ITEMID: 001-102949
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF T.N. AND S.N. v. DENMARK
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 3 (in case of expulsion to Sri Lanka)
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicants were born in 1965 and 1979 in Sri Lanka. Currently they live at the Jelling Asylum Centre. They are of Tamil ethnicity.
6. On 14 September 2005, with valid passports and three month visas, the applicant spouses entered Denmark, where the applicant husband, TN's sister and brother lived permanently. His three other siblings lived elsewhere in Europe.
7. On 13 December 2005 the applicants requested asylum.
8. On 19 December 2005 they explained that they had never been arrested, politically active or involved in any conflict with the authorities. The applicants were married on 2 December 2004 and lived in Batticaloa on the east coast of Sri Lanka, where the applicant husband ran a fishing business and an electrical company, and had a good income. They lost their fishing boat and their house in the tsunami on 26 December 2004. Thereafter they lived with the applicant wife's parents. The applicants did not sympathise with the Tamil Tigers (LTTE) but the latter had sometimes forced the applicants to support them financially. After the applicants had left Sri Lanka, their motorbike had been confiscated by the Karuna group, which had stated that “they were waiting for the applicants”. The Karuna group, later known as the Tamil People's Liberation Tigers, (TMVP), was led by Karuna, a previous commander in the LTTE. Initially it was a paramilitary group that helped the Government fight the LTTE and later, in 2007, it became a registered political party.
9. On 22 December 2005 the applicant husband added that on 3 April 2005 he had been confronted by four unknown men, three of whom belonged to the Karuna group, who wanted information about his cousin, who was a member of the LTTE. Later in May 2005 two persons had tried to stop him on his motorcycle. On another day in May, he had been stopped on the street by two of the previously mentioned four persons, who again requested information about the cousin. This was the reason why the applicants had decided to go to Denmark.
10. On 16 January 2006 the applicant husband added that his home was searched on average once a month in a general way, whereby the whole village was surrounded and the whole population was gathered by the military who wanted to find out whether there were any LTTE members in the village. Every now and then he was taken away by the military. In 1988 he had been detained by the Indian Army for one night and his feet and hands had been tied. He was released after his eldest brother paid bail for him. In 1998 he was detained by the Sri Lankan Army for two nights, suspected of being a member of the LTTE. They hit his jaw, leaving a scar. Following mediation by members of Parliament, he was released together with nine other detainees. The applicant was not detained or illtreated by the authorities up to his departure in 2005. In September 2005 two persons had tried to stop him and his wife on their motorbike in a forest area in order to kill them, but they had managed to escape.
11. By decision of 19 April 2006 the Aliens Authorities (Udlændingestyrelsen, now Udlændingeservice) refused to grant the applicants asylum.
12. On appeal, during a hearing before the Refugee Board (Flygtningenævnet) on 14 August 2006 the applicant husband stated that he had been approached by the LTTE and asked to pay them money for the first time around 1996. All fishermen were to pay money to the LTTE. The latter would come to his home at one to three month intervals. After he lost his fishing boat in 2004 they stopped asking him for money. On 3 April 2005 he had been confronted by three men from the Karuna group and a Singhalese who beat him and forced him to admit that he had paid money to the LTTE. They also asked about the whereabouts of his cousin, who was a member of the LTTE at the relevant time. The last time he had seen his cousin was at his aunt's home in 2001, but only briefly, and they did not really talk to each other. The applicant did not like the cousin due to his connection with the LTTE. The applicant did not know where the cousin lived at the relevant time and the four men let him go. Later, in May 2005, two persons from the Karuna group, one of whom had taken part in the incident on 3 April 2005, stopped him and asked about his cousin's whereabouts and then let him go. In September 2005, two days prior to his departure, two unknown men had tried to stop him and his wife on their motorcycle, but they had managed to escape.
13. By decision of 14 August 2006 the Refugee Board confirmed the Aliens Authorities' decision of 19 April 2006 that the applicants failed to fulfil the criteria under section 7 of the Aliens Act (Udlændingeloven). It noted that the applicants' asylum motive was based mainly on fear of the Karuna group, which demanded the male applicant's cooperation to obtain information about his cousin. It did not rule out that it was possible, as stated by the applicants, that the Sri Lankan authorities cooperated with the Karuna group but it found that approaches from people related to the Karuna group in Batticaloa had to be considered geographically restricted and emphasized that in the present case the male applicant had a low profile and had been able to depart legally from Colombo in September 2005.
14. An anonymised summary of the applicants' case, together with thirty other cases involving Sri Lankan nationals, was published on the Refugee Appeal Board's Website.
15. By letter of 20 September 2006 the applicants' representative requested a re-opening of the case.
16. On 30 October 2006, in the light of a recommendation of 27 October 2006 from the UNHCR to the Ministry of Refugee, Immigration and Integration Affairs about the situation in Sri Lanka, the Refugee Appeals Board decided to suspend all cases concerning ethnic Tamils from Sri Lanka.
17. On 14 March 2007, and anew on 14 August 2007, finding that no essential new information or aspects had been submitted, the Refugee Appeals Board refused to reopen the applicant's case.
18. On 27 August 2007, the Ministry of Refugee, Immigration and Integration Affairs refused the applicants' application for a residence permit on humanitarian grounds.
19. On 26 September 2007 the Refugee Appeals Board received a letter by a named person, who stated that the applicant husband was suspected by the security forces and the Karuna group of having cooperated with the LTTE. The Refugee Appeals Board understood the letter as a request for a reopening of the case. The applicant husband submitted a letter of 10 October 2007 repeating his previous statements, and adding that he had been forced to try to find the cousin who was a member of the LTTE.
20. On 29 October 2007, the Refugee Appeals Board refused once more to reopen the applicants' case.
21. On 31 October 2007 the UNHCR requested the Refugee Appeals Board to stay forced returns of ethnic Tamils from Northern and Eastern Sri Lanka with reference to a letter dated 23 October 2007 from the European Court of Human Rights to the British Government. On the same day the Refugee Appeals Board extended the time-limit for the applicants' departure.
22. On 6 November 2007 the Refugee Appeals Board replied to the UNHCR's request in general terms, refusing to introduce a general stay of forced returns of ethnic Tamils from Northern and Eastern Sri Lanka with reference to the general situation for this group.
23. On 2 July 2008 the latter decided to resume the forced deportation of the applicants.
24. The UNHCR repeated its request on 16 July 2008, to which the Refugee Appeals Board replied on 4 August 2008, again refusing to extend the applicants' departure date.
25. In the meantime, two daughters were born to the applicants on 28 September 2006 and 9 March 2008.
26. On Friday 1 August 2008 the Danish Refugee Council (Dansk Flygtningehjælp), an NGO, requested that the Refugee Appeals Board reopen the case. It stated, inter alia, that the applicants had provided new information in the case at an interview held with the said NGO. The applicants had stated that, several times since their departure, persons from the Karuna group and Sri Lankan soldiers had contacted the applicant wife's parents, questioned them about the applicants and had their home searched. The parents had therefore gone into hiding. Due to recent developments the Karuna group had been able to operate in the Batticaloa area. The applicant husband had been imprisoned in 1988/1989 and again in 1998 on suspicion of affiliation with the LTTE. Both times he was subjected to ill-treatment, leaving scars on his body and face. Moreover, and differently from claims in previous statements, the applicant had carried out jobs for the LTTE, such as purchasing batteries, petrol, food and other goods in the Government controlled areas and bringing the products to the LTTE. In fact in 1998, the applicant husband had been released from prison at the request of the LTTE so that he could continue to work for them. He had avoided mentioning his work for the LTTE for fear of being expelled from Denmark.
27. On the same day, on the applicants' behalf, the Danish Refugee Council submitted a letter to the Court of Human Rights requesting that it stay the applicants' deportation.
28. On 4 August 2008, the Court of Human Rights decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Sri Lanka pending the Court's decision.
29. Consequently, on 7 August 2008 the Refugee Appeals Board extended the time-limit for the applicants' departure until further notice.
30. On 17 December 2008 the Refugee Appeals Board again refused to reopen the applicants' asylum case finding that no essential new information or aspects had been submitted. As regard the new and extended information, for example about having scars on his body as opposed to his previous explanation about having “only” a scar on his jaw as a result of his detention in 1998, and about his alleged work for the LTTE, the Refugee Appeals Board noted that in view of the numerous times he had been requested to provide all relevant information, and the fact that he had on his own initiative requested a reopening of the case several times with reference to new information, he had not provided a reasonable explanation as to why he had not furnished this information before. The Refugee Appeals Board therefore rejected the new information as fabricated for the occasion.
31. On 16 December 2009, on the basis of the most recent background information concerning Sri Lanka including, inter alia, a Memorandum of 26 October 2009 prepared by the Ministry of Foreign Affairs, the Refugee Appeals Board decided to review the suspended cases, including the applicant's case.
