ITEMID: 001-70293
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF AMAT-G LTD AND MEBAGISHVILI  v. GEORGIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
TEXT: 5. The first applicant, a limited liability company, was incorporated on 6 September 1995 by a decision of the Didube District Court of Tbilisi, Georgia. The second applicant was born in 1960 and lives in Tbilisi.
6. In 1995 the Amat Shipping Company Limited and the second applicant founded a limited liability company called Amat-G, the applicant company, in Georgia. The second applicant was appointed general manager of that company.
7. Amat-G imported fish products from African countries to Georgia. In the years 1996-98, the company paid more than 1,000,000 United States dollars (USD) (approximately 970,874 euros (EUR)) to the State budget in taxes and was considered by the State Tax Department to be a “large tax payer”.
8. In 1998-99 Amat-G supplied the Georgian Ministry of Defence with various types of fish products at different prices.
9. However, the Ministry of Defence paid only part of the amount due to Amat-G.
10. On 29 October 1999 the applicants brought civil proceedings against the Ministry of Defence in the Tbilisi Regional Court for breach of contract and consequential damage, claiming a total of 662,526 Georgian laris (GEL) (EUR 296,771).
11. In a judgment of 6 December 1999, the Panel for Civil and Commercial Affairs of the Tbilisi Regional Court partly allowed the action of the applicant company, ordering the Ministry of Defence to pay the company compensation of GEL 254,188 (EUR 113,860).
12. The judgment was never challenged and became binding on 6 January 2000.
13. On 22 March 2000 the applicants appealed to the execution department of the Ministry of Justice, requesting the immediate enforcement of the judgment.
14. On 23 March 2000 the enforcement officer of the execution department ordered the Ministry of Defence to pay the applicant company, voluntarily, within one month.
15. Upon the expiry of that period, the enforcement officer initiated the forcible execution procedure against the Ministry of Defence. He sent the centre of expertise of the Ministry of Justice a list of non-military buildings that could be put up for sale by tender in order to discharge the debt. However, that was the only step taken and the judgment of 6 December 1999 remained unexecuted.
16. On 10 July 2000 the Ministry of Defence appealed to the Tbilisi Regional Court, seeking a stay of execution of the judgment of 6 December 1999, in accordance with the provisions of Article 263 of the Code of Civil Procedure. However, the Regional Court dismissed the ministry's request on 3 August 2000, concluding that “postponement of the enforcement would negatively affect the applicant company's interests and violate the principle of an equitable and adversarial hearing”. The ministry was consequently obliged to enforce the judgment without delay, yet it still failed to pay the debt.
17. During the same period, Amat-G signed a contract with the Amat Shipping Company Corporation on 19 January 2000 for the lease of a ship at a monthly rate of USD 45,000 (EUR 43,689).
18. On 20 January 2000 Amat-G contacted the Ministry of Defence, explaining that the money owed to it by the ministry was the only means which the applicant company had to pay for the lease of the ship. The applicant company waited eight months in vain to obtain payment of the debt from the Ministry of Defence. Meanwhile, the bill for the lease of the ship had risen to USD 511,200 (EUR 496,311). Amat-G also claimed that it had lost USD 1,344,421 (EUR 1,305,263) in business profits as a result of the ministry's failure to pay the debt on time. In addition, the applicant company faced a tax bill of GEL 41,213 (EUR 18,460).
19. For these reasons, in September 2001 Amat-G brought an action before the Panel of Administrative Law and Taxation Affairs of the Tbilisi Regional Court against the Ministries of Defence, Justice and Finance, in order to hold them collectively responsible for the harm caused by the non-execution of the judgment of 6 December 1999, in accordance with Article 411 of the Civil Code. The company claimed damages of USD 1,855,621 (EUR 1,801,574) and GEL 41,213 (EUR 18,460).
20. The Regional Court dismissed the claim on 20 February 2002 on the basis of the provisions of Article 412 of the Civil Code.
21. On 10 July 2002 the Supreme Court of Georgia dismissed the applicant company's appeal against the Regional Court's decision of 20 February 2002.
22. The judgment debt of 6 December 1999 has still not been paid, some five and a half years later.
23. Article 263 §§ 1 and 3 (“Stay of execution or order for partial execution of a judicial decision”) provides as follows:
“1. A court of law, after giving a decision, may order a stay of its execution or its partial execution at the parties' request, taking into account their financial situation and other circumstances ...
...
3. The stay of execution or order for partial execution ... may be challenged in a court of law ...”
24. The relevant provisions of the Civil Code are as follows:
“Damage shall be compensated not only in respect of actual financial loss, but also in respect of loss of income. Loss of income represents the amount which could have been obtained had the contractual obligations been properly fulfilled.”
“Compensation shall be paid only when the damage could have been foreseen by the party in default and when there exists a causal link between its harmful action and the outcome in issue.”
“The non-execution of a binding judgment or other judicial decision, or the obstruction of its execution by the State, government or local-government officials or by executives of a corporation or other organisation [shall be punished] ...”
26. The relevant provisions of the Enforcement Proceedings Act are as follows:
“Enforcement officers at executive bureaux [of the Ministry of Justice] shall be responsible for the execution of the decisions provided for hereunder.”
“Requests by enforcement officers in the course of their duties shall be equally binding on any natural or legal person, irrespective of their hierarchical or juridical and structural status.
Enforcement officers shall take all lawful measures available in order to secure the speedy and effective enforcement of decisions, to explain to parties their rights and responsibilities, and to assist in the protection of their rights and legal interests.”
“... three months after the proposal to comply voluntarily with a judicial decision obliging budget-funded organisations to disburse money, forcible measures may be undertaken against them ...”
27. By adopting this ordinance, the government introduced a mechanism for the staggered payment of outstanding debts. Under paragraph 2, the Ministry of Justice was ordered to give priority to the enforcement of court decisions concerning: (i) the payment of compensation for damage caused by injury or death; (ii) the payment of not more than three months' salary to workers; and (iii) the payment of compensation to rehabilitated people. At the same time, the Ministry of Justice was instructed to ensure the proportionate payment of other creditors, but only after the enforcement of the above-mentioned decisions.
Under paragraph 3 of the ordinance, the debtor budget-funded organisations and institutions, in agreement with the Ministry of Justice, have either to secure friendly settlements with their creditors, or to stagger, in accordance with Georgian legislation, the enforcement of judgments over a period of time, since, due to the scarcity of funds, the simultaneous payment of judgment debts is not feasible.
28. The relevant provisions of the Law on the structure, authority and functioning of the Georgian government are as follows:
“The government of Georgia (hereinafter 'the government'), shall exercise executive power ... in accordance with the laws of the country.”
“The government shall adopt decrees and ordinances under and for the implementation of the laws of Georgia and presidential normative acts.
A governmental decree is a normative act. The procedures for its preparation, adoption, issue and entry into force are defined by the Law on normative acts.”
29. Pursuant to sections 2(2) and 4(1), as amended on 24 June 2004, while a legal act can be either “normative” or “individual”, a governmental ordinance (mtavrobis gankarguleba) is an “individual” legal act. A “normative” act prescribes a general rule of conduct for permanent or temporary and recurrent applications (section 2(3)). Pursuant to section 2(4), an individual legal act is valid for one specific purpose and must conform to a normative act. The individual legal act can only be issued on the grounds envisaged by a normative act and within the limits prescribed by the latter. Its scope and force are comparable to an administrative directive.
According to section 5, as amended on 17 February and 24 June 2004, the legislative acts of Georgia are as follows: the Constitution of Georgia, the constitutional law, the organic law, statutes, rules of parliament and presidential decrees. Only two categories of legal act constitute Georgian secondary legislation: decrees (dadgenileba) and orders (brzaneba, brzanebuleba) issued by various authorities. Governmental ordinances are thereby excluded.
Under section 13-1, incorporated into the Law on normative acts on 24 June 2004, decrees are the only normative acts of the government of Georgia. They are adopted under the Constitution, statutes or normative acts of the President of Georgia, for the purpose of implementing legislation.
“... [In a limited liability company] ... directors represent the company in its relations with third parties ...”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-110948
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF EMIN v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 6. The applicant, Mr Galib Myumyum Emin, is a Bulgarian national who was born in 1977 and as far as the Court is aware now lives in Bulgaria.
7. The applicant arrived in the Netherlands in November 2004. He never obtained legal residence. On 21 July 2006 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) decided to impose an exclusion order (ongewenstverklaring) on the applicant pursuant to the provisions of the Aliens Act 2000 (Vreemdelingenwet 2000) as he had been convicted of a serious criminal offence and sentenced to imprisonment for three years.
8. The applicant was released from prison on 5 April 2007. That same day the Deputy Minister of Justice (Staatssecretaris van Justitie; the successor to the Minister for Immigration and Integration) ordered the applicant to be taken into aliens’ detention (vreemdelingenbewaring) with a view to his expulsion from the Netherlands.
9. Also on 5 April 2007, the applicant appealed the decision to take him into aliens’ detention to the Regional Court (rechtbank) of The Hague, sitting in ‘s-Hertogenbosch.
10. The applicant was released from aliens’ detention on 11 April 2007 but informed the Regional Court that he wanted to pursue his appeal in order to obtain compensation. In support of his appeal, the applicant argued inter alia that the exclusion order imposed on him had in the meantime become based on incorrect grounds as Bulgaria had since joined the European Union (“EU”) and the criteria for imposing an exclusion order on EU citizens were more stringent.
