ITEMID: 001-90489
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF DANGAYEVA AND TARAMOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicants live in Grozny, Chechnya. The first applicant was married to the second applicant’s brother, Mr Saidkhasan Khasmagamedovich Dangayev, who was born in 1948. The couple had two children. At the material time Saidkhasan Dangayev was a senior bailiff and held an officer’s identity card (no. 028814) and a gun licence. He had positive references from his superior.
6. On 23 October 2002 Saidkhasan Dangayev and the first applicant together with Mr Dangayev’s nephew and his wife were at the Dangayevs’ family house at 14 Pogranichnaya Street in the Staropromyslovskiy district of Grozny. The town was under curfew; checkpoints manned by Russian federal forces were located on the main roads leading to and from the town.
7. At about 9.45 p.m. a UAZ military vehicle arrived at the Dangayevs’ house. Nine or ten tall men in camouflage uniforms and masks descended from it. They were armed with machine-guns equipped with silencers and spoke unaccented Russian. The men told the first applicant that they were from the military commander’s office and ordered her to open the gates. When she did so, they entered the courtyard. The applicants thought that the men were Russian servicemen.
8. The servicemen asked the first applicant whether there were any weapons in the house. Saidkhasan Dangayev came out to the courtyard and requested the servicemen to produce identification. The men replied that they were from the military commander’s office and were performing an identity check.
9. Saidkhasan Dangayev produced his bailiff’s identity card and his service pistol. The servicemen took his card and the gun. While they were examining the identity document, one of them shouted and swore at the first applicant. Saidkhasan Dangayev asked him to mind his language in the presence of women, but received a kick from one of the servicemen. He then rushed into the house and reappeared on the porch with his service machine-gun. One of the servicemen then shot Saidkhasan Dangayev in the arm and chest, whereupon the servicemen ran out of the courtyard with Saidkhasan Dangayev’s identity card and pistol.
10. Saidkhasan Dangayev fell to the ground bleeding. The first applicant was unable to transport him to the doctor’s because of the curfew. After a few minutes Saidkhasan Dangayev died from blood loss in the courtyard of his house.
11. According to the first applicant, her neighbours had seen her husband’s killers arrive at the applicants’ house on board UAZ military vehicles. However, they refused to give witness statements as they feared for their safety.
12. The applicants also submitted that either before or after the killing of Saidkhasan Dangayev, the same group of armed men had visited the house of their neighbour, Mr M.
13. In support of their account the applicants submitted two witness statements by the first applicant and copies of the documents received by the applicants from the investigation into Saidkhasan Dangayev’s death.
14. The Government submitted that “at about 10.00 p.m. on 23 October 2002 unidentified persons in camouflage uniform and masks, armed with automatic weapons arrived on board a UAZ vehicle at 14 Pogranichnaya Street, Grozny, and committed the murder of S. Kh. Dangayev”.
15. Referring to the witness statement the first applicant had given in the investigation into her husband’s death the Government noted that on the evening of 23 October 2002 she and her husband had been at home. From the window she had seen several men speaking loudly and using swear words. They had told her that they were from the military commander’s office and were conducting an identity check. After she opened the gate seven or eight armed masked men had entered the courtyard. The first applicant’s husband had come out of the house carrying a pistol. He had introduced himself to the armed men, showed his bailiff’s identity card and asked the men about their identity and the reasons for their visit. In response one of them had kicked him between the legs. He had then gone back into the house before returning with a machine-gun. One of the armed men had shot him. As she had not heard the sound of gunfire, the first applicant thought that the weapon must have been equipped with a silencer. Immediately afterwards the applicant’s husband had fallen to the ground and the armed men had left with his bailiff’s identity card and service pistol. Meanwhile, the applicant’s nephew, Mr Isa D., had picked up the machine-gun and fired a number of shots in the direction of the departing men who had not responded. The first applicant had not heard the noise of car engines or see any cars.
16. The Government noted that the first applicant had failed to inform the investigators that she had been prevented by the curfew from taking her husband to hospital.
17. According to the Government, at about 9.30 p.m. on the same date (23 October 2002) a group of unidentified armed men in camouflage uniforms and masks had broken into the yard of Mr T.M., an engineer from the operational communications unit of the department of the interior of the Staropromyslovskiy district of Grozny (the Staropromyslovskiy ROVD), requested his identity papers and taken away his officer’s identity card.
18. On the same date a shooting incident involving the same group of armed men had taken place at the house of Mr I. S., an officer of the criminal search unit of the Staropromyslovskiy ROVD.
19. The Government stated that according to information received from various prosecutors’ offices in Chechnya no “power structures” (силовые структуры) had been engaged in special operations in Pogranichnaya Street, Grozny on 23 October 2002. The Government stressed that there were grounds for suspecting that the group of armed men who had visited all three houses were an illegal armed group.
20. On 24 October 2002 the prosecutor’s office of the city of Grozny (“the Grozny prosecutor’s office”) instituted an investigation into the murder of Saidkhasan Dangayev under Article 105 § 2 of the Russian Criminal Code (“aggravated murder”). The case file was assigned number 54093.
21. On 24 October 2002 Saidkhasan Dangayev’s body was examined by a forensic expert and a report was drawn up which stated that the body had two gunshot wounds: one in the left arm and the other on the left side of the chest. No other injuries were found. It appears that the examination was perfunctory and no post-mortem was carried out.
22. On 5 November 2002 the Grozny prosecutor’s office granted the first applicant victim status in criminal case no. 54093.
23. On 6 November 2002 it issued a certificate confirming that Saidkhasan Dangayev had been killed by unidentified persons and that the investigation was in progress.
24. On 24 December 2002 (in the documents produced to the Court the date is mistakenly stated as being 24 December 2003) the Grozny prosecutor’s office suspended the investigation in case no. 54093 owing to a failure to establish the identity of the killers.
25. On an unspecified date in 2002 it conducted a crime scene inspection at 14 Pogranichnaya Street, Grozny, where it collected an AK-47 assault rifle no. 519506, a machine-gun belt, bullet casings, bullets and a cartridge.
26. On 15 January 2003 it informed the first applicant of its decision to suspend the investigation.
27. On 4-5 February 2003 the Chechnya Forensics Bureau examined the cause of death on the basis of an autopsy report dated 24 October 2002. It concluded that the death could have been caused by the gunshot wound in the chest.
28. On 5 April 2003 the first applicant wrote to the Chechnya prosecutor’s office requesting that the investigation into her husband’s murder be resumed, that she be provided with detailed information on progress and granted victim status in the proceedings.
29. On 14 May 2003 the Chechnya prosecutor’s office quashed the decision to suspend the investigation and reopened the proceedings, noting inter alia, that the investigation had established the following:
“...Between 9.30 p.m. and 11 p.m. on 23 October 2002 a group of armed men in camouflage uniform conducted identity checks and inspected houses in Pogranichnaya Street, Grozny. They entered the yard of the house at 14 Pogranichnaya Street where the senior bailiff from the Staropromyslovskiy bailiff’s office S. Kh. Dangayev resided with his wife, his nephew and his nephew’s wife.
According to the witness statement of Mrs M. Dangayeva, the wife of the victim, six or seven armed men entered the yard. S. Kh. Dangayev heard the noise and came out into the yard. He had his pistol and bailiff’s identity card with him. He produced them to the men and asked them who they were. In response he was kicked between the legs. He then ran back into the house and reappeared on the porch holding a machine-gun. At that moment he was shot with a silencer-equipped gun. After he had fallen to the ground, the men, who, in Mrs Dangayeva’s opinion were military servicemen, started running away from the yard. Her nephew picked up her husband’s gun and opened fire at them.
The investigators collected from the crime scene: 49 bullet casings of calibre 7.62 x 38 mm, 41 of which had been fired from the calibre 7.62 AKM machine-gun assigned to S. Kh. Dangayev as his service gun under licence no. 519506-75 and 8 bullet casings which had been shot from another gun. Additionally, the investigation also collected 8 calibre 7.62 x 38 mm bullet casings which had been fired from a sniper rifle or calibre 7.62 machine-gun and 3 calibre 7.62 x 33 mm bullets ...”
On the same date the Chechnya prosecutor’s office informed the first applicant of the decision to reopen the investigation and undertook to update her on any progress in the proceedings.
30. On an unspecified date in 2003 the investigators ordered a ballistic report on the bullet casings which had been found at the scene on 23October 2002.
31. On 19 May 2003 the investigation was transferred to the prosecutor’s office of the Staropromyslovskiy district of Grozny (“the district prosecutor’s office”).
32. On 18 June 2003 the district prosecutor’s office informed the first applicant that the investigation had been suspended owing to the failure to establish the identity of the killers and that she had the right to challenge the decision before a higher prosecutor or a court.
33. On 19 June 2003 the district prosecutor’s office suspended the investigation owing to the failure to establish the killers’ identity. The applicants were not informed.
34. On 28 July 2003 a lawyer acting on behalf of the first applicant requested the district prosecutor’s office to provide the first applicant with a copy of their decision of 19 June 2003.
35. On 24 October 2003 the SRJI requested the Chechnya prosecutor’s office to provide detailed information on the investigation, in particular, on whether the findings of the ballistic report had been used to identify the type of gun used and the killers and whether the bullets had been extracted from the body, placed with the investigation file and submitted to the ballistic experts for evaluation. The prosecutor’s office was also asked to inform the applicant why the investigators had also decided to examine the investigation files in criminal cases nos. 54824 and 54098 and of the results of the comparative ballistic expert evaluation of the bullet casings in all three cases. Finally, the prosecutor’s office was asked to provide the first applicant and her representative with a copy of the ballistic report and of the decision granting the first applicant victim status and to inform her about progress in the investigation.
