confrontation on 24 September 2004, that is, two days after the rape, when she was asked to point to the photographs of her assailant, [K.] pointed out a man who was not [the applicant] and said that she was quite sure about her observation. This circumstance suggests, in effect, that [the applicant] is not the perpetrator. However, circumstances do not suggest that the person whose photographs [K] singled out has anything at all to do with the rape or any connection with the premises in question. [K] further stated during the police interview that she had recognised the man who had raped her as she had seen him in the factory on 12 September 2004 and that [C] had told her that the man was “Estonian” and worked in [the] factory in Jössefors. During the questioning of [C], he confirmed that [K] told him that it was one of two foreign men working at the [factory] that had raped her.
The District Court finds, through the information given by [K] and [C], that [K] had the impression that her assailant was a person she had seen previously in the building, who worked there and who had been looking at her also on 12 September 2004. It should be noted that this information is in accordance with the information provided about [the applicant’s] working hours on 12 and 22 September 2004. The District Court further notes that the description [K] gave the police of the perpetrator’s physical appearance and age corresponds well to [the applicant’s] physical appearance and age. [K’s] identification of another man’s photos at the photograph confrontation has, against this background, certainly importance but not decisive importance for the case.
The District Court considers the statements by [K] and [C], about completed sexual intercourse between them in the daytime of 22 September 2004, to be reliable. The above-mentioned assessments by [the forensic biologist], [at] the National Laboratory of Forensic Science, regarding the presence of sperm in [K’s] vagina, therefore contradicts the assertion that [the applicant’s] sexual intercourse with [K] had occurred before the completed sexual intercourse between [K] and [C]. The fact that sperm from [the applicant] was found in her underwear also contradicts this. Correspondingly, the circumstances supports that the sexual intercourse between [K] and [the applicant] was the last sexual intercourse which she had before the police arrived at the scene of the reported rape and, thus, that he committed the rape.
The circumstances outlined above, taken together with [the applicant’s] totally unlikely account of sexual intercourse in the bus shelter, lead the District Court to find no reasonable doubt that he is the person who committed the rape in question. The charge is thus proven.”
18. As concerned the expulsion order, the District Court noted that the applicant had only been in Sweden for about 15 months and his family not even for one year. His two children went to school in Sweden, but the oldest had already attained majority. Thus, since the crime of which the applicant had been convicted was of a serious nature, and he had only been in Sweden for a limited time and would be able to keep in close contact with his family, it was justified to expel him for a fixed period of five years. Moreover, in deciding the two years’ imprisonment, the court took into account the detriment caused to the applicant by the expulsion and reduced the normal prison sentence accordingly.
19. The applicant appealed against the judgment to the Court of Appeal (hovrätten) of Western Sweden, claiming that he was innocent and that he had not been given a fair trial since K. was dead and he, or his lawyer, had therefore never had the opportunity to put questions to her during the preliminary investigation or to cross-examine her during the trial. In this respect, he noted that almost eleven months had passed between the alleged rape and the investigation leading to his arrest and pointed to several discrepancies in K.’s testimony to the police. In particular, he pointed to the fact that she had not identified him during the photograph confrontation even though his photograph had been taken the day before and he was the only one with a moustache. Since he had not had the opportunity to question her many doubts remained and, in these circumstances, his possibilities to defend himself properly had been impaired.
20. On 16 December 2005, after having heard the applicant and all the witnesses whom had been heard before the lower court, as well as one more witness heard upon request by the applicant, the Court of Appeal upheld the lower court’s judgment in full, with the exception that it prolonged the applicant’s prohibition on returning to Sweden until 20 October 2015. It found that, on the basis of the evidence been presented to it, there was no reason to make a different evaluation concerning the applicant’s guilt and the seriousness of the crime to the one made by the District Court. As concerned the expulsion order, the court considered that the applicant and his family had a relatively limited connection to Sweden as they had been in Sweden for only about one year. Thus, since the applicant had committed a very serious crime, the prohibition on returning should be extended from five to ten years.