11. On 23 April 2007 the Regional Court upheld the applicant’s appeal. It held that the Deputy Minister had neglected to initiate activities to expel the applicant from the Netherlands while he was still in prison following his criminal conviction. Furthermore, the Regional Court considered that the Deputy Minister had not assessed, at the time the decision was taken to place the applicant in aliens’ detention, whether the criteria in force for imposing an exclusion order applied to the applicant. For these reasons the Regional Court held that the applicant’s aliens’ detention had been unlawful from the outset. The Regional Court however declined to award compensation to the applicant as he had been convicted of a serious criminal offence and an exclusion order had also been imposed on him.
12. On 25 April 2007 the applicant filed a further appeal with the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) against the decision of the Regional Court not to award him compensation even though his aliens’ detention had been declared unlawful from the start.
13. On 10 May 2007 the Council declared the appeal inadmissible since, pursuant to article 84 sub d of the Aliens Act 2000, no further appeal lay against a refusal to award compensation.
14. Section 106 of the 2000 Aliens Act (Vreemdelingenwet 2000) provides:
“1. If the Regional Court orders the lifting of a measure deprivative of liberty, or if the deprivation of liberty is lifted even before the request for the lifting of that measure is considered, it may grant the alien compensation at State expense. Damage shall include non-pecuniary damage. ...”
15. In so far as the above provision proves insufficient or inappropriate to the purpose, it is also possible for former detainees to seek compensation for a wrongful act, or tort, on the part of public authority (onrechtmatige overheidsdaad) by taking civil proceedings against the State and claiming compensation for damages based on the argument that the detention in question constituted a wrongful act within the meaning of Article 6:162 of the Civil Code. Article 6:162 of the Civil Code provides:
“1. A person who commits a wrongful act (onrechtmatige daad) against another which is attributable to him, must repair the damage suffered by the other in consequence.
2. Except where there is a ground of justification, the following acts are deemed to be wrongful: the violation of a right, and an act or omission violating a duty imposed by law or a rule of unwritten law pertaining to proper social conduct.
3. A wrongdoer is responsible for the commission of a wrongful act if it is due to his fault or to a cause for which he is accountable by law or pursuant to generally accepted principles (de in het verkeer geldende opvatting).”
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-5


ITEMID: 001-78359
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF XENIDES-ARESTIS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 1. The case originated in an application (no. 46347/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mrs Myra Xenides-Arestis (“the applicant”), on 4 November 1998.
2. In a judgment delivered on 22 December 2005 (“the principal judgment”), the Court dismissed the objection on the applicant's victim status and found continuing violations of Article 8 of the Convention by reason of the complete denial of the applicant's right to respect for her home and of Article 1 of Protocol No. 1 by virtue of the fact that the applicant was denied access to and control, use and enjoyment of her property and any compensation for the interference with her property rights. Furthermore, it found that it was not necessary to carry out a separate examination of the applicant's complaint under Article 14 in conjunction with the above provisions (Xenides-Arestis v. Turkey, no. 46347/99, §§ 22, 32 and 36 and points 1-4 of the operative provisions).
3. Under Article 41 of the Convention, the applicant sought just satisfaction of 587,399 Cyprus pounds (CYP) by way of pecuniary damage concerning the period between 28 January 1987, the date of the acceptance by Turkey of the compulsory jurisdiction of the Court, and the end of 2005. Two valuation reports, setting out the basis for the calculation of the applicant's loss, were appended to the applicant's observations. Furthermore, the applicant claimed CYP 160,000 in respect of non-pecuniary damage and CYP 131,867.97 for costs and expenses incurred before the Court.
4. Since the question of the application of Article 41 of the Convention was not ready for decision as regards pecuniary and non-pecuniary damage, the Court reserved it. However, it awarded the applicant 65,000 euros (EUR) in respect of costs and expenses.
5. The Court had examined the implementation of the preceding compensation law, the “Law on Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus” (“Law no. 49/2003”), in the present case, at the admissibility stage and had ruled that the remedy proposed under the above law did not satisfy the requirements under Article 35 § 1 of the Convention in that it could not be regarded as an “effective” or “adequate” means for redressing the applicant's complaints (see Xenides-Arestis v. Turkey (dec.), no. 46347/99, decision of 14 March 2005, § 50).
6. The Court, in the principal judgment, further held that “the respondent State must introduce a remedy which secures genuinely effective redress for the Convention violations identified in the instant judgment in relation to the present applicant as well as in respect of all similar applications pending before it, in accordance with the principles for the protection of the rights laid down in Article 8 of the Convention and Article 1 of Protocol No. 1 and in line with its admissibility decision of 14 March 2005. Such a remedy should be available within three months from the date on which the present judgment is delivered and redress should be afforded three months thereafter” (§ 40). Furthermore, the parties were invited to submit, within three months, from the date on which the judgment became final in accordance with Article 44 § 2 of the Convention, their written observations on the issue of pecuniary and non-pecuniary damage and, in particular, to notify the Court of any agreement they might reach (ibid., § 50, and point 6 of the operative provisions). Pending the implementation of the relevant general measures by the Government, the Court adjourned its consideration of all applications deriving from the same general cause (ibid., § 50).
7. The Government filed observations on 21 March 2006 and, subsequently, the applicant and the Government each filed observations on 21 June 2006. The applicant submitted updated claims in respect of just satisfaction.
8. The Government of Cyprus, who had made use of their right to intervene under Article 36 of the Convention, submitted observations on 16 August 2006.
9. The Government filed additional observations on 10 and 11 October 2006.
10. Subsequent to the adoption of the principal judgment in the instant case, the authorities of the “Turkish Republic of Northern Cyprus” (“TRNC”) enacted the new compensation law, the “Law for the Compensation, Exchange and Restitution of Immovable Properties” (“Law no. 67/2005”) which entered into force on 22 December 2005 and the “By-Law made under Sections 8 (2) (A) and 22 of the Law for the Compensation, Exchange and Restitution of Immovable Properties which are within the scope of sub-paragraph (b) of paragraph 1 of Article 159 of the Constitution” (“Law no. 67/2005”) which entered into force on 20 March 2006.
11. The “Immovable Property Commission” (hereinafter “the Commission”), which was established under “Law no. 67/2005” for the purpose of examining applications made in respect of properties within the scope of the aforementioned law, is composed of five to seven members, two of whom are foreign members, Mr Hans-Christian Krüger and Mr Daniel Tarschys, and has the competence to decide on the restitution, exchange of properties or payment of compensation. A right of appeal lies to the “TRNC” High Administrative Court.
12. The Government submitted that a total of sixty applications had been lodged with the Commission and that the examination of nine of these had already been concluded. In six of these applications the applicants received a payment by way of compensation and, in the remaining applications, the Commission decided on the restitution of the properties in question.


ITEMID: 001-86113
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KAPLANOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13 - Right to an effective remedy
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1930 and lives in the city of Grozny in the Chechen Republic.
7. At the material time the applicant and her family lived in Grozny, in a private household comprising two houses at 76 Voronezhskaya Street.
8. On 12 May 2001 the applicant’s son Isa Kaplanov, born in 1965, his wife, Melina Mezhidova, the applicant’s son-in-law, Ruslan Sadulayev, born in 1962, her daughter Lidia Kaplanova and their neighbour Movsar Musitov (also spelled Musaitov), who had come to visit them, were at home. The applicant was away and therefore her account of the events of that date was based on eyewitness statements of her family members.
9. At about 10.00 a.m. a group of approximately 20 federal servicemen arrived at the applicant’s household in six armoured personnel carriers (APCs). The identification number of one of the vehicles was 40-42, whilst the other carriers had no such numbers on them. The servicemen in camouflage uniforms were armed with AK-47 machine guns, SVD carabines and pistols. They had masks on, except for two officers in command. Those two officers had portable radio transmitters. All the servicemen spoke Russian without any accent. Ten of them entered the courtyard of the applicant’s household whilst ten others stayed near the APCs.
10. The servicemen broke down the door of one of the houses, in which there were the applicant’s son, her son-in-law and Movsar Musitov, and searched the house, without presenting any documents to authorise their actions. According to the applicant, during the search the soldiers asked if the three men had drugs, arms or US dollars. They also allegedly demanded gold and money.
11. The applicant’s daughter and Isa Kaplanov’s wife, who were in the other house at that moment, heard the noise, ran out to the courtyard and saw five or six servicemen there and several other soldiers inside the house with their relatives. The servicemen prevented the women from entering that house. They were hostile and aggressive. Some time later the servicemen left the house and forced Isa Kaplanov, Ruslan Sadulayev and Movsar Musitov outside. They ordered the three men to stand against the wall and checked their passports.
12. According to the applicant, the servicemen spent about 30 minutes in her courtyard and then left, having taken her son, her son-in-law and Movsar Musitov away. They told the applicant’s daughter that they would check the three men’s identities and release them. The servicemen then put the applicant’s relatives and Movsar Musitov into the APCs and drove off in the direction of the centre of Grozny. The applicant submitted that the only road to the centre of Grozny had been blocked by a federal military check-point, but the APCs openly passed through it.
13. The applicant further relied on Movsar Musitov’s statements to the effect that the three men had been taken to the Staropromyslovskiy District Temporary Department of the Interior of Grozny (Старопромысловский временный отдел внутренних дел г. Грозного – “the Staropromyslovskiy VOVD”) and interrogated. The interrogators did not introduce themselves or disclose what public bodies they represented. The three men were allegedly told that there was a report stating that they had been detained at the Staropromyslovskiy military check-point for insulting federal servicemen.