36. On 21 December 2003 the SRJI again wrote to the Chechnya prosecutor’s office stating that they had not received any response to their request of 24 October 2003.
37. On 6 February 2004 the district prosecutor’s office quashed the decision to suspend the investigation and reopened the criminal proceedings. The decision stated, inter alia:
“...[the investigators] failed to question witnesses Mrs L.B., Mr R.G., who was born in 1964, Mr I.Sh. and Mr S.V...
It is necessary [for the investigators] to identify and question the persons who saw the car and armoured vehicles used by the unidentified persons who arrived at Saidkhasan Dangayev’s house, to establish their route to the house and the direction in which they departed.
It is necessary [for the investigators] to enquire of the Headquarters of the Internal Troops of the Russian Ministry of the Interior, the Armed Forces and other lawenforcement agencies stationed in Chechnya whether any special operations were conducted during the night of 23 October 2002 in Pogranichnaya Street and nearby streets in Grozny.
[The investigators] should ask all permanent and temporary district departments of the Chechnya Ministry of the Interior and the Chechnya Department of the Federal Security Service, the Regional Operational Headquarters, the Main Intelligence Department of the Ministry of Defence whether they conducted any special operations during the night of 23 October 2002 in Pogranichnaya Street in Grozny.
[The investigators] should obtain the registration log of the car and armoured vehicles which went through the checkpoints along the Staropromyslovskiy main road during the night of 23 October 2002 and carry out operational-searches to establish whether the unidentified killers belonged to federal structures...”
38. On 9 February 2004 the Chechnya prosecutor’s office informed the first applicant that the investigation into her husband’s murder was in progress and advised her to contact the district prosecutor’s office in order to join the proceedings as a victim. A copy of the letter was sent to the SRJI.
39. On 6 March 2004 the district prosecutor’s office suspended the investigation owing to a failure to establish the identity of the killers.
40. On 27 March 2004 the district prosecutor’s office quashed the decision to suspend the investigation and reopened the proceedings. The decision stated, inter alia:
“It is necessary to take the following investigative actions:
- to grant one of the relatives [of Saidkhasan Dangayev] victim status in the criminal proceedings and to question him/her in that capacity;
- to question Mr A.E. as a witness;
- to examine the investigation files in criminal cases nos. 54824 and 54098 and, if necessary, to join the investigation of these criminal cases [with the investigation into the murder of Saidkhasan Dangayev, criminal case no. 54093];
- to request responses to the investigators’ requests for information and send reminders, if necessary;
- to question as witnesses persons whose preliminary accounts of the events were included in the investigation file;
- to send requests for information to all district and city prosecutors’ offices in Chechnya...”
The applicants were informed of this decision on 26 April 2004.
41. On 27 May 2004 the district prosecutor’s office suspended the investigation owing to a failure to establish the killers’ identity. A letter informing the first applicant of this decision was sent to her address on the same date.
42. On 17 May 2005 the SRJI wrote to the district prosecutor’s office reiterating their request of 24 October 2003 for information about the results of the ballistic expert evaluation and progress in the investigation.
43. On 29 September 2005 the SRJI wrote to the Chechnya prosecutor’s office stating that no reply had been received to their request of 17 May 2005.
44. On 7 November 2005 the district prosecutor’s office informed the first applicant that they had reopened the investigation that day.
45. On 8 November 2005 the district prosecutor’s office informed the SRJI that pursuant to Article 161 of the Criminal Procedure Code they could not disclose any information concerning the investigation.
46. On 7 December 2005 the district prosecutor’s office suspended the investigation owing to the failure to establish the killers’ identity and informed the first applicant.
47. On 5 April 2007 the present application was communicated to the Russian Government and a copy of the investigation file into the death of the applicants’ relative was requested.
48. On 13 June 2007 the district prosecutor’s office quashed the decision to suspend the investigation as being unsubstantiated and reopened the proceedings. The applicants were not informed of this decision.
49. The Court has not been informed whether any investigative steps have been taken by the district prosecutor’s office since the last reopening of the criminal investigation on 13 June 2007.
50. The Government submitted additional information about the investigation into the murder of Saidkhasan Dangayev. However, they did not submit to the Court the witness statements, forensic and ballistic reports and a number of other documents to which they referred in their submission. The list of documents submitted by the Government is provided below (see paragraph 64).
51. According to the Government on 24 October 2002 – the day following Saidkhasan Dangayev’s death – the Grozny prosecutor’s office opened criminal case file no. 54093 and took the necessary investigative measures. The Government did not specify which measures were carried out by the investigators on that date.
52. The Government submitted that the applicants had not informed the investigators that at the material time the Staropromyslovskiy district of Grozny had been under curfew which had prevented the transportation of Saidkhasan Dangayev to a local hospital. In addition, they referred to statements by unnamed witnesses who said that they had not been prevented from moving freely about the Staropromyslovskiy district of Grozny during the curfew.
53. The Government further submitted that the applicant had not mentioned in her complaints to the domestic authorities that the killers could have been Russian military servicemen.
54. According to the Government, the manner in which Saidkhasan Dangayev was killed (by a gun equipped with a silencer) and the fact that the heavily armed assailants had left the scene without responding to the numerous shots fired by Mr Isa D. demonstrated that it could not have been a special operation by law-enforcement agencies. They added that the fact that the killers were armed with AK-47 assault rifles, pistols and sniper rifles with silencers did not prove that they were members of federal forces.
55. According to the Government, the investigators in criminal case no. 54093 questioned six witnesses: Mr Isa D., Mr R.G., Mrs A.E., Mr A.E., Mr T.M., and Mrs Zh.I. who described the perpetrators as a group of unidentified armed masked men in camouflage uniform who had spoken unaccented Russian.
56. The Government further submitted that the description provided by the witnesses did not demonstrate that the assailants were representatives of the State. Although the camouflage uniforms used were similar to the uniform of military servicemen, such uniforms had been available for purchase everywhere in the Russian Federation. In addition, the masks used did not have features distinguishing criminals from military servicemen. The firearms used could have been stolen or obtained by other illegal means. The fact that the killers spoke Russian did not prove that they were Russian military servicemen; they could have been residents of Chechnya and members of illegal armed groups from other countries who spoke the language.
57. The investigators had collected a significant number of bullet casings at the scene. According to the Government, this fact along with the inability of the eye-witnesses to clarify who was shooting and from which direction, cast doubt on the truthfulness of their statements to the criminal investigators. Nevertheless, the investigators had been trying to clarify the factual circumstances surrounding the killing.
58. The Government referred to a letter from the Staropromyslovskiy ROVD and submitted that the investigators had not found any witnesses able to confirm that the killers had arrived at the house by car or in armoured vehicles. According to the letter, on an unspecified date after Saidkhasan Dangayev’s death, officers of the Staropromyslovskiy ROVD had gone to the homes of residents in Pogranichnaya Street and the nearby streets trying to obtain information relating to the murder of Saidkhasan Dangayev. They had spoken to five local residents who had not provided any meaningful information.
59. The Government further referred to the ballistic expert’s report of 18 June 2003 (a copy of this document was not provided to the Court). According to that report, a comparison of the bullet casings found at the scene of Saidkhasan Dangayev’s murder with casings found at the scene of the theft of Mr R. Kh.’s property on 12 October 2002 (criminal case no. 54824 – see paragraph 18 above) and at the scene of the 23 October 2002 shooting at the home of Mr I. S., an officer of the criminal search division of the Staropromyslovskiy ROVD (criminal case no. 54098) had established that the same gun had been used to commit all three crimes.
60. Referring to the witness statement of Mr T. M., an engineer from the operational communications department of the Staropromyslovskiy ROVD (see paragraph 17 above), the Government submitted that at about 9.30 p.m. on 23 October 2002 a group of unidentified masked men in camouflage uniforms had broken into his yard, demanded his officer’s identity card and taken it away with them.
61. The Government contended that the taking of T.M’s and Saidkhasan Dangayev’s identity cards by the unidentified men demonstrated that the crimes had been perpetrated by the same group with the intention of using the documents for criminal purposes.
62. The Government further referred to the information received from the Chechnya Department of the Federal Security Service (the Chechnya FSB) and the Oktyabrskiy ROVD of Grozny that the Chechnya FSB had not conducted any special operations in Pogranichnaya Street, Grozny on 23 October 2002. Various prosecutors’ offices in Chechnya had also confirmed that they were not aware of any special operations being carried out by law-enforcement agencies in Pogranichnaya Street, Grozny on that date.
63. The Government further confirmed that the investigation had been suspended on a number of occasions owing to the failure to identify the perpetrators. The applicants had been duly informed each time the criminal proceedings had been suspended or reopened as also of their right to appeal against these decisions to public prosecutors or domestic courts. The Government further stated that although the investigation had not identified the killers, it was currently under way and investigative measures aimed at solving the crime were being taken.
64. Despite specific requests by the Court the Government refused to disclose most of the documents from the investigation file in criminal case no. 54093 on the grounds that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since it would be against the interests of the participants of the criminal investigation and lead to a violation of their rights. The Government submitted 20 procedural documents (29 pages) from the investigation file in criminal case no. 54093 as follows:
(a) decision dated 24 October 2002 to open a criminal case;
(b) four investigators’ decisions dated 28 October 2002, 19 May 2003, 26 April 2004 and 7 November 2005 to take up the case;
(c) five decisions dated 24 December 2003 (which should read 24 December 2002), 19 June 2003, 6 March 2004, 27 May 2004 and 7 December 2005 to suspend the investigation;
(d) four decisions dated 14 May 2003, 6 February 2004, 27 March 2004 and 13 June 2007 to reopen the investigation;
(e) four letters dated 15 January 2003, 18 June 2003, 27 May 2004 and 7 December 2005 informing the applicants of the suspension of the investigation;
(f) two letters dated 26 April 2004 and 7 November 2005 informing the applicants of the reopening of the investigation.
