ITEMID: 001-100941
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF NAYDYON v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 34;No violation of Art. 34;Remainder inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1962 and is currently serving a prison sentence at the Yenakiyeve Town Correctional Colony (Prison) No. 52, the Donetsk Region (“the Yenakiyeve Colony”).
5. On 23 November 1999 the applicant was arrested by the police on suspicion of burglary. According to the applicant, during his detention from 23 to 25 November 1999 and subsequent interrogations, which took place at the police station, he was subjected to various forms of ill-treatment, the aim of which was to extract a confession for grave crimes, including murder and burglary. The applicant maintained that he had received multiple bruises and abrasions on his head and body and that several ribs and teeth had been broken. The applicant did not have access to a doctor and the alleged injuries were not recorded.
6. On 25 November 1999 the applicant was given access to an official defence lawyer, appointed by the authorities, who continued to represent him until the completion of the proceedings. On the same day the applicant was transferred to the Mariupol Town Temporary Detention Centre (“the Mariupol ITU”).
7. On 29 November 1999 the applicant was transferred to the Mariupol Pre-Trial Detention Centre No. 7 (“the Mariupol SIZO”).
8. According to the applicant, he complained to the prosecutors that he had been ill-treated. His complaint was allegedly rejected as unsubstantiated by the Deputy Prosecutor of the Donetsk Region on 12 April 2000 and he did not challenge that decision before the courts. No copy of the decision was submitted to the Court. The Government did not contest these submissions, though they provided a copy of the letter from the General Prosecutor's Office of 24 January 2008 by which the Government Agent had been informed, inter alia, that the applicant had not lodged any complaints with the Donetsk Regional Prosecutor's Office claiming that unlawful investigation methods had been applied in his case (see paragraph 31 below).
9. In the course of his trial the applicant maintained his complaint of ill-treatment. In particular, the applicant alleged that his confession for having committed some of the crimes with which he had been charged had been obtained under duress. In his submissions before the courts the applicant referred to the decision of 12 April 2000, indicating where it was to be found in the domestic case file. While the Donetsk Regional Court of Appeal gave no reply to the applicant's complaint, the Supreme Court, in its decision of 26 September 2002 (see below), held, in general terms, that there was no evidence that the applicant's statements had been obtained in an arbitrary manner. The relevant parts of that decision read as follows:
“... Naydyon disagrees with [his] conviction, as, in his view, it is harsh, partial and unfair. [According to him] the case was heard with the accusatory inclination; the force was used during [his] questioning; [he was] questioned in a misleading manner; [and] he did not organise a [criminal] group ...
Having heard the judge-rapporteur, the prosecutor ... having examined the case materials, and having discussed the arguments in the cassation appeals, the panel of judges concluded that the appeals shall not be allowed ...
There is no evidence that the statements of the convicted were obtained in a misleading or in any other unlawful manner.
...”
10. On 22 July 2001 the applicant was transferred to the Donetsk PreTrial Detention Centre No. 5 (“the Donetsk SIZO”), where he was held at least until 10 July 2004, when he was transferred to the Yenakiyeve Colony in which he is now serving his sentence. During his detention in the Donetsk SIZO the applicant requested and subsequently received dental treatment on one occasion and he also had his lungs x-rayed and examined in May 2003 and January 2004. He did not request any other medical aid.
According to the applicant, the conditions of his detention in the Donetsk SIZO were poor, he was not provided with food of adequate quality and there was a person with mental health problems detained in the same SIZO building with him.
11. On 31 May 2000 the pre-trial investigations in the applicant's case were completed and the case was subsequently referred to the Donetsk Regional Court of Appeal.
12. According to the applicant, in the course of the court proceedings, he asked for several witnesses to be called and examined on his behalf. He received no reply to his request.
13. On 19 July 2001 the Donetsk Regional Court of Appeal, acting as a court of first instance, found the applicant, together with three other persons, guilty of crimes committed in 1998-99, including several counts of aggravated murder, burglary and sexual intercourse with a minor. The court sentenced the applicant to life imprisonment and confiscated all his property. The court based its judgment on the statements made before it by the defendants and their statements obtained during the pre-trial investigations in which they had confessed to having committed some of the crimes with which they had been charged; the statements of ten victims and witnesses heard by the court and the written statements of six other victims and witnesses obtained in the course of the pre-trial investigations; and the reports of fifteen experts.
14. The applicant's lawyer and the applicant himself lodged separate appeals in cassation with the same court.
15. The lawyer alleged that the first-instance court had erred in the assessment of evidence and had not applied the law correctly in the case.
16. The applicant complained that the first-instance court had failed to summon witnesses on his behalf or the expert on whose conclusions the applicant's conviction of sexual intercourse with a minor had been based. The conclusions concerned the state of sexual development of the victim. In his appeal in cassation the applicant further alleged that the court had refused to take into account his allegations of torture during his detention and subsequent interrogations in November 1999 and that it had not examined his submissions concerning various procedural violations committed by the authorities in the course of the pre-trial investigations.
17. On 26 September 2002 the Supreme Court partly amended the judgment of 19 July 2001. However, the applicant's conviction and sentence remained unchanged. The Supreme Court found that the judgment had been well-founded and that there had been no procedural irregularities during the investigation or trial. The Supreme Court's decision was communicated to the applicant on 25 October 2002.
18. On 17 April 2003 the applicant sent his first letter to the Court and the application form was received on 30 September 2003. In support of his application the applicant submitted copies of the court decisions in his criminal case, his lawyer's appeal in cassation and several letters from the authorities which the applicant had received in reply to his complaints that his conviction had been unlawful.
19. In the letters, which the Court received from the applicant in 2003, he alleged that the staff of the Donetsk SIZO had often refused or substantially delayed the dispatch of his letters, including the application form, addressed to the Court; that they had refused to provide him with copies of the documents which he had intended to submit to the Court (the applicant's complaints and procedural requests made in the course of his trial and the courts' replies to the applicant's submissions); and that they had put psychological pressure on the applicant asking him not to complain about the SIZO authorities. The applicant maintained that, because of his application to the Court, he was placed in a cell with a person suffering from the open form of tuberculosis. As a consequence, he was at risk of being infected with this disease.
20. On 27 October 2003 the Court invited the Government to submit factual information with respect to allegations contained in the applicant's letters to the Court.
21. By letter dated 3 December 2003, the Government informed the Court that there had been no interference with the applicant's correspondence. They submitted copies of the Donetsk SIZO's register of incoming and outgoing correspondence and the applicant's written statements addressed to the State Penitentiary Department, in which he had acknowledged that he had had no complaints against the Donetsk SIZO authorities and that his letters had been dispatched without delay.
22. In his letters of 22 November and 12 December 2003 the applicant alleged that on 5 November 2003 the deputy governor of the Donetsk SIZO had told him to write such statements.
23. In his letter of 22 May 2006 the applicant stated that in July 2004, just before his transfer to the Yenakiyeve Colony, an unspecified member of staff of the Donetsk SIZO had made threats against him in order to prevent him complaining about the SIZO authorities.
24. By letter dated 7 July 2006, the Court asked the applicant to submit documentary evidence in respect of his complaints under Articles 3 and 6 of the Convention. In particular, the applicant was invited to submit copies of his complaints made to the national authorities concerning the alleged illtreatment and copies of their replies to such complaints concerning the events of 23-25 November 1999, a copy of his appeal in cassation against the judgment of the Donetsk Regional Court of Appeal of 19 July 2001 and copies of his written requests to have witnesses examined by the latter court on his behalf.
25. By letter dated 1 August 2006, the applicant asked the Donetsk Regional Court of Appeal to send him copies of his appeal in cassation, the reports on his confrontation with four police officers who had allegedly illtreated him, his complaint to the Donetsk Regional Prosecutor stating that he intended to submit those copies to the Court in substantiation of his application and the latter's reply.
26. In its reply of 14 August 2006, the court refused to provide copies of the requested documents because the applicant's request had no basis in domestic law.
27. By letter dated 8 December 2006, the applicant requested the same court to send him copies of his complaints to that court about the allegedly unlawful investigations in his case.
28. The applicant received no reply to his latter request.
29. On 13 June 2007 the applicant sent a third letter to the court of appeal, requesting copies of the same documents from his case file. On 3 July 2007 he received a reply from the deputy president of the Donetsk Regional Court of Appeal. In that letter, he was informed that his request had been refused on the ground that, because his conviction had become final, he was entitled to receive copies only of the courts' decisions in his criminal case. According to the deputy president of that court, no copies of other documents from the case file were allowed to be sent to the applicant.
30. On 26 November 2007 the Court invited the Government to submit written observations on the admissibility and merits of the case (see paragraph 3 above). They were also requested to submit a copy of the applicant's appeal in cassation and relevant documents concerning his complaints about the alleged ill-treatment to the national authorities, copies of their replies to such complaints, and copies of his written motions to have witnesses on his behalf examined by the Donetsk Regional Court of Appeal.
31. On 29 February 2008 the Government sent to the Court their observations on the case and copies of the applicant's appeal in cassation of 31 August 2001 together with written amendments to his appeal dated 29 July 2002, copies of the applicant's letters to the president of the Donetsk Court of 9 and 20 February 2001 requesting copies of documents from his case file, and a copy of the letter from the General Prosecutor's Office of 24 January 2008 by which the Government Agent had been informed, inter alia, that the applicant had not lodged any complaints with the Donetsk Regional Prosecutor's Office claiming that unlawful investigation methods had been applied in his case. The Government's observations were subsequently forwarded to the applicant.
