ITEMID: 001-98885
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SAGHINADZE AND OTHERS v. GEORGIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 5-3;Violation of Art. 5-3;No violation of Art. 5-4;Violation of Art. 5-4;Violation of Art. 8;Violation of P1-1;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 6. The first and second applicants are husband and wife. They were both born in 1937. Their son, the third applicant, and his wife, the fourth applicant, were born in 1964 and 1970 respectively. The fifth and sixth applicants are the daughters of the first and second applicants and were born in 1962 and 1971 respectively.
7. The applicants, with the exception of the fourth applicant, are internally displaced persons (“IDPs”) from Abkhazia, Georgia. As a result of the armed conflict in 1992-93, they, along with approximately 300,000 other mostly ethnic Georgians, fled Abkhazia, abandoning their homes and property there.
8. As the first applicant had been a high-ranking official of the Abkhazian Ministry of the Interior, the Georgian Minister of the Interior offered him, in January 1994, the post of Head of the Investigative Department within his Ministry. After the first applicant accepted the offer, he and his family were settled in a cottage belonging to the Ministry situated at no. 15 Avtchala Street, in the outskirts of Tbilisi (“the cottage”).
9. According to the case file, the cottage became the Ministry's property on 29 October 1993. Under Order no. 531 of the Minister of the Interior issued on the above-mentioned date, the Ministry retrieved possession of the cottage from the State sports club Dinamo, and the Ministry's Department of Finances and Logistics became responsible for its use. The order of 29 October 1993 stated that the retrieval of the cottage was justified in the light of “a substantial increase in the number of staff members, ... coupled with the fact that, in view of the current hostilities in Abkhazia, exiled staff members of the Ministry need to be provided with employment and accommodation.”
10. The first applicant and his family started using premises adjacent to the cottage to create a small household economy by installing various fixtures and fittings for growing fruit and vegetables, and keeping poultry and small livestock. Later, the Saghinadze family gave free accommodation to eight homeless relatives who had been similarly displaced from Abkhazia (“the Saghinadze family's relatives”). In 1998 or 1999 the third applicant married the fourth applicant, and the couple also stayed in the cottage.
11. In 1998 the first applicant retired from service with the Georgian Ministry of the Interior.
12. On 20 April 2000 the Ministry issued a letter confirming the legitimacy of the possession of the cottage and the adjacent premises by the first applicant (“the Ministry's letter of 20 April 2000”). The letter stated that the first applicant and his family had been settled in the cottage in 1994 on the basis of an ordinance issued by the then Minister under the Internally Displaced Persons and Refugees Act of 28 June 1996 (“the IDPs Act”). The letter further noted that the possession was of a temporary nature, its period not being specified, and that the possessor had a duty of care. A copy of that letter was also addressed to the relevant local government authorities for information.
13. As made clear by the case materials, in 2001 the fifth applicant left the cottage to settle with her husband in Ukraine. On 31 August 2001 the sixth applicant became the registered owner of part of the land adjacent to the cottage.
14. Almost immediately after the Rose Revolution in November 2003 (for more details, see The Georgian Labour Party v. Georgia, no. 9103/04, §§ 11-13, 8 July 2008), the newly appointed Minister of the Interior recalled the first applicant from retirement, asking him to lead the investigation into the Kaladze case. This high-profile criminal case, which the authorities had been unable to investigate since 2001, concerned the abduction and disappearance of the brother of Mr K. Kaladze, a well-known Georgian footballer with the Italian football club AC Milan. Having accepted the offer, the first applicant was promoted to the rank of police colonel and appointed as head of an independent investigative unit in charge of the Kaladze case and other high-profile abduction cases, by a ministerial order of 13 December 2003.
15. According to the first applicant, his investigative unit elucidated the circumstances of the Kaladze case over the following months. Allegedly, those findings were embarrassing for certain high-ranking officials who had been covering up criminal machinations in Georgian football, and on 30 March 2004 the then Prosecutor General, Mr I.O., personally requested the first applicant to drop the investigation.
16. In June 2004 the Prosecutor General, Mr I.O., was appointed as Minister of the Interior. Allegedly, the newly appointed Minister removed the first applicant from the Kaladze case and ousted him from office in a degrading manner on 26 June 2004.
17. On 13 October 2004 the first applicant submitted a confidential file to the National Security Council, a consultative body of the President of Georgia. Allegedly, that file contained information revealing abuses of power by Mr I.O. and other high-ranking officials.
18. On 25 October 2004 the police visited the Saghinadze family at home and requested, on the basis of an oral instruction given by the Minister of the Interior, Mr I.O., that they vacate the cottage. The first applicant showed the police the Ministry's letter of 20 April 2000 as proof of the legitimacy of his possession and requested the officers to leave.
19. On 30 October 2004 the police visited the Saghinadze family again, with the same eviction request. However, as the police could not produce a court decision, the first applicant did not let them in.
20. On 31 October 2004 the police made another attempt to evict the applicants. This time the cottage was allegedly besieged by approximately fifteen policemen and several special forces agents wearing black balaclavalike masks. They reiterated that they had an oral order from the Ministry of the Interior to evict the applicants. The first applicant engaged in heated argument with the officers, demanding that they either show a court authorisation to enter his home or leave immediately. On witnessing the tense situation, the second applicant fainted. The fourth applicant, who was pregnant at that time, also suffered a nervous reaction. As the police did not have the necessary court decision, they withdrew.
21. According to the applicants, on 1 November 2004 a group of approximately sixty armed special forces agents wearing black balaclava-like masks broke into their cottage. The Head of the MtskhetaMtianeti Regional Police Department was in charge of that operation. The police, who did not have any legal document authorising such an action, forcibly ousted the second applicant and the Saghinadze family's relatives from the cottage (the other applicants, including the first applicant, were not at home during the incident). After the eviction, several police officers remained stationed in the cottage. An adjacent plot of land, which was the sixth applicant's registered property, was also occupied by the police.
22. Subsequent to the incident of 1 November 2004, the first applicant brought civil proceedings and filed criminal complaints, challenging the arbitrary taking of the cottage and the obstruction of his professional activities by high-ranking officials of the Ministry of the Interior.
23. In those proceedings, which are described below, the first applicant acted throughout on his own behalf as the sole claimant/complainant. None of the remaining five applicants issued any document authorising either the first applicant or a lawyer to act on their behalf. Consequently, in so far as the first applicant's claim for recovery of possession was concerned, the domestic courts limited the scope of their examination to the first applicant's title to the cottage (see paragraphs 26, 33-37 and 43-44 below).
24. In addition to the proceedings pursued by the first applicant, the sixth applicant brought a successful action concerning the occupation of her plot of land (see paragraph 21 above). As a consequence of her complaints, the Ministry of the Interior vacated the land on 14 March 2005.
25. On 22 November 2004 the first applicant filed a civil action against the Ministry of the Interior, seeking to recover possession of the cottage under Articles 155, 159 and 160 of the Civil Code. The first applicant complained that the cottage had been in his legitimate possession and had served as the home for him and his family since 1994. Stating that all his personal and household belongings had remained in the sealed cottage and that he and his family had no other place to live, the first applicant also sought an injunction enabling them to remain in the cottage pending resolution of the dispute. On the same day, the Krtsanisi-Mtatsminda District Court in Tbilisi refused the request for an injunction as unsubstantiated but declared the main action admissible for examination on the merits. The first applicant then requested that, if his action were allowed, an immediately enforceable judgment be delivered under Article 268 of the Code of Civil Procedure (“the CCP”).