14. The applicant’s two relatives and Movsar Musitov spent a night in a cell, along with another person. On 13 May 2001 at about 11.30 a.m. Isa Kaplanov and Ruslan Sadulayev were taken away from the Staropromyslovskiy VOVD in a UAZ all-terrain vehicle. Movsar Musitov was released two hours later and returned home. Isa Kaplanov and Ruslan Sadulayev remain missing to date.
15. According to the Government, on 12 May 2001 “unidentified persons armed with firearms apprehended Isa Kaplanov, Ruslan Sadulayev and Movsar Musitov in a private household and delivered them to the Staropromyslovskiy VOVD. The next day Movsar Musitov was released, whilst Isa Kaplanov and Ruslan Sadulayev were taken away by unidentified persons in an unknown direction”.
16. On 12 May 2001, immediately after the detention of Isa Kaplanov and Ruslan Saydulayev, the applicant’s daughter-in-law informed the applicant of the incident. Thereafter the applicant’s daughter-in-law went to her brother-in-law, Mr R., who was an officer of the Chechen Department of the Federal Security Service (Управление Федеральной Службы Безопасности по Чеченской Республике – “the Chechen Department of the FSB”). The latter attempted to pursue the APCs in his personal car, but did not find them. He learnt from servicemen at the check-point near the applicant’s house that the APCs had passed there at about 11 a.m. that day.
17. On 13 May 2001 the applicant went to the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики – “the Prosecutor’s Office of the Chechen Republic”) and informed them about the detention of her relatives.
18. Thereafter she visited the Staropromyslovskiy VOVD. An officer whose name was B. told her that her two relatives had been taken away in an UAZ all-terrain vehicle by two military officers of the Staropromyslovskiy VOVD, T. and M. He also allegedly told the applicant that those two officers must have delivered her son and son-in-law to either the main federal military base at Khankala or the town of Gudermes and promised her that he would find out their whereabouts.
19. On 14 May 2001 the applicant and other members of her family went to the Staropromyslovskiy VOVD, where they were told by a serviceman named Ilyas that the two men had been released.
20. Since 12 May 2001 the applicant and other members of her family have been searching for Isa Kaplanov and Ruslan Sadulayev. On numerous occasions, both in person and in writing, they have applied to prosecutors at various levels, to the Ministry of the Interior, to the administrative authorities in Chechnya. In letters addressed to the authorities the applicant stated the facts of her relatives’ detention and asked for assistance and details of the investigation. The applicant received hardly any substantive information from official bodies about the investigation into the disappearance of her son and son-in-law. On several occasions she received copies of letters by which her requests had been forwarded to various prosecutors.
21. The applicant also visited the federal military base at Khankala and saw a register of persons detained there. She claimed that the names of her son and son-in-law were not on that list.
22. On 3 July 2001 the Muzhichi village administration in Ingushetia issued a certificate to confirm that Isa Kaplanov had stayed there between October 1999 and April 2000.
23. According to the Government, on 12 June 2001 the Grozny Prosecutor’s Office (прокуратура г. Грозного) instituted criminal proceedings in connection with the disappearance of Isa Kaplanov and Ruslan Sadulayev under Article 126 § 2 of the Russian Criminal Code (kidnapping of two or more persons by a group using firearms). The applicant insisted that the criminal proceedings had been instituted on 27 June 2001, as indicated in the decision of an investigator of the prosecutor’s office of the Zavodskoy District of Grozny dated 15 July 2004. The case file was given the number 13093.
24. During the investigation the authorities identified two military servicemen who had taken part in the apprehension of the applicant’s relatives. They were T. and M., both from Yekaterinburg and on mission in Chechnya. Those two servicemen were called for questioning to the Grozny Prosecutor’s Office on 31 June 2001. The applicant submitted copies of summonses. She alleged that in the case file she had seen a transcript of interviews with T. and M. in which they had admitted that they had illegally arrested Isa Kaplanov, Ruslan Sadulayev and Movsar Musaitov, but the investigator in charge had not allowed her to study that document or to make a copy of it. The Government submitted that the information on the existence of an interview transcript where T. and M. admitted the unlawful arrest of Isa Kaplanov was not true. The Government emphasised that T. and M. had not denied that they had brought the applicant’s son to the Staropromyslovskiy VOVD; however, they had had no information about their whereabouts after that. The investigator had had valid grounds to deny the applicant permission to make copies of the transcript.
25. At some point in July 2001 the case file was transferred to the military prosecutor’s office of military unit no. 20102 (военная прокуратура – войсковая часть 20102) located in Khankala.
26. On 4 August 2001 the latter replied to the applicant’s husband and to the Grozny Prosecutor’s Office that they had no criminal case file concerning the abduction of his son and son-in-law.
27. In a letter of 12 August 2001 the Chechen Department of the FSB informed the Grozny Prosecutor’s Office that on 12 May 2001 their two officers, T. and M., had detained Isa Kaplanov, Ruslan Sadulayev and Movsar Musitov for a breach of public order in the vicinity of the “Neftyanik” market in Grozny and had taken those three individuals to the Staropromyslovskiy VOVD, having reported the detention in writing to the head of the said VOVD. The letter also stated that the aforementioned officers had no information as to the subsequent fate of the detainees.
28. On 14 August 2001 the applicant’s husband wrote to the Prosecutor’s Office of the Chechen Republic and enquired about his relatives’ whereabouts and details of the investigation. He also asked whether they had ever been charged with any crime.
29. On 15 August 2001 the applicant’s daughter wrote to the Prosecutor General seeking assistance in ensuring that an effective investigation be carried out by local prosecutors.
30. On 20 August 2001 the applicant’s husband applied to the military prosecutor of the Chechen Republic with a request to inform him about progress in the investigation. He re-stated the circumstances of the detention of Isa Kaplanov and Ruslan Sadulayev and referred to the information about the two servicemen, T. and M., insisting that they should be questioned in connection with the disappearance of his relatives.
31. On 25 August 2001 the Memorial Human Rights Centre, on behalf of the applicant, requested the Prosecutor General to provide information on the investigation in the criminal case opened in connection with the abduction of Isa Kaplanov and Ruslan Sadulayev.
32. In a letter of 27 August 2001 the military prosecutor’s office of military unit no. 20102 replied that they did not have a file for criminal case no. 13093 or any information about the detained men or servicemen T. and M.
33. On 28 August 2001 the applicant’s husband submitted an application to a department of the Chechen Ministry of the Interior responsible for searching for missing persons. He gave details of the detention of Isa Kaplanov and Ruslan Sadulayev, as well as their personal details, a description of the clothes they had been wearing on the day of detention and the known steps of the investigation.
34. On 28 August 2001 the applicant’s daughter applied to the head of the Administration of Chechnya asking for help to find her relatives.
35. On 6 September 2001 the Prosecutor’s Office of the Chechen Republic informed the applicant that it had studied the criminal case file opened in connection with her two relatives’ abduction and then forwarded it to the Grozny Prosecutor’s Office for further investigation, instructing the latter to take “more active steps” to locate the missing men. The letter contained no further information.
36. On 5 October 2001 the Office of the Chechen Government replied to the applicant that following her complaint the Chechen Ministry of the Interior had been instructed to take all possible measures to establish the whereabouts of Isa Kaplanov and Ruslan Sadulayev.
37. On 15 October and 19 December 2001 the applicant’s husband submitted complaints to the Prosecutor’s Office of the Chechen Republic. On the latter date he also submitted a similar complaint to the military prosecutor’s office of military unit no. 20102.
38. On 30 November 2001 the Prosecutor’s Office of the Chechen Republic informed the applicant’s husband that they had studied the file of the investigation into the abduction of his relatives, and ordered the investigators in charge to take steps to establish the whereabouts of the victims and of the culprits. The letter assured that the investigation of the crime was supervised by the Prosecutor’s Office of the Chechen Republic.
39. By letter of 4 July 2002 the Prosecutor’s Office of the Chechen Republic informed the applicant that they had studied the file of the criminal case opened in connection with the abduction of her relatives and then forwarded it to the Grozny Prosecutor’s Office for an additional investigation. The letter assured the applicant that the Grozny Prosecutor’s Office had been instructed to carry out a number of investigative measures and that she would be notified of the results of the investigation.
40. On 9 August 2002 the Prosecutor’s Office of the Chechen Republic forwarded the applicant’s query regarding the investigation to the Grozny Prosecutor’s Office and invited it to determine the question of the responsibility of servicemen T. and M., who had participated in the detention of the applicant’s two relatives.
41. On 25 September 2002 the Prosecutor’s Office of the Chechen Republic again transferred the file of case no. 13093, which they had studied following the applicant’s request, to the Grozny Prosecutor’s Office. The Prosecutor’s Office of the Chechen Republic stated that its earlier instruction had not been complied with and invited the Grozny Prosecutor’s Office to extend the time-limit for a preliminary investigation and to carry out a thorough investigation, as well as to conduct an internal inquiry in connection with the investigators’ failure to comply with the instructions of the superior prosecutor’s office.
42. According to the applicant, at some point she had found out that in 2003 the investigator in charge had gone to Yekaterinburg and interrogated T. and M., who had allegedly confirmed that they had arrested Isa Kaplanov and Ruslan Sadulayev.