32. On 25 March 2008 the applicant informed the Court that he had found a lawyer to represent him in the proceedings before the Court and asked for legal aid. On 27 May 2008 the President of the Chamber decided that legal aid should be granted to the applicant for his representation before the Court. The lawyer prepared and submitted observations to the Court on behalf of the applicant. By a letter of 31 July 2008, the applicant informed that he did not wish the lawyer to continue representing him before the Court.
33. The Criminal Code of 1960 (repealed on 1 September 2001) provided for the death penalty as an exceptional type of punishment for particularly serious crimes, including aggravated murder.
34. By a judgment of 29 December 1999, the Constitutional Court held that the provisions of the Criminal Code concerning the death penalty were contrary to the Constitution of Ukraine. On 22 February 2000 those provisions were changed by the Verkhovna Rada, the Parliament, to the effect that the death penalty was replaced by life imprisonment. Before the changes of 22 February 2000, the maximum term of imprisonment under the Code had been twenty years.
35. Under the Code of Criminal Procedure of 1960, an accused, a defendant, their defence lawyers or non-legal representatives may familiarise themselves with materials in the criminal case file at various stages of the proceedings until their completion (Articles 43, 48, 218, 219, 222, 255, 349, 362, 384 of the Code). When studying the case file they are allowed to take notes.
36. According to section 32 of the Information Act of 1992, citizens have the right to ask the authorities to provide them with any official document, whether or not it concerns them, except in cases in which the law limits access to documents. Copies of the requested documents may be given against the payment of a fee (section 35 of the Act).
37. Regulations on case processing in courts of appeal and local courts of general jurisdiction, issued by the State Judicial Administration on 6 January and 27 June 2006 (Order nos. 1 and 68), respectively, provide for a procedure through which persons taking part in court proceedings may familiarise themselves with case files. In particular, case files should be studied at a court's premises in the presence of a member of the registry. Copies of documents included in a file, court decisions which have entered into force and written information notes are issued by registry staff upon a written request and against the payment of a court fee. Upon approval by the president or deputy president of a court, a complete case file may be sent by post to those State bodies which are entitled by the law to request it.
38. The Internal Regulations of Penitentiary Institutions, approved by the State Department for the Execution of Sentences on 25 December 2003 (Order no. 275), do not allow prisoners to keep any documents, other than copies of judgments in their criminal cases and correspondence concerning their application to the European Court of Human Rights (Annexes 6, 7 and 9 to the Regulations). Further to amendments made to the Regulations on 14 March 2007, a prison administration is required to assist prisoners who wish to obtain copies of documents concerning their applications from the State bodies. When copies of such documents are received, prisoners should be allowed to keep them and, if appropriate, to join them to their applications to the Court (Regulation 43). Under amended Regulation 92, prisoners are to be provided with photocopying services against the payment of a fee.
39. A comparative survey of national legislation in eighteen of the member States of the Council of Europe demonstrates that while there are no specific regulations on prisoners' access to their case files, other domestic legal provisions can be relied upon by prisoners to make a request for access to such documents. The most common provisions can be found in Codes of Criminal Procedure. This is the case in seven of the surveyed member States, namely, France, Greece, Italy, Latvia, Malta, Poland and the United Kingdom. In five member States, the relevant provisions can be found in Acts on the Administration of Justice or the Courts, as is the case for Bulgaria, Denmark, Estonia, Ireland and Turkey. In another four member States, namely, Georgia, Moldova, the Netherlands and Romania, Access to Public Information provisions provide the best way for a prisoner to request such documents. Finally, in one member State, Georgia, the relevant provisions can also be found in the Administrative Code of Procedure.
40. Using one or more of these legal provisions, a prisoner, who does not have a person to represent him or her outside the penitentiary institution, may have access to documents in a criminal case file once domestic proceedings have ended, usually by way of a written request to the court for photocopies of the relevant documents to be sent by post, or, as, for instance, in Poland, consultation of the file under supervision in prison. In the majority of the surveyed member States, the photocopies of the relevant documents would have to be paid for, although in some member States there is provision for an exemption for charges depending on the means of the prisoner (such as in Estonia).
41. The relevant extract from the Appendix to the Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11 January 2006, reads as follows:
“...Legal advice
...
23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings...”
42. According to legal commentary contained in the Council of Europe publication of the European Prison Rules (2006, p. 52), Rule 23.6 is designed to assist prisoners by giving them access to legal documents which concern them. Where for reasons of security and good order it is not acceptable to allow them to keep those documents in their cells, steps should be taken to ensure that they are able to access them during normal working hours.
VIOLATED_ARTICLES: 34
NON_VIOLATED_ARTICLES: 34


ITEMID: 001-79541
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: STORBRATEN v. NORWAY
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Yngvar Storbråten, is a Norwegian national who was born in 1955 and lives in Lillestrøm. He is represented before the Court by Mr S. Næss, a lawyer practising in the same town. The Norwegian Government (“the Government”) were represented by their Agent, Mrs F. Platou Amble, Attorney at the Attorney General's Office (Civil Affairs).
The facts of the case, as submitted by the parties, may be summarised as follows.
In July 1998 the applicant opened a restaurant at Eidsvoll, in southern Norway. The restaurant was shut down in March 1999 and the applicant was declared bankrupt in August 1999. This was the fifth time a business run by him had ended in this way.
In the course of the year 1999 the tax authorities reassessed the applicant's liability to pay value-added tax, investment tax and income tax for certain parts of the taxation years 1998 and 1999. In this connection, on an unknown date during 1999 or 2000, the said authorities imposed 30% tax surcharges on him.
In the relevant bankruptcy report, the Administrator of the estate recommended that the applicant be disqualified from further business (konkurskarantene). In the Administrator's view, both grounds for imposing a disqualification order under section 142(1) of the Bankruptcy Act 1984 (konkursloven) had been fulfilled, namely, the existence of a reasonable suspicion against the applicant that criminal conduct had led to the bankruptcy and that he had displayed carelessness in his business practices making him unfit to establish a new company or to serve as a board member or as day-to-day manager of such a company.
On 17 January 2000 the Eidsvoll Probate and Bankruptcy Court (skifterett) disqualified the applicant under section 142(1), points 1 and 2, and 142(2) for a period of two years. The decision contained the following reasons:
“The criminal offences referred to here are listed in Chapter VIII, items 1-5, of the preliminary report, and are as follows: failure to submit a self-employed income declaration to the tax authorities, failure to keep accounting records, failure to register employees in the register of employees, failure to submit value-added tax returns, and contravention of Article 286 § 2, see Article 288, of the Penal Code, relating to the essential disregard of provisions governing accounting, annual reports and accounts, and the keeping of accounting records.
[The applicant] was notified of the proposal to disqualify him by the court's letter of 3 January 2000. [He] was given until 14 January 2000 to submit any objections in this matter. The court has not received any objections from the debtor.
The police (Romerike Police District) have been advised of the proposal to impose a disqualification order and of the fact that they are entitled to act as a party to the proceedings. No reply has been received indicating that they wish to exercise this right.
Under section 142 of the Bankruptcy Act, a disqualification order may be imposed on a debtor if there are reasonable grounds for suspecting him or her of having committed offences in connection with the activities that led to insolvency, or if he or she is unfit, on grounds of unsound business conduct, to serve as a director etc. in a new company.
The court finds that there are reasonable grounds for suspecting [the applicant] of having committed criminal offences in connection with the establishment of Yngvars Bistro og Biffbar. The matters listed in the trustee's report may, in addition to constituting criminal offences, also be characterised as unsound business conduct. [The applicant] has entirely disregarded his duties to keep accounting records and submit returns to the authorities, including annual reports and accounts, VAT returns and reports to the register of employees. These transgressions have made subsequent control of his business operations impossible.
The court finds that a person who disregards his duties to the public authorities to such an extent cannot be considered fit to manage a business or to serve on the board or the management of a company.
The court finds that there is no doubt that the conditions for imposing a period of disqualification under section 142(1), points 1 and 2, of the Bankruptcy Act are fulfilled.
In so far as the court is aware, [the applicant] does not currently hold any managerial responsibilities in other companies, and there are no other circumstances that would make it unreasonable to disqualify him. The court therefore finds, after an assessment, that a disqualification order should be imposed as proposed by the trustee.
Since in this case it is more than four months since the commencement of bankruptcy proceedings, the court finds that the disqualification period is to run from the date of this ruling, cf. Konkursråd no. 5, page 49.”
The disqualification order became final as the applicant did not lodge an appeal.
Subsequently, on 18 December 2001, the Eidsvoll District Court (herredsrett) convicted the applicant on three counts, all of which were connected to the bankruptcy, namely, failure to comply with the book-keeping requirement in breach of Article 286 of the Penal Code and of the relevant provisions of the Accounting Act 1977 (regnskapsloven 1977); failure to declare business turnover in violation of section 72(2) of the Value Added Tax (VAT) Act 1969 (merverdiavgiftsloven); and failure to submit tax declarations in breach of section 12-1(1)D of the Tax Assessment Act 1980 (ligningsloven). He was sentenced to thirty-five days' imprisonment and tax surcharges were imposed on him. In those proceedings the applicant unsuccessfully relied on Article 4 § 1 of Protocol No. 7 to the Convention.