65. Article 125 of the Russian Code of Criminal Procedure 2001 (“CCP”) provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions.
66. Article 161 of the CCP establishes the rule that data from the preliminary investigation cannot be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission.
67. Article 1069 of the Russian Civil Code provides that damage sustained by an individual because of the unlawful acts or omissions of State and municipal agencies or their officials is to be indemnified by the State or municipal treasury concerned.
VIOLATED_ARTICLES: 13
2


ITEMID: 001-103679
LANGUAGEISOCODE: ENG
RESPONDENT: PRT;GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MANN v. PORTUGAL AND THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: The applicant, Mr Garry Norman Mann, is a British national who was born in 1958 and lives in Kent. He was represented before the Court by Ms K. Todner and Mr Evans, lawyers practising in London with Kaim Todner LLP. They were assisted by Mr E. Fitzgerald Q.C and Mr B. Cooper, counsel.
The applicant is a football supporter who was arrested and charged with participating in a riot during the European Football Championships in Portugal in June 2004. He was tried on 16 June 2004 by the Albufeira Judicial Court, two days after his arrest. The applicant claims that he had just five minutes with his legal representative before the hearing; that he did not understand the nature of the charge against him; that there were just two interpreters for fourteen defendants; and that the case proceeded by way of dock identification by the Portuguese police.
The applicant was convicted and sentenced to two years in prison. However, the sentence was not enforceable for fifteen days or until any appeal was heard. The offence was also one for which bail had to be granted pending appeal. Pursuant to a temporary organic law (no. 2/2004), which had been put in place to deal with trouble during the football championships, the applicant was permitted to leave the country under an order for voluntary departure.
The applicant wished to appeal against his conviction and sentence and he and his lawyer intimated this intention to the Albufeira Judicial Court. The appeal was not admitted due to a failure to submit proper grounds for appeal. In consequence, the applicant’s sentence became final. The applicant maintains, however, that proper grounds were submitted. No immediate action was taken to enforce the custodial sentence.
In July 2005, the United Kingdom authorities sought to impose football banning orders (civil restraining orders that prevent individuals from attending football matches in the United Kingdom or from travelling abroad to watch international football matches) on those, including the applicant, who had been convicted of involvement in riots at the European Championships in Portugal. However, on 3 August 2005, following a hearing that lasted several days, a district judge refused to grant the banning orders, holding that the convictions were “obtained in circumstances that were so unfair as to be incompatible with the applicants’ right to a fair trial under Article 6 [of the Convention]”. In reaching this finding, the district judge relied heavily on the oral evidence of an English police officer, PC Rutter, who had attended the trial in Portugal as an observer.
In 2007, the Portuguese authorities made a request to the United Kingdom Government that the applicant should serve his outstanding sentence in a United Kingdom prison. This request was refused as the United Kingdom authorities would only consider executing a foreign sentence within the scope of the 1983 Convention on the Transfer of Sentenced Persons, which would have required the applicant to have been serving a sentence in Portugal at the time of the request.
On 6 October 2008, the Portuguese authorities issued a European Arrest Warrant, requesting the applicant’s extradition to Portugal, which was certified by the United Kingdom Serious Organised Crime Agency (“SOCA”) on 18 February 2009. The applicant was arrested on 19 March 2009, brought before City of Westminster Magistrates’ Court and granted conditional bail. An extradition hearing took place in August 2009 before the Senior District Judge. The applicant’s representatives did not call any live witnesses, instead relying on the findings of the judge at the banning order hearing. In his decision, handed down on 18 August 2009, the Senior District Judge granted the extradition order. He held that, although the earlier judge’s findings were persuasive, they were not binding on him. Having examined a written note of the trial, the Senior District Judge concluded that the proceedings in Portugal had not been unfair within the meaning of Article 6. He noted that the applicant had been represented by an experienced lawyer who was representing just one other client and that an interpreter had been present throughout the trial. The applicant’s lawyer was able to cross-examine witnesses and address the court, and the applicant was able to give oral evidence. The Senior District Judge also noted that the applicant could have requested postponement of the trial for up to 30 days, which he had not done.
The applicant sought to appeal the Senior District Judge’s decision to the High Court. However, the applicant’s representatives at the time failed to file and serve notice of appeal to the High Court within the statutory period of seven days and, on 25 August 2009, the High Court held that it had no jurisdiction. Thereafter, the applicant instructed new solicitors who applied for the extradition hearing to be re-opened. On 2 November 2009 the Senior District Judge found that he had no jurisdiction to do so. The applicant sought judicial review of that decision and, at the same time, issued judicial review proceedings against SOCA in respect of its decision to enforce the extradition order.
These judicial review applications were heard together in the High Court on 19 November 2009 and dismissed in a written judgment handed down on 19 January 2010. The High Court held that, although the applicant had suffered an apparent injustice, it had no power to act. The injustice did not stem from the unfairness of the hearing (which was disputed), but from the successive failures of the applicant’s lawyers. Nonetheless, it went on to indicate a hope that this Court would grant an interim measure under Rule 39 of the Rules of Court.
On 10 December 2009 the applicant commenced further judicial review proceedings, alleging that it would be unlawful to extradite him while the present application was pending before this Court against Portugal. On 29 January 2010, the High Court granted an interim injunction against extradition pending the hearing of the judicial review application.
On 24 April 2009 the applicant’s representatives at the time lodged an application with this Court against Portugal (no. 23555/09). The applicant alleged that the Portuguese trial had been unfair on five grounds: the applicant had had insufficient time adequately to instruct a lawyer and prepare his defence; the trial had taken place so quickly that he had been unable to retrieve CCTV footage, which would have given him an alibi; he had no time to trace witnesses who would have supported that alibi; the quality of the interpretation at the trial was so poor he did not understand the nature of the charge and could not follow the proceedings; and the temporary organic law did not provide adequate protection for the rights of the defence.
On 12 January 2010, a Committee of three Judges declared the application inadmissible. It found that the final domestic decision within the meaning of Article 35 § 1 of the Convention had been given on 16 June 2004, more than six months before the date on which the application had been submitted to the Court.
The present application was lodged against Portugal on 10 December 2009. On 21 January 2010 the applicant wrote to the Court, bringing an application against the United Kingdom and requesting an interim measure under Rule 39 of the Rules of Court to prevent his extradition by the United Kingdom authorities to Portugal. He further requested first, that the Court indicate to the Portuguese Government that they should not request his surrender until his substantive application to the Court had been heard and second, that the Court indicate to the Portuguese Government that they should withdraw the European Arrest Warrant or issue a fresh warrant thereby allowing proceedings in the United Kingdom to recommence.
On 2 February 2010, the Fourth Section of the Court (to which the application had been allocated) decided that, in light of the interim injunction given by the High Court on 29 January 2010, there was no current risk that the applicant would be extradited from the United Kingdom and it was inappropriate to determine the Rule 39 requests at that stage.
On 26 March 2010 the High Court gave judgment on the application for judicial review that had been lodged on 19 December 2009. It lifted the injunction which it had given on 29 January 2010. The High Court found that it had no power to prevent an extradition merely because an application had been made to this Court.
On 7 April 2010 the Acting President of the Section decided to apply Rule 39 of the Rules of Court and to indicate to the United Kingdom Government that the applicant should not be extradited to Portugal. That decision was taken to allow the Section to consider the applicant’s Rule 39 requests. On 27 April 2010, the Section decided to lift the interim measure previously indicated to the United Kingdom Government. It also decided to refuse the Rule 39 requests made in respect of the Portuguese Government.
On 28 April 2010 the applicant commenced further judicial review proceedings in the United Kingdom. He argued that his extradition would be incompatible with Articles 5 and 6 of the Convention, relying on email correspondence from British consular staff in June 2004, which recorded their understanding that, because the applicant’s sentence was less than three years, his deportation meant he would not have to serve his sentence in Portugal. The judicial review application was refused on 7 May 2010. The High Court found that there was nothing in the emails which had not been before the Senior District Judge. It also found that it could not intervene to prevent extradition pending the outcome of an application to this Court when the applicant would not suffer irreversible harm as a result of the extradition and when this Court had already refused the applicant’s Rule 39 request.
The applicant was extradited to Portugal on 16 May 2010.


ITEMID: 001-98810
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: EFFECTEN SPIEGEL AG v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Effecten Spiegel AG, is a corporation (Aktiengesellschaft) registered in Germany. It was represented before the Court by Mr D. Herrmann, a lawyer practising in Karlsruhe.
company, may be summarised as follows.
The applicant company is the publisher of Effecten-Spiegel, a weekly journal aimed at the investor community. By letter of 5 November 2001 the editor received a press statement by Mr D., a shareholder and former staff member of Audi, a subsidiary of one of the leading German automobile groups, the Volkswagen group (VW). In the statement Mr D. raised several allegations against Mr P., a well-known business leader and manager, chairman of the board (Vorstandsvorsitzender) of Audi until 1992 and chairman of the board of VW from 1993 to 2002. Both companies were listed on the stock exchange and the Federal State of Lower Saxony (Land Niedersachsen) held approximately one-fifth of the shares.