32. On 16 March 2010 the Refugee Appeals Board refused to reopen the applicants' case as it found that the most recent general background information would not lead to a revised assessment of the case. More specifically in its letter to the applicant's representative it stated as follows:
“... The Refugee Appeals Board still finds that, if returned to Sri Lanka, your clients will not risk persecution or outrages as covered by section 7 of the Aliens Act by the Sri Lankan authorities, including in connection with arrival at Colombo Airport. In this connection, the Refugee Appeals Board emphasises that your male client stated during the asylum proceedings that he has not been politically active or otherwise been involved in conflicts with the Sri Lankan authorities or the LTTE. The Board thus emphasises that your male client appears not to stand out in any way at all as he has exclusively been the subject of money demands from the LTTE like other fishermen in Batticaloa. In that connection, the Board refers to the fact that your clients left Sri Lanka lawfully using their own Sri Lankan national passports. The Refugee Appeals Board also refers to the fact that it appears from the background material available to the Board that, in general, individuals who have previously supported the LTTE on a lower level are not of interest to the authorities. Thus, generally, only high-profile members of the LTTE who are still active and wanted, or individuals wanted for serious criminal offences are of interest to the authorities, see United Kingdom: Home Office, Operational Guidance Note, Sri Lanka, August 2009, and Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 23 29 August 2009. Also against that background, the Refugee Appeals Board finds that your clients will not be at a real risk of persecution or outrages as covered by section 7 of the Aliens Act on the part of the Karuna Group or the TMVP, which are in the factual control of Batticaloa according to United Kingdom: Home Office, Operational Guidance Note, Sri Lanka, August 2009. In that connection, the Refugee Appeals Board observes that your clients' incidents with the group took place in 2005. Likewise, on the background of the above, the Refugee Appeals Board finds that the fact that your male client's cousin has been a member of the LTTE for fifteen years cannot warrant a residence permit under section 7 of the Aliens Act according to the background material now available. It should be noted that your male client stated at the Board hearing on 14 August 2006 about his cousin, V, that he last saw V in 2001 at his mother's sister's house and did not otherwise have any contact with him. The fact that as ethnic Tamils from eastern Sri Lanka your clients may risk being questioned and investigated by the authorities upon entry into the country does not lead to a revised assessment of the case under asylum law. In this assessment, consideration has been given to the background information available to the Board, from which it appears that the individuals at particular risk of being detained and investigated upon entry in Colombo are young Tamils, men in particular, from northern and eastern Sri Lanka: those without ID; those not resident or employed in Colombo; and those recently returned from the West, see United Kingdom: Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 23 - 29 August 2009. In that connection, the Board refers to the fact that your clients appear not to stand out at all. Against that background, the Refugee Appeals Board finds that it has not been rendered probable that the Sri Lankan authorities would take a special interest in your clients upon return. This also applies regardless of the fact that your male client may have scars on his face or on his body. In that respect, please see the Danish Government's further observations of 20 May 2009 to your pleading of 6 April 2009 in the complaint T.N. and S.N. v. Denmark before the European Court of Human Rights. As in its decision of 14 August 2006, the Refugee Appeals Board still finds that the general situation for ethnic Tamils in Sri Lanka is not of such nature that it in itself warrants a residence permit under section 7 of the Aliens Act. The Board observes in that connection that it is a condition for a residence permit under section 7 that, upon a specific and individual assessment, the alien is deemed at risk of persecution or outrages. The authority of the Refugee Appeals Board is restricted to determining asylum-relevant issues, and it is thus outside the Board's authority to determine whether an alien who does not meet the conditions of Article 7 of the Aliens Act may be issued with a residence permit for other reasons of a more humanitarian nature. Against that background and in accordance with its decision of 14 August 2006, the Board still finds that it has not been rendered probable that, in case of return to Sri Lanka, your clients would be at a concrete and individual risk of persecution as covered by section 7(1) of the Aliens Act, or that your clients would be at a real risk of outrages as covered by section 7(2) of the Aliens Act. It should be noted that your clients' time-limit for departure is still suspended until further notice on the basis of the request of 4 August 2008 from the European Court of Human Rights. If your clients' basis of lawful residence in Denmark lapses, your clients must leave Denmark immediately, see section 33 of the Aliens Act. As appears from the decision of the Refugee Appeals Board of 14 August 2006, your clients may be forcibly returned to Sri Lanka if they do not leave voluntarily, see section 32a, cf. section 31, of the Aliens Act. The decision also comprises your clients' two children.”
33. By virtue of section 7 of the Aliens Act (Udlændingeloven), asylum is granted to aliens who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the former Aliens Authorities (now called the Immigration Service) and in the second instance by the Refugee Appeals Board.
34. Pursuant to section 56, subsection 8 of the Aliens Act, decisions by the Refugee Board are final, which means that there is no avenue for appeal against the Board's decisions. Aliens may, however, by virtue of Article 63 of the Danish Constitution (Grundloven) bring an appeal before the ordinary courts, which have authority to adjudge on any matter concerning the limits to the competence of a public authority.
35's country of origin or first country of asylum. For this purpose, the Refugee Appeals Board has a comprehensive collection of general background material on the situation in the countries from which Denmark receives asylumseekers. The material is up-dated and supplemented on a continuous basis. The background material of the Refugee Appeals Board is obtained from various authorities, in particular the Danish Ministry of Foreign Affairs and the Danish Immigration Service. In addition, background material is procured from various organisations, including the Danish Refugee Council, Amnesty International and other international human rights organisations and the UNHCR. Also included are the annual reports of the US State Department (Country Reports on Human Rights Practices) on the human rights situation in a large number of countries, reports from the British Home Office, reports from the documentation centre of the Canadian Refugee Appeals Board, reports from the Swedish Ministry for Foreign Affairs, reports from EURASIL (European Union Network for Asylum Practitioners), reports from the authorities of other countries and to some extent articles from identifiable (international) journals. Moreover, the Board may request the Danish Ministry of Foreign Affairs to issue an opinion on whether it can confirm information from a background memorandum drafted in general terms. The Refugee Appeals Board also retrieves some of its background material from the Internet. Internet access also enables the Board to obtain more specific information in relation to special problems in individual cases.
36. Usually, the Refugee Appeals Board assigns counsel to the applicant. Board hearings are oral and the applicant is allowed to make a statement and answer questions. The Board decision will normally be served on the applicant immediately after the Board hearing, and at the same time the Chairman will briefly explain the reason for the decision made.
37. Extensive information about Sri Lanka can be found in NA. v. the United Kingdom, no. 25904/07, §§ 53-83. The information set out below concerns events occurring after the delivery of the said judgment on 17 July 2008 and, in particular, after the cessation of hostilities in May 2009.
38. Fighting between the Sri Lankan army and the LTTE intensified in early 2009, with the army taking a number of rebel strongholds in the north and east of the country. On 19 May 2009, in an address to the country's parliament, the President of Sri Lanka announced the end of hostilities and the death of the leader of the LTTE, Velupillai Prabhakaran. It was also reported that most, if not all, of the LTTE's leadership had been killed.
39. The previous day, the United Nations Office for the Coordination of Humanitarian Affairs had estimated that around 220,000 people had already reached internally displaced persons' camps, including 20,000 in the last two or three days. In addition, it was believed that another 40,000-60,000 people were on their way to the camps through the crossing point at Omanthai, in the northern district of Vavuniya.
40. In July 2009, the South Asia Terrorism Portal reported that the number of killings in Sri Lanka in the previous three years (including deaths of civilians, security forces and members of the LTTE) was: 4,126 in 2006; 4,377 in 2007; 11,144 in 2008 and 15,549 between 1 January 2009 and 15 June 2009. An estimated 75-80,000 people were reported to have been killed in total over the course of the 26 year conflict.
“Notwithstanding the cessation of the hostilities, the current protection and humanitarian environment in Sri Lanka remains extremely challenging. In the North, nearly the entire population from the territory formerly held by the LTTE in the North (285,000 Tamils) has been confined to heavily militarized camps in the Northern region. Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps, it is clear that this may take a considerable amount of time. The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps, access employment, attend regular schools, and ultimately choose their place of residence.”
42. A Human Rights Watch [HRW] press release, dated 28 July 2009, reported that:
“The government has effectively sealed off the detention camps from outside scrutiny. Human rights organizations, journalists, and other independent observers are not allowed inside, and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission. On several occasions, the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions, or did not renew their visas.”
43. A further Human Rights Watch press release dated 26 August 2009 set out concerns that more than 260,000 Tamil civilians remained in detention camps without the freedom to leave.
44. In August 2009, the first post-war local elections were held in Northern Sri Lanka. The British Broadcasting Corporation reported that voter turn-out was low due to the number of people who were still displaced. The governing party, the United People's Freedom Alliance, took the majority of seats in the biggest city in the region, Jaffna. However, the Tamil National Alliance, a party sympathetic to the defeated LTTE, took the majority of seats in Vavuniya, the other town where polling took place.
45. On 7 September 2009, James Elder, the official spokesman for the United Nations Children's Fund in Sri Lanka was ordered to leave Sri Lanka because of adverse remarks that he had made to the media about the plight of Tamils in the government-run camps.
46. On 10 September 2009 the Sri Lankan Official Government News Portal announced that the motion to extend the State of Emergency (under which the authorities have extensive anti-terrorism powers and heightened levels of security including checkpoints and road blocks) by a further month had been passed by Parliament with a majority of 87 votes.