On an appeal by the applicant to the Eidsivating High Court (lagmannsrett), the latter, referring to more recent Supreme Court case-law under Article 4 § 1 of Protocol No. 7, quashed the District Court's judgment on 11 September 2002 in so far as it concerned the conviction and tax surcharges in respect of the tax and VAT offences (apparently not a subject of complaint in his application under the Convention). Moreover, the applicant was partly acquitted and partly convicted of the book-keeping offences. On the other hand, the High Court agreed with the lower court that the imposition of a disqualification order did not preclude subsequent prosecution. In the light of the foregoing, it reduced the sentence to fifteen days' imprisonment.
The applicant appealed to the Supreme Court on the ground that the criminal case against him entailed double jeopardy in violation of Article 4 of Protocol No. 7 and for this reason should have been dismissed.
On 23 September 2003 the Supreme Court unanimously rejected the applicant's appeal. In his reasoning, approved in the main by the other four Justices sitting in the case, the first voting judge, Mr Justice Oftedal Broch, stated:
“(20) In the current proceedings, it is of key importance that a disqualification order may be imposed if either of the two conditions specified in the first sub-section is met. Pursuant to point 1, there must be reasonable grounds for suspecting that a criminal act has been committed in connection with the bankruptcy or the activities that led to insolvency. Pursuant to point 2, an assessment of suitability is to be made. The effects of a disqualification order are the same in both cases, with the exception that sub-section 4 also authorises disqualification from the debtor's existing offices in other companies. This applies only to a disqualification order imposed pursuant to point 1 of the first sub-section.
(21) Disqualification after bankruptcy was first introduced into the 1976 Limited Liability Companies Act. Sections 13-19(1) introduced an automatic two-year disqualification period for board members and managing directors of limited liability companies and also for all personal debtors in bankruptcy. During this period, a disqualified person was not permitted to form a new limited liability company, take up any new office on a board or become a managing director in any other limited liability company.
(22) Although the general rule was that a two-year disqualification period was mandatory, section 13-19(2) authorised the probate and bankruptcy court, on an application, to decide that all or part of the disqualification period was to be remitted. Such a decision was to be made if there was no suspicion that the debtor had contravened any penal clause in connection with the bankruptcy or the company's activities, and there was no doubt about the soundness of the debtor's conduct as a manager or in another position he or she held in the company. The probate and bankruptcy court could also decide that a disqualification period was to be remitted if it found that no reasonable or public interest militated against this.
(23) On the other hand, the effect of disqualification pursuant to sections 13-20 could be made more severe. If there were reasonable grounds for suspecting the debtor of having committed offences in connection with the bankruptcy or the company's activities, the probate and bankruptcy court could decide that he or she was also to be removed from any position on a board or as a managing director of another company during the disqualification period, in other words the provision that we also find in section 142(4) of the Bankrupcty Act.
(24) The preparatory works for the Act (Proposal No. 19 (1974-1975) to the Odelsting [the larger division of Parliament], p. 98) explain the purpose of introducing provisions relating to disqualification as follows:
'There are several arguments for preventing a person who is involved in a bankruptcy from holding managerial responsibilities. If the bankruptcy is the result of dishonesty or other errors on the part of the company's management, it will be desirable to ensure that the same people are not involved in the management of other limited liability companies. In other cases too, there can be reasons for introducing a certain disqualification period pending investigation of the circumstances of the bankruptcy with a view to revealing any irregularities or other inappropriate conduct. Even if the question of possible irregularities is disregarded, two other important considerations are society's interest in ensuring that resources are soundly managed and the interests of the creditors. Moreover, it is not in the interests of the company's shareholders or helpful to its reputation for it to be managed by persons whose fitness for the position or solvency can be questioned.'
(25) The Standing Committee on Justice commented on the need for rules on disqualification in Recommendation O. No. 50 (1975-1976), p. 20:
'In the committee's opinion, there is particular reason to withdraw the right to form new companies or take up new positions. It is particularly in this connection that we find the typical cases that disqualification is intended to deal with. The position with regard to offices that a person already holds is somewhat different. Disqualification from these can easily have unintended and negative effects both for the individuals targeted and for companies that lose a board member or managing director. The committee has therefore concluded that disqualification from already existing positions should be treated separately and made dependent on an individual evaluation, with a view to dealing with the cases where the need for disqualification is most obvious, that is, those where the circumstances suggest that offences have been committed in connection with the bankruptcy or the company's activities.'
(26) The provisions on disqualification were later transferred from the Limited Liability Companies Act to the 1984 Bankruptcy Act, and later amendments have resulted in the current wording. Proposal No. 50 (1980-1981) to the Odelsting, p. 50, describes the purpose of these provisions as follows:
'The purpose of these provisions is to ensure that certain persons who have been involved in an earlier bankruptcy (either personally or as part of the management of an insolvent limited liability company) are not involved in forming or managing other limited liability companies for a certain period (two years).
...
The enactment of the provisions relating to disqualification periods in the new Limited Liability Companies Act will make it easier to stop serial bankrupts who, after being involved in one or more bankruptcies, start up new companies and continue in business until these also fail, and who are suspected of irregularities in connection with their business activities.
The imposition of a disqualification order pursuant to the provisions of the Limited Liability Companies Act is additional to other possible measures based for example on criminal liability, liability for damages, or the voidability of transactions. There is particular reason to note that the provisions of Article 29 of the Penal Code relating to the stripping of rights are not made superfluous by the disqualification provisions. In practice, Article 29 is seldom used, but in cases where it is, it can be an advantage that the debtor is already subject to a disqualification order from the time of the bankruptcy and thus cannot take up the types of positions to which the provisions of the new Limited Liability Companies Act apply, since it will generally take some time before a case can be tried pursuant to Article 29 of the Penal Code.'
(27) Proposal no. 50 (1980-1981) to the Odelsting was not debated by the Storting (Parliament), and the bill was put forward again, see Proposal no. 39 (1982-1983) to the Odelsting. This time, the Government proposed that disqualification should not be automatic, see section 142 of the current Bankruptcy Act. The reason for this was partly to improve security under the law. The original wording of sections 13-19 of the Limited Liability Companies Act concerning exemptions from disqualification was characterised by the fact that the person in question was expected to prove his or her own innocence. It was also partly for practical reasons: as disqualification applied automatically, it was difficult to find qualified people who were willing to become board members or managing directors, particularly in cases where the goal was to save a company that was in difficulties.
(28) It was also proposed that the trustee's first report to the probate and bankruptcy court, which must be submitted no later than three months after his or her appointment, should include an evaluation of whether any circumstances in the case come under the rules on disqualification, see section 120, point 7, of the Bankruptcy Act. The Ministry of Justice submitted the following comments on this provision:
'The Ministry of Justice is of the opinion that this provision will help to make the rules on disqualification after a bankruptcy more effective. Such reports will provide probate and bankruptcy courts with material that will enable them to evaluate whether disqualification orders should be imposed at an early stage of the proceedings. A ruling can of course also be made before a report is received. It is important that a ruling on disqualification is made as promptly as possible if this provision is to stop serial bankrupts who are suspected of irregularities in connection with their business activities.'
(29) Under the Act of 30 March 1990 No. 8, a central Disqualified Directors Register was established as part of the Brønnøysund Register Centre, see section 144(2) of the current Bankruptcy Act. This was done as a means of ensuring compliance with disqualification orders. In the preparatory works, Proposal no. 7 (1989-1990) to the Odelsting, p. 7, the Ministry commented that although consideration for the right to privacy of the person disqualified was an argument against an 'open' register, this was less important than ensuring a real possibility for enforcing disqualification orders.
(30) Thus, on the basis of the preparatory works, it can be established that the purpose of the provisions relating to disqualification orders is to prevent a debtor in bankruptcy or the company managers from forming or managing new limited liability companies. The underlying consideration is that there are risks involved in the operation of a limited liability company, and that others must be protected against misuse of this form of business organisation by dishonest or irresponsible people. Two considerations are particularly emphasised, namely, sound management of resources and the interests of creditors and shareholders. The preparatory works emphasise that a decision to impose a disqualification order must be taken as soon as possible in order to prevent continued irregularities. Disqualification is not considered to be a penal measure; on the contrary, it is emphasised that disqualification and penal sanctions supplement each other.
(31) Such interactions between disqualification and criminal prosecution are also laid down in the provisions of the Act. By virtue of section 143(2), the prosecuting authority is entitled to act as a party in cases concerning disqualification in the probate and bankruptcy court, and may apply for the disqualification period to be extended until there is a legally enforceable judgment in a criminal case in which the prosecuting authority has proposed, or is contemplating proposing, that the bankrupt be stripped of his or her rights under Article 29 of the Penal Code. It is not possible to strip the bankrupt of his or her rights under the Penal Code at an earlier stage than this. On the other hand, in Norwegian Supreme Court Reports 2002, p. 789, the Appeals Board of the Supreme Court established that if the police withdraw a charge for the offences that formed the basis for imposing disqualification, it is not possible to maintain the disqualification order under section 142 (1), point 1, of the Bankruptcy Act.