21. The applicant appealed to the Supreme Court (Högsta domstolen), maintaining that he had not benefited from a fair trial since he had been deprived of his right to question the victim and thereby properly defend himself. He further wished the Supreme Court to establish how much weight could be attached to the statement of a victim who had died before the defence had had a chance to question him or her.
22. On 1 February 2006 the Supreme Court refused leave to appeal and, on 12 May 2007, the applicant was expelled to Lithuania.
23. Proceedings before the general courts in criminal cases are mainly governed by the 1942 Code of Judicial Procedure (rättegångsbalken; hereafter “the Code”), with amendments.
24. Chapter 35, section 1, of the Code states that when the court is to adjudicate the facts of a case, it shall carefully evaluate everything that has occurred and determine what has been proved. This provision reflects the principle of free submission and evaluation of evidence (principen om fri bevisföring och bevisvärdering) which prevails in Swedish procedural law. It means that, as a main rule, there are no restrictions in law on the submission and evaluation of evidence. Thus, anything that may be of value as evidence in a case may, in principle, be presented during the main hearing. There is, for example, no prohibition against using hearsay evidence. However, the circumstances under which evidence has been collected or given will have an influence on the way in which it is evaluated. The item of evidence to be used shall generally be that which guarantees the most secure proof, in the doctrine referred to as “the principle of the best evidence” (principen om bästa bevismedlet). Consequently, witnesses and injured parties shall normally give evidence during a court hearing, rather than the court reading the statements made during the preliminary investigation, to enable the parties to pose questions and scrutinise the statements more closely. This also improves the court’s ability to assess their credibility and reliability and, thereby, to render a correct and well-founded judgment. Hence, Swedish procedural law (Chapter 35, section 8, of the Code) presumes that a criminal case is adjudicated after a main hearing which the defendant, witnesses and the injured party are summoned to attend and it allows for the use of written testimonies and the reading of statements made during the preliminary investigation only in a few, specific situations.
25. Thus, Chapter 35, section 14, of the Code stipulates that a statement made to the police or to the prosecutor or otherwise out of court may be used in evidence in a trial only if this is specifically prescribed, if the person who has submitted the statement cannot be heard before the court or if there are particular reasons for the statement to be relied on, regard being had to the costs or inconvenience that a hearing before the court may entail on the one hand and the advantages of a hearing before the court, the importance of the statement and all other relevant circumstances on the other hand.
26. On a few occasions the Supreme Court has examined the question of evaluation of evidence in the light of Article 6 of the Convention in cases where the prosecutor’s indictment has been based to a large extent on statements from witnesses or injured parties who have not been heard by the court. In such situations, the Supreme Court has stated that the fact that the court has not had the opportunity to assess the credibility and reliability of a witness or an injured party, and that the accused has not been able to question that person, ought to entail that the statements are examined and evaluated with particular caution. Furthermore, the Supreme Court has found that it is of great significance whether the written statements have constituted the principal evidence against the defendant or whether his or her conviction has been supported by corroborative evidence (see, for example, NJA 1991 p. 512 I and NJA 1993 p. 616). Moreover, in the case NJA 1992 p. 532, the injured party had not attended the main hearing but the Court of Appeal had considered that the information submitted by the injured party to the police had to be given credit and therefore convicted the defendant of robbery. The Supreme Court, on the other hand, emphasised that Article 6 of the Convention and its application and interpretation was of major importance in respect of the application of Chapter 35, section 14, of the Code. Thus, in the light of the Court’s case-law, the Supreme Court found that that provision of the Code should be applied more restrictively than was called for by its wording and what appeared to be the original intentions behind the provision. According to the Supreme Court, the lower courts had applied the provision in such a way that the defendant had not been afforded a fair trial in accordance with the Convention and therefore referred the case back to the Court of Appeal for re-examination.