26. In a judgment dated 30 December 2004, the Krtsanisi-Mtatsminda District Court allowed the first applicant's action, ordering the respondent Ministry to hand the cottage back to the first applicant. Noting that the Ministry's letter of 20 April 2000 had been proof of the fact that he and his family had settled there as IDPs from Abkhazia on the basis of a ministerial ordinance, the court found that his possession of the cottage had been legitimate. The court further reasoned that section 7 § 3 of the Act of 28 June 1996 on Internally Displaced Persons and Refugees (“the IDPs Act”) prohibited eviction of IDPs already in accommodation, unless (a) an agreement had been reached with them, (b) alternative accommodation had been offered, (c) the eviction had been made necessary by acts of nature and adequate compensation had been provided for, or (d) the IDPs had occupied the disputed premises vexatiously, without any lawful basis. In so far as none of the above-mentioned conditions had been met in the first applicant's case, the court reasoned that the eviction of 1 November 2004 had been unlawful. The District Court also criticised the respondent Ministry for taking the cottage without any legal decision, on the sole basis of the Minister's oral instruction. It pointed out that, pursuant to Article 51 §§ 1 and 2 of the General Administrative Code, an administrative act such as a ministerial order could be issued orally only in urgent situations and should be followed by a written copy within three days; this had not occurred in the present case. In the light of the above considerations, the court concluded that possession of the cottage should be restored to the first applicant on the basis of Article 160 of the Civil Code.
27. However, the Krtsanisi-Mtatsminda District Court refused to order immediate enforcement of its judgment. It stated that the refusal was justified in the light of the respondent Ministry's allegation that, after the eviction, it had stationed a unit of special forces at the cottage, which needed time to withdraw.
28. On 6 January 2005 supporters of the first applicant visited the cottage. Having found it empty, they learned from the two policemen guarding the premises that, after the eviction of the Saghinadze family, the rooms had been sealed and no unit had ever been stationed there. A record of those findings was drawn up at the scene.
29. On 27 January 2005 the respondent Ministry lodged an appeal against the judgment of 30 December 2004. Acknowledging that it had authorised the first applicant to use the cottage, the Ministry specified that his possession of the property had been of a temporary nature only. Consequently, the termination of the first applicant's possession rights, and the attendant eviction of his family, could not be said to have been unlawful. The Ministry also claimed that the cottage and the adjacent land represented a strategic object for the State.
30. On 13 February 2005 the first applicant also lodged an appeal against the judgment of 30 December 2004 in so far as the refusal to order its immediate enforcement was concerned. Relying on the relevant record (see paragraph 28 above), he complained that the respondent Ministry had misled the lower court about the stationing of a police unit. As another argument for urgent recovery of possession of the cottage, he referred to the difficult social and housing situation of some of his family members. Thus, amongst other arguments, he claimed that the fifth applicant was about to return from Ukraine with her new-born child and that she had nowhere to live in Georgia other than in the cottage.
31. On 19 December 2005 the Tbilisi Regional Court held a hearing on the merits. During that hearing the respondent Ministry acknowledged again that, apart from “Mr I.O.'s oral order”, no legal basis for the taking of the cottage had existed. The Ministry also stated that it had offered the first applicant on more than one occasion the opportunity to recover his personal and family belongings from the cottage, but that the latter had refused to cooperate.
32. The Regional Court also examined written and oral submissions from two witnesses, Mr D.M. and Mr J.M., who had been Deputy Ministers of the Interior when the first applicant was settled in the cottage. Those witnesses stated that the first applicant had written to the then Minister of the Interior in January 1993, requesting employment and accommodation. The Minister had approved that request by appending his signature, and, consequently, the first applicant had been offered a new post within the Ministry and accommodated in the cottage. The decision had been prompted by the fact that the first applicant, a qualified agent praised for his investigative skills, had been left homeless by the hostilities in Abkhazia.
33. The Tbilisi Regional Court delivered its judgment on the same day, allowing the respondent Ministry's appeal in full. The court acknowledged the fact that the first applicant had used the cottage and the adjacent premises between January 1994 and 1 November 2004. Referring to the order of 29 October 1993 of the Minister of the Interior (paragraph 9 above), the court further found it established that the cottage had been the Ministry's property at the material time. It was also acknowledged that the first applicant had never obtained a registered title to the real property in question.
34. The appellate court then addressed the issue of whether or not the first applicant could be said to have possessed the cottage in good faith. It stated that, under Article 159 of the Civil Code, the main consideration in that regard was whether he could be said to have acquired possession legitimately. Legitimacy would be excluded if the first applicant could have realised that he had taken possession unlawfully. Conversely, if his possession had turned out to be unlawful but the applicant could not have known it, he should be regarded as having possessed the property in good faith.
35. Reasoning in the light of the above-mentioned principles the Regional Court stated that, in so far as the first applicant had failed to submit a legal document which would show that the cottage had been transferred to him on a lawful basis, his entry into possession could not be said to have been legitimate. The Ministry's letter of 20 April 2000 was not accepted as valid proof in that regard, owing to the inconsistency of the information it contained. Thus, the appellate court noted that, whilst the letter stated that the first applicant had obtained the cottage in 1994 on the basis of the IDPs Act, the latter statute had in reality entered into force much later, on 28 June 1996. In addition, a simple letter could not give rise, in the opinion of the court, to the creation of a legal relationship. The Regional Court further reasoned that the first applicant could not rely on the IDPs Act, in so far as it had been adopted subsequent to his settlement in the cottage. In any case, section 5 § 4 of that Act, prohibiting the eviction of IDPs without a court order, was not applicable to his situation, as it had been added to the Act on 6 April 2005, that is, after the taking of the cottage on 1 November 2004.
36. In the light of the above considerations, the Tbilisi Regional Court concluded that the first applicant should have realised that his possession of the cottage was unlawful. That being so, the respondent Ministry, as the rightful owner of the cottage, had been entitled to claim its property back from the first applicant's dishonest possession, under Articles 160 and 172 § 1 of the Civil Code.
37. One of the three appellate judges, disagreeing with the majority, delivered a separate opinion. She was of the view that the respondent Ministry's letter of 20 April 2000 clearly showed that the first applicant had obtained the cottage on the basis of a ministerial ordinance. Consequently, he should not be regarded as a dishonest possessor. The judge further noted that the Ministry had evicted the applicants without a court decision. Consequently, whilst the Ministry had a superior title to the cottage, the first applicant was nevertheless entitled to recover possession under Article 160 in fine of the Civil Code.
38. On 27 January 2006 the first applicant filed an appeal on points of law. Referring to the respondent Ministry's letter of 20 April 2000, the statements of the ex-Deputy Ministers of the Interior and other evidence in the case file, the first applicant challenged the appellate court's conclusion as to his possession in bad faith. He emphasised that he had not occupied the cottage vexatiously but had been offered it by the respondent Ministry. The legitimacy of his possession further followed from the ministerial order of 29 October 1993, to which the appellate court had referred in its judgment. The first applicant noted that the order clearly stated that, at the time he had been resettled in the cottage, the Ministry had been authorised to use the cottage for the very purpose of housing displaced staff members.
39. The first applicant further argued that the main reason why the cottage had been transferred to him without extensive formalities was the humanitarian crisis prevailing in Georgia in 1993-1994, when around 300,000 homeless IDPs from Abkhazia needed to be urgently housed by central Government. Referring to the statistical data, according to which around 150,000 IDPs had been provided with accommodation by the State in the aftermath of the Abkhazian conflict, the first applicant argued that it was unrealistic to expect that all property-transfer formalities should have been meticulously followed in every such case. The first applicant referred to numerous domestic legal acts – ordinances of the Head of State dated 30 December 1992, 2 October 1993 and 29 March 1995, resolutions dated 31 December 1994 and 17 April 1996 of, respectively, the Cabinet of Ministers and Parliament, the IDPs Act of 28 June 1996, a Presidential Decree dated 5 January 2002, and so on – by which the Georgian State had assumed the obligation to house IDPs. In view of that responsibility on the part of the State, his settlement in and consequent possession of the cottage had been fully legitimate.
40. The first applicant further complained that, before depriving him and his family of their home, the Ministry should have proved its case in a court. However, the eviction had been carried out not only without a court decision but also without any written administrative act. In this connection, the first applicant alleged that the appellate court had arbitrarily disregarded section 7 § 3 of the IDPs Act which had been in force at the time of their eviction and explicitly prohibited the eviction of IDPs who were already settled, without due process and proper compensation. In support of his arguments, the first applicant referred to the Supreme Court's decision of 28 November 2001 in the similar case of Khintibidze and Others (see paragraph 69 below). Finally, referring to his difficult social and financial situation, the first applicant requested either full exemption from the court fee or deferral of its payment until after the examination of the case.