(32) Article 4 § 1 of Protocol No. 7 to the Convention in relation to section 142(1), point 2, of the Bankruptcy Act
(33) I shall now return to the question of how the disqualification provisions are to be evaluated in relation to the Convention and the prohibition against double jeopardy in Article 4 § 1 and will first consider a disqualification order pursuant to the provision of section 142 (1) item 2 – on the grounds that unsound business conduct makes the person in question unfit to form or manage a company. With one minor reservation, which I shall discuss later, the parties in our cases agree that disqualification imposed under the first sub-section, point 2, is not a penalty and does not entail double jeopardy. Here, there is case-law from the European Court of Human Rights dealing with the British provisions on disqualification. These are very similar to the Norwegian provisions in section 142(1), point 2. The British provisions are set out in the Company Directors Disqualification Act 1986. They stipulate, among other things, that a person who has been a director of an insolvent company and whose conduct is found to make him or her unfit to manage a company is to be disqualified (the court issues a disqualification order) from setting up or managing a company for a period of two to fifteen years. The court can make exemptions from disqualification. The public authorities must institute legal proceedings within two years after the company is declared insolvent, and the decision is made by the ordinary courts.
(34) The European Court has examined the British rules on disqualification under the Convention in two cases. In Davies v. the United Kingdom (no. 42007/98, judgment of 16 July 2002) the parties agreed, and the Court was of the same opinion, that proceedings concerning a decision on disqualification determined 'civil rights' pursuant to Article 6 of the Convention. The case concerned whether the legal proceedings had taken an unreasonably long time, and the Court found that there had been a violation of the Convention. I note here that the Supreme Court (see Norwegian Supreme Court Reports (Norsk Retstidende) 2003, p. 409) has also found that decisions on disqualification in connection with a bankruptcy concern a 'civil right' pursuant to Article 6 of the Convention.
(35) In the case D.C., H.S. and A.D. v. the United Kingdom (dec.) no. 39031/97, decided on 14 September 1999, the applicants claimed that the decision to disqualify them determined a criminal charge. The Court replied:
'The criteria for ascertaining whether a 'criminal charge' has been determined are the domestic classification of the 'offence', the nature of the 'offence', and the nature and degree of severity of the potential and actual penalty (see, for example, the Schmautzer v. Austria judgment of 23 October 1995, Series A no. 328, p. 13, § 27 with further references). In the present case, the proceedings were classified as civil in domestic law, the disqualification of directors is a matter which is regulatory rather than criminal, and the 'penalty' is neither a fine nor a prison sentence, but rather a prohibition on acting as a company director without the leave of the court. Whilst a great deal was undoubtedly at stake for the applicants, it cannot be said that what is inherently a regulatory matter can thereby become a 'criminal charge' within the meaning of Article 6 §1 of the Convention. Thus, none of these criteria indicates that the applicant was charged with a 'criminal offence', and the Court considers that the proceedings in the present case did not determine a criminal charge within the meaning of Article 6 §1 of the Convention (see also No. 36791/97, Comm. Dec. 21.5.98).'
(36) On the basis of this decision, I presume that the same applies to a Norwegian decision to impose a disqualification order under section 142(1), point 2, that is, it is not to be construed as a criminal charge within the meaning of Article 6. This means that Article 4 § 1 of the Protocol will not bar subsequent criminal prosecution.
(37) I would like to mention that in case no. 2003/203, the defence counsel claimed that disqualification imposed under the first sub-section, point 2, must also be considered to determine a criminal charge if the grounds for considering a person unfit are suspicion that specific offences have been committed. I do not agree with this distinction. The basis for disqualification under section 142(1), point 2, is that the court has found the person in question to be unfit to form a new company or take part in the management of a new company. This is the case regardless of the further grounds cited by the court for judging the person unfit to take up such functions.
(38) Article 4 § 1 of Protocol No. 7 to the Convention in relation to section 142(1), point 1, of the Bankruptcy Act
(39) I shall now consider whether a disqualification order imposed under section 142(1), point 1 (reasonable ground for suspecting the person concerned of offences in connection with the bankruptcy), precludes subsequent criminal prosecution.
(40) For Article 4 § 1 to preclude subsequent criminal prosecution, the person charged must already have been 'finally acquitted or convicted'. The first question here is whether it is the decision to impose a disqualification order that must be 'final', which it clearly is, or whether the requirement for a final decision refers to the offences that are the grounds for issuing the order. The real question in the present case is whether the imposition of a disqualification order precludes subsequent criminal prosecution of these underlying offences. In my opinion, it follows directly from the wording of Article 4 § 1 that the final decision relates to the offences that are the grounds for disqualification; see the text of the Protocol, 'tried or punished again ... for an offence for which he has been finally acquitted or convicted'.
(41) There is no doubt that by issuing a disqualification order the adjudicating court expresses a view on whether the person in question may have committed the offences that constitute the grounds for imposing disqualification. But does it make sense to claim that when the court has decided whether or not to impose a disqualification order, the person has been finally acquitted or convicted of these offences? In my opinion, it does not.
(42) Firstly, I refer to the requirement of guilt for the criminal offences in question here. A finding that there is reasonable ground for suspicion is not a final conviction, either literally or according to Norwegian legal tradition. The concept of just cause for suspicion is associated particularly with the conditions in which coercive measures – arrest, custody, search, and so on – may be used pursuant to the Code of Criminal Procedure, and a decision to use such measures clearly does not constitute a final decision on guilt. These are of course temporary measures directly related to the criminal investigation. Coercive measures are used for the purpose of the investigation, and must be construed as ceasing to apply if the investigation is discontinued. However, as I have described above, the imposition of a disqualification order is also linked to the investigation of the case. The Appeal Committee of the Supreme Court has established that if the prosecuting authority withdraws a charge in respect of the offences that were the basis for issuing a disqualification order, the disqualification order must also be withdrawn (see Norwegian Supreme Court Reports 2002, p. 789). The same must apply in the event of an acquittal.
(43) Furthermore, the purpose of disqualification is an argument against the interpretation that a disqualification order constitutes a final decision regarding the underlying offences. In the preparatory works it is stated several times that the purpose of imposing a disqualification order is to prevent the person in question from continuing to misuse the company form through irregularities or other misconduct, and that disqualification orders must be issued swiftly. Use of the criterion 'reasonable ground for suspicion' is related to the need for a rapid response, which is expected before investigation of the case is completed. This is not in keeping with the interpretation that disqualification constitutes a final decision on guilt. The preparatory works point to the fact that the completion of the investigation of a criminal case will take longer, and is thus something that will be considered later.
(44) Finally, the procedural rules militate against regarding a decision to impose a disqualification order as a 'final conviction'. The 1984 amendments reversed the provisions on disqualification, so that instead of disqualification being automatic, it required a ruling by the probate and bankruptcy court, and at the same time a provision was introduced requiring the trustee to evaluate whether there were any circumstances in the case that came under the rules on disqualification, see section 120 item 7 of the Bankruptcy Act, in the first report to the probate and bankruptcy court, which must be submitted no later than three months after appointment. In the report, the trustee gives a survey of possible criminal offences, but is unlikely to be able to assess the strength of the suspicion in relation to each offence. In general, the district court too has only limited opportunities for making a closer assessment of guilt as regards each offence. Since disqualification requires only that there is a reasonable ground for suspecting the person in question of one offence, there is little reason for a debtor in bankruptcy to object to a single count, unless he or she claims not to have committed any offences at all. This means that there is little focus on specific offences. Thus, a ruling from the district court is not a suitable basis for determining which specific offences can be construed as having been finally adjudicated.
(45) In my opinion, these three elements – the form of guilt, the purpose of disqualification and the rules of procedure – considered together lead to the conclusion that the imposition of a disqualification order cannot be interpreted as a final conviction for the offences on which the decision is based.
(46) It is of course the case that the phrase 'finally .... convicted' is to be interpreted as an autonomous concept within the framework of the Convention. However, in my view, the raw material for the analysis must be the domestic legal system. On this basis, it seems to be reasonably clear that a debtor in bankruptcy has not been 'finally acquitted or convicted' of the offences that form the basis of a decision to impose a disqualification order, and that Article 4 § 1 therefore does not apply.
(47) However, I would like to point out that in the limited case-law from the European Court relating to Article 4 § 1, I have not found any material from the Convention's own legal system that can clarify the meaning of the term 'finally acquitted or convicted'.
(48) In the decision of inadmissibility in the case of Mulot v. France on 14 December 1999 (application no.37211/97), the question was whether the temporary withdrawal of a driving licence for six months for driving under the influence of alcohol and causing injury precluded subsequent criminal prosecution for the same offence. The withdrawal was a temporary measure involving no assessment of guilt. It could apply for a maximum of six months and would cease to have effect if the person was convicted. The Court established that Article 4 § 1 did not preclude subsequent criminal prosecution, but reasoned that the withdrawal of the driving licence was a traffic safety measure and thus was not a 'criminal charge'. The Court also referred to a Grand Chamber judgment two months earlier, on 28 October 1999, relating to Article 6 (Escoubet v. Belgium [GC], no. 26780/95, ECHR 1999VII), which concerned the immediate withdrawal of a driving licence for fourteen days, without any finding of guilt. In this case too, it was found that the withdrawal of the driving licence ought to be regarded as a preventive measure for the safety of road-users.
(49) On this basis, there is reason to consider whether, in the alternative, a disqualification pursuant to section 142(1) item 1 of the Bankruptcy Act can be construed as a criminal punishment under the Convention. A similar question has been of central importance in several of the Supreme Court's decisions relating to Article 4 § 1. I refer for example to Norwegian Supreme Court Reports 2002, p. 1216 and 2002, p. 1271, both of which include a thorough discussion of the term 'punishment' in this connection.