47. In a report dated 22 October 2009, the United States of America State Department published a report entitled “Report to Congress on Incidents During the Recent Conflict in Sri Lanka”, which compiled incidents from January 2009, when the fighting intensified, until the end of May 2009. Without reaching any conclusions as to whether they had occurred or would constitute violations of international law, it set out extensive reports of enforced child soldiers, the killing of captives or combatants trying to surrender, enforced disappearances and severe humanitarian conditions during the hostilities.
48. On 21 November 2009, the Sri Lankan Government announced its decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from 1 December 2009.
49. In its Global Appeal 2010-2011, the UNHCR reported that:
“The Government-led military operations in northern Sri Lanka which ended in May 2009 displaced some 280,000 people, most of whom fled their homes in the last few months of the fighting. The majority of these internally displaced persons (IDPs) now live in closed camps in Vavuniya district, as well as in camps in Mannar, Jaffna and Trincomalee. An additional 300,000 IDPs, some of whom have been displaced since 1990, are also in need of durable solutions.
The IDPs originate mainly from the Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna districts in northern Sri Lanka, as well as from some areas in the east of the country. Though the end of hostilities has paved the way for the voluntary return of displaced people, some key obstacles to return remain. For instance, many of the areas of return are riddled with mines and unexploded ordnance. Not all are considered to be of high risk, particularly those away from former frontlines, but mine-risk surveys and the demarcation of no-go areas are urgently needed.
Other key obstacles to return include the need to re-establish administrative structures in areas formerly held by the Liberation Tigers of Tamil Eelam; the destruction or damaged condition of public infrastructure and private homes; and the breakdown of the economy - including agriculture and fisheries.
The Government of Sri Lanka is planning the return framework, and it has called on UNHCR for support with return transport, non-food items, return shelter, livelihoods support and assistance in building the capacity of local authorities.
With some progress having been recently achieved, it is hoped that a substantial number of IDPs will be able to return to their places of origin in the latter half of 2009, but a large portion of new IDPs are also likely to remain in the camps and with host families until well into 2010.
50. In a Human Rights Report 2009, dated 11 March 2010, the United States of America State Department stated that the Sri-Lankan Government accepted assistance from NGOs and international actors for the IDP camps but management of the camps and control of assistance were under the military rather than civilian authorities. Food, water, and medical care were all insufficient in the first few weeks after the end of the war, but by July the situation had stabilised and observers reported that basic needs were being met. In June the military withdrew from inside the camps but continued to provide security around the barbed wire-enclosed perimeter. The IDPs in the largest camp, Manik Farm, were not given freedom of movement until December, when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin. Some observers said that this exit system still did not qualify as freedom of movement.
51. Human Rights Watch, in their report, World Report 2010, estimated that six months after the main fighting ended, the Government continued to hold more than 129,000 people (more than half of them women and girls) in the camps. Over 80,000 of these were children. The camps were severely overcrowded, many of them holding twice the number recommended by the UN. As a result, access to basic requirements such as food, water, shelter, toilets and bathing, had been inadequate. These conditions imposed particular hardships on the elderly, children and pregnant women. The camps were under military administration, and effective monitoring by humanitarian agencies was lacking. The authorities failed to provide camp residents with sufficient information about the reason for their continued detention, the whereabouts of relatives, or the criteria and procedure for their return home.
52. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 (“the November 2010 COI Report”) stated as follows:
4.23 The International Crisis Group (ICG) report Sri Lanka: A Bitter Peace, 11 January 2010, also referred to “extra-legal detention centres” maintained by the military and observed: “These detained have had no access to lawyers, their families, ICRC or any other protection agency, and it is unclear what is happening inside the centres. In addition, 'the grounds on which the ex-combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary'. Given the well-established practice of torture, enforced disappearance and extra-judicial killing of LTTE suspects under the current and previous Sri Lankan governments, there are grounds for grave concerns about the fate of the detained. The government has announced that of those alleged ex-combatants currently detained, only 200 will be put on the trial; most will detained for a further period of 'rehabilitation' and then released.”
...
4.25 Referring to the “at least 11,000 people” detained “in so-called 'rehabilitation centers” because of their alleged association with the LTTE, the HRW [document Legal Limbo, The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, released on 29 January 2010, observed: “The government has routinely violated the detainees' fundamental human rights, including the right to be informed of specific reasons for arrest, the right to challenge the lawfulness of the detention before an independent judicial authority, and the right of access to legal counsel and family members. The authorities' consistent failure to inform families of the basis for the detainees' arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill-treatment, which are more likely to take place where due process of law is lacking and which have long been serious problems in Sri Lanka. Given the lack of information about some detainees, there is also a risk that some may have been 'disappeared'.”
4.31 The UNHCR 'Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka', 5 July 2010 reported that “In the wake of the conflict, almost 11,000 persons suspected of LTTE links were arrested and detained in high-security camps” adding that “According to a Government survey, as of 1 March 2010, 10,781 LTTE cadres were being held at 17 centres. Among the detainees were 8,791 males and 1,990 females.” and noted that “Some of the adult detainees have...been released after completing rehabilitation programmes or because they were no longer deemed to present a risk, including some persons with physical disabilities.”
53. The November 2010 COI Report also set out:
4.09 The EIU [The Economist Intelligence Unit], Country Report, Sri Lanka, July 2010 reported: “The EU has warned that Sri Lanka faces losing trade advantages under the Generalised System of Preferences-Plus (GSP-Plus) scheme from August 15th, unless the Government commits itself in writing to improving its human rights record. The EU has put forward 15 conditions that it says the Government needs to promise to meet within the next six months. These include: ensuring that the 17th amendment to the constitution, which requires that appointments to public positions be impartial and reflect the country's ethnic and religious mix, is enforced; repealing parts of the Prevention of Terrorism Act that are incompatible with Sri Lanka's covenants on political and human rights; reforming the criminal code to allow suspects immediate access to a lawyer on arrest; and allowing journalists to carry out their professional duties without harassment. However, the Government has rebuffed the EU, stressing that the issues that it has raised are internal political matters that should not be linked to trade. “The EU is not the only international body currently putting pressure on the government. Sri Lanka has also rejected the UN's appointment of a three-member panel to examine possible human rights violations during the island's civil war. The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country.”
...
4.11 The EIU, Country Report, Sri Lanka, August 2010 noted that: “The decision by the UN secretary-general, Ban Ki-moon [on 22 June 2010], to appoint a panel to examine accountability issues stemming from the final stages of the island's civil war, which ended in May 2009, has prompted a strong reaction in Sri Lanka ...
4.12 On 17 September 2010 the UN News Service reported that “Secretary-General Ban Kimoon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages last year of the conflict in Sri Lanka.” The source also noted that the role of the experts was to examine “the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka.”
54. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 18 February 2009 (“the February 2009 COI Report”) sets out a series of letters from the British High Commission – hereafter “BHC”, Colombo, on arrival procedures at Colombo airport. In its letter of 28 August 2008, the BHC observed:
“[T]he correct procedure for [Department of Immigration and Emigration [DIE]] officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer's office. The name, date and time of arrival and arriving flight details are written into the log. It records why the person has come to their attention and how the case was disposed of. I have had the opportunity to look at the log, and it appears that the only two ways of disposal are to be passed to the Criminal Investigations Department [CID], or allowed to proceed.
The office of the State Intelligence Service [SIS] is in the immigration arrivals hall and an officer from SIS usually patrols the arrivals area during each incoming flight. Invariably, if they notice a person being apprehended they approach IED [Immigration and Emigration Department] and take details in order to ascertain in [sic] the person may be of interest to them. Their office contains three computer terminals, one belonging to the airport containing flight information and two stand-alone terminals. If an apprehended person is considered suitable to be passed to CID, they are physically walked across the terminal building to the CID offices. A CID officer should then manually record the arrival of the person in a logbook held in their office...often persons shown in the DIE logbook to have been handed to CID are never actually recorded as being received in the CID logbook. It is believed that CID has allowed these persons to proceed and no action has been taken against them.”
55. The same letter also noted that CID offices at the airport contained two computers, which were not linked to any national database. Any checks on persons detained or apprehended were conducted over the phone with colleagues in central Colombo. There were no fingerprint records at the airport. One computer contained records of suspects who had been arrested and charged with offences, and court reference numbers. It continued as follows:
“Were a Sri Lankan national to arrive at Colombo Airport having been removed or deported from the United Kingdom, they would be in possession of either a valid national Sri Lankan passport, or an emergency travel document/temporary passport, issued by the Sri Lankan High Commission in London. The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him/her. A national passport contains the national ID card number on the laminated details page. I have made enquiries with the DIE at Colombo Airport, and with the International Organisation for Migration who meet certain returnees at the airport, and both have confirmed that a person travelling on an emergency travel document is dealt with similarly. They too have the document endorsed by the immigration officer on arrival and returned to them. Before issuing an emergency travel document, the Sri Lankan High Commission in London will have details of an applicant confirmed against records held in Colombo and will thus satisfactorily confirm the holder's nationality and identity. If a returnee subsequently wishes to obtain a national identity card, they have to follow the normal procedures.”
56. In a letter dated 22 January 2009, the BHC reported that an official had spent several hours observing the return of failed asylum seekers from the United Kingdom, including those who were in possession of emergency travel documents, issued by the Sri Lankan High Commission in London. In the official's opinion, the fact that certain returnees had been issued with emergency travel documents by the Sri Lankan High Commission in London did not seem to make any difference to their treatment upon arrival.