41. On 24 February 2006 the Supreme Court criticised the first applicant for his failure to pay the court fee, ordering him to do so within fifteen days on pain of having his appeal rejected without examination. On 17 March 2006 the first applicant paid a fee of 1,200 Georgian laris (510 euros (EUR)), corresponding, in line with the relevant statutory requirement, to 4% of the value of the cottage. He also submitted an agreement showing that the money had been lent to him by a private individual for two years.
42. On 27 September 2006, the Supreme Court dismissed the first applicant's appeal on points of law and fully upheld the appellate judgment of 19 December 2005.
43. Endorsing the appellate court's reasoning, the Supreme Court reiterated that the first applicant could recover possession of the cottage from the owner, the respondent Ministry, under Articles 160 and 162 of the Civil Code only if his initial possession had been legitimate. Legitimacy meant that possession had to have been exercised on a lawful basis. However, since the first applicant had failed to produce a legal decision of the relevant authority authorising his occupation of the cottage in 1994, his ensuing possession could not be considered to have been exercised in good faith. As to the respondent Ministry's letter of 20 April 2000, the Supreme Court refused to accept it as a valid document, reasoning that, by virtue of Decree no. 487 issued by the President of Georgia on 8 September 1997, only the Ministry of State Property Management had been competent to enter into such transactions with private individuals. The Supreme Court further stated that only the Ministry of Resettlement of Refugees and IDPs (“the Ministry of IDPs”) was competent to accommodate IDPs under section 5 § 2 of the IDPs Act. Given that the cottage had not been offered to the first applicant by the latter Ministry, the Supreme Court reasoned that the housing guarantee contained in the IDPs Act did not apply to his situation. In the light of the above considerations, the Supreme Court concluded that the Ministry, as the rightful owner of the cottage, had been entitled to retrieve its property from the first applicant's dishonest possession under Articles 160 and 172 § 1 of the Civil Code.
44. One of the judges of the Supreme Court delivered a dissenting opinion. The judge in question stated that the facts of the case proved that the first applicant had at least possessed the cottage in good faith. Even assuming that he had not been a legitimate possessor, the respondent Ministry was not entitled to retrieve the cottage without due process and by force, in breach of the requirements of Article 115 of the Civil Code. The dissenting judge therefore concluded that the first applicant was entitled to reclaim possession of the cottage under Article 160 in fine of the Civil Code.
45. The criminal remedy was pursued by the first applicant concurrently with the civil one described above.
46. On 22 November 2004 the first applicant requested the Prosecutor General's Office (“the PGO”) to open a criminal case concerning the arbitrary and violent eviction of 1 November 2004 and the obstruction of his investigation into the Kaladze case by high-ranking officials of the Ministry of the Interior.
47. On 23 December 2004 the PGO replied in writing that criminal proceedings could not be initiated “owing to the absence of any relevant materials.”
48. On 8 January 2005 the first applicant lodged a court complaint against the PGO's reply of 23 December 2004.
49. In a letter dated 28 January 2005 the Ministry of the Interior, in reply to a query from the Public Defender's Office, provided its version of the incident of 1 November 2004. Acknowledging that the cottage had been transferred to the first applicant's possession in 1994 by a decision of the then Minister of the Interior, the letter stated that the possession in question had “recently become unlawful”. Consequently, the Ministry had decided to reclaim possession of its cottage, but the first applicant had refused to cooperate. Eventually, after several unsuccessful attempts, the Ministry, acting through the police, had persuaded the second applicant and the Saghinadze family's relatives to vacate the cottage, in the absence of the first applicant. The letter emphasised that the eviction had not been forcible but, on the contrary, had been voluntary and peaceful, and that the second applicant had been able to take her personal belongings with her on eviction. As to the remaining movables in the cottage, including poultry and small livestock, the Ministry's letter stated that the applicants had been invited to retrieve them on more than one occasion and could still do so. The letter noted that, subsequent to the eviction of 1 November 2004, the cottage had been sealed in order to prevent its being looted. It was also noted that the actual value of the cottage was GEL 45,541.69 (EUR 19,630).
50. In a decision of 28 February 2005 the Krtsanisi-Mtatsminda District Court rejected the first applicant's complaint against the PGO's reply of 23 December 2004. Stating that an informal letter from the prosecution authority could not be subjected to judicial review, the court advised the first applicant to challenge the letter before a senior prosecutor.
51. On 9 March 2005 the first applicant lodged with the Supreme Court an interlocutory appeal against the decision of 28 February 2005 and simultaneously lodged a hierarchical complaint within the PGO.
52. On 7 April 2005 the Supreme Court dismissed the first applicant's interlocutory appeal of 9 March 2005 for the same reasons as those given by the Krtsanisi-Mtatsminda District Court on 28 February 2005. As to the hierarchical complaint, the PGO replied on 21 April 2005, paraphrasing the impugned letter of 23 December 2004 as follows: “Your request to initiate criminal proceedings for the eviction ... cannot be satisfied owing to the absence of any relevant materials”.
53. On 18 April 2006 the Public Defender recommended that the PGO open a criminal case for abuse of power by high-ranking officials of the Ministry of the Interior. The Public Defender noted that if there had been lawful grounds for dispossessing the first applicant, the Ministry should first have brought civil proceedings to that end, as required by the relevant domestic law.
54. On 20 February 2006 the police conducted a search of the cottage, as an urgent investigative measure and in the absence of the first applicant or his lawyers. Local municipality officials attended the search as witnesses. On completion of the search the police drew up a report recording the discovery of firearms and of copies of documents concerning various criminal cases, including the Kaladze case. On the same day a criminal case was opened against the first applicant for unlawful storage of a gun and confidential official documents. He was not however arrested at that time.
55. On 21 February 2006 the Mtskheta District Court, having examined the lawfulness of the urgent search, decided to legalise its results ex post facto.
56. On 20 March 2006 the PGO, in view of the information obtained in the course of its investigation into the Kaladze case, opened a criminal case for abuse of power allegedly committed by the first applicant's investigative unit in 2004 (see paragraphs 14 and 15 above). In particular, several members of the unit, including the first applicant, were suspected of having wilfully misled the investigation into that case by extorting, under duress, false statements from a witness, Mr M., and otherwise fabricating evidence.
57. On 30 May 2006 the two above-mentioned criminal cases were joined, and on 2 June 2006 the first applicant was charged with unlawful possession of a gun, misappropriation of confidential official documents, illtreatment of a person, fabrication of evidence and other abuses of power committed in public office. The charges were based, inter alia, on the legalised results of the search of 20 February 2006 and the incriminating statements of the victim, Mr M., as well as other documents and information including statements from several relevant witnesses, collected by the PGO in the course of its own investigation into the Kaladze case (see the preceding paragraph).
58. On 4 June 2006 the first applicant was arrested and, the following day, the prosecutor requested the Tbilisi City Court to remand him in custody pending trial. The reasons given for the request were the risk that the first applicant might abscond in view of the gravity of the charges and that he might impede the investigation, given that he could use his authority as a former high-ranking law-enforcement officer to influence the parties to the proceedings.
59. On 6 June 2006 the Tbilisi City Court examined the prosecutor's request at an oral hearing. The first applicant was assisted by two lawyers during that hearing. Refusing the first applicant's application for bail, the court ordered his detention for two months. Having reviewed the criminal case materials and heard the parties' oral pleadings, the court confirmed the existence of a reasonable suspicion that the offences had been committed. The imposition of pre-trial detention was found to be further justified, under Article 159 § 3 of the Code of Criminal Procedure, by the assumption that the accused could abscond in view of the severity of a possible sentence. Lastly, without giving detailed arguments in that regard, the court shared the prosecutor's fear that, if released, the first applicant could unduly influence the parties to the proceedings.