(50) There are strong indications that an evaluation of the legal institution of disqualification under the Convention must lead to the same conclusion for both the conditions laid down in section 142 (1) of the Bankruptcy Act, which in practice are often invoked together. In the preparatory works, the purpose of disqualification is described in the same terms for both conditions. The primary purpose is to satisfy a non-penal need for protection in cases where bankruptcy is related to criminal or unsound business conduct on the part of a manager or board member, indicating that he or she is unfit to engage in such business activities. The person in question should therefore, for a period of time, be excluded from holding managerial responsibilities in limited liability companies. The condition set out in item 1 – reasonable ground for suspicion of a criminal offence – can be regarded as a special case of the general criterion of fitness set out in item 2. Even if section 142(1) item 1, is viewed separately, an evaluation relative to the Convention must be based on the common purpose of these two provisions.
(51) In the above-cited D.C., H.S. and A.D. v. the United Kingdom, the key sentence in the reasoning is as follows,
'In the present case, the proceedings were classified as civil in domestic law, the disqualification of directors is a matter which is regulatory rather than criminal, and the 'penalty' is neither a fine nor a prison sentence, but rather a prohibition on acting as a company director without the leave of the court.'
(52) In my opinion, these three criteria are applicable in exactly the same way to a Norwegian disqualification order pursuant to section 142(1) item 1 of the Bankruptcy Act. Thus, there is no doubt that disqualification is classified as a civil matter in Norwegian domestic law. The next criterion is often described as the nature and purpose of the measure. Here, the European Court emphasises that disqualification is a matter that is regulatory rather than criminal. It is presumably of key importance here that the provisions relating to the disqualification of directors in Britain – and also in Norway – govern a very narrow field of business activities, namely, forming and managing limited liability companies. The nature of the measure cannot be said to be significantly influenced by the fact that it is grounded on suspicion of offences rather than an assessment of unfitness. In any event, the fact that the main reason for disqualification is to protect others, not to punish, is a factor that weighs more heavily here. I would also like to mention one particular feature of the Norwegian provisions, which is that an assessment of whether disqualification is reasonable in the circumstances is always required before a decision is made, see section 142(2). This also tends to strengthen the conclusion that disqualification is a means of regulating business activities rather than a punishment.
(53) Finally, as regards the severity of the measure, disqualification entails a prohibition against forming or managing new limited liability companies for a period of two years. It does not entail a general prohibition against engaging in business activities. As the High Court stated in its judgment in the present case,
'A person who is subject to a disqualification order is not prevented from running a general partnership, but is merely – for a relatively short period of time – prevented from using a form of business organisation in which personal liability is limited, and where there may therefore be less incentive to operate according to sound business principles.'
(54) As regards the severity of the measure, particular attention has been paid to the provisions of section 142(4). In cases where this provision applies, disqualification may also apply to current positions and offices held in other companies. It is quite clear that this form of disqualification has a greater effect, see the comments in Recommendation O. No. 50 (1975-1976), at the time when the provision was incorporated into the Limited Liability Companies Act. The question is whether its effects are so severe that a different conclusion must be drawn with respect to the term 'punishment' as used in the Convention. In my opinion, this is out of the question. As I understand the British rules, a disqualification order always applies to current positions held in other companies. Despite this – and the fact that the disqualification period is longer than in Norway – the European Court did not consider that the disqualification determined a 'criminal charge'.
(55) Further, it has been claimed that recording disqualifications in an open register is particularly defamatory and thus increases the severity of the measure. As I have shown earlier, the purpose of establishing a register was to enforce disqualification orders more effectively. The Ministry considered that the need for effective enforcement overrode the interests of protection of privacy. In my view, no particular importance can be attached to such registration when evaluating the severity of disqualification as a measure.
(56) In accordance with the above, I am of the opinion that given the nature of disqualification orders, their purpose, and the fact that this is not a particularly severe encroachment on a person's rights, a disqualification order cannot be construed as a punishment within the meaning of the Convention. Therefore, and also because disqualification does not entail a criminal charge, Article 4 § 1 of Protocol No. is not applicable.
(57) In the light of these conclusions, I will not discuss the third question in this case, namely, whether the offences that were the basis for the disqualification order pursuant to section 142 (1) item 1, are identical to the offences for which Mr Storbråten has been prosecuted and convicted.”
On the same date the Supreme Court pronounced judgment in a similar case, which also became the subject of an application (no. 11143/04) lodged under the Convention by Mr Per Harald Mjelde against Norway and which is being dealt with simultaneously with the present case.
In so far as relevant, section 142 of the Debt Reorganisation and Bankruptcy Act of 8 June 1984 No. 58 (the Bankruptcy Act) read:
Section 142 -Conditions for imposing a disqualification order
“If a debtor's estate is the subject of bankruptcy proceedings, the district court may impose a disqualification order on the debtor if
1) there are reasonable grounds for suspecting the person concerned of a criminal act [straffbar handling] in connection with the bankruptcy or the activities that led to insolvency, or
2) if it must be presumed that, for reasons of unsound business conduct, the person in question is unfit to establish a new company or to serve as a director or general manager (managing director) of such a company.
In taking a decision on this matter, importance shall be attached to whether, having regard to the debtor's conduct and the circumstances as a whole, it appears reasonable to impose a disqualification order.
The imposition of a disqualification order means that, for a period of two years from the opening of bankruptcy proceedings, the debtor may not establish such a company as mentioned in the fifth sub-section, or undertake the office or de facto exercise the powers of a member or deputy member of a board of directors or managing director of such a company. The district court may decide that the two-year period shall start from the date when the court takes its decision.
In the cases mentioned in the first sub-section, item 1, the district court may decide that disqualification shall also entail that the debtor shall be removed from any such offices as mentioned in the third sub-section held in such companies as mentioned in the fifth sub-section.
The term company in sub-sections 3 and 4 means a limited liability company, a public limited liability company, a branch office of a foreign company, a business foundation, a housing construction cooperative, a housing co-operative, a company aimed at promoting its members' consumer interests (consumer co-operative), a mutual insurance company or a State company.”
For a summary of the legislative history of the provisions on disqualification under Norwegian law, reference is made to paragraphs 21 to 31 of the Supreme Court's judgment quoted under Part A, sub-title 3, above.
In the parallel case of Mr Mjelde, in which the Court delivered a decision on the same date as the present decision, the Probate and Bankruptcy Court stated that in the assessment of reasonableness, emphasis should be placed on whether the conditions in both item 1 and item 2 were fulfilled.
The Government provided certain additional information, some of which is summarised below.
In the individual assessment of reasonableness to be carried out under section 142(2), account was to be had to such factors as the cause of the bankruptcy, the debtor's conduct during the bankruptcy proceedings and the time element. In the event of a significant and unwarranted delay from the opening of the bankruptcy proceedings until the submission of a request for a disqualification order, the court might conclude that it would be unreasonable to impose a disqualification order.
In the preparatory works to the Bankruptcy Act 1984, the Ministry of Justice had stressed that the rules would make it possible to put a stop to the activities of persons who were repeatedly involved in limited liability companies which became insolvent, and where there was reason to suspect improper business conduct. It had also been emphasised that disqualification orders should function as a supplement to stripping the offender of his or her rights (rettighetstap), which was a punitive measure imposed under Article 29 of the Penal Code. In this context, the Ministry had pointed to the advantages of the fact that a disqualification order could be imposed shortly after the opening of the bankruptcy proceedings, whilst it would normally take longer to investigate and prosecute possible criminal offences. The possibility of swift action was necessary to achieve the preventive purpose of the measure.
The duration of the disqualification period – usually two years – could be extended if the public prosecutor in a criminal case had requested or was contemplating requesting the trial court to strip the person in question of their rights under Article 29 of the Penal Code. The disqualification period could then be extended until the court had decided the criminal case.
The competent court could remit a disqualification order if any of the parties so requested and there was relevant new information. If a person subjected to a disqualification order was later acquitted in criminal proceedings for an offence which constituted the basis for the disqualification order, or further investigation showed that no such criminal offence had been committed, the public prosecutor was to request that the disqualification order be lifted (Norsk Retstidende 2002-789, Appeal Committee of the Supreme Court).
A disqualification order could be imposed by a court of first instance (tingretten) or by the probate and bankruptcy courts (skifteretten). Such a measure was usually taken on the basis of written proceedings. However, the parties had the right to request an oral hearing. In his or her report to the probate and bankruptcy court, the liquidator was to provide information on whether, in his or her opinion, there were circumstances suggesting that a disqualification order should be imposed. Both the bankrupt's estate (represented by the liquidator) and the prosecuting authority had a right to intervene as parties in the proceedings concerning the disqualification order. The opposing party would be the debtor, board member or other person against whom the order would apply. It was rare that the prosecution or the bankrupt's estate intervened as a party to the proceedings. The court's decision would, accordingly, normally be taken only on the basis of the information and recommendation in the liquidator's report, and the information and objections provided by the defendant.
Under section 143A of the Bankruptcy Act, a failure to comply with a disqualification order was a criminal offence punishable by up to four months' imprisonment and/or fines.


ITEMID: 001-69111
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: HACKETT v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, a United Kingdom and Irish citizen born in 1956 and living in Strabane, Tyrone, is represented before the Court by Ms P. Coyle of Harte Coyle Collins, solicitors practising in Belfast.