43. At some point in 2003 criminal case no. 13093 had been transferred to the Zavodskoy District Prosecutor’s Office (прокуратура Заводского района г. Грозного).
44. By decision of 15 July 2004 an investigator of the Zavodskoy District Prosecutor’s Office ordered that the criminal proceedings in case no. 13093 instituted on 27 June 2001 in connection with the abduction of Isa Kaplanov and Ruslan Sadulayev be discontinued. The decision stated in particular:
“The preliminary investigation has established that on 12 May 2001 at 10.30 a.m. officers of the FSB in camouflage uniforms armed with firearms entered unlawfully and without authorisation a household at 76 Voronezhskaya Street ... in Grozny belonging to the Kaplanovs, and after a search had delivered Kaplanov I.G., Sadulayev R.A. and Musitov M.S. to the Staropromyslovskiy VOVD of Grozny. Thereafter [the officers] left without drawing up reports on the detention of the aforementioned persons. The next day Musitov M.S. was released whilst Kaplanov I.G. and Sadulayev R.A., whose whereabouts have not been established to date, were taken away from the territory of the Staropromyslovskiy VOVD of Grozny by FSB officers [T.] and [M.] to an unknown destination.”
45. The decision further referred to statements from a number of witnesses, including the applicant’s daughter and daughter-in-law, the applicant’s two neighbours and Movsar Musitov, all of whom had given a similar description of the events of 12 May 2001. The decision also stated that FSB officer T. had been questioned on 10 July and 22 October 2001 and FSB officer M. had been questioned on 16 July 2001 and 23 October 2002. They both testified that on 12 May 2001 in the vicinity of the “Neftyanik” market in Grozny they had apprehended three men, including Isa Kaplanov and Ruslan Sadulayev, for insulting local residents with swearwords, had taken them to the Staropromyslovskiy VOVD and had left the detainees there. The next day they had found out that the detainees had been released. Officer T. stated that he had drawn up a report on the detention of the three men, whilst officer M. submitted that he did not remember whether he had drawn up any reports. The decision further stated that the fact of the apprehension on 12 May 2001 of the applicant’s relatives and Movsar Musitov had been confirmed by the head of the Staropromyslovskiy VOVD in a letter of 8 June 2001 and by the acting head of the Chechen Department of the FSB in a letter of 12 August 2001. The decision continued that on 14 May 2001 an investigator of the Grozny Prosecutor’s Office had examined the register of persons held in the Staropromyslovskiy VOVD and had found out that the names of the applicant’s son, son-in-law and Movsar Musitov had not been listed among those detained there. The decision also referred to the statement of B., who between 12 April and 23 July 2001 had been seconded to Chechnya as the head of the police of the Staropromyslovskiy VOVD. B. had stated that on a date which he could not remember FSB officers had delivered four or five persons, who, as claimed by those officers, had been detained during a “sweeping-up” operation in the Oktyabrskiy District of Grozny on suspicion of their involvement in illegal military activity. Officers T. and M. had asked B. to keep the detainees until the next morning and then release them except for Isa Kaplanov and Ruslan Sadulayev, as those two were to be taken away by FSB personnel. According to B., on 13 May 2001 he had released the detainees, whilst Kaplanov and Sadulayev had been taken away by T. and M. The decision further relied on a letter of 23 May 2003 from the head of the Sverdlovskiy Regional Department of the FSB, the permanent place of service of officers T. and M., who had confirmed that on 12 May 2001 the said two officers had, indeed, delivered the applicant’s relatives to the Staropromyslovskiy VOVD, but had no information as to the subsequent fate of Isa Kaplanov and Ruslan Sadulayev, as on the morning of 13 May 2001 those two individuals had been taken away by personnel of another division of the Chechen Department of the FSB. The decision continued as follows:
“During the preliminary investigation only a fact of the breach by the head of the Staropromyslovskiy VOVD of the procedural requirements relating to placement in detention and transfer of detainees was reliably established; however, the said actions did not constitute a criminal offence under Article 126 of the Russian Criminal Code and were punishable in disciplinary proceedings. The fact of the abduction of Kaplanov I.G. and Sadulayev R.A. by officials of the Staropromyslovskiy VOVD was not confirmed during the preliminary investigation.”
46. The decision thus concluded that there was no evidence of a criminal offence under Article 126 of the Russian Criminal Code in the actions of officials of the Staropromyslovskiy VOVD of Grozny.
47. On 23 December 2004 the criminal proceedings in case no. 13093 were resumed and, according to the Government’s submissions, on 28 December 2004 the case file was forwarded to the military prosecutor’s office of the United Group Alignment (военная прокуратура Объединенной группировки войск) for a further investigation, so as to check the possible involvement of the military personnel in the alleged offence.
48. On 20 January 2005 the investigation was suspended for failure to identify those responsible, and then resumed on 5 April 2005.
49. The Government submitted that the applicant had been questioned by the investigators on 27 July and 30 October 2002, 30 May 2003 and 6 April 2005 respectively and had been granted the status of victim on 30 October 2002. The applicant’s husband had been questioned and declared a victim on 30 May 2003. The applicant’s daughter and daughter-in-law had been questioned on 28 June and 5 July 2001 respectively and granted the status of victim on 21 July 2001. The investigating authorities had also questioned Mr Musitov, three neighbours of the applicant and more than 20 officials of the FSB and the Ministry of the Interior who at the material time had been working in Grozny. The Government did not specify on what date witness statements had been obtained and submitted that the witnesses concerned had testified that they had no information regarding the perpetrators of the offence in question. According to the Government, it was impossible to establish other witnesses in the case but the search for them was currently underway. Lastly, the Government stated that the investigating authorities had sent a number of queries to various State bodies on 14 and 28 June 2001, 2, 5 and 24 July 2001, 2, 6, 13 and 16 August 2001, 3 May and 29 October 2002, 22 May and 10 June 2003 and had undertaken other investigative measures, but did not specify what those measures had been.
50. The Government further submitted that during the questioning on 6 April 2005 the applicant had stated that on the day following the apprehension of her son and son-in-law she had learnt from an acquaintance, Mr R., that her son had been abducted because of a debt owed to Mr Ts. by his brother. They had then gone to see Mr R. and discussed the payment of the debt. During questioning on an unspecified date, Mr Ts. had confirmed that the applicant’s son owed him money in the amount of 60,000 roubles (RUR) but denied any involvement in his abduction. The statement was confirmed by a witness, Mr A. The investigating authorities could not question Mr R. because he had died in 2002.
51. On 18 April 2005 the investigator sent requests for information on the possible detention of Isa Kaplanov and Ruslan Sadulayev to penitentiary facilities of the Caucasia and surrounding regions. Furthermore, he sent requests to departments of the interior and the FSB located in eleven administrative units of the Russian Federation concerning their possible detention and institution of criminal proceedings against them. No relevant information was received.
52. On 5 May 2005 the investigation was suspended on account of the failure to identify the culprits. The applicant was informed accordingly.
53. On 10 June 2005 the investigation was resumed.
54. On 14 June 2005 the applicant informed the investigating authorities that Mr Musitov had left the Chechen Republic. Therefore he could not be questioned.
55. On 20 June and 30 August 2005 the investigator sent instructions to district prosecutors of the Republic of Udmurtia to take certain investigative measures in respect of former officials of the Staropromyslovskiy VOVD, which were later complied with.
56. On 30 June 2005 the investigator questioned Mr S., who stated that the register of the temporary detention centre contained no relevant information. It is not clear who Mr S. was, but he apparently referred to the temporary detention centre of the Staropromyslovskiy VOVD.
57. On 7 July 2005 the investigator instructed the prosecutor of the Gudermes District of the Chechen Republic to question Mr Ts. During the questioning Mr Ts. stated that Mr M. Kaplanov, Isa Kaplanov’s brother, had not repaid the debt but he had nothing to do with his brother’s abduction.
58. On 10 July 2005 the investigation was again suspended on account of the failure to identify the culprits.
59. On 1 August 2005 the investigation was resumed.
60. On 2 and 8 August 2005 respectively the applicant’s relatives Mr Kh. and Ms A. were questioned. They made no relevant statements.
61. On 31 August 2005 the investigation was suspended on account of the failure to identify the culprits. The applicant was informed accordingly.
62. On 5 December 2005 the investigation was resumed.
63. On 6 December 2005 a request was sent to the Commander of the North-Caucasian military District. He replied that he had no information on the detention of any persons in the relevant period.
64. On an unspecified date the applicant was questioned again. She stated that she believed Mr Ts. had been involved in the abduction.
65. On an unspecified date former officials of the Zavodskoy Prosecutor’s Office were questioned. They stated that they had no information on law-enforcement officials’ involvement in an abduction of Isa Kaplanov allegedly instigated by Mr Ts.
66. On 6 January 2006 the investigation was suspended on account of the failure to identify the culprits. The applicant was informed accordingly.
67. On 12 March 2006 the investigator sent requests concerning the whereabouts of Isa Kaplanov and Ruslan Sadulayev to military commander’s offices, the FSB units, departments of the interior, town and district prosecutor’s offices of the Chechen Republic and other competent authorities. No relevant information was received.
68. On 25 May 2006 the investigation was resumed. The investigator reiterated the requests sent on 12 March 2006.
69. On 27 June 2006 the investigation was suspended on account of the failure to identify the culprits.
70. On 31 July 2006 the investigation was resumed.
71. On 7 August 2006 Mr M. Kaplanov, Isa Kaplanov’s brother, was questioned. He stated that he had not been at home when his brother had been apprehended and had heard from others about what had happened.