ITEMID: 001-85370
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: D. AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants, all United Kingdom nationals, are:
D., born in 1954 and living in Slough;
RK, born in 1972 and AK born in 1976, husband and wife who live in Oldham.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicant gave birth to her son M. on 18 November 1988. From birth he suffered from severe allergy problems, including an allergic reaction to bottled milk within a few hours of birth.
In August 1989 M. was seen by a consultant paediatrician who diagnosed him as suffering from allergies.
At five months and nine months M. reacted to his first and second immunisations.
In early 1990, M. was seen by Professor Strobel at Great Ormond Street Hospital. It was noted that he had severe allergic reactions including urticaria, severe reactions after vaccinations and anphylactic reaction to cow’s milk.
On 6 June 1990 Professor Strobel reviewed M., confirming the diagnosis of atopy and food allergic disease.
On 16 July 1990, M. was admitted as an emergency to hospital having had a convulsion and suffering from pyrexia.
On 23 August 1990 M. was admitted to hospital after a febrile convulsion.
On 29 October 1990, he was admitted to Great Ormond Street for introduction of foods on an inpatient basis. He was noted to have urticarial reactions and episodes where his behaviour became uncontrollable for half an hour or so after eating.
Further admissions to hospital took place on 23 November 1990 (problems in tolerating wheat), on 1 September 1991 (anaphylactic attack after eating chocolate), April 1991 (for treatment for eczema), 26 February 1992 (multi-allergy syndrome and asthma), 3 August 1993 (for his third immunisations, developing urticaria, oedema and itching) and 12 December 1994 (concerns about hypothermia). M. was described by one doctor as the most allergic patient he had had ever known.
On 15 December 1994, while M. was still in hospital, he was seen by Professor Southall who made the diagnosis that D. was fabricating M.’s illness. D. was not told this or invited to discuss the possibility.
Although M. was discharged from hospital, the social services were contacted and concerns expressed that D. could be exhibiting FII (fabricated or induced illness). It was requested that D. not be told of this.
On 6 March 1995 the social services held a strategy meeting attended by Professor Southall, the police, representatives of the hospital and social services. Following the meeting, Professor Southall referred M. to Professor Warner for blood samples and testing, stating that in his view factitious illness was being imposed on top of real illness. Professor Strobel wrote to Professor Southall considering that the wording was too strong and that there was no doubt that M. was atopic and food allergic in general.
In June 1995 Professor Southall proposed that M. be admitted to the Burlesdon Unit, going home only on the weekends. D. was given no explanation as to the reasons why this was being suggested and was concerned that M. would be unable to cope. She refused to agree to the admission. Professor Southall contacted the social services suggesting that a child protection conference be convened.
On 4 September 1995, with D.’s agreement, M. was admitted to Great Ormond Street on the suggestion of Professor Strobel for food challenges to be undertaken and for treatment of eczema.
On 24 October 1995 a meeting was held at the hospital attended by various professionals but not D. Concerns about possible exaggerated reporting by the mother were raised.
D. found out about the meeting later and was noted to be upset, believing that she was no longer believed or trusted.
Further admissions followed during 1996, following reactions to various foodstuffs. A social work summary dated 3 June 1996 indicated that there were no incidents of fabrication of symptoms but that there were concerns about the mother’s exaggerated or dramatic reporting of symptoms.
On 10 December 1996, Dr Whiting took over as community paediatrician for the NHS Trust and she concluded after one meeting with D. and M. that M. had only minor allergies and was at risk from the mother. She contacted Professor Southall, who had not seen M. for two years; they agreed that a professionals’ meeting should be called.
On 6 March 1997, a professionals’ meeting took place in hospital, without the parents. There was a conflict of view as to whether the parents should be informed of concerns. A meeting took place on 13 March 1997 with the parents at which concerns were expressed about the degree of M.’s allergies and the need for independent assessment. M.’s parents considered that he was doing well at the moment. While they would not agree to admission to Professor Warner’s unit, D. accepted that he be admitted to Great Ormond Street and that she leave him during the day. Shortly afterwards, on reading a letter in M.’s medical records, D. became aware that she was suspected of FII.