Prior to publication, by letter of 6 November 2001 the applicant company transmitted Mr D.'s press statement to the board of Audi and asked for a written comment (schriftliche Stellungnahme). The next day the applicant company informed the board of Audi that for editorial reasons any comments should be sent by 12 November 2001.
In its issue of 15 November 2001 Effecten-Spiegel published an article on the basis of Mr D.'s press statement. The article gave an account of parts of Mr D.'s press statement and his allegations against Mr P. In the last paragraph of the article the author commented on these statements, holding that “the whole story stinks to high heaven” (“Das Ganze stinkt zum Himmel”):
“The whole story stinks to high heaven! Particularly if it is borne in mind that the Federal State of Lower Saxony indirectly owns 20% of Audi and that therefore particular sensitivity could be expected. Effecten-Spiegel has in the past denounced the fact that big business was ransacking the national economy. If big business will not even invest in the East in a case such as this one, when will it? And the reproach of betraying one's own country in this context seems understandable. But above all, I wonder: VW is trying to squeeze out private dealers and to set up its own branches everywhere, and it cannot equip the east European countries with its own branches, but acts by proxy of a company owned by P., Porsche Holding?!!! That is totally implausible!”
The article revealed the source of its contents and Mr D. was presented as an insider source as he had been involved, in 1971, as the main representative of one sector of the board of Audi, in the conclusion of contracts with VW.
On 10 November 2002 the Hamburg Regional Court, upon an application by Mr P. for an injunction (Unterlassungsklage), ordered the applicant company to refrain from disseminating certain parts of the article, namely from:
“1. disseminating:
'It is known that P. holds shares in Porsche and in 1992, according to D., he apparently grabbed for free (offenbar kostenlos unter den Nagel gerissen) the exclusive distribution rights through Porsche Holding for Audi, Seat, Skoda and VW in Hungary, Slovakia and Romania.'
2. giving the impression that in the context of his activities for VW AG the plaintiff [Mr P.] was involved in decision-making concerning royalty payments in favour of Porsche Holding or other companies in which the plaintiff holds shares, by reporting:
'Moreover [in conjunction with D.'s allegations against the plaintiff], D. addresses the question of royalty payments by Audi AG to Porsche AG or other companies in which P. holds shares.'
3. disseminating that the background to the decision against Magdeburg (namely in favour of building an engine plant in Györ in Hungary) was, in D.'s opinion, that 'Mr P. would like to have a factory as the exclusive distributor, exactly as for the allterrain vehicles in Slovakia'.”
The Regional Court held that the dissemination of the above statements violated Mr P.'s personality rights. The first statement (under 1.) consisted of a factual statement because to say that somebody had “grabbed” something implied that this person had acted with the aim of getting something. The statement was also disparaging as it implied that Mr P. had abused his leading position to his own advantage. Hence, the Regional Court found that the burden of proof was with the applicant company, which had not produced any evidence to that effect and had not even contested Mr P.'s submission that he had not been involved in the decision about the exclusive distribution rights. Against this background the statement had to be regarded as untrue and thus was not protected by freedom of speech. Moreover, the court held that there had not been a legitimate interest in the publication of the statement. It was true that even the publication of untrue factual statements could be justified. However, this was only the case if the person disseminating the information had sufficiently tried to verify the facts prior to publication and if any remaining doubts as to the truth of the facts had been made sufficiently clear. In the case at hand, the applicant company had not even come close to having exhausted all possibilities of establishing the facts, as it had not tried to obtain a statement either from Mr P. himself or from the board of VW, that is, from those persons against whom the allegations had been raised. Furthermore, the article was a long way from balanced coverage that also indicated doubts as to the truth of the statements made by Mr D.
As to the second statement (under 2.), the Regional Court held that it necessarily gave the impression claimed. This was the case in particular because the statement that Mr D. also “addresses the question of royalty payments” was made in the direct context of the statement that Mr D. had raised serious allegations against Mr P. Any other understanding would render the statement meaningless and empty. The statement, hence, consisted of a factual statement (through the creation of an impression) and had to be regarded as untrue because the applicant company had not produced any evidence. For the same reasons as for the first statement, there had also not been a legitimate interest in the publication of the expression.
As to the third statement (under 3.), the Regional Court likewise held that it consisted of a factual statement as it alleged a certain motivation on the part of Mr P., in other words an “internal fact”. Such statements had to be regarded at least as statements of fact if they were connected with certain external events by which these internal circumstances allegedly became perceptible to others. The court found that this was the case as the decision to build an engine plant in Hungary was traced back to an alleged internal motivation on the part of Mr P. as being the real reason for that decision. The existence of this alleged causal connection between the motivation of Mr P. and the decision in question was susceptible to proof – be it by circumstantial evidence or by interviewing Mr P. The statement, moreover, had not been changed into a value judgment by formally adding “in Mr D.'s opinion”. The decisive factor was not the formal terms in which a statement was couched but the way it was understood by the average reader. Otherwise the publisher of a factual statement could easily escape the rules governing publication of statements of fact by adding “according to” or “in the opinion of”. From the perspective of an average reader, the basic purpose of the statement at stake was not to convey information about the personality and the opinions of Mr D. – as might be the case, for example, in a portrait of Mr D. – but about events within the VW group. Finally, for the same reasons as for the first and the second statement, there had neither been a legitimate interest in the publication of this statement.
On 18 February 2003 the Hamburg Court of Appeal dismissed an appeal by the applicant company against the judgment and refused leave to appeal on points of law. It confirmed the reasoning adopted by the Regional Court. As to the appellate submissions, the Court of Appeal added that, concerning the first statement, the expression “grabbed for free” could only be understood in the sense that Mr P. had actively influenced the decision about the awarding of the exclusive distribution rights. It pointed out that, contrary to the applicant company's contention, the simple fact of Mr P. being the chairman of Audi was far from being sufficient to influence that decision in the manner claimed. It also expressly confirmed the Regional Court's finding that the applicant company should have interviewed Mr P. or at least the board of VW. Moreover, the article was not even close to mentioning sufficient facts supporting a reasonable suspicion. With regard to the second statement, the Court of Appeal confirmed that it necessarily suggested the impression claimed and re-emphasised that the statement directly followed the information that Mr D. had raised “serious allegations” against Mr P. and that the article ended with the conclusion that “the whole story stinks to high heaven”. Such wording was not of a kind to leave it up to readers to draw their own conclusions. As to the third statement and the argument – also mentioned in the article – that prior to the decision in favour of Györ, Mr P. had given incorrect information about the difference in salaries between Hungary and Germany, the Court of Appeal held that it did not follow from this that the real reason for the decision was the motivation of Mr P. as alleged in the article.
On 23 September 2003 the Federal Court of Justice rejected a complaint by the applicant company against the refusal of leave to appeal on points of law (Nichtzulassungsbeschwerde), without giving further reasons.
On 21 March 2007 the Federal Constitutional Court refused to accept for adjudication a constitutional complaint by the applicant company. It first held that statements of fact – whether a person's own statements or statements of others incorporated in the person's own statement – fell within the scope of protection of the freedom of expression as guaranteed in the Basic Law (Grundgesetz) as long as their untruthfulness was not established. However, this protection was subject, inter alia, to the limitations laid down by the provisions of general laws, including the protection of the personal rights of others. The interpretation and application of these provisions, the establishment of the facts and the balancing of the different interests concerned were the task of the civil courts, which had to take into account the relevance and the impact of fundamental rights.
With regard to the general principles established in its case-law the Federal Constitutional Court underlined that it was of crucial importance whether an expression contained factual elements the truth of which could be verified. If an expression inseparably contained both factual and evaluating elements, it had to be regarded as a value judgment if it was dominated by the evaluating elements. However, the truth or untruth of the factual elements had to be taken into account when balancing the different interests. If the publication of statements of fact, the truth of which was uncertain, interfered with the personal rights of others, there were duties of care (Sorgfaltspflichten) to fulfil. The more intense the interference, the more intense these duties became. One aspect was the question whether the person making the statement had adequately verified the facts and correctly conveyed the state of his knowledge in this regard. The courts had to take into account that these duties of care were an expression of the State's positive obligation to protect the personal rights of others. On the other hand, they also had to take into account the public interest in the information concerned, and the requirements in question should not have a constricting effect on readiness to make use of the freedom of expression.
Against the background of these principles, the Federal Constitutional Court did not find a violation of constitutional law. It held that the expressions at stake all contained factual elements, the truth of which had not been established. The Federal Constitutional Court also found that at the time of their publication there had been no legitimate interest in the dissemination of the statements at stake. It held that it might have been excessive for the courts to have required the applicant company to also ask the board of VW and Mr P. for a written comment. However, this had been only one additional aspect amongst others which in themselves formed a sufficient basis to justify the decisions. In particular, the courts had taken into account that the statements in the article were based on one single private source only and that the dissemination of such information was acceptable only if there was a minimum of evidence in favour of its veracity. Lastly, the Federal Constitutional Court also found that the court decisions were not in contradiction with the case-law of the European Court of Human Rights. Referring to different judgments of the latter, it pointed out that there was no breach of Article 10 of the Convention if the domestic courts, when balancing the different interests involved, attached weight to the question whether the person making the statement had conducted his own investigations as to the veracity of the information and whether any remaining doubts had been made sufficiently clear.


ITEMID: 001-103383
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF DOLGOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3;Violation of Art. 5-1
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1974 and is now serving his sentence in the Tula Region.