60. On 7 June 2006 the first applicant appealed against the detention order of 6 June 2006, complaining, inter alia, that it had been based only on the gravity of the charges, and that the lower court had disregarded such elements as his age, his state of health, the difficult social situation of his family, his reputation and social esteem. Calling into question the credibility of the incriminating evidence against him, the first applicant also stated that there could be no reasonable suspicion of his having committed the offences in question.
61. On 14 June 2006, without holding an oral hearing, the Tbilisi Court of Appeal dismissed the first applicant's appeal. The court did not solicit written comments from the prosecutor, and its decision was based on the examination of the first applicant's arguments only in the light of the case materials. Noting that it was premature to assess the wellfoundedness of the charges, the appellate court, after reviewing the available evidence, confirmed the existence of a reasonable suspicion against the first applicant. It upheld the detention order, reasoning as follows:
“When selecting a measure of pre-trial restraint, account should be taken of the nature of the charges (the repeated abuses of power committed in public office by the use or threat of force, actions which are particularly dangerous to public safety) as well as their gravity (the charges carry long-term prison sentences). Moreover, the investigation has still to establish the origins of the seized firearms, whether they could have been used in other crimes ... In view of the above, the prosecutor's fear that the accused might abscond and/or unduly influence the parties to the proceedings is justified. Despite the fact that the accused is more than 65 years old, ... a more lenient measure of restraint would not secure the aims mentioned in Article 151 § 1 of the Code of Criminal Procedure.”
The appellate court further stated that the first applicant had failed to submit recent medical documents in support of his health complaints. Overall, the appellate court answered all the main arguments submitted by the first applicant.
62. On 29 June 2006 the investigation was terminated and the prosecutor sent the bill of indictment, accompanied by all relevant documentation about the first applicant's detention as well as other case materials, to the Tbilisi City Court for trial. On the same day the trial judge, without holding an oral hearing, reviewed the first applicant's continued detention. He issued a standard decision on a page-long template with pre-printed reasoning. The judge added in the blank spaces the name of the accused, the definition of the offence and the measure of pre-trial restraint. The preprinted reasoning read as follows:
“In selecting the measure of pre-trial restraint, both the formal (procedural) grounds and the factual grounds (sufficient evidence for imposing a restraint measure) have been taken into account. The defendant is charged with a serious offence and the imposition of any other measure of restraint would not secure the aims mentioned in Article 151 of the Code of Criminal Procedure.
Having examined the criminal case materials I consider, in the light of the arguments which were relied on when the restraint measure was first imposed, that there exist no grounds for cancelling or amending that measure at this stage of the proceedings either.”
63. On 22 February 2007 the first applicant was convicted at first instance of the offences with which he had been charged and was sentenced to seven years in prison. The case file shows that the conviction was upheld at last instance by the Supreme Court on 19 December 2007 and that the first applicant is currently serving his prison sentence.
64. The relevant provisions of the Civil Code bearing on the notions of possession and ownership read as follows:
Article 115 – Prohibition of abuse of rights
“Civil rights must be exercised lawfully. It is prohibited to exercise a right with the intention to harm somebody.”
Article 155 §§ 1 and 3 – Concept and types [of possession]
“1. Possession arises from the intentional acquisition of actual dominion over an asset. ...
3. A person who possesses an asset on the basis of a legal relationship which either confers entitlement for a definite period or confers an obligation shall be considered as the direct possessor, whilst the person who conferred the above-mentioned right or obligation shall be considered as the indirect possessor.”
Article 159 – Possessor in good faith
“A possessor shall be considered to be in good faith if he or she possesses an asset on a legitimate basis or if such an assumption could be made by diligently observing his or her transactions.”
Article 160 – Claim for recovery of possession by a possessor in good faith
“A possessor in good faith who has been dispossessed may claim recovery of the disputed asset from the new holder within three years. This rule shall not apply if the new holder has a superior title to the asset. A claim for recovery of possession may also be directed against a holder with superior title if the latter acquired the disputed asset under duress or by fraud.”
Articles 162, 163 and 164 of the Civil Code differentiated between the following types of possession, affording them diminishing degrees of protection: (i) clearly legitimate possession (a notion which, as shown by Article 159, already contained the element of good faith), (ii) possession in good faith but without a legitimate title and (iii) possession in bad faith.
Article 168 – Termination of possession on a reasoned request by the owner
“Possession is terminated on the submission by the owner of a reasoned claim against the possessor.”
Article 170 § 2 – Concept of ownership
“2. The exercise of ownership in a manner which causes harm to others, unless justified by the owner's overriding interests or other justifiable needs, shall be considered an abuse of a right.”
Article 172 §§ 1 and 2
“1. The owner can claim the asset back from the possessor unless the latter is entitled to possess it.
2. In the event of interference with the exercise of ownership other than the taking of the asset, the owner may request the trespasser to put an end to such an action. If the interference persists the owner may bring a court action against the trespasser.”
Articles 992-1008 contained the rules on liability for civil wrongs, socalled tort law. In particular, whilst the general provision, Article 992, stated that a civil wrong gave rise to a claim for compensation, Article 1005 specified that State agencies were jointly liable for damage caused to a private party by intentional or negligent actions on the part of their officials which amounted to an abuse of power.
65. Under Article 51 §§ 2 and 3 an administrative act could be issued orally in urgent situations only, when any delay could harm the legitimate interests of the State, the public or an individual. If an oral administrative act limited an individual's rights or legitimate interests it had to be re-issued in writing within three days.
66. The relevant provisions of the Code concerning pre-trial detention are summarised in paragraphs 35-36 and 29-41 of the Court's judgment in the case of Giorgi Nikolaishvili v. Georgia (no. 37048/04, ECHR 2009... (extracts)).
67. From its adoption on 28 June 1996, sections 5 § 2 and 8 of the IDPs Act stated that the Ministry of Resettlement of Refugees and IDPs, together with other agencies of central Government and the local authorities, was responsible for the practical implementation of the rights conferred upon IDPs by the Act. Section 9 further specified that the State stood as the guarantor of the protection of IDPs' rights.
On 18 December 2001 section 7 was amended as follows:
Section 7 §§ 2 and 3
“2. The State shall provide internally displaced persons with temporary accommodation.
3. Housing disputes shall be settled in court. Moreover, pending the restoration of the State's jurisdiction over the whole of the territory of Georgia, internally displaced persons shall not be evicted from dwellings in which they have been settled collectively, except where:
(a) an agreement has been concluded with the internally displaced persons concerned;
(b) the internally displaced persons have been offered another appropriate dwelling which will not represent a worsening of their existing housing situation;
(c) an act of nature has occurred and appropriate compensation is provided for...;
(d) the contested dwelling has been occupied by the internally displaced persons vexatiously.”
Section 7 remained in force, in the version cited above, until 6 April 2005. On that date an amendment to the IDPs Act removed the abovementioned provisions from section 7 and incorporated them, with some – mostly textual – corrections, into section 5 § 4.
68. Under sections 4, 20 and 90 of the Enforcement Act, a person's eviction from his or her home could be carried out only on the basis of a final and binding court decision and the corresponding enforcement order, and was a prerogative of the enforcement authority, which formed part of the Ministry of Justice.
69. As it emerges from the circumstances of that case, several homeless IDPs from Abkhazia occupied vacant dwellings in Tbilisi in 1993. The dwellings were State property at that time, being owned in particular by the State publishing house. The IDPs had settled there with the consent of the management of the publishing house but without any formal authorisation or supervision from either the Ministry of IDPs or any other central or local authority. Subsequently, some staff members of the publishing house claimed ownership of the dwellings in question and the management brought a court action in 2000 requesting the IDPs' eviction.