72. On 19 August 2006 Mr M. Kaplanov was granted victim status in the proceedings and reiterated his previous statement. The Government submitted that from his statement and the applicant’s statement made on 3 September 2006 it appeared that Isa Kaplanov could be detained in penitentiary facilities of the Yamalo-Nenetskiy Region. The investigator sent relevant requests to the penitentiary facilities. However, according to the information received, he had not been held there.
73. It appears that the investigation was suspended once again and then resumed on 22 December 2006.
74. On 21 May 2004 the applicant lodged a complaint against the investigators with the Zavodskoy District Court of Grozny (“the District Court”). She claimed that the investigating authorities had not taken all possible and necessary measures and had thus failed to carry out an effective investigation into the disappearance of her son and son-in-law. She also complained that the question of the responsibility of servicemen T. and M. had not been investigated and that all her requests regarding the results of the investigation had remained unanswered or had only produced standard replies. In her court complaint the applicant referred to the Russian Constitution and Article 13 of the European Convention on Human Rights. She requested that the court find unlawful the inactivity of the investigating authorities and order the Grozny Prosecutor’s Office to carry out an effective investigation.
75. By decision of 11 July 2004 the District Court dismissed the applicant’s complaint, having stated that “the investigating authorities had undertaken all necessary measures” and that the applicant “had not pointed out what particular measures could otherwise be taken”.
76. On 8 September 2004 the Supreme Court of the Chechen Republic dismissed the applicant’s appeal and upheld the first-instance decision on appeal. It noted in particular that the involvement of federal servicemen in the detention and subsequent disappearance of Isa Kaplanov and Ruslan Sadulayev had been established and therefore the investigation of the case fell within the competence of military prosecutors. In this connection, on 24 August 2004 the Zavodskoy District Prosecutor’s Office had transmitted the case file to the Prosecutor’s Office of the Chechen Republic for its further transfer to the military prosecutor’s office of military unit no. 20102.
77. Despite specific requests made by the Court on two occasions, the Government did not submit a copy of any of the documents to which they referred. Relying on the information obtained from the Prosecutor General’s Office, the Government stated 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 the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right to make copies of the case file or to transmit it to others”.
78. On 24 October 2006 the Court declared the application admissible and reiterated its request for a copy of investigation file no. 13093. The Court also requested information on the progress of the investigation after April 2005.
79. In response, the Government submitted an update on the investigation but no documents from the investigation file except for decisions to suspend and resume the investigation and the decision to grant victim status to Mr M. Kaplanov. They reiterated that disclosure of the documents would violate Article 161 of the Code of Criminal Procedure since the file contained information concerning military operations as well as personal data of participants in the criminal proceedings.
80. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (the new CCP).
81. Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.
82. Article 161 of the new CCP stipulates that evidence from the preliminary investigation may not 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, but only in so far as it does not infringe the rights and lawful interests of the 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.
VIOLATED_ARTICLES: 13
2
5


ITEMID: 001-59404
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF ARVELAKIS v. GREECE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: András Baka
TEXT: 7. On 17 March 1988 the applicant was arrested for homicide. On 15 November 1988 he appeared before the first instance criminal court of Heraklion, composed of judges and jurors (Μικτό Ορκωτό Δικαστήριο). On 16 November 1988 he was found guilty and given a life sentence. The applicant appealed on the same day.
8. On 23 July 1990 there was a fire in the public prosecutor’s office and the case-file was destroyed. It was reconstituted at the end of October 1990.
9. On 6 December 1990 the Court of Appeal of Crete, composed of judges and jurors (Μικτό Ορκωτό Εφετείο), adjourned the examination of his appeal until 6 June 1991 because a number of key prosecution witnesses were not present.
10. On 6 June 1991 the examination of the appeal was further adjourned because the applicant’s lawyer was on strike.
11. The appeal was heard on 9 January 1992 and the Court of Appeal upheld the applicant’s conviction and sentence. On 19 February 1992 the applicant appealed in cassation.
12. On 11 May 1992 the applicant’s lawyer applied for an adjournment of the hearing before the Court of Cassation because he needed more time to prepare the case. The court acceded to his request. On 17 November 1992 there was another adjournment because the applicant’s lawyer was on strike. A further adjournment was ordered on the same ground on 9 February 1993. The appeal in cassation was finally heard on 11 May 1993.
13. On 1 July 1993 the Court of Cassation (Αρειος Πάγος) quashed the decision of the Court of Appeal on the ground that it did not contain proper reasons. The case was sent back to the Court of Appeal for re-examination.
14. On 24 August 1993 the applicant asked for his appeal not to be heard in Crete on public order and safety grounds. His request was unsuccessful.
15. On 7 April 1994 the Court of Appeal of Crete adjourned the hearing of the case because the applicant’s lawyer was on strike. On 11 May 1995 the case was adjourned again because key prosecution witnesses were absent.
16. On 26 September 1996 the Court of Appeal found the applicant guilty of homicide, considered that there existed no mitigating circumstances and imposed on him a sentence of life imprisonment.
17. On 17 February 1997 the applicant appealed in cassation once more. He claimed, inter alia, that he had pleaded before the Court of Appeal that his sentence should be reduced because of the length of the proceedings but the court had tacitly rejected this plea.
18. On 10 September 1997 the applicant submitted an additional memorial to the effect that the Court of Appeal should have reduced his sentence proprio motu because of the length of the proceedings. He invoked in this connection Article 6 § 1 of the Convention.
19. The applicant’s appeal was heard by the Court of Cassation on 26 September 1997 and was rejected on 7 November 1997.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-92500
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KARAKO v. HUNGARY
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;No violation of Art. 8
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 6. The applicant was born in 1955 and lives in Gávavencsellő.
7. The applicant is a Member of Parliament and delegate of the political party Fidesz – the Hungarian Civic Union (the “Fidesz”). During the parliamentary elections of 2002, he was a candidate in one of the electoral districts of Szabolcs-Szatmár-Bereg County. On 19 April 2002, prior to the second ballot round, a flyer was distributed in the applicant’s electoral district, signed by L.H., chairman of the Szabolcs-Szatmár-Bereg County Regional General Assembly. The flyer read as follows:
“Dr. László Karakó, in his capacity as a member of the Fidesz... in the Regional General Assembly, regularly voted against the interests of the county. Moreover, in the debate concerning the route of the M3 highway, he did not support the version favourable to the county, with which − aside from the county − he probably harmed his own electoral district the most.”
8. On 15 May 2002 the applicant filed a criminal complaint against L.H. with the Nyíregyháza District Court, accusing him of libel. Finding that the impugned act fell within the competence of public prosecution, the District Court transferred the case to the Nyíregyháza District Public Prosecutor’s Office in March 2004.
9. The Public Prosecutor’s Office ordered the continuation of the criminal proceedings in April 2004. On 3 May 2004 the Public Prosecutor’s Office terminated the investigation, finding that there had been no crime committed within the realm of public prosecution. The applicant stated that this decision was only served on him on 1 December 2004. He lodged a complaint against this decision which was dismissed by the Szabolcs-Szatmár-Bereg County Regional Public Prosecutor’s Office on 22 December 2004. The Prosecutor’s Office was of the view that the impugned act had occurred during the electoral campaign and, as a candidate, the applicant could not have been considered a public official. Therefore, the act did not concern a matter of public prosecution. The applicant submitted an application seeking a review of this decision to the Attorney General’s Office. It dismissed his application on 28 February 2005.
10. On 29 January 2005 the applicant, acting as a private prosecutor, submitted an indictment against L.H. to the Nyíregyháza District Court, accusing the latter of having committed libel against him as a public official during official proceedings.
11. On 2 May 2005 the District Court dismissed the applicant’s indictment. It found that the impugned statement was a value judgment, with regard to which the limits of acceptable criticism were wider for a politician – who must display a greater degree of tolerance. No appeal lay against this decision.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-97352
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SUMILA AND OTHERS v. THE REPUBLIC OF MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: The applicants are all Moldovan nationals. They were represented before the Court by Ms E. Botnari. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
The facts of the case, as submitted by the parties, may be summarised as follows.
All the applicants were employees of the Ministry of Internal Affairs (“the Ministry”). Between 1997 and 2005 the applicants initiated proceedings against the Ministry for miscalculating their pensions (applications nos. 41556/05, 42308/05, 33566/06, 33567/06, 33568/06 and 33570/06) and failing to pay compensation for dangerous working conditions (application no. 41369/05).
They all obtained final judgments in their favour and enforcement warrants were issued.
On 1 November 2003 Mr Semenov died.
On 30 December 2003, 20 January, 2 February, 4 March, 24 March and 23 July 2004 respectively, the final judgments in favour of Mr Kudreavţev, Mr Coseac, Mr Sîtnic, Mr Evgrafov, Mr Ianiv, Mr Şumila and Mr Semenov were fully enforced.


ITEMID: 001-71482
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ANTONOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Konstantin Olegovich Antonov, is a Russian national, who was born in 1963 and lives in the town of Gatchina in the Leningrad Region. The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 September 1996 the applicant sued his former employer for reinstatement, wage arrears and compensation for non-pecuniary damage.
Between 12 September and 20 December 1996 the Gatchina Town Court fixed six hearings of which four were adjourned at the applicant’s request.