The applicant is the wife of Dermott Hackett who, on 23 May 1987, was ambushed in his bread van by loyalist paramilitaries and hit by some fifteen to sixteen bullets which killed him. At the time of his death members of the Catholic clergy and members of the SDLP criticised the RUC stating that Dermott Hackett had been subject to police harassment which may have operated to target him for loyalist paramilitaries.
Shortly afterwards, Michael Stone, when arrested following his attack on mourners in Milltown cemetery, admitted carrying out the murder of Dermott Hackett. Lee Francis Deary, aged 17 at the time, had also been arrested and charged with aiding and abetting the murder and with various counts of possession of firearms.
On 7 June 1988, Deary pleaded not guilty to the murder of Dermott Hackett. At the conclusion of the trial, he was found guilty by the judge on 1 July 1988 and detained at the pleasure of the Secretary of State.
On 5 December 1988, Stone pleaded not guilty to the murder of Dermott Hackett. On 3 March 1989, he was found guilty by the judge and sentenced to life imprisonment.
In July 2003, Stone published a book in which he claimed, inter alia, that neither he nor Deary were involved in the murder of Dermott Hackett. He stated that he had been involved in a conspiracy to kill Dermott Hackett, who was suspected of running guns for the IRA in his bread van, and had been shown intelligence files by members of the security forces. However he took the view that the security of the operation had been compromised after being told that the security forces knew about the plan and would let his team in and out safely and therefore pulled out of the plan. Hackett was killed a week later. Stone maintained that he admitted the murder because he was aware that Deary, who had been arrested and charged, had not been involved and he believed that his admissions would either result in the charges being dropped or the acquittal of Deary, while he faced life imprisonment in any event. He stated that Deary, who had merely been in possession of a stolen radio given to him by the two men who had stolen the car used in the attack on McDermott, had happened to know about an old IRA weapons hide. Stone also claimed that he had made false admissions to another murder, that of Kevin McPolin, in order to shield the group that had been involved.
Following the publication of the book, the applicant's solicitors wrote to the Secretary of State for Northern Ireland, the Chief Constable of the Police Service of Northern Ireland (“PSNI”) and the Director of Public Prosecutions and asked what steps were being taken by these public authorities in light of Stone's allegations. The applicant states that her representatives requested copies of the transcript of the trial and the bills of indictment from the Lord Chief Justice who has yet to determine the application.
On 11 August 2003 the Chief Constable directed a Detective Inspector of the PSNI, with no connection with the original investigation, to examine the book and any other relevant material that existed in relation to the death of Dermot Hackett. As appeared in an affidavit sworn on 12 February 2004, steps were also taken to have a senior detective from outside Northern Ireland examine the collected material and carry out such further enquiries and examine such further materials as he felt appropriate. The officer was to report to the Chief Constable on the findings and make recommendations as to any issues requiring re-examination. The family were to be briefed on any findings or recommendations.
Meanwhile, on 5 November 2003, the solicitors lodged proceedings against the Secretary of State complaining of a failure to hold an Article 2 compliant investigation into the death of Dermott Hackett. Following the decision of the House of Lords in McKerr v. Secretary of State for Northern Ireland on 11 March 2004 holding that a complaint could not be brought alleging a procedural violation of Article 2 where the death occurred before 2 October 2000, counsel advised the applicant that there was no possibility to continue the judicial review application, which was accordingly withdrawn on 6 September 2004.
On 24 May 2004, the applicant's solicitors wrote to the Serious Crime Review Team (SCRT), with whom they had been directed to correspond about this matter, and sought disclosure, inter alia, of copies of the interviews conducted with Stone and Deary in which they admitted involvement in the murder, copies of the forensic evidence and scene of crime photographs and any additional information available concerning the murder and the role of the security forces in the murder.
On 7 June 2004, the SCRT informed the solicitors that the PSNI had arranged for a senior detective from outside Northern Ireland to examine and review the allegations made by Michael Stone, that he would advise the Chief Constable what if any further action should be taken and that the family would be informed of the outcome of this review. As a result, the PSNI could not accede to the current request for disclosure of documentation. This officer was later identified as Mr Peter Kirkham, previously of the Metropolitan Police. By letter dated 20 July 2004, the applicant was informed that Mr Kirkham would be available for a meeting in August 2004. A meeting took place. A communication from Mr Kirkham to the solicitors indicated that he was aware of their concerns about access to material and stressed that at this stage all he had been asked to do was to provide an independent and impartial assessment of Michael Stone's allegations that he had colluded with the RUC/military prior to the Milltown murders and of his allegations that he did not take part in the murders of Dermot Hackett and Kevin McPolin.
The applicant's solicitors repeated their request for disclosure of materials, disputing that it would hinder the ongoing investigation. They also requested a copy of the report prepared by an inspector of the PSNI. No response had been received to these requests.


ITEMID: 001-98554
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF UKRAINE-TYUMEN v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste
TEXT: 6. On 31 October 2001 the State Property Fund of Ukraine informed the applicant company that it could no longer remain a shareholder of the applicant company because the transfer of the building from Ukranaftoprodukt to the applicant company, as consideration for its shares, had been invalidated by the judgment of the Plenary Higher Arbitration Court of 15 February 2001 (see the principal judgment, § 15).
7. Subsequently, several other shareholders, including the Ukrresursy State Enterprise, also informed the applicant company that they would no longer be shareholders.
8. On 2 November 2001 the general assembly of the applicant company decided to remove the State Property Fund, the Ukrresursy State Enterprise and three other companies from its list of shareholders. It was also decided to cancel the shares of the former shareholders and to reduce the share capital from 900,000 to 153,000 Ukrainian hryvnias (UAH).
9. According to the applicant company, the substantial drop in its share capital and its inability to use the building had inhibited its activities, which it had had to discontinue from May 2004 onwards.
10. On 30 September 2006 experts hired by the applicant company estimated the market value of the building on that date at UAH 7,331,425.20.
11. On 31 August 2008 two other experts hired by the applicant company to evaluate the market value of the building examined it from the outside, having been refused entry into the building. On 16 September 2008 they drew up an extensive report, finding that the building was worth UAH 12,711,000 given its actual state, location, existing possibilities of deriving profit from using the building, and the market values of similar types of property. They also mentioned that the building had not been in use since 1998 at least and therefore needed complete renovation.
12. On 22 September 2008 the Kyiv City Bureau of Technical Inventory and Register of Ownership Rights over Immovable Property (the State real-estate register) produced, at the applicant company's request, an expert report which estimated the market value of the building on 27 February 2001 at UAH 1,656,999, pointing out that the building had not been repaired or renovated since 1998.
13. On 24 September 2008 the applicant company's accounts were examined by an expert who noted, inter alia, that the book (inventory) value of the building on 1 January 2001 had been UAH 163,371.91, that from 1 May 1997 to 1 January 2001 the applicant company had spent UAH 137,451.22 on repair work to the building, and that its expenses for renting an office between 15 February and 1 April 2001 had come to UAH 1,621.55. The expert also calculated the inflation adjustment of the market value of the building, as mentioned in the valuation of 22 September 2008. Thus, the value of the building adjusted on 1 September 2008 amounted to UAH 3,431,452.53.
14. The relevant provisions of the Economic Associations (Companies) Act of 19 September 1991 (as worded at the material time) read as follows:
“A shareholder shall pay the full price of the shares ... at the latest within one year from the date of the company's registration.
Failing to make a payment in time ... a shareholder shall be liable to pay ten percent annual interest...
If no payment is made within three months [after the expiry of the time-limit] ... the company may sell the shares in accordance with the procedure established by [its] statute.”


ITEMID: 001-79812
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TYSIĄC v. POLAND
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Javier Borrego Borrego;Kristaq Traja;Lech Garlicki;Matti Pellonpää;Nicolas Bratza
TEXT: 7. The applicant was born in 1971 and lives in Warsaw.
8. Since 1977 the applicant has suffered from severe myopia, the degree of which was established at -0.2 in the left eye and -0.8 in the right eye. Before her pregnancy, she was assessed by a State medical panel, for social-insurance purposes, as suffering from a disability of medium severity.
9. The applicant became pregnant in February 2000. She had previously had two children, both born by Caesarean section. As the applicant was worried about the possible impact of the delivery on her health, she decided to consult her doctors. She was examined by three ophthalmologists (Dr M.S., Dr N.S.-B., Dr K.W.). It transpired from the documents submitted by the applicant that Dr M.S. had recommended that the applicant have frequent check-ups and avoid physical exertion. Dr N.S.-B. stated that the applicant should consider sterilisation after the birth. All of them concluded that, due to pathological changes in the applicant’s retina, the pregnancy and delivery constituted a risk to her eyesight. However, they refused to issue a certificate for the pregnancy to be terminated, despite the applicant’s requests, on the ground that the retina might detach itself as a result of pregnancy, but that it was not certain.
10. Subsequently, the applicant sought further medical advice. On 20 April 2000 Dr O.R.G., a general practitioner (GP), issued a certificate stating that her third pregnancy constituted a threat to the applicant’s health as there was a risk of rupture of the uterus, given her two previous deliveries by Caesarean section. She further referred to the applicant’s short-sightedness and to significant pathological changes in her retina. These considerations, according to the GP, also required that the applicant should avoid physical strain which in any case would hardly be possible as at that time the applicant was raising two small children on her own. The applicant understood that on the basis of this certificate she would be able to terminate her pregnancy lawfully.