The Supreme Court finally resolved the dispute in the IDPs' favour, reasoning as follows:
“[t]he State has undertaken to accommodate IDPs. Hence, by a resolution of 31 December 1994 of the Cabinet of Ministers ... as well as by the Presidential Decree of 25 September 2001, the central and local authorities were instructed to ensure the protection of IDPs by settling them in vacant buildings ... pending final resolution of the [Abkhazian] conflict. ...
vexatiously, ... the dwellings were vacant at that time, and the management did not contest the IDPs' right to possess them until 2000.
The condition subject to which the State has undertaken to provide IDPs with accommodation – the resolution of the conflict – has not been fulfilled yet. It is objectively impossible for [the IDPs in question] to return to their homes [in Abkhazia].
The case file shows that the disputed dwellings ... were and still are State property. Consequently, the State may not request [the IDPs in question] to vacate these dwellings without offering them adequate alternative accommodation.
On the basis of the above-mentioned obligation of the State, the [IDPs'] possession of the dwellings is legitimate within the meaning of Article 155 § 3 of the Civil Code. [Consequently], their eviction, [which would amount to] the termination of their possession rights, is prohibited under Article 162 § 1 of the same Code.”
70. Principles 18, 21 and 28 read as follows:
Principle 18 § 1
“1. All internally displaced persons have the right to an adequate standard of living.”
Principle 21 §§ 1 and 2
“1. No one shall be arbitrarily deprived of property and possessions.
2. The property and possessions of internally displaced persons shall in all circumstances be protected ...”
Principle 28 § 1
“1. Competent authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country.”
VIOLATED_ARTICLES: 5
8
VIOLATED_PARAGRAPHS: 5-3
5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-58764
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF MATTOCCIA v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Violation of Art. 6-3-a;Violation of Art. 6-3-b;Violation of Art. 6-1 (length of proceedings);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: C. Russo;Elisabeth Palm
TEXT: 9. In 1985 the applicant was assigned by his employer to work as a bus driver for a school in Rome that numbered disabled children among its pupils; his job consisted of picking the disabled children up from home in the morning to take them to school and driving them home in the afternoon. He was always accompanied by a social worker.
10. On 22 November 1985 the mother of R., a mentally disabled girl born in 1964 who attended the school, requested the help of a social worker, C.T., as she suspected that R. had been raped or sodomised at school by a person named “Massimo”. Since 11 November 1985 R. had refused to go back to school. On 23 November 1985 her mother, accompanied by C.T., took R. to see a gynaecologist. The gynaecologist did not examine R. but, on learning from her mother what had happened, advised that she be examined by a doctor from the Department of Forensic Medicine. On 25 November, therefore, R. underwent a medical examination; however, the doctor found no traces, recent or old, of rape or sodomy.
11. On 22 November 1985 R.'s mother also requested the headteacher of the school to ask an employee called “Massimo” for an explanation, but the headteacher refused.
12. On the same day the mother lodged a criminal complaint against “a person named Massimo”. She informed the Rome police that about twenty days earlier she had noticed that her daughter seemed to be in pain and kept going to the toilet. R.'s explanation had been: “Massimo did it” (“È stato Massimo”). Some days later, the mother had learned from a friend of hers, C.D., that one day she had been told by R. that a certain Massimo had forced her to have anal intercourse in the school lavatory.
13. The police interrogated R. in her mother's presence. The girl said that about a month earlier, while she was in the school lavatory on the second floor, “Massimo” had told her to lie down on a small bed and had had anal intercourse with her.
14. The police then interrogated C.D., who declared that about a month earlier she had been in the mother's flat and had noticed that R. was very quiet. After some initial hesitation, R. had confessed to her in the presence of her sister, A., and of another friend, M.P., that “Massimo” had indecently assaulted her, causing her pain; he had also threatened her.
15. The police then questioned the manager of the company in charge of organising the school bus service. He identified the applicant as the relevant driver.
16. On 14 December 1985 the police lodged a criminal complaint against the applicant with the Rome public prosecutor. A preliminary investigation was started.
17. On 29 January 1986 the public prosecutor summonsed R., her mother, C.D. and C.T., to appear before her on 13 February 1986 to give witness statements. R.'s mother stated that the reason she had not reported the rape to the authorities until about fifteen days later was that her daughter had spoken to a friend of hers and not to her directly, and her own father had died during that period. She said, however, that she had noted that her daughter was in pain and had given her some painkillers. She said that her daughter had refused to return to school after the rape and that she had not sent her back to school. She added, however, that for about a week after the rape, her daughter “would return home and, without saying a word or having anything to eat, go straight to bed”. She said that she had not seen “Massimo” after that day because he had immediately asked to be replaced by another driver. She added that she herself had seen a bed in the school lavatory on the second floor.
18. On 17 February 1986 the applicant received judicial notification (comunicazione giudiziaria) of the allegation that he had committed an “offence under Article 519 of the Criminal Code in that he forced R., who [was] mentally disabled, to have sexual intercourse with him in Rome, in November 1985” (“del reato di cui all'articolo 519 c.p. per aver costretto R. malata di mente a congiungersi carnalmente con lui. In Roma, nel novembre 1985”). On 19 February 1986 the applicant appointed his defence lawyer.
19. On 11 April 1986 the public prosecutor summonsed the headteacher to appear on 29 April 1986 for questioning as a witness. The headteacher acknowledged that the victim's mother had reported the rape to her, but argued that she did not believe the allegation to be plausible, as there were no beds in the lavatory and all children were accompanied when they went to the toilet or to the therapy rooms on the third floor (where there were beds). She added that the applicant did not normally enter the school and would have had no reason for being on the third floor. He had been assigned to a new post in January 1986.
20. On 30 September 1986 the applicant was interviewed by the Latina public prosecutor in his counsel's presence. He claimed that he was innocent. He underlined that there had always been at least twenty people on the bus, and that he had always met R. in the social worker's presence.
21. On 23 October 1986 the applicant was committed for trial before the Rome Court. He was indicted for “an offence under Article 519 of the Criminal Code, in that he [had] forced R., who [was] mentally disabled, to have sexual intercourse with him in Rome, in November 1985”.
22. On 25 September 1989 the applicant's counsel requested access to the prosecution file.
23. Following a request made by the applicant on 25 November 1989, the Rome Court fixed the first hearing in the case for 19 May 1990. At the hearing the applicant protested his innocence, and repeated that he had never been alone with R. because there had always been some twenty people on the bus, including the social worker. He explained that, as the bus driver, his duties ended when he arrived at the school. He would then return to the school at 4 p.m. to pick the children up and drive them home. He said he was aware of what had been said in the criminal complaint but argued that he never entered the school as it was prohibited. He added that after taking the children to school in the morning he did other work for his employer, which would usually be to drive tourists around.
24. R. was unable to give evidence at first, as she appeared very disturbed and said she could not remember anything. However, she identified the applicant as the bus driver.
25. R.'s mother was questioned. She said that she did not know the exact date of the events, and added that she had not reported the rape immediately because of her father's death during that same period. She said that she knew that the rape had taken place on the third floor, in the therapy room where there were beds. Replying to a question from the applicant's lawyer, she said that, so far as she was aware, the children were accompanied when they went to the therapy rooms on the third floor.
26. C.T., the social worker, was also questioned. She said that in the afternoon of 22 November 1985 R.'s mother had come to see her and had told her that R. had returned from school upset and bleeding. CT. had told her to come back the following day with R. The next day, she had taken R. to the gynaecologist, who had not examined her but, on learning from R.'s mother what had happened, had advised that R. should be examined by a doctor from the Department of Forensic Medicine. On 25 November, therefore, C.T. had accompanied R. to another doctor, who had examined her and issued a certificate; the doctor had advised her to inform the police. C.T. said that R. had referred to the rapist as “Massimiliano” or “the school bus driver”. She said that R. had told her that she had left her classroom to go to another classroom and had been grabbed by “Massimiliano” in the corridor. He had pushed her into a room where there was a bed or table and had attempted to have anal intercourse. R. had felt severe pain and had cried out for help but nobody had heard her. “Massimiliano” had threatened to kill her if she said anything about what had happened.