57. The Report of Information Gathering Visit to Colombo on 23 to 29 August 2009, conducted jointly by the Foreign and Commonwealth Office Migration Directorate and United Kingdom Border Agency Country of Origin Information Service (“the Report of Information Gathering Visit, August 2009”), concluded that all enforced returns (of whatever ethnicity) were referred to the CID at the airport for nationality and criminal record checks, which could take more than 24 hours. All enforced returns were wet-fingerprinted. Depending on the case, the individual could also be referred to the SIS and/or the Terrorist Investigation Department for questioning. Anyone who was wanted for an offence would be arrested.
58. The report set out that those with a criminal record or LTTE connections would face additional questioning and might be detained. In general, non-government and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention:
- Outstanding arrest warrant
- Criminal record
- Connection with the LTTE
- Bail jumping/escape from custody
- Illegal departure from Sri Lanka
- Scarring
- Involvement with media or NGOs
- Lack of an ID card or other documentation
59. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 set out the following:
33.20 The BHC letter of 30 August 2010 went on to observe that: “At the beginning of 2010, partly due to the large numbers of Sri Lankans being returned from around the world and causing logistical problems, CID procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police. All returnees are still interviewed, photographed and wet fingerprinted. The main objective of these interviews is to establish if the returnee has a criminal record, or if they are wanted or suspected of committing any criminal offences by the police. The photographs are stored on a standalone computer in the CID office at the airport. The fingerprints remain amongst paper records also in the CID office at the airport. Checks are initiated with local police, but returnees are released to a friend or relative, whom CID refers to as a surety. This surety must provide evidence of who they are, and must sign for the returnee. They are not required to lodge any money with CID. “The main CID offices at Colombo Airport, which are housed on the ground floor adjacent to the DIE embarkation control, are currently undergoing a complete refurbishment funded by the Australian government. The one completed office suite has three purpose built interview rooms, and facilities where returnees can relax and eat meals.”
...
33.22 A British High Commission letter of 14 September 2010 reported: “There is strong anecdotal evidence that scarring has been used in the past to identify suspects. Previous conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently. At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.”
60. On 19 October 2009, Tamilnet reported that twenty-nine Tamil youths were taken into custody by the State Intelligence Unit of the Sri Lanka Police at the International Airport in two separate incidents whilst trying to leave Sri Lanka. It was also reported that since July 2009, special teams of the State Intelligence Unit and police had been deployed in the airport to monitor the movement of Tamils who try to go abroad.
61. The Report of Information Gathering Visit, August 2009, stated that the frequency of cordon and search operations had not reduced significantly in recent months, though there were fewer large-scale operations than in previous years. In general, young male Tamils originating from the north and east of the country were most at risk of being detained following cordon and search operations, with the presence of the risk factors set out above increasing that risk. Those without employment or legitimate purpose for being in Colombo were also likely to be seen as suspect. The same report also noted that most sources agreed that there had been few, if any, abductions or disappearances since June 2009. There was not a great deal of available information about the profile of Tamils targeted for abduction, although it appeared that people linked to the media might be more vulnerable. Police did not generally carry out effective investigations. It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in Colombo, whose stated purpose remained to detect and prevent terrorist activity. In general those most likely to be questioned were young Tamils from the north and east; those without ID; those not resident or employed in Colombo; and those recently returned from the West. However, most sources said that arrests at checkpoints were rare and none had been reported since June 2009. It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to Colombo city. Finally, it clarified that people who wished to live in Colombo but did not originate from there must register with the local police station with a national ID card or full passport, and details of planned length and purpose of stay. In theory, whilst anyone was entitled to register to stay in Colombo, some sources suggested that young Tamil men originally from the north or east of the country could encounter difficulties and face closer scrutiny. The presence of any of the risk factors set out above would also attract greater attention from the police.
“The significant majority of reported cases of human rights violations in Sri Lanka involve persons of Tamil ethnicity who originate from the North and East...In Government-controlled areas, Tamils who originate from the North and the East, which are, or have been under LTTE control, are frequently suspected as being associated with the LTTE. For this reason, Tamils from the North and the East are at heightened risk of human rights violations related to the implementation of anti-terrorism and anti-insurgency measures. While this risk exists in all parts of Sri Lanka, it is greatest in areas in which the LTTE remains active, and where security measures are heaviest, in particular the North and parts of the East, and in and around Colombo.”
“The country of origin information that UNHCR has considered indicates that Tamils from the North of Sri Lanka continue to face a significant risk of suffering serious human rights violations in the region (and elsewhere in the country) because of their race (ethnicity) or (imputed) political opinion. Tamils in the North are still heavily targeted in the security and anti-terrorism measures described in the Guidelines. Wide scale detention and confinement of Tamils from the North remains a serious concern. Pro-Government paramilitary elements also continue to operate with impunity against Tamils in the North.”
65. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka of 5 July 2010, which superseded the April 2009 Guidelines contained information on the particular profiles for which international protection needs may arise in the current context. It was stated that:
“given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. It is important to bear in mind that the situation is still evolving, which has made the drafting of these Guidelines particularly complex.”
66. In summary, the following were UNHCR's recommendations: All claims by asylum seekers from Sri Lanka
(i) persons suspected of having links with the Liberation Tigers of Tamil Eelam (LTTE);
(ii) journalists and other media professionals;
(iii) civil society and human rights activists;
(iv) women and children with certain profiles; and
(v) lesbian, gay, bisexual and transgender (LGBT) individuals.
It was also stated that in the light of Sri Lanka's 26 year internal armed conflict, and a record of serious human rights violations and transgressions of international humanitarian law, exclusion considerations under Article 1F of the 1951 Convention Relating to the Status of Refugees may arise in relation to individual asylum seeker claims by Sri Lankan asylum seekers.
67. The BBC reported in March 2010 that the Colombo Police force had opened four special units in Colombo suburbs able to take statements in Tamil, with plans for more. Previously, Tamil-speaking Sri Lankans had to rely on a friend to translate their complaints into Sinhala.
68. The United Kingdom Border Agency's Operational Guidance Note on Sri Lanka from August 2009 stated as follows:
3.6.5 In March 2004, the LTTE's eastern commander, Colonel Karuna, broke away from the mainstream LTTE. Much of the breakaway “Karuna/TMVP” (Tamil National Party) group was wiped out and disbanded during 2004 in a military counter-offensive by the mainstream LTTE. However, it was rebuilt during 2004-05 by Karuna and his close associates. Initially a paramilitary group supported by the Sri Lankan authorities in its fight against the LTTE, the TMVP was registered as a political party in 2007. Between late 2006 and early 2007, the TMVP group fought together with the Sri Lankan armed forces against the LTTE in the Eastern Province. Under deputy leader Sivanesathurai Chandrakanthan (a.k.a. Pillayan), the TVMP contested their first provincial elections in 2007, winning a majority in the Eastern Provincial Council. Pillayan was named Chief Minister for the East and is now the leader of the TVMP.
3.6.6 In May 2007, the TVMP was reported to have become further factionalised when the deputy leader of the Karuna group, Pillayan, became involved in a dispute with Karuna. The dispute escalated into violence and Karuna reportedly ordered his loyalists to hunt down and kill Pillayan. In November 2008, Human Rights Watch reported deepening tensions and violent infighting within the TVMP, particularly between the Karuna and Pillayan factions. It was later reported that Karuna had joined the Sri Lanka Freedom Party as MP Vinayagamoorthy Muralidharan with a large following of Tamils from the East. Most recently, he was appointed Minister of National Integration and Reconciliation.
3.6.7 The ICG (Internal Crisis Group) has reported that during the second half of 2008 and early 2009 there was a growing number of LTTE attacks in the east, both against the TMVP, including some apparently successful attempts to infiltrate TMVP offices, and against the police, army and civil defence personnel. However, there was also credible evidence to suggest that many of those killed were targeted by the TMVP and government security forces as LTTE members or supporters, either as part of the government's general counterinsurgency strategy or in response to specific LTTE attacks on, or infiltration of, the TMVP.
3.6.8 According to UNHCR, while the immediate impact of the LTTE on the lives of civilians in the East has been greatly reduced, the TMVP, which now effectively controls Batticaloa and other parts of the East, is reported to engage in terror and crime. Incidents of TMVP involvement in abductions, child recruitment, robberies and repression of dissent are widely documented. It is also reported that TMVP forces are responsible for extrajudicial killings, deaths in custody and abductions, which have apparently been carried out with the knowledge and tacit agreement of Government actors and local authorities. Abductions and forced recruitment by the TMVP group have occurred in IDP camps in Batticaloa and Trincomalee districts. A series of abductions of young women in Batticaloa district were believed to be the work of local TMVP cadres.
69. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 18 February 2010 set out, inter alia:
4.26 With regard to the Eastern Province the same source [The BHC letter of 12 January 2010] reported that: “Security restrictions in Trincomalee district have markedly relaxed during 2009...The security situation in Batticaloa has also improved, although the town is not yet as calm as Trincomalee and there is still a high military presence. To emphasise this, in July 2009 a crowd of approximately 300 people gathered to watch a performance from the British Council forum theatre in a Batticaloa suburb with no military presence. This would not have been possible a few months ago. “The police presence is comparable to Colombo but encouragingly, some do not carry weapons despite being on duty. “The Senior Superintendent of Police (SSP) for Batticaloa was proud of the fact that there had been a marked improvement in the security situation in the district which allowed his officers not to carry weapons. He was not aware of any remaining LTTE cadres in the area and considered that most of the cached weapons had now been seized or could no longer be found as the land was now overgrown. Reported abductions and low level crime were minimal. “Church Elders in the Diocese of Trincomalee and Batticaloa have provided grass roots assessment. They opined that there was no longer a LTTE presence in the Batticaloa district. During the latter stages of the conflict, the few remaining LTTE cadres, mainly youths, had thrown away their weapons and returned to their families. The community knew who they were but had no concerns about them re-arming. Community level engagement both with the police and SLA over the last 9 months had improved considerably. There were now regular meetings between the various community leaders and the Deputy Inspector General (DIG) Police and SLA commanders which allowed them to voice any concerns they had about the paramilitaries, abductions, harassment by the security forces. As a result, the paramilitaries were no longer carrying weapons, abductions were low (and once reported to the community leaders, they were able to raise it immediately with the DIG) and security check points were no longer a problem.”
4.27 The BHC letter of 12 January 2010 further observed: “It is apparent that recent security improvements in the Eastern Province are starting to make tangible improvements to the people living there. “The Divisional Secretary (DS) spoke of the extent of development taking place in the Province with new roads, electricity and telephone lines, much of which being already visible. There is now a low police and military presence, and no LTTE. ...”
70. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 stated inter alia:
10.10 A letter from the British High Commission (BHC) in Colombo, dated 1 September 2010 referred to a programme in the east related to: “...the rehabilitation and reintegration of many cadres loyal to the TMVP. This programme was conducted through the Ministry of Defence who provided lists of former TMVP cadres to the IOM office in Batticaloa. Technical support for the project was provided by the UK and IOM conducted a community perception survey to assess the impact these cadres would have within the local community.”
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-57426
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1983
DOCNAME: CASE OF AXEN v. GERMANY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
JUDGES: C. Russo
TEXT: 11. The applicant, a German national born in 1914, is resident in Hamburg.
On 6 August 1950, he drove his car into the parked and unlighted trailer of a lorry belonging to a firm. His mother, a passenger in the car, died from her injuries and Mr. Axen himself was severely injured.
The driver of the lorry and two other persons, namely a garage owner and a filling-station assistant, who had undertaken to repair the trailer and tow it off the road, were convicted by the Lüneburg Regional Court (Landgericht) on 31 January 1951 of negligently causing death and personal injuries.
12. Mr. Axen brought actions for damages against the driver and the owner of the lorry before the Hamburg Regional Court and against the garage owner and the filling-station assistant before the Lüneburg Regional Court.
The first action concluded with two judgments of the Hanseatic Court of Appeal (Hanseatisches Oberlandesgericht) in Hamburg, one of 23 January 1968 awarding the applicant about DM 41,000 for loss of earnings and the other of 6 August 1973 awarding him DM 8,000 for non-pecuniary damage.
13. In the proceedings against the garage owner and the filling-station assistant, the Celle Court of Appeal (Oberlandesgericht) awarded Mr. Axen on 16 January 1969 compensation of DM 40,000 for non-pecuniary damage, subject to deduction of the DM 8,000 awarded by the Hamburg Court of Appeal. Mr. Axen appealed on points of law (Revision), but the Federal Court of Justice (Bundesgerichtshof) dismissed the appeal on 29 September 1970.
14. As regards the claims for loss of earnings, the Celle Court of Appeal awarded the applicant on 27 February 1975 a lump-sum of about DM 39,000 together with an annuity, subject to deduction of the compensation already granted in Hamburg. The Court of Appeal was ruling on an appeal by the applicant against a judgment of 12 May 1972 of the Lüneburg Regional Court.
The hearings before these courts and the pronouncement of their decisions took place in public.
15. Mr. Axen filed with the Federal Court of Justice an appeal on points of law (Revision) against the Celle Court of Appeal’s judgment. The appeal related to the quantum of his loss of earnings.
In his memorial of 18 May 1976, setting out the grounds of appeal (Revisionsbegründung), he complained of the Court of Appeal’s failure to grant his request that an expert be heard on the subject of the reports made by other experts concerning his loss of earning capacity; according to him, the Court of Appeal should at least have called for a further expert opinion (Obergutachten). He also challenged the method used by the Court of Appeal for assessing the respective share of responsibility of the persons involved in the accident. A last ground of appeal concerned the question whether the Court of Appeal was entitled to take into account the social security benefits received by the applicant.
16. On 26 October, the 6th Chamber of the Federal Court refused to grant Mr. Axen legal aid, on the ground that the appeal offered no prospects of success.
17. On 8 December 1976, the applicant’s lawyer asked the 6th Chamber to hold a hearing in the case. On 15 December, its President informed him that the Chamber was going to deliberate on the possibility of examining the appeal without oral argument. The President directed that the lawyer should have until 20 January 1977 to file any observations he might wish to make. The latter acknowledged receipt of this communication on 16 December 1976, but submitted no comments. However, on 7 January 1977 his client sent to him a letter protesting against the proposed procedure. A copy was sent to the Federal Court, but it could not be included with the papers in the case since it was not a document prepared by the applicant’s lawyer, only the latter having the right of audience before that Court.
On 8 March 1977, the 6th Chamber of the Federal Court of Justice, without holding a hearing, unanimously rejected the appeal. Its judgment (Beschluss) was neither pronounced in open court nor published but was served on the applicant on 15 March 1977 pursuant to Article 329 of the Code of Civil Procedure (Zivilprozessordnung), which provides (translation): "decisions adopted by courts after a hearing must be pronounced" and "decisions which are not pronounced shall be communicated to the parties in such manner as may be found appropriate".
The judgment read as follows (translation):
"Having informed the parties and sought their views (gehört), the 6th Chamber of the Federal Court, at its session of 8 March 1977 ..., considered unanimously that it was not necessary to hold a hearing and decided ...:
the appeal ... is dismissed. The appellant is to bear the costs of the proceedings ..."
18. The decision not to hold a hearing was based on section 1 of the Federal Court of Justice (Reduction of Work-Load in Civil Cases) Act of 15 August 1969 (Gesetz zur Entlastung des Bundesgerichtshofs in Zivilsachen). Originally this Act was due to expire on 15 September 1972 but its validity was extended until 15 September 1975 by an Act of 7 August 1972. The Act, as so extended, applied to proceedings in appeals on points of law concerning decisions delivered or notified between 15 September 1969 and 15 September 1975; it therefore covered the examination of the applicant’s appeal, which was directed against a judgment of 27 February 1975 (sections 4 para. 2 and 6 of the 1969 Act; sections 1 and 3 of the 1972 Act; sections 3 para. 3 and 5 of the Appeals on Points of Law in Civil Cases (Modification of Procedure) Act of 8 July 1975 - Gesetz zur Äenderung des Rechts der Revision in Zivilsachen).
Section 1 para. 2 of the Act of 15 August 1969 provided as follows (translation):
"A court determining an appeal on points of law (Revisionsgericht) may take its decision without holding a hearing if it unanimously considers that the appeal is ill-founded and that oral argument is not necessary. The parties shall be informed and asked for their views (gehört) beforehand. The judgment (Beschluss) shall record that the conditions for adopting this procedure are satisfied; no further reasons need be given."
19. On 4 April 1977, the applicant appealed to the Federal Constitutional Court against the Celle Court of Appeal’s judgment of 27 February 1975 and the Federal Court of Justice’s judgment of 8 March 1977; in a supplementary memorial of 16 April he complained of the above-mentioned legislation itself, relying, inter alia, on Article 6 (art. 6) of the Convention.
In a ruling given on 14 July 1977 by a panel of three judges, the Federal Constitutional Court decided not to hear the appeal. It considered that, in so far as the appeal concerned the legislation, it was inadmissible as being out of time and that, as regards the judicial decisions complained of, it did not offer sufficient prospects of success since there had been no violation of a right specifically guaranteed by the Basic Law and notably Article 3 thereof.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91740
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KALINICHENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1979 and lives in Ryazan.
5. He is a former military serviceman. From 22 August 2000 to 15 October 2001 he served in the Russian peacekeeping contingent in Bosnia and Herzegovina, the former Republic of Yugoslavia.
6. Upon his return, the applicant brought proceedings against the head of his military unit to secure payment of his daily allowance for his service abroad.
7. On 25 July 2003 the Military Court of the Ryazan Garrison granted the applicant’s claim and ordered the military unit to pay the applicant 400,164.75 Russian roubles (RUB) in remuneration and RUB 1,000 in expenses for legal advice.
8. The military unit did not lodge an ordinary appeal, and on 22 August 2003 the judgment became binding and enforceable.
9. However, following the respondent’s request, on 19 November 2003 the Presidium of the Military Court of the Moscow Command quashed the judgment of 25 July 2003 by way of supervisory review and dismissed the applicant’s claims in full. The reason given for the quashing of the judgment was the “wrongful application of substantive law by the first-instance court”.
10. The Code of Civil Procedure of the Russian Federation provides as follows:
“1. The grounds on which appeal courts may quash or alter judicial decisions are:
...