6. At about 11.30 a.m. on 10 April 2003 the cashier desk of the Petelino psychiatric hospital in the Tula Region was robbed by three men armed with a submachine gun and a sawn-off shotgun. Two police patrols arrived at the scene less than five minutes later.
7. The police officers who apprehended the applicant described the events in the following manner. Officer B. stated, in particular (his statement to the investigator is dated 17 June 2003):
“I saw three men cross the motorway and disappear behind the forest shelter belt... I started running across the forest to intercept the criminals. At that moment I heard a burst of submachine gun fire. As I emerged out of the forest, I saw two men in front of me who later turned out to be K. and [the applicant]. K. wore light-blue jeans and a dark jacket, and [the applicant] wore dark tracksuit bottoms. K. carried a Kalashnikov submachine gun with no butt, and [the applicant] had a sawn-off rifle ... I told the criminals to freeze, drop the guns and offer no resistance. K. and [the applicant] ... crossed the motorway. Then I shot a few rounds in burst mode in the direction of the criminals but above their heads and told them again to freeze. [The applicant] fell on the roadside, and the rifle flew out of his hands ... K. turned around, saw the police car and fired several shots in its direction. Then he slipped and fell. I ran up to him, pointed my gun at him and told him to stop resistance and drop the weapon. The muzzle of his submachine gun was pointed at my face, so I kicked the gun out of his hand and used physical force on him in accordance with section 12 of the Police Act ... During that time, [Officer M.] was trying to tie up [the applicant] because he was trying to get up and run away ... During the arrest we had to use physical force on K., [the applicant], and Sh. because they actively resisted us. As a result, they sustained injuries but I cannot say what injuries and where because they were covered in mud.”
8. Officer M., in his statement to the investigator made on 11 April 2003, testified as follows:
“Three men were running some seventy metres ahead of us... One of them – the one who was a bit taller, in light-blue jeans and black jacket – turned to us and fired a burst from his submachine gun in our direction ... [Officer B.] fired two shots at the running men ... The men had already crossed to the roadside in the direction of Novomoskovsk ... but the man in tracksuit bottoms fell on the roadside and covered his head with his hands. The man in blue jeans and black jacket fired a burst at the police car and started going down towards the forest but slipped and fell on his back ... He pointed his submachine gun at [Officer B.] who, in turned, pointed his gun at him and told him to drop the weapon. Meanwhile, I ran up to the second man who had fallen on the ground, covered his head with his hands and pushed away his sawn-off rifle ... and I told [Officer S.] to cuff his hands which he did. I ran up to [Officer B.] and told the man in blue jeans to throw the gun away. The man reclined on his back and put the gun aside. I kicked it away and, using martial arts, bent his arm behind his back, led him away and put him on the ground where handcuffs were applied to him ...”
9. On the same day Officer S. testified in the same vein:
“... the man in tracksuit bottoms fell on the roadside and covered his head with his hands... [Officer M.] and I ran up to the second man who had fallen on the ground and covered his head; [Officer M.] kicked aside the sawn-off rifle and told me to use handcuffs on him which I did ...”
10. It appears from Officer Shch.'s statement of 15 July 2003 that he did not take part in the applicant's arrest:
“... [Officers B., M., and S.] were running after them through the forest. [The applicant] fell on the roadside and [Officer S.] or someone else, I do not remember who, arrested him ...”
11. According to the applicant, he had fallen to the ground immediately after the police started firing, and covered his head with his arms. The applicant claimed that a police officer had approached him and kicked him in the head. His head had jerked and his face had hit gravel, chipping two teeth.
12. The applicant and two other men were brought to the Shatskoye police station in the Leninskiy district of the Tula Region.
13. The applicant submitted that he had been brought to an office on the second floor. Three riot-squad (“OMON”) and two operational officers had entered the room. They had worn camouflage fatigues and woven hats. The OMON officers had made him kneel down with his hands cuffed behind his back. The officers had kicked and punched him, dealing blows all over his body, including his face and lips. One officer had hit him several times with a chair leg, another officer had straightened his right leg out and dealt a strong blow on his knee. He had been told to strip down and an officer had pushed the chair leg into his rectum.
14. At 8 p.m. the investigator Mr Bu. carried out a visual examination of the applicant's person in the presence of two attesting witnesses and a chemistry specialist. He noted that the applicant's face was covered with a “grey substance” and also with a “blood-like brown substance”. One of his front teeth was chipped. There were no injuries on the anterior side of his body, but his other side was covered with bruises and haematomas. The applicant had a bruise on his right hip and abrasions on both knees.
15. On the following day, 11 April 2003, the applicant was placed in the temporary detention ward of the Leninskiy district police station. The applicant wrote a complaint to the prosecutor about the beatings.
16. On 13 April 2003 the investigator Mr Bu. refused to institute criminal proceedings into the applicant's allegations. Referring to the arresting officers Mr Shch. and Mr B. who claimed that the applicant had forcefully resisted the arrest, and to the statements by two operational officers who denied that the applicant had been beaten at the police station, the investigator adopted the view that the visible injuries had been caused during the arrest.
17. At 11.15 a.m. on 15 April 2003 a medical expert commissioned by the investigator of the Leninskiy district prosecutor's office Mr M. carried out a detailed examination of the applicant's injuries. The expert recorded multiple bruises and abrasions on the applicant's face, lips, left ear, right temple and cheek-bone, back, arms, wrists, right hip and shin, haemorrhage in the sclera of both eyes, and a broken tooth on the upper jaw. According to the expert, those injuries had been caused by no fewer than thirteen blows of a hard blunt object and no earlier than seven days before the examination.
18. On 18 April 2003 the applicant was transferred from the Leninskiy district police station to remand centre no. IZ-71/1 in Tula. On arrival at the remand centre he was examined by a doctor. According to the medical certificate of the same date, the applicant had a bruise around his right eye, as well as an abrasion and an injury on his right hip. He told the doctor that he had been beaten at the police station.
19. On 19 June 2003 a deputy Leninskiy district prosecutor issued a new decision refusing to institute criminal proceedings into the applicant's allegations of ill-treatment. The text of the decision was identical, word by word, to that of the decision of 13 April 2003.
20. The applicant complained to a higher prosecutor. On 19 February 2004 the acting Leninskiy district prosecutor upheld the decisions of 13 April and 19 June 2003 as lawful and justified.
21. In November 2003, counsel for the applicant complained about the ill-treatment to the Uzlovaya town prosecutor, the Tula regional prosecutor, the Prosecutor General's Office, the Internal Security Department of the Tula Regional Police, the Federal Security Service, and other authorities. On 11 August and 22 December 2003 and 27 January 2004 the applicant also sent complaints about ill-treatment to the Tula regional prosecutor.
22. On 25 December 2003 a deputy Tula regional prosecutor replied to the applicant's lawyer that his complaints about ill-treatment had already been examined and that a decision refusing to institute criminal proceedings had been made.
23. On 18 June 2004 the applicant complained to the trial court about illtreatment and the authorities' failure to investigate his allegations. It is unclear whether any formal response was received.
24. On 2 September 2004 Officers B., M., S., and Shch. and the investigator Mr Bu. were heard in the witness stand by the trial court. Officer Shch. stated that the defendants had not offered any resistance during the arrest and that they had been immediately handcuffed. He denied using any physical force during the arrest and pointed out that K. had been dirty but had had no visible injuries. Officer B. submitted that no force had been employed but he had bent K.'s arms and handcuffed him. Officer S. confirmed that, once on the ground, the defendants had no longer resisted the arrest and that there was no attempt to punish them after the arrest. Officer M. testified that one of the defendants had been handcuffed, and the other's hands had been tied with a belt. The investigator Mr Bu. said that he was unable to remember any injuries on the defendants.
25. On 10 January 2005 the applicant challenged the investigator's decision of 13 April 2003 before a court of general jurisdiction. He submitted that the inquiry had been incomplete because the investigator had never interviewed him about the alleged ill-treatment. The statements by the arresting officers had been contradictory: in the criminal proceedings they had denied that he had offered any resistance, whereas the investigator had found that the injuries had been caused during the arrest. The applicant enclosed the medical certificates dated 10 April and 15 April 2003.
26. On 25 February 2005 the Leninskiy District Court of the Tula Region dismissed the applicant's complaint without taking cognisance of the merits. It held, firstly, that the contested decision did not restrict the applicant's constitutional rights or impede his access to justice and therefore was not amenable to review under Article 125 of the Code of Criminal Procedure. Secondly, it stated that an inquiry into the applicant's allegations of ill-treatment had been carried out in the framework of criminal proceedings against him and therefore concerned the evidence in the criminal case which was pending before the trial court. The District Court declared itself incompetent to examine the matters which were being examined by the trial court.
27. The applicant was not present or represented at the hearing before the Leninskiy District Court. He filed an appeal, in which he complained that the District Court had not ensured his representation at the hearing and failed to examine the evidence of ill-treatment he had submitted.
28. On 13 April 2005 the Tula Regional Court upheld, in summary fashion, the District Court's judgment. It noted that there had been no violation of the applicant's right to defence because both he and counsel for him had been informed of the hearing date but had not sought leave to appear.
29. On 12 April 2003 the Leninskiy District Court of the Tula Region remanded the applicant in custody for an initial two-month period.
30. On 16 April 2003 the applicant was charged with an armed robbery of the hospital.
31. On 9 June, 6 August, 14 October, and 29 December 2003 the Uzlovaya Town Court extended the applicant's detention until 15 February 2004. On 13 February 2004 it granted a further extension until 10 April 2004.