On 20 December 1996 the Gatchina Town Court dismissed the action.
On 6 March 1997 the Leningrad Regional Court partly upheld the judgment of 20 December 1996, quashed the remainder of the judgment and remitted the matter for a fresh examination.
On 15 May 1997 the Gatchina Town Court dismissed the claim.
On 26 June 1997 the Leningrad Regional Court quashed the judgment of 15 May 1997 and remitted the case for a new examination.
Of five hearings scheduled between 11 August 1997 and 17 June 1998, four were adjourned because the composition of the court was changed at the applicant’s request or because his representative did not attend. One hearing was adjourned because the presiding judge was ill.
On 26 August 1998 the applicant successfully challenged the presiding judge.
Of nine hearings fixed between 2 December 1998 and 9 December 1999, four were adjourned because the applicant did not attend and five were adjourned because he challenged the court members or asked to stay the proceedings on various grounds.
On 17 December 1999 the applicant asked the town court to change the composition of the bench. The Gatchina Town Court granted his request and transferred the case to another court.
On 28 February 2000 the Presidium of the Leningrad Regional Court, by way of supervisory-review proceedings, quashed the decision of 17 December 1999 and transferred the case back to the Gatchina Town Court for examination.
On 28 March 2000 the hearing was adjourned because the defendant did not attend.
At the hearing of 28 April 2000 the applicant asked to change the composition of the bench. The request was granted.
On 15 June 2000 the Leningrad Region Court quashed the decision of 28 April 2000 and returned the case back to the Gatchina Town Court for examination by the same bench.
Of seven hearings between 6 July 2000 and 26 April 2001, one was adjourned due to the parties’ absence, three were adjourned because the applicant did not attend, two were adjourned because the applicant successfully challenged the bench, and one hearing was postponed because the applicant intended to retain a new representative.
On 26 April 2001 the Gatchina Town Court disallowed the action because the applicant had repeatedly defaulted and had not informed the court about the reasons for his absence.
On 5 June 2001 the Leningrad Regional Court, on an appeal by the applicant, quashed the decision of 26 April 2001 and ordered that the case should be examined by the Gatchina Town Court.
On 1 August 2001 the applicant unsuccessfully challenged the bench and the registrar. On the same day the town court ordered the applicant’s medical examination.
On 10 August 2001 the applicant appealed against the decision of 1 August 2001. His appeal was dismissed on 9 October 2001 by the Leningrad Regional Court.
On 22 October 2001 the case-file was sent to medical experts.
On 28 February 2002 the experts returned the case-file to the court because medical documents had not been enclosed.
The court fixed a hearing for 19 April 2002. This hearing was adjourned because the applicant wished to retain a lawyer.
The hearing of 20 June 2002 was postponed at the applicant’s request based on unclear reasons.
On 26 August 2002 the Gatchina Town Court dismissed the claim.
On 5 November 2002 the Leningrad Regional Court quashed the judgment of 26 August 2002 in the part concerning the applicant’s reinstatement, payment of outstanding salary and compensation for non-pecuniary damage, and remitted these claims for a new examination by a different bench.
Of ten hearings between 15 December 2002 and 3 December 2003, two were postponed because the applicant did not attend, three were adjourned at the defendant’s request and five at the applicant’s request.
On 3 December 2003 the Gatchina Town Court disallowed the applicant’s action because he had persistently defaulted and appeared to have lost interest in the proceedings.
On 18 February 2004 the Leningrad Regional Court quashed the decision of 3 December 2003 because the applicant had informed the court about the reasons for his absence and remitted the case for a fresh examination.
On 17 May 2004 the Gatchina Town Court dismissed the applicant’s action.
On 7 July 2004 the Leningrad Regional Court upheld the judgment on appeal.


ITEMID: 001-67556
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: BROWN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Peter Brown, is a United Kingdom national, who was born in 1962 and lives in Leeds. He was represented before the Court by Mr S. Purchas, a solicitor practising in Leeds.
In December 1997, the applicant was sentenced to eight years' imprisonment for supplying heroin.
On 12 April 2002, at the two-thirds point of his sentence, the applicant was released on licence, pursuant to section 33 of the Criminal Justice Act 1991. The licence expiry date was set at 29 April 2003, the three-quarter point of his sentence (section 37 of the Criminal Justice Act 1991).
The licence conditions included that he live “where reasonably approved by [his] supervising officer and notify him or her in advance of any proposed change of address”. A separate condition required him to live at his mother's address and not to live elsewhere without the prior approval of his supervising officer. The applicant owned a house in Oulton, Leeds. The licence condition was designed to reduce contact with his erstwhile partner A., a drug addict who lived at that address, with his daughter C. and her other daughter. He was allowed to visit his daughter C. at that address.
In early November 2002, A. left the Oulton house and did not return. The applicant moved in to look after the children, there being insufficient room at his mother's home.
On 25 November 2002, at his next probation appointment, the applicant informed his probation officer that he had moved. The applicant states that no action was taken or direction given that he leave the address.
The applicant states that allegations of domestic violence were made by A. to her own probation officer, although not to the police. On the basis of these allegations, a request was made by senior probation officers (not including the applicant's) that he be recalled to prison for breach of his licence conditions.
On 19 December 2002, the applicant was recalled to prison for breach of the residence condition in his licence by the Home Secretary under section 39 of the Criminal Justice Act 1991. In the document setting out the reasons for recall, it was stated that he was recalled because he had moved without prior approval and the risk that he posed because of his antecedents and his behaviour in moving meant that it was not right for him to remain on licence.
On 23 December 2002, the applicant's solicitors made representations to the Parole Board which had the power to order his release, in which he inter alia denied the allegations of domestic violence and alleged that the decision to recall was based on insufficient information, largely an unreliable account of A. and without any investigations being carried out.
On 15 January 2003, the applicant was informed that his representations had been rejected. The decision stated that the applicant had clearly breached the conditions of his licence by not residing at his mother's address as instructed, nor had he notified his supervising officer in advance of his proposed change of address. The condition had been specifically inserted in his licence to reduce contact with his ex-partner. This failure to comply with the licence conditions suggested that the objects of probation supervision had been undermined.
The applicant instituted proceedings for judicial review, challenging that decision as unlawful, disproportionate or unreasonable and as following an unfair or unlawful process; he argued that both the common law and Articles 5, 6 and 8 of the Convention had been breached and sought damages.
On 11 April 2003, the High Court judge refused permission, finding that the Parole Board had not revoked his licence because of allegations by A. or suspicions as to drug-taking. He noted that the reasons given were clear, that the applicant had notified the probation service after the event and the condition had been inserted to prevent/reduce contact with A. He held that the Board was entitled to regard the breach of the condition in those circumstances as justifying recall.
The applicant's renewed application was rejected by a different High Court judge on 11 June 2003. He noted a report prepared for the Parole Board prior to his release which stated:
“Although there are no current drug concerns it would be unrealistic to suggest that [the applicant] will not be 'at risk' post release. An additional licence condition to initially reside at his parents ... and not to move in with his partner Ms A. until he has demonstrated that he has remained drug-free for a significant period and she has overcome her own drug problem seems appropriate. Although such a condition would not prevent him seeing Ms A. and providing support to his children, it would allow the Probation Service to monitor the situation closely.”
The judge found nothing unfair in the procedure whereby the Parole Board rejected the applicant's representations and held that although the decision was harsh it was impossible to say that it was arguably irrational: the Parole Board had known all the facts and the fact that the girl friend was not at the address when he moved there did not entitle him to breach his licence.
On 22 September 2003, the Court of Appeal refused permission to appeal. The judge stated:
“The procedure was fair. The Appellant broke a condition of residence which was important and of which he was well aware. He was given the opportunity to make representations and the representations he made were considered. The decision did not depend on the truth of the allegations made by Ms. A. and the Parole Board was right not to attempt any investigation of her allegations. The reasons given for the decision were adequate and ... rational. Even if it could be argued that it was harsh, it was not disproportionate.”
Concerning the applicant's arguments under the Convention, the judge referred to domestic case-law on the point (see below).
On 30 September 2003, the Legal Services Commission refused to fund a renewed application to the Court of Appeal.
On 13 November 2002, R. (West) v. the Parole Board ([2003] Prison Law Reports 70, the Court of Appeal rejected, by two votes to one, the argument that the recall of a prisoner on licence who has been serving a determinate sentence amounted to a determination of a criminal charge for the purposes of Article 6 of the Convention.
On 31 July 2003, in R. (Smith) v. the Parole Board ([2003] EWCA 1269), the Court of Appeal held that neither Article 5 nor the civil provisions of Article 6 were engaged by recall of a prisoner on licence serving a determinate sentence.


ITEMID: 001-102975
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF HERRMANN v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of P1-1;No violation of Art. 14+P1-1;No violation of Art. 9
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1955 and lives in Stutensee.
7. Under the German Federal Hunting Law (Bundesjagdgesetz), owners of hunting grounds with a surface of less than 75 hectares are de jure members of a hunting association (Jagdgenossenschaft), while owners of bigger plots of land manage their own hunting district. The applicant owns two landholdings in Rhineland-Palatinate which are smaller than 75 hectares in a single block. He is thus an automatic member of a hunting association, in the instant case of the municipality of Langsur.