27. The next witness was C.D. She repeated what she had told the police, and explained that R. had told her that the rape had been committed on the third floor, on 21 November 1985, but had not said at what time.
28. N.D., the headteacher of the school, said in evidence that R.'s classroom was on the first floor. The bus drivers did not enter the school as they were forbidden to do so by school regulations, although the applicant had sometimes gone to her office to use the telephone. Two caretakers supervised access to the classroom area. She added that children were accompanied to the therapy rooms on the third floor by one of the three assistants. The applicant had worked for the school until January 1986.
29. Finally, R. gave her evidence with the help of the social worker. She said that she had gone to the bathroom to wash her hands and on her way back to her classroom had been caught by the applicant. This had happened on the same floor as her classroom; she had not gone to the upper floors. It had been in the morning. R. added that she could not remember whether she had returned to her classroom and could not recall which teacher was present that day.
30. The court adjourned the case to 12 June 1990, in order to hear the evidence of two school caretakers to whom the headteacher had referred and of the teacher who had been at the school on 21 November 1985. It also ordered production of the school register.
31. At the hearing on 12 June 1990 the caretakers were heard. E.F., the caretaker in the girls' section of the school, said that she remained in the corridors during lessons, as teachers would call her if a child had to leave the classroom for any reason, for example to go to the toilet. She said that children were accompanied to and from the therapy rooms by an assistant. She remembered seeing the bus drivers go to the headteacher's office on occasions, but they never entered the corridors, where there was a sign warning that access was prohibited. The caretakers stood by a table in front of the headteacher's office at the entrance to the corridors that led to the classrooms, so that they could control access. E.F. added that there was a separate entrance to the third floor from the school clinic, but it was locked and was only opened at the request of the school administrators; she excluded any possibility of complicity between the bus drivers and the administrators. She said that she had never seen the bus drivers go to the upper floors by the internal stairs, which were in front of the caretakers' table, and that she did not recall having seen R. return to her classroom crying or looking upset.
32. V.C., the other caretaker, said that he had never seen the bus drivers enter the corridors, as they had no right of access; they would wait outside the school until 2.30 p.m., when they would drive the children home. There had been occasions when he had been sent by the headteacher to fetch one or other of the drivers to answer phone calls from their employer.
33. The court noted from the school register that R. had been absent from the school since 11 November 1985; on 14 March 1986 she had left the school.
34. G.S., R.'s teacher, informed the court in evidence that she vaguely remembered R. She said that she had never been told officially why she had stopped attending the school, but had heard rumours. She stated that she had never seen the bus drivers in the corridors. When a pupil needed to leave the classroom to go to the toilet, she would call the caretaker who would accompany the pupil there and back. When disabled pupils had to attend therapy, they would be accompanied by the assistants.
35. By a judgment delivered on 12 June 1990, the Rome Court convicted the applicant of rape and sentenced him to three years' imprisonment. It also barred him from employment in public service for five years. On 14 June 1990 the applicant gave notice of appeal against the judgment. The judgment was filed with the registry on 27 June 1990.
36. In its judgment the court underlined that, although R. was mentally disabled and therefore seemed not fully to comprehend her own evidence, she had been precise and detailed enough to be credible and felt no hatred towards the applicant or rancour against him. As to the lack of medical evidence of the rape, the court considered that, since R. had not been examined until at least two weeks after the rape, the lesions had already healed and no marks remained. The court held that the witnesses who had testified against the applicant, particularly C.D. and C.T., were fully credible and felt no resentment against him. As for the time of the rape, the court held that it had been committed on the day R. had spoken to C.D., namely two weeks before 25 November 1985 and immediately before 11 November 1985, the date R. had stopped attending school, presumably as a consequence of the rape itself.
37. Having established that there had been a rape, the court considered it proved that the guilty party was the applicant. R. had identified him, and it was common for persons named “Massimiliano” to be referred to as “Massimo”. The court found that the applicant had had access to the school, despite the headteacher's and the caretakers' statements to the contrary: they had contradicted themselves on a number of issues and their evidence was not credible in that they appeared to have an interest in protecting the school's reputation. It was reasonable to assume that the employer had contacts through its drivers with the school administrators, who worked in an office on the third floor. It was plausible that the applicant had in fact committed the crime, and the exact place the rape had been committed – that is to say the precise floor – was immaterial, once it had been established that (a) it had been committed inside the building and (b) the applicant had access to the building. As to the fact that the applicant had stated that he used to leave the school after taking the pupils in the morning and returned in the afternoon, one of the caretakers had on the contrary stated that the bus drivers remained outside the school. The court further found that, while it was true that certain severely disabled pupils were accompanied by either a caretaker or an assistant when they left the school, there must have been frequent occasions when R. was allowed to go unaccompanied, as she was able to walk and could move around unassisted.
38. On 30 July 1990 the applicant filed the grounds for the appeal with the Rome Court of Appeal. He argued that the particulars of the offence charged had been too vague to allow him to defend himself, there being no exact indication of the place and time of the rape, and those issues had not been elucidated during the trial. He therefore claimed that the proceedings were null and void, on the ground that his defence rights had been violated. The applicant also emphasised that the witnesses had admitted that R. was in love with him, and the fact that that love was unreciprocated could in his opinion explain a feeling of rancour on her part. He also requested that the evidence of a witness on his behalf, namely his employer at the time of the rape, be heard so that further details about his duties as the school bus driver could be obtained.
39. In a judgment of 30 April 1991, filed with the registry on 20 May 1991, the Court of Appeal upheld the first-instance judgment. After re-examining the evidence gathered at the trial and considering it unnecessary to examine the applicant's employer, the Court of Appeal came to the conclusion that the applicant was guilty. As to the alleged vagueness of the charge, the court considered that the fact that it was impossible to specify the exact time and place of the rape did not render the charge itself null and void, as the particulars (it alleged that the rape had taken place in the school in November 1985) it contained were sufficient to allow the defence to prepare its case.
The Court of Appeal found, in particular, that the assertion – favourable to the applicant – that disabled children were always accompanied to the toilet and the therapy rooms was general and could not counter the precise description of the facts by R. As to the absence of beds in the lavatories, it considered that, given that there were beds on other floors in the school, the possibility that R., who trusted the applicant, had followed him to other rooms on the school premises could not be excluded. It further held, like the court of first instance, that it was unnecessary to establish where exactly on the school premises the rape had been committed. As to the absence of rancour towards the applicant, it considered that the fact that R. was probably in love with the applicant was irrelevant. Indeed, that circumstance could explain why R. had followed the applicant to an isolated part of the building. As to the date of the rape, the Court of Appeal considered that the evidence proved that it had been committed on or about 11 November 1985, before R. stopped attending the school. C.T., who said that the rape had been committed on 25 November, had probably got the date of the rape confused with the date of the medical examination. The fact that there had been no trace of any lesions was due, in its opinion, to the time that had elapsed between the rape and the medical examination and was not sufficient to exclude the possibility that there had been a rape “given that R. had cried out”.
40. The applicant was notified that the text of the judgment had been deposited on 23 June 1992.
41. On 13 July 1992 the applicant lodged an appeal on points of law. He reiterated, in particular, that the charge was too vague to allow him to defend himself and claimed that the Court of Appeal had not given any grounds for considering that there was sufficient evidence against him to convict. On the contrary, the evidence was hearsay, weak and uncorroborated. The courts below had assumed that the witnesses who had given evidence in his favour were biased, but there was no concrete ground for that assumption and indeed they had confirmed the applicant's statements. The Court of Appeal had not believed the evidence that all the children were accompanied to the toilets, but there was nothing to indicate that that evidence, confirmed by all the witnesses whose testimony was favourable to the applicant and even by R., was untrue. Nor was it irrelevant to know where the rape had been committed: in the second-floor lavatories, as stated by the victim and the witnesses, on the ground floor where there were no beds, or in the therapy rooms on the third floor. The applicant considered that the courts below had not examined the contradictions in R.'s statements carefully. As to the date of the rape, the applicant argued that the witnesses had consistently indicated that it had been committed on 21 November and not, as held by the courts below, on 11 November 1985. Indeed, the rape had been committed, if at all, on 21 November by which time R. had already stopped attending the school and the applicant could not be a legitimate suspect. R. had probably accused him because she was in love with him and had been rejected; the courts below had unjustly refused to take that factor into consideration. The applicant finally complained that no reasons had been given for refusing to examine another witness on his behalf.