(4) a violation or incorrect application of substantive or procedural law.”
“Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.”
“1. Having examined the case by way of supervisory review, the court may ...
(2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for fresh examination ...
(5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for fresh examination, if the substantive law has been erroneously applied or interpreted.”
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-88561
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: PATTERSON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Henry Patterson, is a British national who was born in 1942 and lives in Liverpool. He was represented before the Court by Mr J. Benton, a Member of Parliament for a constituency in Liverpool. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 25 July 1986, leaving two dependant children. His claim for widows’ benefits was made on 11 July 2002 and was rejected on 16 July 2002 on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was confirmed by an appeal tribunal on 10 February 2003. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-84112
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF NIKOLOVA AND VELICHKOVA v. BULGARIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection (victim) joined to merits and dismissed;Violation of the substantive aspect of Art. 2;Violation of the procedural aspect of Art. 2;No separate issue under Art. 3;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: Peer Lorenzen
TEXT: 6. The applicants are the wife and daughter of Mr Atanas Velichkov Nikolov. Mr Nikolov died on 1 October 1994 as a result of assault and battery by two police officers on 27 September 1994.
7. At about 2 p.m. on 27 September 1994 the twelve members of the rapid response force of the Shumen Regional Police Department were training just outside town. They spotted at a distance Mr Nikolov, aged sixtytwo at the time, and Mr N.R., who were testing a homemade metal detector. The leader of the team, lieutenant I.I., assumed that the two were treasurehunters and sent a party to verify his suspicion. Two police officers approached Mr N.R., while two others, chief sergeants B.I. and H.T., moved towards Mr Nikolov. None of the officers was in uniform. Chief sergeants B.I. and H.T. reached Mr Nikolov as he was trying to hide a hoe in nearby bushes. Surprised by the sudden appearance of the two men, Mr Nikolov did not throw the hoe away, but held it in front of him, taking a defensive posture. Chief sergeant B.I. brusquely pulled it out of his hands and threw it to a safe distance. Each of the officers then proceeded to deliver blows to Mr Nikolov's head. They then brought him to the ground, handcuffed him, and took him to their colleagues. A car was called and Mr Nikolov and Mr N.R., who had also been apprehended, were taken to the premises of the Shumen Regional Police Department. At about 3 p.m., while waiting to be questioned on the precinct premises, Mr Nikolov fainted. An ambulance was subsequently called and he was taken to hospital, where it was found that he had slipped into a coma.
8. After an unsuccessful operation to evacuate a subdural haematoma, Mr Nikolov died on 1 October 1994. A medical report drawn up in the course of the criminal proceedings opened pursuant to his death concluded that the cause of death was a severe cranial and cerebral trauma and internal brain haemorrhage.
9. On 2 October 1994 criminal proceedings were opened into the incident by the Shumen Regional Investigation Service. The offence was provisionally characterised as murder under Article 115 of the Criminal Code of 1968 (“the CC”) (see paragraph 39 below).
10. On 3 October 1994 the investigator in charge of the case questioned chief sergeants B.I. and H.T. Mr N.R. was also questioned on the site of the incident in the presence of a medical doctor. The investigator took a number of pictures of the site.
11. Most of the other witnesses were interviewed in October 1994 and in March and May 1995. Several expert reports were drawn up.
12. Chief sergeants B.I. and H.T. were charged and questioned again on 27 April 1995. They were released on bail.
13. The two officers who had arrested Mr N.R. were likewise charged and questioned on 2 May 1995.
14. On 12 May 1995 the investigator in charge of the case drew up his final report, concluding that chief sergeants B.I. and H.T. should be tried for wilfully inflicting grievous bodily harm on Mr Nikolov and thus having negligently caused his death, contrary to Article 124 § 1 of the CC (see paragraph 37 below). He also concluded that the two officers who had arrested Mr N.R. should be tried for inflicting light bodily harm on him. He noted, inter alia, that all of the officers had denied any wrongdoing, in spite of the evidence to the contrary, had drawn no lessons from their act and had shown no signs of remorse. He also noted that chief sergeant B.I. and one of the officers who had assaulted Mr N.R. had been charged with inflicting light bodily harm on another person on 18 April 1994, only a few months before the act in issue in the proceedings. Reflecting on the conditions which had led to the perpetration of the alleged offences, the investigator expressed the opinion that these were “the recent increase in crime which ha[d] led lawenforcement officers to suspect a criminal intent in all citizens until proven otherwise; the physicality of their training at the [police officers' school in the town of Pazardzhik], where, year after year, they [we]re instructed in how to deal with violent resistance but [we]re inadequately trained on the legal aspects of law enforcement, a practice that ha[d] been maintained within the newlyformed rapid response force centre in Shumen, as evidenced by the curriculum attached to the case file: it abound[ed] in physical training classes and lack[ed] any classes in legal training; the sense of authority that the law-enforcement officers ha[d] over the public, who [were] expected to show unconditional submission with no regard to their own rights and interests and with no regard to their dignity and inviolability as citizens; the sense of impunity; the absence of any eyewitnesses to the two offences, committed in a forested area out of the public's sight, and the hope that all [would] be covered up”.
15. In view of an amendment in June 1995 to the Code of Criminal Procedure of 1974, whereby military courts were given jurisdiction to try police officers, on an unspecified date in 1995 the case was sent to the Varna Regional Military Prosecutor's Office. Apparently it was not processed there until January 1998. The applicants complained about this inactivity to the President of the Republic, the Chief Prosecutor and the Council of Ministers. All of them forwarded the complaints to the military prosecution authorities.
16. On 12 January 1998 the Varna Regional Military Prosecutor's Office sent the case to a military investigator for further processing.
17. In a letter of 6 February 1998 the Varna Regional Military Prosecutor's Office informed the applicants that the work on the case had been held up until the beginning of 1998 because of staffing and backlog problems.
18. In June 1998 the military investigator in charge of the case was transferred to another post. For this reason, on 31 July 1998 the case was assigned to another military investigator.
19. Having concluded his work on the case, on 30 December 1998 the investigator drew up his final report, proposing that chief sergeants B.I. and H.T. be committed for trial. He noted, inter alia, that, by that date, chief sergeant B.I. was a unit commander at the riotpolice sector of the Shumen Regional Police Department and that chief sergeant H.T. was a police officer at the specialised unit in charge of bank and cash transfer safety in Sofia.
20. On 18 August 1999 the Varna Regional Military Prosecutor's Office issued an indictment against chief sergeants B.I and H.T. It noted, inter alia, that on 15 January 1999 chief sergeant B.I. had resigned from the police force and that chief sergeant H.T. was still on the force, assigned as a guard in a commercial bank. Concerning the factors which had led to the perpetration of the offence, the prosecutor observed that these were “the defendants' sense of impunity as officers of the special force of the [Ministry of Internal Affairs], their lack of respect for human dignity and the health and inviolability of citizens and their habit of treating citizens as dummies for testing their physical force and abilities, which [were] only needed for apprehending dangerous criminals”.
21. The trial at the Varna Military Court started on an unspecified date in the autumn of 1999.
22. On 13 November 1999 the applicants and Mr Nikolov's son brought claims for compensation against the two police officers (5,000 Bulgarian levs (BGN) for the first applicant, BGN 4,000 for the second applicant and BGN 4,000 for Mr Nikolov's son) and joined the proceedings as private prosecuting parties alongside the public prosecutor.
23. The court held a hearing on 3 December 1999. It heard the applicants, Mr Nikolov's son and the accused officers. It also heard the concluding argument of the parties. In his argument the public prosecutor noted that no disciplinary proceedings had taken place against chief sergeants B.I. and H.T. He requested that immediate custodial sentences, ranging between four and a half and five years' imprisonment, be imposed. In their final statement the defendants said that they were not guilty and asked the court to acquit them.
24. In a judgment of 3 December 1999 the Varna Military Court convicted chief sergeants B.I. and H.T. of having negligently caused the death of Mr Nikolov by wilfully inflicting grievous bodily harm on him, contrary to Article 124 § 1 of the CC. It sentenced each of them to three years' imprisonment, suspended for five years. It also awarded the first applicant BGN 4,000, the second applicant BGN 3,000, and Mr Nikolov's son BGN 3,000, payable jointly and severally by the two officers. The court described in detail the events of 27 September 1994 and held, as relevant:
“... the act was committed negligently ... The case at hand concerns a complex offence, where the intention in respect of the lesser outcome is combined with negligence in respect of the more serious outcome, in other words, the offence was committed with both forms of mens rea ... The court is of the opinion that both of the defendants wilfully inflicted grievous bodily harm on [Mr Nikolov], which later brought about his death. The intentions must be judged through their actions. Taking into account the subjective attitude of the defendants towards their act, the court deems that their intention did not go beyond inflicting bodily harm. They merely behaved negligently in respect of the ensuing death. The objective analysis of the defendants' conduct shows that they did not foresee the imminent death of [Mr Nikolov] and neither wished nor envisaged a fatal outcome, their intention being solely to inflict bodily harm...