32. On 9 April 2004 the case against the applicant and his co-defendants was submitted to the Uzlovaya Town Court for trial.
33. On 16 April 2004 the applicant complained to the Tula regional prosecutor that, following the expiry of the last detention order on 10 April 2004, there was no legal basis for his continued detention. He did not receive a reply.
34. On 23 April 2004 the Uzlovaya Town Court gave a decision fixing the date of the preliminary hearing. The decision did not mention the question of the applicant's detention.
35. At the preliminary hearing on 13 May 2004 the Town Court ruled that the bill of indictment was procedurally defective in that it contained incorrect information about the applicant's personal details. The court decided to return the case to the prosecutor for five days so that he could remedy these defects. It also rejected applications for release by the applicant and his co-defendants, noting that the preventive measure had been imposed lawfully and that there were no grounds for varying it.
36. On 17 May 2004 the prosecutor again sent the case for trial. On 31 May 2004 the Uzlovaya Town Court set the opening date for the trial and held that all the defendants should remain in custody, without citing any grounds for the continuation of their detention on remand or setting a time-limit for it.
37. On 4 November 2004 the Uzlovaya Town Court heard the prosecutor's application for a further extension of the applicant's detention. The applicant and his co-defendants applied for release, maintaining that the initial six-month period of their detention pending trial had expired on 9 October 2004.
38. The Town Court held that the six-month period of detention should be calculated from the date when the case had been sent for trial again, that is, from 17 May 2004. It extended all the co-defendants' detention by three months, citing as the ground the complexity of the case and the large number of victims and witnesses who had not yet been examined. The applicant filed an appeal. He submitted that, if the six-month period were to be calculated from 17 May 2004, his detention from 9 April to 17 May 2004 must have been unlawful. On 17 December 2004 the Tula Regional Court rejected his appeal in summary fashion, endorsing the reasoning of the Town Court.
39. On 10 February 2005 the Uzlovaya Town Court granted a further extension of the defendants' detention until 17 May 2005. On 15 April 2005 the Tula Regional Court upheld that decision on an appeal by the applicant.
40. On 19 July 2005 the Uzlovaya Town Court convicted the defendants of four robberies and sentenced the applicant to ten years' imprisonment in a high-security institution. On 25 January 2006 the Tula Regional Court upheld the conviction on appeal.
41. The applicant submitted copies of three articles published in the regional press in 2004. The articles described the robbery of the hospital and two other robberies imputed to the applicant and his co-defendants. The perpetrators were described as “jackals from Petelino”, “robbers” or a “gang”. The same photograph accompanied all three articles; the face and upper body of the person on the photograph were covered with a jacket.
42. The investigator's or prosecutor's decision refusing institution of criminal proceedings or discontinuing criminal proceedings, as well as any other acts capable of impairing the constitutional rights or freedoms of parties to criminal proceedings or impeding citizens' access to justice, are amenable to judicial review by the court located at the place where the pre-trial investigation is being carried out (Article 125 § 1 of the Code of Criminal Procedure).
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-71536
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: LOMAKIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Andrey Gennadyevich Lomakin, is a Russian national, who was born in 1972 and lives in Volgograd. The applicant is a lawyer. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 2001 the applicant published two articles in the regional newspaper “Day by Day. Tsartisyn – Stalingrad - Volgograd”(“День за днем. Царицын - Сталинград - Волгоград”). Both articles inquired into the circumstances of granting a new flat to Ms S., a judge of the Volgograd Regional Court and chairperson of the Regional Judges’ Qualification Panel.
The first article, under the headline “Legitimised Judge” (“Судья в законе”), appeared in the issue of 20-26 April 2001. The second article, entitled “Voluntary Retirement of a Judge” (“Добровольная отставка судьи”), was printed in the issue of 4-10 May 2001.
The publications alleged that Judge S. had taken advantage of her position in order to obtain a four-room flat for her family of three and that she had given her old flat to her adult daughter instead of surrendering it back to the council as required by law. The second article suggested that Judge S. had applied for her resignation fearing an inquiry into her deeds.
Judge S. sued the applicant for defamation. She submitted that the applicant’s assertions about her having unlawfully obtained a better housing were of a libellous nature. She considered defamatory the following extract from the first article:
“The Law on the Status of Judges in the Russian Federation is applied selectively in the Volgograd Region and its application is related not only to the high status of judges, but also to their office... thus it may be understood that the equality of all [citizens] before law and courts ends where we talk about judges themselves. Hence the rule is ‘the law is like a rudder, it goes where you bend it’.”
Judge S. also regarded the following passages from the second article as defamatory:
“...on having received a new flat, [Judge S.] should have surrendered the one she had occupied in the past. However, the ‘surrendering’ only happened through privatisation [of the old flat] and its subsequent sale. In this way Judge S. of the Volgograd Regional Court dramatically ‘improved her living conditions’ – now she has got a new flat of a bigger surface and money for the old one.”
“Judge S. was forced to retire because of other circumstances... A visit of a high-ranking official from the Supreme Judges’ Qualification Panel of Russia who came to investigate the complaints of Judge Ch. [concerning the termination of his powers] has helped S., the chairperson of the judges’ qualification panel for the Volgograd Region, to make a decision on her retirement.”
On 4 March 2002 the Judges’ Council of the Volgograd Region (Совет судей Волгоградской области) sent a letter to the President of the Volgograd Bar, of which the applicant was a member, requesting that the applicant’s bar membership be annulled. The letter referred to the applicant as an unethical lawyer who had published articles of “clearly libellous nature” and who attempted to exercise “illicit and immoral” influence on Judge S. to have her action withdrawn. The letter contained the following passage:
“Realising the well-founded character of the action lodged and attempting to avoid a public declaration on the unlawfulness of his acts by a court decision, [the applicant] resorts to impermissible means, which violate the generally recognised moral standards, seeking to have [Judge S.] withdraw her claim in the court.”
On 29 March 2002 the Presiding Committee of the Volgograd Bar passed a decision to annul the applicant’s membership because of “unethical performance of his duties”. The decision referred to disciplinary sanctions that had been imposed on the applicant in the past.
On 15 November 2002 the Voroshilovskiy District Court of Volgograd upheld the Presiding Committee’s decision. The applicant did not appeal against the judgment.
On 18 April 2002 the Dzerzhinskiy District Court of Volgograd granted the defamation action. The court found that the applicant had not produced any evidence in support of his assertions that Judge S. had unlawfully refused to surrender her old flat or that her retirement had been somehow connected with the inquiry by a high-ranking official. The court also held that the headline of the first article “Legitimised Judge” was also damaging to Judge S.’s reputation:
“The court considers that a mass reader knows from the press, television, literature and essays, as well as from one’s personal experience, that the term ‘legitimised thief’ [вор в законе] refers to a person with a long criminal record who enjoys respect and authority in the criminal milieu. The headline ‘Legitimised Judge’ stylistically clearly alludes to the term ‘legitimised thief’ and semantically it is implied here that the ‘judge’ is a criminal. On this ground the court holds that the headline of the article damages honour, dignity and professional reputation of Judge S. because the [applicant] failed to produce any evidence of a breach of any laws by the plaintiff.”
The court held the applicant liable for 12,000 Russian roubles (“RUR”, approximately EUR 400).
The applicant lodged a statement of appeal in which he contested the reasons of the judgment of 18 April 2002. A copy of the statement has not been made available to the Court.
On 2 October 2002 the Volgograd Regional Court, sitting in a three-judge formation, upheld the judgment of 18 April 2002.
Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.
Article 152 provides that an individual may apply to a court with a request for the rectification of “statements” (“сведения”) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements.


ITEMID: 001-80173
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ATICI (No. 2) v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1970 and lives in Kocaeli.
5. On 16 October 1992 the applicant was arrested by police officers from the anti-terrorism branch of the Istanbul Security Directorate on suspicion of his membership of the Dev-Sol (the Revolutionary Left) and was taken into police custody.
6. On 26 October 1992 he was brought before the investigating judge at the Istanbul State Security Court, who ordered the applicant's detention on remand.
7. On 8 January 1993 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and sixteen other co-accused, charging them, inter alia, with membership of an illegal armed organisation and for participating in activities that undermined the constitutional order of the State. The public prosecutor sought the death penalty for the applicant pursuant to Article 146 § 1 of the Criminal Code.
8. In 2004 the State Security Courts were abolished following a constitutional amendment and the applicant's case was transferred to the Istanbul Assize Court.
9. On 2 May 2005 the Istanbul Assize Court convicted the applicant as charged and sentenced him to life imprisonment.
10. The Court of Cassation quashed the judgment of the first-instance court. The case was remitted before the Istanbul Assize Court where it is still pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-75826
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SHEVANOVA  v. LATVIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (victim);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings
JUDGES: Christos Rozakis
TEXT: 11. The applicant is a Russian national who was born in Russia in 1948 and lives in Riga (Latvia).
12. In 1970, at the age of twenty-two, the applicant settled in Latvian territory for work-related reasons. Between 1973 and 1980, the year of her divorce, she was married to a man resident in Latvia. In 1973 she gave birth to a son, Jevgeņijs Ševanovs, who has lived with her until the present day.
In 1981, having lost the Soviet passport issued to her in 1978, the applicant obtained a new passport. In 1989 she found the lost passport, but did not return it to the relevant authorities.
13. In August 1991 Latvia regained full independence. In December 1991 the Soviet Union, the State of which the applicant had hitherto been a national, broke up. The applicant therefore became stateless. In August 1992 her name was entered in the register of residents (Iedzīvotāju reģistrs) as a permanent resident. Her son was subsequently granted the status of “permanently resident non-citizen” of Latvia.