11. On 14 April 2000, in the second month of the pregnancy, the applicant’s eyesight was examined. It was established that she needed glasses to correct her vision in both eyes by 24 dioptres.
12. Subsequently, the applicant contacted a State hospital, the Clinic of Gynaecology and Obstetrics in Warsaw, in the area to which she was assigned on the basis of her residence, with a view to obtaining the termination of her pregnancy. On 26 April 2000 she had an appointment with Dr R.D., Head of the Gynaecology and Obstetrics Department of the clinic.
13. Dr R.D. examined the applicant visually and for a period of less than five minutes, but did not examine her ophthalmological records. Afterwards he made a note on the back of the certificate issued by Dr O.R.G. that neither her shortsightedness nor her two previous deliveries by Caesarean section constituted grounds for therapeutic termination of the pregnancy. He was of the view that, in these circumstances, the applicant should give birth by Caesarean section. During the applicant’s visit Dr R.D. consulted an endocrinologist, Dr B., whispering to her in the presence of the applicant. The endocrinologist co-signed the note written by Dr R.D., but did not talk to the applicant.
14. The applicant’s examination was carried out in a room with the door open to the corridor, which, in the applicant’s submission, did not provide a comfortable environment for a medical examination. At the end of the appointment, Dr R.D. told the applicant that she could have as many as eight children if they were delivered by Caesarean section.
15. As a result, the applicant’s pregnancy was not terminated. The applicant gave birth to the child by Caesarean section in November 2000.
16. After the delivery, her eyesight deteriorated badly. On 2 January 2001, approximately six weeks after the delivery, she was taken to the emergency unit of the Ophthalmological Clinic in Warsaw. While doing a counting-fingers test, she was only able to see from a distance of three metres with her left eye and five metres with her right eye, whereas before the pregnancy she had been able to see objects from a distance of six metres. A reabsorbing vascular occlusion was found in her right eye and further degeneration of the retinal spot was established in the left eye.
17. According to a medical certificate issued on 14 March 2001 by an ophthalmologist, the deterioration of the applicant’s eyesight had been caused by recent haemorrhages in the retina. As a result, the applicant is currently facing a risk of going blind. Dr M.S., the ophthalmologist who examined the applicant, suggested that she should be learning braille. She also informed the applicant that, as the changes to her retina were at a very advanced stage, there were no prospects of having them corrected by surgical intervention.
18. On 13 September 2001 the disability panel declared the applicant to be significantly disabled, while previously she had been recognised as suffering from a disability of medium severity. It further held that she needed constant care and assistance in her everyday life.
19. On 29 March 2001 the applicant lodged a criminal complaint against Dr R.D., alleging that he had prevented her from having her pregnancy terminated as recommended by the GP on a medical ground which constituted one of the exceptions to a general ban on abortion. She complained that, following the pregnancy and delivery, she had sustained severe bodily harm by way of almost complete loss of her eyesight. She relied on Article 156 § 1 of the Criminal Code, which lays down the penalty for the offence of causing grievous bodily harm, and also submitted that, under the applicable provisions of social-insurance law, she was not entitled to a disability pension as she had not worked the requisite number of years before the disability developed because she had been raising her children.
20. The investigation of the applicant’s complaint was carried out by the Warsaw-Śródmieście district prosecutor. The prosecutor heard evidence from the ophthalmologists who had examined the applicant during her pregnancy. They stated that a safe delivery by Caesarean section had been possible.
21. The prosecutor further requested the preparation of an expert report by a panel of three medical experts (ophthalmologist, gynaecologist and specialist in forensic medicine) from the Białystok Medical Academy. According to the report, the applicant’s pregnancies and deliveries had not affected the deterioration of her eyesight. Given the serious nature of the applicant’s sight impairment, the risk of retinal detachment had always been present and continued to exist, and the pregnancy and delivery had not contributed to increasing that risk. Furthermore, the experts found that in the applicant’s case there had been no factors militating against the applicant’s carrying her baby to term and delivering it.
22. During the investigations neither Dr R.D. nor Dr B., who had cosigned the certificate of 26 April 2000, were interviewed.
23. On 31 December 2001 the district prosecutor discontinued the investigations, considering that Dr R.D. had no case to answer. Having regard to the expert report, the prosecutor found that there was no causal link between his actions and the deterioration of the applicant’s vision. He observed that this deterioration “had not been caused by the gynaecologist’s actions, or by any other human action”.
24. The applicant appealed against that decision to the Warsaw regional prosecutor. She challenged the report drawn up by the experts from the Białystok Medical Academy. In particular, she submitted that she had in fact been examined by only one of the experts, namely the ophthalmologist, whereas the report was signed by all of them. During that examination use had not been made of all the specialised ophthalmological equipment that would normally be used to test the applicant’s eyesight. Moreover, the examination had lasted only ten minutes. The other two experts who had signed the report, including a gynaecologist, had not examined her at all.
25. She further emphasised inconsistencies in the report. She also submitted that, before the second and third deliveries, the doctors had recommended that she be sterilised during the Caesarean section to avoid any further pregnancies. She argued that, although the deterioration of her eyesight was related to her condition, she felt that the process of deterioration had accelerated during the third pregnancy. She submitted that there had been a causal link between the refusal to terminate her pregnancy and the deterioration of her vision. The applicant also complained that the prosecuting authorities had failed to give any consideration to the certificate issued by her GP.
26. She further pointed out that she had been unable to familiarise herself with the case file because the summaries of witnesses’ testimonies and other documents were written in a highly illegible manner. The prosecutor, when asked for assistance in reading the file, had repeatedly refused to assist, even though he had been aware that the applicant was suffering from very severe myopia. The applicant had been unable to read the documents in the case file, which had affected her ability to exercise her procedural rights in the course of the investigation.
27. On 21 March 2002 the Warsaw regional prosecutor, in a one-paragraph decision, upheld the decision of the district prosecutor, finding that the latter’s conclusions had been based on the expert report. The regional prosecutor countered the applicant’s argument that she had not been examined by all three experts, stating that the other two experts had relied on an examination of her medical records. He did not address the procedural issue raised by the applicant in her appeal.
28. Subsequently, the decision not to prosecute was transmitted to the Warsaw-Śródmieście District Court for judicial review.
29. In a final decision of 2 August 2002, not subject to a further appeal and numbering twenty-three lines, the District Court upheld the decision to discontinue the case. Having regard to the medical expert report, the court considered that the refusal to terminate the pregnancy had not had a bearing on the deterioration of the applicant’s vision. Furthermore, the court found that the haemorrhage in the applicant’s eyes had in any event been likely to occur, given the degree and nature of the applicant’s condition. The court did not address the procedural complaint which the applicant had made in her appeal against the decision of the district prosecutor.
30. The applicant also attempted to bring disciplinary proceedings against Dr R.D. and Dr B. However, those proceedings were finally discontinued on 19 June 2002, the competent authorities of the Chamber of Physicians finding that there had been no professional negligence.
31. Currently, the applicant can see objects only from a distance of approximately 1.5 metres and is afraid of going blind. On 11 January 2001 the social-welfare centre issued a certificate to the effect that the applicant was unable to take care of her children as she could not see from a distance of more than 1.5 metres. On 28 May 2001 a medical panel gave a decision certifying that she suffered from a significant disability. She is at present unemployed and in receipt of a monthly disability pension of 560 Polish zlotys. She is raising her three children alone.
32. Article 38 of the Constitution reads as follows:
“The Republic of Poland shall ensure the legal protection of the life of every human being.”
33. Article 47 of the Constitution reads:
“Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.”
34. The Law on family planning (protection of the human foetus and conditions permitting pregnancy termination) (“the 1993 Act”), which is still in force, was passed by Parliament in 1993. Section 1 provided at that time that “every human being shall have an inherent right to life from the moment of conception”.
35. This Act provided that legal abortion was possible only until the twelfth week of pregnancy where the pregnancy endangered the mother’s life or health; or prenatal tests or other medical findings indicated a high risk that the foetus would be severely and irreversibly damaged or suffering from an incurable life-threatening disease; or there were strong grounds for believing that the pregnancy was a result of rape or incest.
36. On 4 January 1997 an amended text of the 1993 Act, passed on 30 June 1996, came into force. Section 1(2) provided that “the right to life, including the prenatal stage thereof, shall be protected to the extent laid down by law”. This amendment provided that pregnancy could also be terminated during the first twelve weeks where the mother either suffered from material hardship or was in a difficult personal situation.
37. In December 1997 further amendments were made to the text of the 1993 Act, following a judgment of the Constitutional Court given in May 1997. In that judgment the court held that the provision legalising abortion on grounds of material or personal hardship was incompatible with the Constitution as it stood at that time.
38. Section 4a of the 1993 Act, as it stands at present, reads, in its relevant part:
“(1) An abortion can be carried out only by a physician where
1. pregnancy endangers the mother’s life or health;
2. prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable life-threatening disease;
3. there are strong grounds for believing that the pregnancy is a result of a criminal act.
(2) In the cases listed above under sub-paragraph 2, an abortion can be performed until such time as the foetus is capable of surviving outside the mother’s body; in cases listed under sub-paragraph 3 above, until the end of the twelfth week of pregnancy.
(3) In the cases listed under sub-paragraphs 1 and 2 above the abortion shall be carried out by a physician working in a hospital.
...