...The evidence in the case suggests that no persons other than the defendants were in physical contact with [Mr Nikolov]... All the traumatic injuries which were established were inflicted at the same time, in quick succession. The evidence shows that between 2 and 2.15 p.m. on 27 September 1994 in the area of the Shumen plateau the defendants, ..., in their capacity as officers of the Shumen Regional Police Department, arrested [Mr Nikolov] using physical force, and in the process delivered numerous blows to his body, some of which were strong, as a result of their prior training in arrests. There is a direct and proximate causal link between the beating and [Mr Nikolov']s traumatic injuries and the ensuing fatal outcome. In pursuing their direct aim of inflicting bodily harm on [Mr Nikolov], the defendants did not envisage the end result, but – in view of the force and the direction of the blows, they could have. It must however also be noted that, as members of the rapid response force, the defendants had acquired special skills for subduing and apprehending offenders. They were executing an order given by their immediate superior ... which included the arrest of [Mr Nikolov]... In this connection, the court finds that the conduct of the head of the team, lieutenant I.I., is also reprehensible, because he was the individual who could and should have determined whether Mr Nikolov and Mr N.R. were offenders who had to be apprehended without fail. ...
The causes and the conditions for the commission of the offence are the defendants' feeling of impunity as members of the special force of the Ministry of Internal Affairs.
In determining the type and the quantum of the penalty the court had regard both to the defendants' young age and to their good character as mitigating circumstances.
The court deemed the unlawful use of physical force as an aggravating circumstance.
The court imposed the penalties having regard to the preponderance of mitigating circumstances...
Taking into account the personality of the offenders, the gravity of the offence, and the fact that the defendants have no prior convictions, and bearing in mind the aims of punishment ... the court considers that the penalties do not need to be served immediately. For this reason ... the serving of the sentences is postponed ... The main purpose of punishment in our law is general deterrence, which is achieved through the imposition of just punishment. In matching the severity of the punishment to the gravity of the offence [the court] must have regard to the personality of the offender as an additional factor. In the case of a suspended sentence, [the court] must put the emphasis on individual deterrence, namely reform of the offender. In the instant case, the court, having regard to the facts as established above, the type of mens rea involved – negligence –, and the low level of public threat of the two offenders, who perpetrated their act in the relatively distant past, concludes that there is no need for the penalties of imprisonment to be served immediately in order to achieve the aims of the criminal law. ...”
25. Both the applicants and the officers appealed to the Military Appellate Court. The applicants submitted that the sentence was too lenient and that the compensation awarded was too low. They argued that the lower court had erred in assessing the gravity of the offence and had wrongly opted for the minimum possible penalty. In their view, the officers ought to be sentenced to an effective prison term of about five years.
26. Having held a hearing on 25 October 2000, in a judgment of 29 December 2000 the Military Appellate Court partly upheld and partly reversed the lower court's judgment. It increased the amount of compensation to BGN 5,000 for the first applicant, BGN 4,000 for the second applicant and BGN 4,000 for Mr Nikolov's son, but upheld the sentence. The court described in detail the events of 27 September 1994 and held that “in view of the police officers' numerical superiority, their younger age, their special training, the proximity of their colleagues, and the fact that in his further actions [Mr] Nikolov [had not] resisted or refused to obey their lawful orders, the physical force used had been in breach of section 40(1)(1) and (2) and section 41(2) and (4) of the National Police Act [1993], in force at the material time” (see paragraphs 42 and 43 below). The court's opinion continued, as relevant:
“The factual findings of the [lower] court are based on the evidence gathered and are fully accepted by [this] court. In view of the facts, the acts committed by the defendants were properly characterised as an offence under Article 124 § 1 of the CC...
I. Concerning the defendants' appeal
In the indictment the prosecution brought charges against the two defendants for an offence ... committed in concert. The prosecution has not taken into consideration that the offence under Article 124 § 1 of the CC is only negligent as regards the graver consequence [death]. Complicity in a criminal offence is only possible in respect of wilful offences, as it presupposes the joint wilful participation of two or more persons, whose actions lead in their entirety to the perpetration of the offence, provided always that these persons realise that they are acting in concert with others. The actus reus of the offence under Article 124 [§ 1 of the CC] is complex. The intention to achieve the lesser outcome [bodily harm] is combined with negligence in respect of the graver outcome, i.e. the offence is committed with differing types of mens rea, which excludes the possibility of complicity.
...
The defendants' objection concerning the unfoundedness of the lower court's judgment as regards the authors of the offence is groundless. The experts' conclusion is that the cranial and cerebral traumas were caused by two separate blows to the head, with or against a solid object, delivered with considerable force. The experts provide two explanations as to its possible source. According to the first explanation, one blow was to the head, either on the left temple or on the right occiput, followed by a fall to the ground and a further blow to the opposite side. According to the second explanation, the two injuries may be due to two separate consecutive blows with a blunt, solid object. The experts categorically exclude the possibility that the blows were inflicted with the sharp (metal) part of the hoe...
The [lower] court was correct in accepting the second explanation, which is supported by the remaining evidence... In their statements, including those made at the trial, the two defendants admit the fact that they acted violently in apprehending [Mr] Nikolov. ... [B]oth defendants state that the victim did not fall on the ground at any point. Both aver that [Mr] Nikolov was standing or squatting. It was therefore impossible for one of the injuries ... to have been the result of a fall to the ground.
The defendants' assertion that the victim's death was the result of light and not grievous bodily harm, as accepted by the [lower] court, is groundless and completely unsubstantiated. The conclusions of both medical expert reports are categorical on the point that the heavy cranial and cerebral trauma has in itself resulted in a continuing overall lifeendangering disruption to health, i.e. it corresponded to the medical and biological indications of grievous bodily harm.
The [lower] court has correctly found that the two defendants wilfully inflicted grievous bodily harm resulting in death. Its reasoning regarding the intention to inflict bodily harm and the negligence as regards the final result – death – are convincing and fully accepted by [this] court, so there is no need to repeat them.
...
II. Concerning the [applicants'] appeal
The appeal is partially well-founded. The punishments imposed – three years' imprisonment – although the minimum possible by law, are not disproportionately lenient. The [lower] court has examined and taken account of all the factors which are material in determining the sentence. On the one hand, it is true that a human life was taken in a situation which did not call for the use of such intense physical violence in respect of [Mr] Nikolov. On the other hand, the defendants have no prior convictions, are of good character, each of them administered one blow to the head of the victim, the death was caused negligently, the [defendants] acted with a view to arresting an offender pursuant to the direct orders of their immediate superior, [Mr] Nikolov did not initially obey and did not throw away the hoe which he was holding and the defendants were discharged from the [police]. In view of all this the [court] finds that the [lower] court's conclusions as to the quantum of the penalties are wellfounded, as is its conclusion that the correction and reform of the defendants do not call for the imposition of an immediate custodial sentence.
The appeal is ... wellfounded as regards [the amount of compensation awarded]. The quantum of the compensation for non-pecuniary damage is to be determined at the time of delivery of the judgment. At present the courts' practice is to allow claims in respect of nonpecuniary damage for amounts higher than the claims submitted by the [applicants]. For this reason the [court] finds that the judgment should be revised, by increasing the sums awarded to each of the applicants up to the full amount of their claims. This level of compensation will reflect the actual pain and suffering which [the applicants] have sustained from the loss of their relative.”
27. Both the applicants and the police officers appealed to the Supreme Court of Cassation. The applicants again submitted, inter alia, that the suspended sentence was too lenient. They argued that the lower court's characterisation of chief sergeant B.I. as a person “of good character” was questionable as he had been charged with the battery of a detainee six months before the beating of Mr Nikolov. The police officers submitted, inter alia, that the lower courts had imposed a very severe punishment.
28. Having held a hearing on 5 December 2001, in a final judgment of 14 January 2002 the Supreme Court of Cassation upheld the lower court's judgment in the following terms:
“As regards the [applicants'] appeal:
It is being argued that the [lower] courts have erred in ordering the suspension of the sentences of the two defendants, and a request is made to order that they serve their sentences.
This ground of appeal ... is not supported by the materials in the case file and is illfounded. In applying Article 66 of the CC, [the lower courts] have weighed all the factors relating to the individual and general deterrence functions [of the criminal law]. Taking into consideration [the defendants'] clean criminal record, their good character, the manner in which the offence was committed, namely one blow each, the form of the mens rea, namely, negligence by each of the defendants, the behaviour of the victim, and in view of the aims of the punishment ..., the conclusion that the correction and reform of the defendants does not call for the sentence is lawful. This court fully shares it...
As regards the appeal by the two defendants:
The grounds of appeal are a breach of the substantive law and the obvious inequity of the sentences imposed and compensation awarded
Bearing in mind the [lower courts'] findings of fact, which are not subject to review [by this court], this court is of the view that the argument of a violation of the substantive law is unfounded and not supported by the materials in the case file. The authorship of the offence has been proven beyond doubt, and the legal characterisation is correct. Each of the accused ... has executed all the elements of the offence under Article 124 § 1 of the CC. The evidence – the statements of the defendants, the witness testimony, combined with the medical expert report and the other written evidence, correctly assessed by both levels of jurisdication ... has led them to hold that the two have committed the offence independently of each other, in their capacity of police officers on active duty, in connection with the performance of their duties, thus negligently bringing about the death of [Mr Nikolov] by wilfully causing him grievous bodily harm. The personal conviction of the courts has been based on objective, comprehensive and complete assessment of all the facts of the case, which have been subjected to a serious and through analysis. In view of the facts, as thus established by the appellate court, the conclusions concerning the actus reus and the mens rea are lawful.