14. In 1994 a Latvian bridgebuilding firm offered the applicant a job as a crane operator in Dagestan and Ingushetia, regions of the Caucasus bordering on Chechnya and belonging to the Russian Federation. In view of the difficulties caused by tighter supervision in these regions by the Russian authorities on account of the troubles in Chechnya, the firm advised her to obtain Russian nationality and a formal registration of residence in Russia before signing the employment contract. In May 1994 the applicant consulted a broker who put a false stamp in her first Soviet passport, the one which had been found but not disclosed to the authorities, stating that the registration of her residence in Latvia had been cancelled (pieraksts, or dzīvesvietas reģistrācija in Latvian).
15. In June 1994 the applicant was registered as being resident in Shumanovo in the Kursk region of Russia, at her brother’s address. In August 1994 she obtained Russian nationality. In 1995 and 1996 she travelled to Russia, working there for two periods of 100 and 120 days respectively.
16. In March 1998 the applicant applied to the Interior Ministry’s Nationality and Migration Directorate (Iekšlietu ministrijas Pilsonības un migrācijas lietu pārvalde – “the Directorate”) for a passport based on the status of “permanently resident non-citizen”. In accordance with the regulations in force, she submitted alongside the application the second Soviet passport issued to her in 1981. On examining the file, the Directorate discovered that she had registered a second residence in Russia and had completed certain formalities on the basis of the old passport which had been mislaid and found again. Accordingly, by decision of 9 April 1998, the Directorate removed the applicant’s name from the register of residents. On the same day the head of the Directorate issued an order for the applicant’s deportation (izbraukšanas rīkojums), requesting her to leave Latvia for Russia by 19 June 1998. The deportation order was accompanied by a prohibition on re-entering Latvia for five years. It was served on the applicant on 11 June 1998.
17. After appealing unsuccessfully against the deportation order to the head of the Directorate, the applicant lodged an application with the Riga City Central District Court seeking to have the order set aside. In her memorial she submitted that, as the false stamp in her passport had been put there without her knowledge and she had therefore been unaware of it, she should not have to bear the consequences. In addition, since the registration of her residence in Russia had been merely temporary, it could not affect her existing registration in Latvia. She further argued that there were no legislative or regulatory provisions in force prohibiting her from having addresses in two different countries. Accordingly, the applicant requested the court to set aside the order for her deportation and to instruct the Directorate to issue her with a permanent residence permit.
18. In a judgment delivered on 3 December 1998 following adversarial proceedings, the court rejected the request, finding that the deportation order had been lawful and well founded. As to the applicant’s request that she be issued with a residence permit, the court declared that part of the application inadmissible on the ground that she had not applied for a permit to the relevant authorities, nor had she lodged an administrative appeal before applying to the courts, as required by section 34 of the Aliens and Stateless Persons (Entry and Residence) Act (“the Aliens Act”).
19. On 13 July 1999 the Russian authorities cancelled the applicant’s residence registration in Russia, at her request.
20. The applicant lodged an appeal with the Riga Regional Court against the judgment of 3 December 1998. In a judgment delivered on 29 September 1999 following adversarial proceedings, the Regional Court dismissed the appeal on the ground that, as the applicant had been illegally resident in Latvia since her return from Russia, her deportation was in accordance with section 38 of the Aliens Act. The Regional Court also upheld the District Court’s findings as to the inadmissibility of the request for a residence permit.
21. In a judgment of 28 December 1999 the Senate of the Supreme Court dismissed an appeal by the applicant on points of law, finding that the interference complained of had been lawful and proportionate. In particular, the Senate observed that, in the instant case, the applicant’s right to have two addresses or places of residence in two different countries had not been in dispute; the order for her deportation had been based solely on the fact that she had been resident in Latvia without a residence permit.
22. With the delivery of the Senate’s judgment the order for the applicant’s deportation became enforceable.
23. In two letters sent on 21 January and 3 February 2000, the applicant and her son requested the head of the Directorate to rescind the deportation order and to issue the applicant with a permanent residence permit. In support of their request, they argued that they did not have family ties in any country other than Latvia and that the expulsion of the applicant from Latvian territory, where they had lived together for twenty-six years, would constitute a serious infringement of their right to respect for their family life. They made explicit reference in that regard to Article 8 § 1 of the Convention and to similar provisions of the Latvian Constitution.
24. By letters dated 28 January and 15 February 2000 respectively, the head of the Directorate refused this request and reminded the applicant that she was required to leave Latvia immediately or be forcibly expelled.
25. After attempting without success to challenge this refusal by means of an administrative appeal to the Interior Minister, Mrs Shevanova and her son lodged a fresh application with the Riga City Central District Court to have the deportation order set aside. By order of 3 March 2000 the court declared the application inadmissible. On 24 May 2000 the Riga Regional Court upheld the order. An appeal on points of law by the applicant and her son was dismissed by an order of the Senate of the Supreme Court dated 29 November 2000.
26. On 12 February 2001 the applicant was arrested by the immigration police (Imigrācijas policija) and placed in a detention centre for illegal immigrants. On 21 February 2001 officials of the Directorate served a forcible expulsion decision on her (lēmums par piespiedu izraidīšanu no valsts).
27. On 26 February 2001 the applicant was admitted to hospital with acute hypertension. Consequently, on 28 February 2001, the head of the Directorate stayed execution of the forcible expulsion decision and requested the immigration police to formally order the applicant’s release from the detention centre. The deportation order of 9 April 1998 was also suspended at the same time.
28. As execution of the forcible expulsion decision had been stayed indefinitely, the applicant continued to reside illegally in Latvia.
29. On 7 January 2005 the head of the Directorate wrote a letter to the Government’s Agent in the following terms:
“... [T]he ... Directorate ... has received your letter concerning the application lodged by Nina Shevanova with the European Court of Human Rights ... and requesting [us] to consider the possibility of issuing her with a permanent residence permit ... under section 24(2) of the Immigration Act. The reason you cite for your request is the existence of a real risk that a violation of Article 8 of the Convention might be found in this case. However, if Nina Shevanova were to be granted a sufficiently secure legal status in Latvia, the Latvian Government would be justified in requesting the European Court to dismiss the application.
...
I would like first of all to draw your attention to the fact that section 24(3) of the Immigration Act does not apply to the circumstances of the Shevanova case. The Directorate has therefore explored other possible solutions.
...
Regard being had ... to the relevant circumstances of the Shevanova case, and in particular the fact that Mrs Shevanova has lived and worked within Latvian territory for a long time – a fact which undoubtedly testifies to the existence of sufficiently strong private and social ties ... – the Directorate is prepared, once it has obtained the necessary documentation from Mrs Shevanova ..., to address an opinion to the Minister of the Interior proposing that she be issued with a temporary residence permit valid for five years, in accordance with section 23(3) of the Immigration Act...
...
Under the terms of Council [of the European Union] Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents, Member States are required to grant long-term resident status to third-country nationals who have resided legally and continuously within their territory for five years immediately prior to submission of the relevant application. Accordingly, on expiry of the period of validity of her temporary residence permit, Nina Shevanova would be entitled to apply for and obtain the status of permanent resident and to be issued with an EC residence permit. Remedying Mrs Shevanova’s situation in this way would be sufficient to put an end to any possible violation of her rights under Article 8 of the Convention.
With this aim in mind, the Directorate has already drawn up a letter inviting Mrs Shevanova to submit to it the documents required in order to apply for a residence permit. This letter will be sent to her in the next few days. It should be pointed out that, in accordance with section 61 of Regulation no. 213 ... on residence permits, [the person concerned] in such cases must submit a letter from a legal entity attesting to the necessity ... of his or her remaining in the Republic of Latvia. The Directorate notes in that connection that Mrs Shevanova will in all likelihood be unable to produce such a document. In any event, a positive ... outcome to the case can be achieved only if Mrs Shevanova herself displays an interest in such a solution.
Should Mrs Shevanova herself fail to take steps towards implementing the solution proposed by the Latvian Government, [it should be borne in mind that] the European Court of Human Rights has already acknowledged that, where applicants knowingly decline to take the appropriate measures suggested by the authorities ..., they cannot claim to be victims of a violation of their right to respect for their private and family life... The reference to Article 8 of the Convention ..., made in Mrs Shevanova’s request, would therefore be without foundation.”
30. By Decree no. 75 of 2 February 2005, the Cabinet of Ministers instructed the Minister of the Interior to issue the applicant with a permanent residence permit “once the documents required to make such an application have been received” (Article 1 of the decree).
31. By letter of 24 February 2005 the Directorate explained to the applicant how she could regularise her stay by obtaining a permanent residence permit, and invited her to submit the documents required for that purpose under the relevant regulations. It is clear from the case file, however, that the applicant has to date not taken the steps indicated by the Directorate.
32. Latvian legislation on nationality and immigration distinguishes several categories of persons, each with a specific status.
(a) Latvian citizens (Latvijas Republikas pilsoņi), whose legal status is governed by the Citizenship Act (Pilsonības likums);
(b) “permanently resident non-citizens” (nepilsoņi) – that is, citizens of the former USSR who lost their Soviet citizenship following the break-up of the USSR in 1991, but have not subsequently obtained any other nationality – who are governed by the NonCitizens Act (see paragraph 33 below);
(c) asylum-seekers and refugees, whose status is governed by the Asylum Act of 7 March 2002 (Patvēruma likums);
(d) “stateless persons” (bezvalstnieki) in the narrow and specific sense of the term. Prior to 2 March 2004 their status was governed by the Status of Stateless Persons Act, read in conjunction with the Aliens Act (see paragraph 34 below) and, after 1 May 2003, with the Immigration Act (see paragraph 36 below). Since 2 March 2004 their status has been governed by the new Stateless Persons Act, also read in conjunction with the Immigration Act;
(e) “aliens” in the broad sense of the term (ārzemnieki), a category which includes foreign nationals (ārvalstnieki) and stateless persons (bezvalstnieki) falling solely within the ambit of the Aliens Act (before 1 May 2003), and the Immigration Act (since that date).