(5) Circumstances in which abortion is permitted under subsection (1), sub-paragraphs 1 and 2, above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman’s life.”
39. An Ordinance issued by the Minister of Health on 22 January 1997 on qualifications of doctors authorised to perform abortions contains two substantive sections. In its section 1, the requisite qualifications of doctors who can perform legal abortions in the circumstances specified in the 1993 Act are stipulated. Section 2 of that Ordinance reads:
“The circumstances indicating that pregnancy constitutes a threat to the woman’s life or health shall be attested by a consultant specialising in the field of medicine relevant to the woman’s condition.”
40. Section 37 of the 1996 Medical Profession Act provides that in the event of any diagnostic or therapeutic doubts a doctor may, on his or her own initiative or upon a patient’s request and if he or she finds it reasonable in the light of requirements of medical science, obtain an opinion of a relevant specialist or arrange a consultation with other doctors.
41. Termination of pregnancy in breach of the conditions specified in the 1993 Act is a criminal offence punishable under Article 152 § 1 of the Criminal Code. Anyone who terminates a pregnancy in violation of the Act or assists in such a termination may be sentenced to up to three years’ imprisonment. The pregnant woman herself does not incur criminal liability for an abortion performed in contravention of the 1993 Act.
42. A person accused in criminal proceedings, if he or she cannot afford lawyers’ fees, may request legal aid under Article 78 § 1 of the Code of Criminal Procedure. Under Articles 87 § 1 and 88 § 1 of that Code, a victim of an alleged criminal offence is similarly entitled to request that legal aid be granted to him or her for the purpose of legal representation in the course of criminal investigations and proceedings.
43. Article 156 § 1 of the Criminal Code of 1997 provides that a person who causes grievous bodily harm shall be sentenced to between one and ten years’ imprisonment.
44. Articles 415 et seq. of the Civil Code provide for liability in tort. Under these provisions, whoever by his or her fault causes damage to another person is obliged to redress it.
45. Pursuant to Article 444 of the Civil Code, in cases of bodily injury or harm to health, a perpetrator shall be liable to cover all pecuniary damage resulting therefrom.
46. In a judgment of 21 November 2003 (V CK 167/03), the Supreme Court held that unlawful refusal to terminate a pregnancy where it had been caused by rape, namely in circumstances provided for by section 4a(1)3 of the 1993 Act, could give rise to a compensation claim for pecuniary damage sustained as a result of such refusal.
47. In a judgment of 13 October 2005 (IV CJ 161/05), the Supreme Court expressed the view that a refusal of prenatal tests in circumstances where it could be reasonably surmised that a pregnant woman ran a risk of giving birth to a severely and irreversibly damaged child, namely in circumstances set out by section 4a(1)2 of the 1993 Act, gave rise to a compensation claim.
48. The Committee, having considered in 1999 the fourth periodic report on the observance of the United Nations International Covenant on Civil and Political Rights submitted by Poland, adopted the following conclusions (Document CCPR/C/SR.1779):
“11. The Committee notes with concern: (a) strict laws on abortion which lead to high numbers of clandestine abortions with attendant risks to life and health of women; (b) limited accessibility for women to contraceptives due to high prices and restricted access to suitable prescriptions; (c) the elimination of sexual education from the school curriculum; and (d) the insufficiency of public family planning programmes. (Arts. 3, 6, 9 and 26)
The State Party should introduce policies and programmes promoting full and non-discriminatory access to all methods of family planning and reintroduce sexual education at public schools.”
49. The Polish government, in their fifth periodic report submitted to the Committee (CCPR/C/POL/2004/5), stated:
“106. In Poland data about abortions relate solely to abortions conducted in hospitals, i.e. those legally admissible under a law. The number of abortions contained in the present official statistics is low in comparison with previous years. Non-governmental organisations on the basis of their own research estimate that the number of abortions conducted illegally in Poland amounts from 80,000 to 200,000 annually.
107. It follows from the Government’s annual Reports of the execution of the [1993] Law [which the Government is obliged to submit to the Parliament] and from reports of non-governmental organisations that the Law’s provisions are not fully implemented and that some women, in spite of meeting the criteria for an abortion, are not subject to it. There are refusals to conduct an abortion by physicians employed in public health-care system units who invoke the so-called conscience clause, while at the same time women who are eligible for a legal abortion are not informed about where they should go. It happens that women are required to provide additional certificates, which lengthens the procedure until the time when an abortion becomes hazardous for the health and life of the woman. There [are] no official statistical data concerning complaints related to physicians’ refusals to perform an abortion. ... In the opinion of the Government, there is a need to [implement] already existing regulations with respect to the ... performance of abortions.”
50. The Committee, having considered Poland’s fifth periodic report at its meetings held on 27 and 28 October and 4 November 2004, adopted in its concluding observations (Document CCPR/C/SR.2251) the following relevant comments:
“8. The Committee reiterates its deep concern about restrictive abortion laws in Poland, which may incite women to seek unsafe, illegal abortions, with attendant risks to their life and health. It is also concerned at the unavailability of abortion in practice even when the law permits it, for example in cases of pregnancy resulting from rape, and by the lack of information on the use of the conscientious objection clause by medical practitioners who refuse to carry out legal abortions. The Committee further regrets the lack of information on the extent of illegal abortions and their consequences for the women concerned. ...
The State Party should liberalise its legislation and practice on abortion. It should provide further information on the use of the conscientious objection clause by doctors, and, so far as possible, on the number of illegal abortions that take place in Poland. These recommendations should be taken into account when the draft Law on parental awareness is discussed in Parliament.”
51. In a report prepared by ASTRA Network on Reproductive Health and Rights in Central and Eastern Europe for the European Population Forum, Geneva, held on 12 to 14 January 2004, it is stated that:
“The anti-abortion law which was in force in Poland since 1993 resulted in many negative consequences for women’s reproductive health, such as:
– many women who are entitled to legal abortions are often denied this right in their local hospitals;
– abortions on social grounds are not stopped but simply pushed ‘underground’, as women seeking abortions can find a doctor who would perform it illegally or go abroad;
– the effects of the law are felt primarily on the poorest and uneducated members of the society, as illegal abortions are expensive.
Lack of knowledge about family planning lowers women’s quality of life. Their sexuality is endangered either by constant fear of unwanted pregnancies or by seeking unsafe abortion[s].
There is a strong disapproval and obstruction toward[s] those who choose abortions under the few conditions that still allow for it to occur. Doctors and hospitals frequently misguide or misinform women, who are legally entitled to terminate pregnancies, thereby placing the health of the women at serious risk.
Doctors (and even whole hospitals, even though they have no right to do so) often refuse [to perform] abortion[s] in hospitals they work in, [invoking the] so-called clause of conscience – the right to refuse [to perform] abortion[s] due to one’s religious beliefs or moral objections – or even giving no justifications, creating problems as long ... as it is needed to make performing [an] abortion impossible under the law. There exists however a well organised abortion underground – terminations are performed illegally in private [clinics], very often by the same doctors who refuse [to perform] abortions in hospitals. The average cost of [an] abortion is ca 2000 [Polish zlotys] (equivalent [to the] country’s average gross salary). [The] Federation for Women and Family Planning estimates that the real number of abortions in Poland amounts to 80,000 to 200,000 each year.”
52. In its report entitled “Conclusions and Recommendations on the Situation of Fundamental Rights in the European Union and its Member States in 2004” dated 15 April 2005, the Network stated, inter alia:
“While acknowledging that there is [as] yet no settled case-law in international or European human rights law concerning where the adequate balance must be struck between the right of the [woman] to interrupt her pregnancy on the one hand, as a particular manifestation of the general right to the autonomy of the person underlying the right to respect for private life, and the protection of the potentiality of human life on the other hand, the Network nevertheless expresses its concern at a number of situations which, in the view of the independent experts, are questionable in the present state of the international law of human rights.
A woman seeking abortion should not be obliged to travel abroad to obtain it, because of the lack of available services in her home country even where it would be legal for her to seek abortion, or because, although legal when performed abroad, abortion in identical circumstances is prohibited in the country of residence. This may be the source of discrimination between women who may travel abroad and those who, because of a disability, their state of health, the lack of resources, their administrative situation, or even the lack of adequate information ... may not do so. A [woman] should not be seeking abortion because of the insufficiency of support services, for example for young mothers, because of lack of information about support which would be available, or because of the fear that this might lead to the loss of employment: this requires, at the very least, a close monitoring of the pattern of abortions performed in the jurisdictions where abortion is legal, in order to identify the needs of the persons resorting to abortion and the circumstances which ought to be created in order to better respond to these needs. ... Referring to the Concluding Observations adopted on 5 November 2004 by the Human Rights Committee upon the examination of the report submitted by Poland under the International Covenant on Civil and Political Rights (CCPR/CO/82/POL/Rev. 1, para. 8), the Network notes that a prohibition on non-therapeutic abortion or the practical unavailability of abortion may in fact have the effect of raising the number of clandestine abortions which are practised, as the women concerned may be tempted to resort to clandestine abortion in the absence of adequate counselling services who may inform them about the different alternatives opened to them. ...
Where a State does choose to prohibit abortion, it should at least closely monitor the impact of this prohibition on the practice of abortion, and provide this information in order to feed into an informed public debate. Finally, in the circumstances where abortion is legal, women should have effective access to abortion services without any discrimination.”
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1
NON_VIOLATED_ARTICLES: 3