In this connection, the defendants' objection that death resulted from light bodily harm is unfounded. An identical objection was made before the appellate court, which reviewed it and ultimately rejected it. The reasons given are detailed and based on the evidence, and therefore shared by this court.
...
The arguments concerning the obvious inequity of the sentences imposed and compensations awarded are likewise groundless. In determining the punishment of the two defendants, [the lower courts] analysed all the mitigating and aggravating circumstances. They correctly found a preponderance of the former and have imposed [a minimal suspended sentence, within the bounds provided for by law]. Extra lenience would be unwarranted, as it would not further [the deterrent and reforming purposes of the criminal law].
The amounts of compensation are likewise equitable. The reparation of the nonpecuniary damage resulting from the offence is assessed by the court on the basis of the facts of the case and the principles of equity... Taking into account the pain and suffering as well as the irreversibility of the loss sustained, this court considers that the amount set by the [lower] court is just and would recompense the [applicants] to the utmost degree.”
29. The applicants obtained writs of execution against the two police officers on 25 January 2002. As the latter apparently refused to pay the applicants of their own accord, on 28 December 2002 the applicants issued enforcement proceedings against them. During the period 200204 the enforcement judge at the Shumen Regional Court tried to collect the amounts from the two officers, but to no avail, since the officers did not own any seizable assets. For this reason the two enforcement proceedings were discontinued towards the end of 2004 at the applicants' request.
30. On 24 July 1997 the two applicants and Mr Nikolov's son brought a tort action against the Ministry of Internal Affairs and the Shumen Regional Police Department before the Shumen District Court. They sought nonpecuniary damages for Mr Nikolov's death in the amount of 1,500,000 Bulgarian levs (BGL) for the first applicant, BGL 750,000 for the second applicant and BGL 750,000 for Mr Nikolov's son.
31. At the first hearing on 16 October 1997, the Shumen District Court stayed the proceedings in anticipation of the outcome of the investigation against the officers. Following completion of the criminal proceedings on 14 January 2002 (see paragraph 28 above), on 16 July 2003 the Shumen District Court resumed examination of the case.
32. The court held three hearings, on 5 November 2003 and 30 January and 12 May 2004. It admitted the judgments given in the criminal proceedings against the police officers in evidence and heard the parties' pleadings. In a bench ruling of 12 May 2004 it discontinued the proceedings against the Ministry of Internal Affairs, holding that the Shumen Regional Police Department, which had employed the police officers, was the only entity capable of being vicariously liable for their actions.
33. In a judgment of 24 June 2004 the Shumen District Court ordered the Shumen Regional Police Department to pay BGN 1,500 to the first applicant, BGN 750 to the second applicant and BGN 750 to Mr Nikolov's son, together with interest at the statutory rate, from 27 September 1994, the date of Mr Nikolov's death. It also awarded costs and expenses in the amount of BGN 149.40. It held that the facts surrounding Mr Nikolov's death and the nonpecuniary damage sustained by the applicants as a result had been fully established in the judgments of the criminal courts which had tried the police officers. These judgments, which assessed the applicants' nonpecuniary damage at BGN 5,000 and BGN 4,000 respectively, were binding on the civil court. The court further noted that the applicants had not been able to collect the awards made in the criminal proceedings and concluded that this called for an award of damages to be paid by the entity which was vicariously liable for the police officers' actions. It observed however that the applicants had claimed lesser amounts – BGN 1,500 and BGN 750 – and it was therefore unable to increase the amount of the awards.
34. On 19 July 2004 the Shumen Regional Police Department appealed. On 15 November 2004 the applicants increased their claims to BGN 5,000 and BGN 4,000 respectively. The Shumen Regional Court held five hearings, on 16 November and 14 December 2004 and on 11 January, 1 and 24 February 2005.
35. In a final judgment of 29 March 2005 the Shumen Regional Court upheld the lower court's judgment. It likewise took into account the findings of the criminal courts and noted that the applicants had not been able to effectively enforce the award of damages made against the police officers. Concerning the increase in the applicants' claims, the court held that this could not be taken into account, since it had been made for the first time on appeal and as only the defendant had appealed against the firstinstance judgment.
36. The Shumen Regional Police Department paid the award of damages to the applicants shortly after the end of the proceedings.
37. Article 124 § 1 of the CC provides that whoever negligently causes the death of another by wilfully inflicting bodily harm on him or her is punishable by a term of imprisonment ranging from three to twelve years in the case of grievous bodily harm, from two to eight years in the case of intermediate bodily harm, and up to five years in the case of light bodily harm.
38. Articles 128 § 2, 129 § 2 and 130 § 2 of the CC differentiate bodily harm as grievous, intermediate or light, on the basis of various medical criteria.
39. Under Article 115 of the CC, murder is punishable by ten to twenty years' imprisonment. Under Article 116 § 1 (2) of the CC, murder committed by police officers in the performance of their duties is punishable by fifteen to twenty years' imprisonment or life, with or without parole.
40. Article 54 § 1 of the CC directs the criminal court to determine the sentence within the bounds provided for by law, taking into account the general rules of criminal law, the dangerousness of the offence and of the offender, the motives for committing the offence, and the remainder of the mitigating and aggravating circumstances.
41. Under Article 66 § 1 of the CC, the court may suspend a sentence of up to three years' imprisonment for three to five years, provided that the offender has not previously been sentenced to a term of imprisonment for a publicly prosecutable offence, and also provided that the court finds that the aims of the criminal law (in particular, reform of the offender) may be furthered without the sentence being served immediately.
42. The relevant part of section 40(1) of the now repealed National Police Act 1993 („Закон за националната полиция“), as in force at the material time, provided:
“... police [officers] may use ... force ... when performing their duties only if they [have no alternative course of action], in cases of:
1. resistance or refusal [by a person] to obey a lawful order;
2. arrest of an offender who does not obey or resists the police [officers];
...
5. attack against citizens or police [officers]; ...”
43. Under section 41(2) of the Act, the use of force had to be commensurate to, inter alia, the specific circumstances and the personality of the offender. Section 41(3) of the Act directed police officers to “protect, if possible, the health ... of the persons against whom [force was being used].” Section 41(4) of the Act provided that the use of force had to be discontinued immediately after its aim had been attained.
44. Under section 49 of the Contracts and Obligations Act 1951 („Закон за задълженията и договорите“), legal persons – including public bodies – are vicariously liable for the tortuous conduct of individuals employed by them.
VIOLATED_ARTICLES: 2


ITEMID: 001-114464
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF CSERJÉS AND OTHERS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: András Sajó;Paulo Pinto De Albuquerque
TEXT: 4. Upon a private company’s request, in May 1996 L. K., a forest engineer employed by the company, made an estimation of the amount of damages caused to the company’s territory by wild animals under the responsibility of a hunting society. Subsequently, on 1 August 1996 the company brought an action in compensation against the hunting society, the members of which were the applicants.
5. In March 1997 the hunting society was dissolved. The proceedings were discontinued on 10 June 1997, pending the identification of successors to the proceedings.
6. On 6 March 1999 the proceedings continued, as the plaintiff designated the applicants as successors to the proceedings.
7. The Kiskőrös District Court appointed an expert, J. K., to establish the value of the hunters’ house. The expert filed an opinion on 30 November 2000.
8. On 9 July 2003 the Kiskőrös District Court found for the plaintiff. This judgment was quashed by the Csongrád County Regional Court on 23 February 2005.
9. In the resumed proceedings, due to the bias declared by the judges in Bács-Kiskun County, the case was heard by the Szeged District Court. The court requested L. K. to submit a further expert report to establish the amount of damages caused. He filed an opinion on 24 January 2006.
10. On 3 March 2006 the first-instance court gave judgment, finding for the plaintiff. The applicants appealed, arguing - among others - that they had not received the copy of minutes of the hearing of 28 October 2005 on time, and questioning the impartiality of L. K.
11. On appeal, the Csongrád County Regional Court upheld the District Court’s judgment. Concerning the minutes of the hearing, the second-instance court pointed out that the District Court had no legal obligation to send them the minutes automatically. They had the options of requesting copies either by post or in person at the court. The applicants had requested the copies for the first time on 11 January 2006, following which the court had sent the minutes on 13 January 2006 despite the fact that the applicants had not paid the copy fees. The delivery of the mail sent according to the rules had not been successful. Following the repeated request of the applicants on 16 February 2006, the copies had been sent once again on 21 February 2006. Moreover, the court pointed out that the respondents had been present at the hearing, where they had the opportunity to take notes, and could have submitted observations within eight days to L. K.’s expert report, delivered to them on 13 February 2006. As to the impartiality of L. K., the court emphasised that he had been the only expert to see the damages on-site in 1996. Ten years after the occurrence of the damages, appointing a further forensic expert to proceed on the basis of documentary evidence would have been futile in the court’s opinion. In addition, L. K. had followed the court’s instructions when preparing the expert report.
12. The applicants lodged a petition for review with the Supreme Court, which upheld the final judgment on 10 May 2007. This decision was served on the applicants on 14 June 2007.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1