On 21 March 1997, D. visited the Burlesdon unit but continued to refuse to agree to M.’ s admission as in her view it did not have facilities to cope with a full anaphylactic reaction and she was concerned for his safety.
In April the parents were warned that a care order was being considered. D. at her request was referred to a psychiatrist. This psychiatrist found no indication of any personality disorder but considered that important questions arose, including the extent to which D. misrepresented or colluded in symptoms.
A child protection conference was held on 2 June 1997, after which M. was placed on the at risk register under the category of emotional abuse. D. and M.’s father were present at the meeting.
On 17 June 1997 D. visited Professor Warner and agreed to medical assessment on an acute ward.
Following M.’s admission to hospital, Professor Warner gave his opinion on 16 September 1997 that M. suffered from extensive and severe allergies, including episodes of acute angio oedema urticaria and anaphylaxis. M. was removed from the at risk register on 29 September 1997.
On 2 December 1997, Professor Warner confirmed the diagnosis of extreme acute allergies and that the mother had not been fabricating his condition.
According to a medical report dated, 28 June 2000, D. had experienced a lengthy period of extreme anxiety and stress concerning her son because of his chronic ill health and life threatening condition, and that in addition she had been subject to the stress of accusations and investigations concerning the causes of his condition. It was noted that D. had been depressed, with loss of weight, sleep disturbance, tearfulness, withdrawal, loss of energy brief suicidal thoughts. Recommendations were made that she be helped by supportive counselling.
The applicant claimed that she had also been unable to return to her nursing career due to destroyed confidence and fear that accusations would resurface if anything went wrong. She depended on income support as a result.
On 16 March 2000, the applicant issued proceedings in negligence alleging a breach of duty by the various NHS trusts involved in the case and claiming compensation for personal injury and financial loss.
On 24 July 2002, the judge struck out the claim finding that public policy militated against any duty of care to D. The applicant appealed to the Court of Appeal.
These applicants had a daughter M. born on 24 July 1998.
On 26 September 1998, M. screamed with pain when picked up by the maternal grandmother. The parents and grandmother took M. to the hospital. The triage nurse made a note of information given by the family. That note stated that the mother, rather than the grandmother, had “yanked” M.
An x-ray showed a displaced slightly-comminuted fracture of the midshaft of the femur. While it was noted that there was no history of metabolic bone disease in the family, it was not noted that the parents were first cousins, an incident relevant to a possible genetic condition. Neither the mother nor grandmother spoke much English; no Pushtu interpreter was provided. A consultant paediatrician, Dr Blumenthal interviewed the parents and grandmother early in the morning the next day, again without an interpreter. He noted that none of them appeared to know how the injury had occurred. He concluded that it was an inflicted injury and told the parents this.
The police were informed. The parents were interviewed on 27 September 1998 by a social worker. He was unable to communicate with the mother due to language difficulties.
On 28 September 1998 the health visitor for the family was interviewed and stated that she had had no concerns with the family.
On 29 September 1998 the police interviewed the parents with an interpreter present.
On 30 September 1998, a social worker interviewed the family again and indicated that medical opinion was clear that M. could not have been injured by being picked up in the manner described by the grandmother. She warned that without a convincing explanation for the injury a child protection conference would have to be called.
On 14 October 1998, in light of the doctor’s conclusion of non-accidental injury (NAI), the Child Protection Conference decided to seek a second opinion but that meanwhile an interim care order should be obtained. Such care order was issued and parental responsibility given to the local authority on 16 October 1998.
On 23 October 1998, M. was discharged from hospital into the care of her aunt. The parents were allowed supervised contact.
The parents obtained legal advice and jointly instructed an expert, with M.’s guardian, inter alia, to clarify whether tests had been carried out to exclude brittle bone disease. However no further tests were carried out at this stage.