42. In a judgment of 17 June 1993, which was filed with the registry on 19 July 1993, the Court of Cassation rejected the applicant's appeal as it was manifestly ill-founded and had been lodged by a lawyer who had no rights of audience before the Court of Cassation. The Court of Cassation, stressing that its role was not to review the merits of the decision taken by the courts below, held, in particular, that the charge brought against the applicant was not vague, as it contained all the details that were necessary for the applicant to defend himself. It considered that the lack of details regarding exactly when and where the rape had been committed was a consequence of the initial imprecision of the charge (originaria imprecisione dell'accusa) that had been caused by R.'s mental disability. The Court of Cassation found, however, that that initial imprecision had been remedied in the course of the trial through further evidence in the form of the statements of the three main prosecution witnesses. As to the date of the rape, it was logical to deduce that it was immediately prior to R.'s refusal to go to school. C.T. had made a justifiable mistake, and R.'s mother was credible and ought to be believed.
43. As to the refusal to hear the evidence of a witness on appeal, the Court of Cassation found that the Court of Appeal had implicitly given reasons therefor, namely that the evidence already gathered before the Rome Court was sufficient.
44. The applicant served his sentence in Latina Prison. On 25 March 1994 he was released and remained on probation (affidamento in prova al servizio sociale) until 26 October 1994.
45. Article 304 § 1 of the former Code of Criminal Procedure provided:
“Upon taking the first step in an investigation, the investigating judge shall give everyone who might have an interest as a private party judicial notification [comunicazione giudiziaria] stating the legal provisions alleged to have been breached and the date of the offence of which they are accused, and informing them that they may appoint defence counsel.”
46. Article 304 bis provided that the defence lawyer was entitled to be present when the accused was interrogated by the public prosecutor or by the judge, and also during appointments with expert witnesses and searches of residential premises and at identification parades.
47. Article 304 quater provided that the documents and records relating to investigative measures which the defence lawyer was entitled to witness, and the records of seizures, searches and body searches, were to be filed with the registry on the day following the relevant measure. The defence lawyer was entitled to examine the relevant documents and to take copies within five days and to receive a copy of the warrant of arrest or of the summons to appear before the judge.
The records of the examination of witnesses during the investigation were not to be filed with the registry and were thus not made available to the defence lawyer immediately after they had been compiled.
48. Under Articles 369 et seq. of the former Code of Criminal Procedure, once the investigation had been completed the investigating judge was required to lodge the case file with the registry and to inform the public prosecutor, who could ask for further investigative measures to be taken. If the public prosecutor was satisfied with the scope of the investigation, the records and documents of the case were filed with the registry, and the defence lawyer was allowed to examine the entire case file, to take copies and to file requests or submissions within five days of being informed that the case file had been lodged with the registry.
49. By Article 374 of the former Code of Criminal Procedure, committal orders were required to state:
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-a
6-3-b


ITEMID: 001-93660
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ROBERT LESJAK v. SLOVENIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. On 8 April 1995 the applicant was injured in a car accident. The perpetrator of the accident, I.R., had taken out insurance with the insurance company A.
7. On 18 October 1999 the applicant instituted civil proceedings against I.R. and the insurance company A. in the Celje District Court, seeking damages in the amount of 3,688,433 Slovenian tolars (SIT) (approximately 15,370 euros) (EUR) for the injuries sustained.
8. Between 29 November 2001 and 12 May 2006 the applicant lodged several written submissions and adduced evidence.
9. Between 15 December 2003 and 4 September 2006 the court held eight hearings, one of which was conducted at the site of the accident. It does not appear that any of the hearings were adjourned due to the applicant’s fault.
10. During the proceedings, the court also appointed two experts and requested an additional opinion from one of them.
11. After the last hearing in the case, the court delivered an interim judgment (vmesna sodba) determining the responsibility for the damage, which was served on the applicant on 25 September 2006.
12. On 9 October 2006 the applicant appealed to the Celje Higher Court. I.R. and the insurance company A also appealed.
13. On 9 May 2007 the Celje Higher Court allowed the applicant’s appeal in part and changed the first-instance court’s interim judgment. It found I.R. and the insurance company A responsible for 70% of the damage suffered due to the accident.
14. The judgment was served on the applicant on 18 May 2007.
15. On 13 June 2007 the insurance company A lodged an appeal on points of law with the Supreme Court. These proceedings are still pending.
16. On 2 March 2007 the applicant lodged a supervisory appeal with the Celje District Court. In this supervisory appeal the applicant explained that the proceedings had started on 18 October 1999 and were still pending. As a consequence, his right to a hearing within a reasonable time had been violated. He requested that the proceedings be expedited and the decision be delivered immediately.
17. On 23 March 2007, referring to sections 5(1) and 6(4) of the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”), the President of the Celje District Court replied to the supervisory appeal by explaining that the case file had been transferred to the Celje Higher Court on 20 March 2007.
18. The Act on the Protection of the Right to a Hearing without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette no. 49/2006- “the 2006 Act”) was passed by the Slovenian Parliament on 26 April 2006 and became operational on 1 January 2007.
19. The 2006 Act provides for remedies to expedite pending proceedings (a supervisory appeal and a motion for a deadline). In addition to these acceleratory remedies, the 2006 Act also provides the possibility to obtain redress through a compensatory remedy, namely by bringing a claim for just satisfaction.
20. As regards the acceleratory remedies, a claimant may, during the first- and second-instance proceedings, that is the proceedings before the regular courts, use a supervisory appeal if he or she considers that the court is unduly protracting the decision-making. If the president of the court dismisses the supervisory appeal or, inter alia, fails to respond to the claimant within two months, he or she can lodge a motion for a deadline with the court hearing the case. The motion for a deadline is dealt with by the president of the higher court. He or she shall decide on the motion for a deadline within fifteen days of receiving it.
21. As regards the present case, the following provisions of the 2006 Act are relevant:
“(1) If the supervisory appeal is manifestly unfounded having regard to the timetable for resolving the case concerned by the supervisory appeal, the president of the court shall dismiss the appeal by a ruling.
(2) If the supervisory appeal does not contain all the requisite elements referred to in section 5(2) of this Act, the president of the court shall dismiss it by a ruling. No appeal shall lie against that ruling.
(3) If no ruling as provided for in paragraphs 1 or 2 of this section is given, the president of the court shall, as part of his judicial management powers under the Judicature Act, immediately request the .... judge or president of a court panel (‘the judge’) to whom the case has been assigned for resolution to submit a report indicating the reasons for the duration of the proceedings not later than fifteen days after receiving the request of the president of the court or after obtaining the file, if necessary for drawing up the report. The report shall include a declaration in respect of the criteria referred to in section 4 of this Act and an opinion on the time-limit within which the case may be resolved. The president of the court may also require the judge to submit the case file if he considers that, in the light of the allegations of the party indicated in the supervisory appeal, its examination is necessary.
(4) If the judge notifies the president of the court in writing that all relevant procedural measures will be performed or a decision issued within a time-limit not exceeding four months following the receipt of the supervisory appeal, the president of the court shall inform the party thereof and thus conclude the consideration of the supervisory appeal.
(5) If the president of the court establishes that in view of the criteria referred to in section 4 of this Act the court is not unduly protracting the decision-making in the case, he shall dismiss the supervisory appeal by a ruling.
frame for their performance, which shall be no less than fifteen days and no longer than six months, and the appropriate deadline for the judge to report on the measures performed.
(7) If the president of the court establishes that the undue delay in decision-making in the case is attributable to an excessive workload or an extended absence of the judge, he may order that the case be reassigned. He may also propose that an additional judge be assigned to the court or order other measures in accordance with the Judicial Service Act.