8. On 14 February 2003 the applicant, who is opposed to hunting on ethical grounds, filed a request with the hunting authority to terminate his adherence to the hunting association. The authority rejected his request on the grounds that his adherence was prescribed by law and that there was no provision on the termination of adherence.
9. The applicant brought proceedings before the Treves Administrative Court. Relying in particular on the Court's judgment in the case of Chassagnou and Others v. France ([GC] nos. 25088/94, 28331/95 and 28443/95, ECHR 1999III), he requested the court to establish that he was not a member of the hunting association of the municipality of Langsur.
10. On 14 January 2004 the administrative court rejected the applicant's request. It considered that the Federal Hunting law did not violate the applicant's rights. With regard to the Chassagnou-judgment the administrative court considered that the situation in Germany differed from the one in France. It observed, in particular, that the German owners of hunting grounds, by way of their adherence to the hunting association, were in a position to influence the decision-making process on how the hunting rights should be exercised. Furthermore, they had a right to receive a share of the profits derived from the exploitation of the hunting rights. All owners of plots which were too small to allow a proper management of hunting rights adhered to a hunting association. The court also considered that the hunting associations did not only serve the leisure interests of those who exercised the hunting rights, but imposed certain specific obligations on them, which served the general interest, in particular the duty to manage the game stock with the aim of maintaining varied and healthy game populations and to avoid damages caused by wild game. They were furthermore obliged to comply with specific quotas set by the administration for the hunting of game. These duties applied in the same way to the owners of hunting grounds more the 75 hectares of area, notwithstanding the fact that these bigger plots were not regrouped in hunting associations.
11. On 13 July 2004 and 14 April 2005 the Rhineland-Palatinate Administrative Court of Appeal and the Federal Administrative Court rejected the applicant's appeals on the same grounds as the administrative court.
12. On 13 December 2006 the Federal Constitutional Court (1 BvR 2084/05) refused to admit the applicant's constitutional complaint for adjudication. It noted, at the outset, that the provisions of the Federal Hunting Law did not violate the applicant's right to the peaceful enjoyment of his property, but defined and limited the exercise of this right in a proportionate way. The relevant provisions pursued legitimate aims, were necessary and did not impose an excessive burden on the landowners.
13. When defining the content and the limits of property rights, the legislator had to weigh the proprietors' legitimate interests against the general interest. He had, in particular, to respect the principles of proportionality and of equal treatment. The limitations imposed on the exercise of property rights must not infringe the core area of the protected right. The margin of appreciation allocated to the legislator depended on the specific context; the stronger the social context, the wider the margin of appreciation.
14. Applying these principles to the instant case, the Federal Constitutional Court considered that the applicant's obligatory adherence to a hunting association did not violate his property rights. The core-area of that right was not infringed. The Federal Hunting Law pursued legitimate aims and limited the property rights in a proportionate way. Encompassed in the notion of “management and protection of the game stock (Hege)”, it had the aim to preserve the game in a way that was adapted to the rural and cultural conditions, and to ensure a healthy and varied wildlife. Under the Federal Hunting Law, game keeping was not only an instrument to prevent damages caused by wild-life, but also to avoid any impediment to the agricultural, forestry and fishery exploitation of the land. These aims served the general interest.
15. The obligatory adherence to a hunting association was an appropriate and necessary means to achieve these aims. Referring to paragraph 79 of the above-cited Chassagnou judgment, the Constitutional Court considered that the Court had acknowledged that it was undoubtedly in the general interest to avoid unregulated hunting and encourage the rational management of game stocks. The obligatory adherence to a hunting association was also a proportionate means. The impact on the property rights was not particularly serious and did not outweigh the general interest in a rational management of game stocks. Furthermore, the Federal Hunting Law endowed every member with the right to participate in the decisionmaking process and to receive a share of the profits derived from the lease of the hunting rights.
16. The Constitutional Court further considered that there was no violation of the applicant's freedom of conscience. Referring to paragraph 114 of the Chassagnou judgment, it accepted that the applicant's convictions attained a certain level of cogency, cohesion and importance and where therefore worthy of respect in a democratic society. Accordingly, the Federal Constitutional Court considered that the applicant's complaint might fall within the scope of freedom of conscience, but that there was, in any event, no violation of that right. The applicant was neither enjoined to exercise the hunt himself, nor to participate in it or to support it. The fact that he had to tolerate the exercise of the hunt on his premises did not result from his own decision, but was the result of the legislator's legitimate decision. The right to freedom of conscience did not encompass the right that the whole legal order was submitted to one's own ethical standards. If the legal order distributed the right to exploit a certain property to several claimholders, the owner's conscience did not necessarily outweigh the other claimholders' constitutional rights. If the applicant's landholding – and that of other owners who were opposed to hunting – were removed from the hunting association because of their convictions, the whole system of property ownership and of the management of the game stock would be jeopardised. The right to freedom of conscience did not outweigh the general interest in the instant case.
17. The Federal Constitutional Court further considered that the applicant's complaint did not come within the scope of the right to freedom of association, because the German hunting associations were of a public nature. Vested with administrative, rule-making and disciplinary prerogatives, they remained integrated into State structures. There was thus no doubt that the association was not simply qualified as “public” in order to remove it from the scope of Article 11 of the Convention.
18. The Federal Constitutional Court further considered that the applicant's right to equal treatment had not been violated. There was an objective reason which justified drawing a distinction between the owners of landholdings less than 75 hectares in area and those more than 75 hectares in area. Contrary to the situation in France, which had been examined by the Court in the Chassagnou judgment, the Federal Hunting Law applied to the whole surface of Germany and was binding on all landowners. The owners of land more than 75 hectares in area had the same duties in game keeping as those adhering to hunting associations.
19. Finally, the Federal Constitutional Court observed that the administrative courts had considered the Chassagnou judgment and had accentuated the differences between the German law and the French Law as applicable at the relevant time.
20. Article 20a of the Basic Law provides:
“Mindful also of its responsibility toward future generations, the State shall protect the natural bases of life by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.”
Section 1 § 1 of the Federal Hunting Law (Bundesjagdgesetz) provides that the hunting right encompasses the right to manage and protect the game stock on a particular area of land, to exercise the hunt and to take possession of the game. The hunting right is linked to the duty to manage and protect the game stock (Pflicht zur Hege).
Under § 2 of that section, the management of the game stock is aimed at maintaining varied and healthy game populations at level compatible with land care and cultural conditions and at avoiding game damage.
§ 3 distinguishes between the hunting right (Jagdrecht) and the right to exercise the hunt (Ausübung des Jagdrechts). The landowner has the hunting right on his premises. The right to exercise the hunt is regulated by the following provisions:
Section 4 of the Hunting Law provides:
“The hunt may be exercised either on private hunting districts (section 7) or common hunting districts (section 8).”
Section 6 (enclosed premises, stay of the hunt) reads as follows:
“The hunt is stayed on surfaces, which do not belong to a hunting district, and on enclosed surfaces (befriedete Bezirke). A limited exercise of the hunt may be permitted. This law does not apply to zoological gardens.”
Section 7 provides, inter alia, that plots of at least 75 hectares of surface which can be exploited on an agricultural, forestry or fishery level and which belong to one single owner constitute a private hunting district.
Section 8 provides that all surfaces which do not belong to a private hunting district constitute a common hunting district if they have an overall surface of at least 150 hectares.
Section 9 § 1 provides as follows:
“The owners of surfaces belonging to a common hunting district form a hunting association. Owners of surfaces on which the hunt must not be exercised do not belong to the hunting association.”
Section 10 reads as follows:
“(1) The hunting association generally exploits the hunt by lease-hold. The lease can be limited to the members of the association(...)
(2) The hunting association is allowed to practice the hunt on its own account by chartered hunters. With the agreement of the competent authority, it can decide to stay the hunt (Ruhen der Jagd ).
(3) The association decides about the use of the net profit of the hunt. If the association decides not to distribute it to the owners of hunting grounds according to the surface they own, each owner who had contested this decision is allowed to claim his share. ...”
Section 20 provides:
“(1) Hunting is prohibited in areas where the practice of the hunt would, under the specific circumstances of the case, disturb public peace, order or security or would endanger human life.
(2) The practice of the hunt in nature and wildlife protection areas and in national and wildlife parks is regulated by the Länder.”
Section 21 provides:
“(1) The shooting of the game is to be regulated in a way which fully safeguards the legitimate interests of agriculture, fishery and forestry to be protected from damages caused by wild game and which takes into account the necessities of nature protection and landscape conservation. Within these limits, the regulation of the shooting of the game shall contribute to maintain a healthy population of all domestic game in adequate numbers and, in particular, ensure the protection of endangered species.”
Section 7 of the Hunting Law of the Land of Rhineland-Palatinate provides, inter alia, as follows:
“(1) The Hunting association is a public law corporation. It is subject to State supervision. The supervision is exercised by the lower hunting authority...The hunting association has to issue its own internal statute (Satzung). The internal statute has to be approved by the supervising authority unless it is in accordance with a model statute issued by the highest hunting authority; in this case notice of the statute has to be given to the lower hunting authority. If the hunting association fails to issue a statute within one year after the issue of the model statute, the supervising authority issues an internal statute and publishes it...at the expense of the association.
...
(4) Cost orders (Umlageforderungen) are to be executed under the provisions of the law on the execution of administrative acts. The execution rights are exercised by the exchequer who executes the claims of the community in which the association is situated....”