On 23 December 1998, the County Court judge found that the mother and grandmother were liars and knew more about the injury than they were prepared to reveal (they had given evidence through an interpreter which they allege was suspect) and that as the father was convinced of the innocence of his wife, he was disqualified as a person capable of protecting M. He ordered M. to be placed in care. M. remained with her aunt who lived a few hundred yards from the family home.
On 29 March 1999, M. sustained a second injury in her aunt’s care. Bilateral femoral fractures were found and following further tests she was diagnosed with osteogenesis imperfecta (“OI”, commonly known as brittle bone disease). Professor Carty and Dr Paterson were consulted at this time by Dr Blumenthal and inter alia did not find any ground for reaching a diagnosis of OI in preference to a non-accidental injury at the time of the first injury.
After discharge from hospital, M returned home in April 1999.
On 17 June 1999, the care order was discharged and M. returned to her parents.
The entire local community were aware that the family had been suspected of harming M. and the family had been extremely shocked and shamed. Rumours spread to Pakistan that the mother had been put in prison. The parents’ relationship with M. and with the grandmother have been severely affected and disrupted as a result of events.
On 24 September 2001 the parents brought claims for negligence and breach of their Article 8 rights against the hospital trust and the consultant paediatrician.
On 4 December 2002, the High Court found no duty of care was owed to the parents and that the Human Rights Act 1998 (“HRA 1998”) did not apply to events before it came into force on 2 October 2000. The parents appealed.
Leave to appeal to the Court of Appeal was granted in both cases.
On 31 July 2003, concerning the parents’ claims, the Court of Appeal held as regards allegations under Article 6 that no violation of this provision was involved, referring to Strasbourg judgments (Z. and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001V and T.P. and K.M. v. the United Kingdom ([GC], no. 28945/95, ECHR 2001V). It found that while domestic law now recognised that there was a duty of care in relation to children, whose best interests were always paramount, there was a potential conflict of interest between the child and the parents, as it would always be in the parents’ best interests for the child not to be removed. Where consideration was being given to whether child abuse justified measures, a duty of care could be owed to the child but not to the parents. It upheld the rulings of the various County Court judges as a result.
After a hearing on 31 January and 1 and 2 February 2005, the House of Lords gave judgment on 21 April 2005. They affirmed the orders made by the first instance judges and Court of Appeal. Lord Nicholls, in his judgment with which the majority agreed, found inter alia:
"70. There are two cardinal features in these cases. One feature is that a parent was suspected of having deliberately harmed his or her own child or having fabricated the child’s medical condition. The other feature, which is to be assumed, is that the ensuing investigation by the doctors was conducted negligently. In consequence, the suspected parent’s life was disrupted, to a greater or lesser extent, and the suspected parent suffered psychiatric injury.
71. It is the combination of these features which creates the difficult problem now before the House. In the ordinary course the interest of parent and child are congruent. This is not so where a parent wilfully harms his child. Then the parent is knowingly acting directly contrary to his parental responsibilities and to the best interests of his child. So the liability of doctors and social workers in these cases calls into consideration two countervailing interests, each of high social importance: the need to safeguard children from abuse by their own parents, and the need to protect parents from unnecessary interference with their family life.
72. The first of these interests involves protection of children as the victims of crime. Child abuse is criminal conduct of a particularly reprehensible character: children are highly vulnerable members of society. Child abuse is also a form of criminal conduct peculiarly hard to combat, because its existence is difficult to discover. Babies and young children are unable to complain, older children too frightened. If the source of the abuse is the parent, the child is at risk from his primary and natural protector within the privacy of his home. This both increases the risk of abuse and means that investigation necessitates intrusion into highly sensitive areas of family life, with the added complication that the parent who is responsible for the abuse will give a false account of the child’s history.