33. Section 1(1) of the Act on the Status of Former USSR Citizens without Latvian or other Citizenship ((Likums “Par to bijušo PSRS pilsoņu statusu, kuriem nav Latvijas vai citas valsts pilsonības) reads as follows:
[Version in force before 25 September 1998]: “This Act governs citizens of the former USSR resident in Latvia ..., who were resident within Latvian territory prior to 1 July 1992 and whose place of residence is registered there, regardless of the status of their housing, and who are not citizens of Latvia or any other State; it also governs the minor children of such persons who are not citizens of Latvia or any other State.”
[Version in force since 25 September 1998]: “The persons governed by this Act – ‘non-citizens’ – shall be those citizens of the former USSR, and their children, who are resident in Latvia ... and who satisfy all the following criteria:
(1) on 1 July 1992 they were registered as being resident within the territory of Latvia, regardless of the status of their housing; or their last registered place of residence by 1 July 1992 was in the Republic of Latvia; or a court has established that before the above-mentioned date they had been resident within Latvian territory for not less than ten years;
(2) they do not have Latvian citizenship;
(3) they are not and have not been citizens of any other State. ...”
...
34. The relevant provisions of the Aliens and Stateless Persons (Entry and Residence) Act (Likums “Par ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos Latvijas Republikā), in force prior to 1 May 2003, read as follows:
“Any foreigner or stateless person shall be entitled to stay in the Republic of Latvia for more than three months [version in force since 25 May 1999: ‘more than ninety days in the course of one half of a calendar year’], provided that he or she has obtained a residence permit in accordance with the provisions of this Act. ...”
“Aliens or stateless persons may be issued with...
(1) a temporary residence permit;
(2) a permanent residence permit. ...”
“Permanent residence permits may be obtained by aliens who, on 1 July 1992, were officially registered as being resident for an indefinite period within the Republic of Latvia if, at the time of applying for a permanent residence permit, they are officially registered as being resident within the Republic of Latvia and are entered in the register of residents.
Citizens of the former USSR who acquired the citizenship of another State before 1 September 1996 must apply for a permanent residence permit by 31 March 1997. Citizens of the former USSR who acquired the citizenship of another State after 1 September 1996 must apply within six months of the date on which they acquired the citizenship of that State. ...”
“The person concerned may, within one month of notification of the decision to refuse a residence permit, appeal against the decision to the head of the Directorate, who shall examine the appeal within one month.
The Minister of the Interior may, by decree, set aside an unlawful decision by the Directorate or the head of the Directorate ordering a residence permit to be issued or refused.
An appeal may be lodged with the courts against the above-mentioned decision or decree by
(1) the person concerned if he or she is legally resident within the territory of the Republic of Latvia;
(2) the person resident in Latvia who invited the alien ... whose application for a residence permit has been refused, where the invitation was in connection with family reunification. ...”
“No residence permit shall be issued to a person who
...
(5) was deported from Latvia during the five years preceding the application;
(6) has knowingly supplied false information in order to obtain such a permit;
(7) is in possession of false or invalid identity or immigration documents;
...”
“The head of the Directorate or of the regional office of the Directorate shall issue a deportation order...
...
(2) if the alien ... is in the country without a valid visa or residence permit; ...”
“The individual concerned shall leave the territory of Latvia within seven days after the deportation order has been served on him or her, provided that no appeal is lodged against the order in accordance with this section.
Persons in respect of whom a deportation order is issued may appeal against it within seven days to the head of the Directorate, who shall extend the residence permit pending consideration of the appeal.
An appeal against the decision of the head of the Directorate shall lie to the court within whose territorial jurisdiction the Directorate’s headquarters are situated, within seven days after the decision has been served.”
35. At the material time the practical arrangements concerning registration of residence were governed by Regulation no. 76 of 12 February 1993 on registration of residence for residents of the Republic of Latvia and cancellation thereof (Iedzīvotāju pierakstīšanas un izrakstīšanas noteikumi Latvijas Republikā). Section 4 required any existing registration of residence to be cancelled in order to obtain a new registration in Latvia.
36. Since 1 May 2003 the Aliens Act cited above is no longer in force; it was repealed and replaced by the Immigration Act (Imigrācijas likums) of 31 October 2002. The relevant provisions of the new Act read as follows:
“The present Act uses the following definitions:
1. an alien [ārzemnieks] – a person who is neither a Latvian citizen nor a “[permanently resident] non-citizen” of Latvia; ...”
“In cases not covered by the present Act, the temporary residence permit shall be granted by the Minister of the Interior, where the relevant decision accords with the provisions of international law or the interests of the Latvian State, or on humanitarian grounds.”
“In cases not covered by the present Act, the permanent residence permit shall be granted by the Minister of the Interior, where it accords with the interests of the State.”
“... When the time-limit set down [for submitting an application for a residence permit] has passed, the head of the Directorate may authorise [the person concerned] to submit the [relevant] documents, where such authorisation accords with the interests of the Latvian State, or on grounds of force majeure or humanitarian grounds.”
“1. Within ten days of establishment of the facts detailed in the first and second subparagraphs of the present paragraph, the [relevant] official of the Directorate shall take a forcible expulsion decision ..., where:
(1) the alien has not left the Republic of Latvia within seven days of receiving the deportation order ..., and has not appealed against the order to the head of the Directorate..., or the head of the Directorate has dismissed the appeal;
...
2. In the cases referred to in the first subparagraph of paragraph 1 of this section, no appeal shall lie against the forcible expulsion decision...
...
4. In the event of a change of circumstances, the head of the Directorate may set aside a forcible expulsion decision.”
37. Section 360(4) of the Administrative Procedure Act (Administratīvā procesa likums), in force since 1 February 2004, provides:
“An administrative act may not be enforced if more than three years have elapsed since it became enforceable. In calculating the limitation period, any period during which implementation of the administrative act was suspended shall be deducted.”
38. At the time of the facts reported by the applicant, the relevant provisions of the Regulatory Offences Code (Administratīvo pārkāpumu kodekss) read as follows:
“... Use of a passport which has been replaced by a new passport shall be punishable by a fine of up to 100 lati [approximately 150 euros].”
“Failure to provide the offices of the Latvian Nationality and Immigration Department ... with the information to be entered in the register of residents within the time allowed shall be punishable by a fine of between 10 and 25 lati [approximately 38 euros].”
VIOLATED_ARTICLES: 8


ITEMID: 001-118035
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ADA ROSSI AND OTHERS v. ITALY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens
TEXT: The applicants, whose names appear in the appended list, are seven Italian associations and six Italian nationals. They were represented before the Court by Mr R. Elefante, Mr A. Granata and Mr R. Dolce, lawyers practising in Naples.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applications were lodged by the guardians of persons in a vegetative state, by associations whose membership consists of, inter alia, relatives of severely disabled people, doctors, psychologists, and lawyers assisting such persons and by Acmid-Donna Onlus, a human-rights defence organisation.
In January 1992 E.E., a 20-year-old woman, was a victim of a road-traffic accident in which she suffered a head injury and a fractured vertebra and fell into a coma. She was subsequently diagnosed as being in a vegetative state with spastic tetraplegia and loss of all higher cognitive functions.
In December 1996 E.E. was placed under the guardianship of her father. In January 1999 her father began court proceedings, seeking authorisation to discontinue his daughter’s artificial nutrition and hydration and alleging that this would have been his daughter’s wish given her personality and the ideas she had expressed about life and human dignity before her accident. The authorisation was refused twice at first instance and on appeal, in 1999 and 2003. In April 2005 the Court of Cassation quashed the first decision of the Milan Court of Appeal dismissing the appeal and remitted the case for fresh consideration, observing that E.E.’s father’s request could not be granted in the absence of specific evidence as to the wishes expressed by his daughter before the accident. On 16 October 2007 the Court of Cassation quashed the second decision of the Court of Appeal and, in its order remitting the case, stated that the judicial authority could authorise the discontinuation of artificial nutrition if the person concerned was in a persistent vegetative state and if there was evidence that such person would have opposed medical treatment if he or she had been in possession of all his or her faculties.
In a decision of 25 June 2008 the Milan Court of Appeal, after rehearing the case, granted the authorisation requested by E.E.’s father on two grounds, namely, that E.E.’s vegetative state was irreversible and that there was clear, consistent and convincing evidence that the request accurately reflected the will of the represented person in so far as this could be inferred from her lifestyle, her beliefs and the views she had expressed on human dignity before becoming unconscious.
On 8 October 2008 the Constitutional Court rejected applications lodged by Parliament in September 2008 alleging a conflict between the various branches of State power. It found that the judges who had examined the case had not issued a legislative precedent and had not therefore usurped the prerogatives of Parliament.
Lastly, on 11 November 2008, the Court of Cassation dismissed an appeal on points of law by the Milan public prosecutor’s office against the Court of Appeal’s decision of 25 June 2008, on the ground that the public prosecutor did not have capacity to act in the proceedings. That decision rendered the contested judgment final.