NON_VIOLATED_ARTICLES: 14
9
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-91286
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ONUR v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant, Mr Ümit Onur, is a Turkish national who was born in 1978 and now lives in Turkey. He is of Kurdish origin.
5.
6. In 1989 the applicant, who was then eleven years old, arrived in the United Kingdom with his father, his brother and his four sisters to join his mother, who had arrived six weeks earlier. The applicant’s father claimed asylum. The claim was refused but the family were granted Exceptional Leave to Remain which was periodically extended. In 1999 the applicant, his father and his other family members were granted Indefinite Leave to Remain. At an unspecified date his mother, father and three of his sisters were granted British nationality. One of the applicant’s sisters left the United Kingdom for Turkey in 1993 and the family believe she may be in Iraq. The applicant’s father died in 2006. His mother, brother and three of his sisters continue to reside in the United Kingdom.
7. The applicant stated that he had not returned to Turkey since his departure in 1989 but he could still speak Turkish. It is not clear whether he received any education in Turkey, although it appears that he received some schooling in the United Kingdom. He is a chef by profession although there is little information available regarding his employment history.
8. In 1994 he commenced a relationship with a British citizen. The relationship lasted six years, but during this time the applicant was convicted on seven occasions for a number of different offences. On 10 May 1996 he was convicted for driving whilst disqualified and sentenced to fifty hours’ community service. Two months later he was convicted of burglary and given an eighteen month probation order. Later that same year he was convicted of aggravated burglary and sentenced to eight months of youth custody. On 28 April 1997 he was fined GBP 30 following a conviction for possession of cannabis. On 12 September 1997 he was again convicted of possession of cannabis and sentenced to one day’s imprisonment. On 4 October 1997 he was convicted of two counts of burglary and sentenced to two years’ imprisonment.
9. On 5 June 2000, the applicant pleaded guilty to robbery at Wood Green Crown Court. The trial judge noted that the applicant had been one of the ringleaders of the robbery, during which two of the four robbers carried weapons. He imposed a sentence of four and a half years’ imprisonment but made no recommendation regarding the applicant’s deportation from the United Kingdom.
10. The applicant’s relationship with his partner ended when he was imprisoned. Shortly afterwards, in 2000, his partner gave birth to a daughter. The applicant is not named as the father on the birth certificate although his mother cared for the child until she was three years old.
11. On 7 September 2001 the Secretary of State for the Home Department wrote to the applicant to notify him that he was considering his immigration status and his liability to deportation in light of his conviction of 5 June 2000. The applicant was invited to make representations within twenty-eight days, but the representations made on his behalf were not answered and no further action was taken at that stage. Following the applicant’s release on 21 January 2003, his solicitors wrote to the Home Office to seek clarification of his position, but still no formal action was taken.
12. On 18 May 2005 the applicant was convicted of a road traffic offence and a failure to surrender to custody. He was given a sentence of twenty-eight days’ imprisonment, a fine of GBP 200 and disqualified from driving for nine months.
13. In April 2006 the Secretary of State for the Home Office admitted that 1023 foreign national criminals, who should have been considered for deportation or removal, had completed their prison sentences and were released without any consideration of deportation or removal action. The news was widely reported in the British media and resulted in urgent action being taken by the Home Office to improve performance and crack down on foreign national criminals.
14. In 2005 the applicant began a relationship with a British citizen. On 24 September 2006 the couple entered into a non-legally binding marriage by Kurdish rite (“the marriage”) and their first child was born on 4 March 2007. A second child was born on 21 January 2008.
15. The applicant was served with an undated Notice of Decision to Make a Deportation Order on 1 October 2006. A letter entitled “Reasons for Deportation” had been prepared on 6 July 2006 on behalf of the Immigration Service Border Control & Enforcement Unit. It stated that in view of the applicant’s conviction for robbery on 5 June 2000, the Secretary of State for the Home Department deemed it conducive to the public good to make a deportation order. The letter was signed and countersigned but it was not served on the applicant. On 5 September 2006 it was amended and reprinted. This amended letter was served on the applicant on 1 October 2006 together with the Notice of Decision to Make a Deportation Order. The amended letter entitled “Reasons for Deportation” set out all of the applicant’s convictions, including that of 18 May 2005. It concluded that:
“Full consideration has been given to all the known facts of your case in line with paragraphs 364 of HC 395 (as amended). Your personal and domestic circumstances have been carefully balanced against the seriousness of your crime and need to protect the wider community. It is concluded that in your case it is appropriate to deport you to Turkey.”
16. The applicant appealed to the Asylum and Immigration Tribunal (“the AIT”), relying, inter alia, on Article 8 of the Convention. The Secretary of State requested an oral hearing. In the document setting out this request, the Secretary of State twice indicated that the decision to make a deportation order had been taken on 6 July 2006.
17. Before the AIT, the applicant argued, first, that the decision to deport him was not in accordance with the law. The relevant paragraph of the Immigration Rules, paragraph 364, had changed on 20 July 2006. The earlier version of the rule required the Secretary of State to conduct a balancing exercise post-20 July 2006 version of the rule established a presumption that the public interest required deportation. The Secretary of State would consider all relevant factors in considering whether the presumption was outweighed in a particular case, but it would be only in exceptional circumstances that the public interest in deportation would be outweighed in a case where it would not be contrary to the European Convention on Human Rights or the Refugee Convention to deport. The applicant argued that the decision to deport him had been taken on 6 July 2006 and thus his case should have been considered under the old version of paragraph 364, which was more favourable to him.
18. Secondly, the applicant argued that in light of his extensive private and family life in the United Kingdom and the length of his stay there, the decision to deport him was a violation of Article 8. He also submitted a report prepared by a consultant clinical psychologist who diagnosed him as having mild to moderate depression, panic disorder, mild mental retardation, borderline intellectual functioning and dyslexia.
19. In a determination dated 20 February 2007, the AIT dismissed the applicant’s appeal. It found that the relevant date for the decision to deport was 1 October 2006, as the decision had remained incomplete until it was communicated to the applicant, and as a consequence his deportation fell to be considered under the later version of paragraph 364. In the alternative, the AIT found that if it was wrong in this conclusion and therefore had to conduct a balancing exercise pursuant to the earlier version of paragraph 364, it would have come to the same conclusion. The AIT also held that there had been no violation of Article 8 of the Convention.
20. The applicant applied for reconsideration of the AIT’s decision. On 19 March 2007 a Senior Immigration Judge refused the application, holding that although the AIT had concluded that the decision to deport was made after paragraph 364 was amended, it had also considered the alternative. All relevant matters were considered by the AIT and no material error of law was disclosed.
21. The applicant’s application for statutory review was dismissed by the High Court on 16 May 2007. On 8 June 2007 the deportation order in respect of the applicant was signed and it was served on him on 27 June 2007. On 11 July 2007 the applicant lodged an application for judicial review of the AIT’s decision not to make an order for reconsideration, and applied to have the deportation revoked. The applicant was deported to Turkey on 12 July 2007.
22. On 16 July 2007 the application to revoke the deportation order was refused by the Secretary of State. On 10 October 2007 the High Court dismissed the judicial review application. The applicant brought an out-of-country appeal against this decision but the appeal was dismissed under both the Immigration Rules and Article 8 of the Convention on 17 July 2008.
23. Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Section 3(5)(b) of the same Act (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good.
24. Sections 82(1) and 84(1)(a) of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against a decision to deport, inter alia, on the grounds that the decision is incompatible with the Convention and that it was not in accordance with the Immigration Rules.
25. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
26. The version of paragraph 364 of the Immigration Rules, which was in force prior to 20 July 2006, provided as follows:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person’s behalf.”
27. The amended version of paragraph 364, in force since 20 July 2006, provides as follows:
“Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects...”
28. In EO (Deportation appeals: scope and process) Turkey [2007] UKAIT 00062 the AIT considered whether the amendment to paragraph 364 substantively changed the rule. It concluded:
“we have no doubt that the substantive meaning of paragraph 364 after amendment by HC 1337 is very different from that which it previously bore. The range of issues expressly falling for consideration in the exercise of the discretion to make a deportation decision in the old version is such as to suggest a general duty to look at the issues already considered in the evaluation of the human rights claim and to apply what might be termed a lower standard to them. That range of considerations does not feature in the new version, which instead introduces a presumption in favour of deportation.”
29. Paragraph 380 of the Immigration Rules, referred to in both versions of paragraph 364, provides as follows:
“A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom’s obligations under the Convention and Protocol relating to the Status of Refugees or the Human Rights Convention [the European Convention on Human Rights].”
30. The Rules relating to the revocation of a deportation order are contained in paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended), supplemented by Chapter 13 of the Immigration Directorate’s Instructions (“IDIs”). There is no specific period after which revocation will be appropriate although Annex A to Chapter 13 of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal. Cases which will normally be appropriate for revocation three years after deportation include those of overstayers and persons who failed to observe a condition attached to their leave, persons who obtained leave by deception, and family members deported under section 3(5)(b) of the Immigration Act 1971. With regard to criminal conviction cases, the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “spent” under section 7(3) of the Rehabilitation of Offenders Act 1974. Paragraph 391 of the Rules, however, indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. This is expanded on in Annex A to Chapter 13 of the IDIs, which indicates that revocation would not normally be appropriate until at least 10 years after departure for those convicted of serious offences such as violence against the person, sexual offences, burglary, robbery or theft, and other offences such as forgery and drug trafficking.
NON_VIOLATED_ARTICLES: 8