73. The other, countervailing interest is the deep interest of the parent in his or her family life. ... Interference with family life requires cogent justification, for the sake of children and parents alike. So public authorities, should, so far as possible, cooperate with the parents when making decisions about their children. Public authorities should disclose matters relied upon by them as justifying interference with family life. Parents should be involved in the decision-making process to whatever extent is appropriate to protect their interests adequately.
74. The question raised by these appeals is how these countervailing interests are best balanced when a parent is wrongly suspected of having abused his child. Public confidence in the child protection system can only be maintained if a proper balance is struck, avoiding unnecessary intrusion in families while protecting children at risk of significant harm... Clearly health professionals must act in good faith. They must not act recklessly, that is without caring whether an allegation of abuse is well-founded or not. Acting recklessly is not acting in good faith. But are health professionals liable to the suspected parents if they fall short of the standard of skill and care expected of any reasonable professional in the circumstances? Are they exposed to claims by the parents for professional negligence? ...
75. In considering these questions the starting point is to note that in each of these three cases... the doctors acted properly in considering whether the claimant parents had deliberately inflicted injury on the child in question. The doctors were entitled, indeed bound to consider this possibility. Further, having become suspicious, the doctors rightly communicated their suspicions to the statutory services responsible for child protection. That is the essential next step in child protection...
76. In each case the suspected parent was eventually cleared of suspicion. In one case this was after ten days, in the other cases after much longer periods. The second point to note is that, essentially, the parents’ complaints related to the periods for which they remained under suspicion. In each case the parent’s complaint concerns the conduct of the clinical investigation during these periods; the investigation, it is said, was unnecessarily protracted. The doctors failed to carry out the necessary tests with appropriate expedition. Had due care and skill been realised from the outset, the doctors’ suspicions would have been allayed at once or much more speedily than occurred, and, in consequence, the parents would have been spared the trauma to which they were subjected. Thus the essence of the claims is that the health professionals responsible for protecting a suspected child victim owe a person suspected of having committed a crime against the child a duty to investigate their suspicions, a duty sounding in damages if they act in good faith but carelessly.
77. Stated in this broad form, this is a surprising proposition. In this area of the law, concerned with the reporting and investigation of suspected crime, the balancing point between the public interest and the interest of a suspected individual has long been the presence or absence of good faith...
78. This background accords ill with the submission that those responsible for the protection of a child against criminal conduct owe suspected perpetrators the duty suggested. The existence of such a duty would fundamentally alter the balance in this area of the law. It would mean that if a parent suspected that a babysitter or a teacher at a nursery or school might have been responsible for abusing her child, the doctor would owe a duty of care to the suspect...
79... <Counsel> did not contend for such a broad proposition... His submission was more restricted.... That the health professionals’ duty to exercise due professional skill and care is owed only to the child’s primary carers, usually the parents, as well as the child himself. ...
80. My initial difficulty... is that the distinction between primary carers, to whom the duty would be owed, and other suspects to whom it would not, is not altogether convincing. It is difficult to see why, if a health professional owes no duty to a childminder or teacher suspected of abuse, he should nonetheless owe such a duty to a parent suspected of abuse. An erroneous suspicion that a childminder or school teacher had been abusing a child in his or her care can be very damaging to him or her. ...
81. There is, however, one major difference between parents and childminders or school teachers,. In the case of a parent suspicion may disrupt the parent’s family life. ... So the crucial question ... is whether this potential disruption of family life tilts the balance in favour of imposing liability in negligence where abuse by a parent is erroneously suspected...
...
85. In my view the Court of Appeal reached the right conclusion on the issue... Ultimately the factor which persuaded me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled ‘conflict of interest’. A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel ‘quite right’, a doctor must be able to act single-mindedly in the interests of the child. He ought not have to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent.
86. ... the seriousness of child abuse as a social problem demands that health professionals, acting in good faith in what they believe are the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused, or when deciding whether their doubts should be communicated to others, or when deciding what further investigatory or protective steps should be taken. The duty to the child in making these decisions should not be clouded by imposing a conflicting duty in favour of parents or others suspected of having abused the child. ..."