...
“(1) If, under section 6(1) or (5) of this Act, the president of the court dismisses the supervisory appeal or fails to respond to the party within two months or fails to send the notification referred to in section 6(4) of this Act within the said time-limit or if appropriate procedural acts have not been performed within the time-limit set in the notification or ruling of the president of the court, the party may lodge a motion for a deadline on the grounds stated in section 5(1) of this Act with the court hearing the case.
...
(3) The party may lodge an motion for a deadline within fifteen days of receiving the ruling or after expiry of the time-limits provided for in paragraph 1 of this section.”
22. As to the claim for just satisfaction, sections 15, 19 and 20 of the 2006 Act provide that for the party to be able to lodge a claim for just satisfaction two cumulative conditions must be satisfied. Firstly, during the first- and/or second-instance proceedings the applicant must have successfully availed himself of a supervisory appeal or have lodged a motion for a deadline, regardless of its outcome. In this connection section 15 provides, in so far as relevant:
“(1) If the supervisory appeal lodged by the party has been upheld or a motion for a deadline has been lodged, the party may claim just satisfaction under the present Act.
...”
23. Secondly, the proceedings must have been “finally resolved” (pravnomočno končan postopek). The final resolution of the case refers in principle to the final decision against which no ordinary appeal lies. This would normally be the first, or if an appeal has been lodged, the second-instance court’s decision.
24. As regards proceedings before the Supreme Court, a claimant can use a supervisory appeal and a motion for a deadline with an aim to accelerate the proceedings. It would appear from the text of the 2006 Act that both are dealt with by the president of the Supreme Court. A claim for just satisfaction is not available in respect of the length of Supreme Court proceedings. The relevant part of the 2006 Act reads as follows:
“(1) If a party considers that the court is unduly protracting the decision-making, he or she may lodge a supervisory appeal in writing before the court hearing the case; the decision thereon is taken by the .... president of the court (‘the president of the court’).
...
...
(3) The president of the Supreme Court of the Republic of Slovenia shall have the competence to decide on the motion for a deadline concerning cases heard by the Supreme Court of the Republic of Slovenia.
(4) Other judges may be assigned by the annual schedule of allocation to act in place of or together with the presidents of courts referred to in previous paragraphs for decision-making on motions for a deadline.”
25. For a more detailed presentation of the 2006 Act, see Žunič v. Slovenia, (dec.) no. 24342/04, 18 October 2007.
26. As regards possible outcome of Supreme Court proceedings, the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 26/1999, in force since 14 July 1999) provides that, depending on the circumstances, the Supreme Court when upholding an appeal on points of law may remit the case for re-examination or vary the lower court’s judgment.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59876
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF SLEZEVICIUS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 7. The applicant is a Lithuanian national, born in 1948 and living in Vilnius. From 1993 to 1996 he was the Prime Minister of Lithuania.
8. In January 1996 two members of the Seimas (Parliament) wrote letters to the Prosecutor General, requesting him to institute criminal proceedings against the applicant in connection with allegations of financial impropriety amounting to abuse of office. On 24 January 1996 proceedings were instituted.
9. On an unspecified date in January 1996, the applicant’s bank accounts were seized in the context of the proceedings. On 8 February 1996 he resigned as Prime Minister in order to pursue business activities.
10. On 10 October 1996 a prosecutor of the Office of the Prosecutor General charged the applicant with two counts of abuse of office. On 17 October 1996 the preliminary investigation was concluded, and the applicant was given access to the case-file until 28 November 1996. On 16 December 1996 the prosecutor re-formulated the charges against the applicant. From 18 to 19 December 1996 the applicant again had access to the case-file. On 21 December 1996 the bill of indictment was confirmed, and the case was transmitted to the Vilnius Regional Court.
11. On 13 March 1997 the Vilnius Regional Court, after a directions hearing on 24 January 1997, found that the pre-trial investigation had been conducted improperly as the charges against the applicant had been vague and speculative, and his defence rights had been breached. The Regional Court returned the case to the prosecution for further investigation.
12. On 26 March 1997 the prosecutor appealed. The appeal was dismissed on 14 May 1997. On 29 October 1997 the prosecutor again charged the applicant, this time with four counts of abuse of office, forgery and cheating. On 1 December 1997 the prosecutor re-formulated the charges. From 3 December 1997 to 23 February 1998 the applicant had access to the case-file. On 23 February 1998 the applicant requested the prosecution to discontinue the case in the absence of any offence. This was rejected on 6 March 1998. On 23 March 1998 a new bill of indictment was confirmed and the case transmitted to the Vilnius Regional Court.
13. On 19 June, 10 July and 9 to 30 September 1998, the Vilnius Regional Court heard the case. On 30 September 1998 the court found that the charges against the applicant had been vague and speculative, and that the collection of further material evidence was required. The court adjourned the case and applied to the Constitutional Court, requesting it to rule on the compatibility with the Constitution of a number of provisions of the Code of Criminal Procedure pertaining to the investigative nature of judicial functions. On 5 February 1999 the Constitutional Court adopted a decision on the request, returning the case-file to the Regional Court on 8 March 1999.
14. On 10 May 1999 a prosecutor of the Office of the Prosecutor General charged the applicant for the fifth time, this time with five counts of abuse of office, forgery and cheating. One co-defendant was charged together with the applicant.
15. On 10 and 19 May 1999 the Vilnius Regional Court adjourned the case because of the absence of the co-defendant. The court heard the case on 28 June and 13 July 1999. On that latter date the Vilnius Regional Court found that the investigation had been conducted improperly as the charges against the applicant had been unclear. The court returned the case to the prosecution for further investigations to be carried out.
16. On 21 July 1999 the prosecutor appealed. The hearing scheduled for 16 September 1999 did not take place given the absence of the codefendant. On 8 October 1999 the Court of Appeal dismissed the appeal.
17. On 24 November 1999 the Deputy Prosecutor General lodged a cassation appeal against the above decisions, complaining inter alia that the courts had returned the case for further investigation several times by reference to allegedly unclear charges, instead of evaluating the merits of those charges, leading to the applicant’s conviction or acquittal. The prosecutor pleaded that the courts thereby unjustifiably protracted the proceedings and delayed the adoption of a final decision in the case.
18. On 11 January 2000 the Supreme Court dismissed the appeal. It held that the main reason for returning the case for further investigation was the ambiguity of the charges against the applicant, which interfered with his defence rights and “prevented the adoption of a lawful judgment” on the merits.
19. On 18 February 2000 the Prosecutor General transmitted the case to a Vilnius regional prosecutor for further investigation. On 18 April 2000 the regional prosecutor informed the applicant that the proceedings against him had been discontinued and the pre-trial investigation had been adjourned because of the absence of an offence with regard to two of the charges against him (Article 5 § 2 of the Code of Criminal Procedure), and a lack of evidence of the applicant’s guilt in respect of the remaining three charges (Article 233 § 2 of the Code of Criminal Procedure). The seizure of his property was lifted on the same date.
20. The applicant’s appeal against this decision was rejected by another Vilnius regional prosecutor on 26 May 2000. The applicant appealed to the Office of the Prosecutor General, claiming that the proceedings had not been definitively discontinued. On 31 August 2000 a prosecutor of the Office of the Prosecutor General dismissed the appeal, holding that the case had been discontinued in accordance with the relevant domestic requirements. The applicant was also informed that he could apply to a court to challenge the decision of 18 April 2000.
21. Article 5 § 2 of the Code of Criminal Procedure provides that criminal proceedings must be discontinued in the absence of any offence. Article 233 § 2 of the Code states that criminal proceedings can also be discontinued if there is a lack of evidence against the suspected person.
22. Pursuant to Article 235 of the Code, a discontinued case may be renewed by a prosecutor if there are lawful grounds for further investigation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57491
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1989
DOCNAME: CASE OF GASKIN v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;No violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;J.A. Carrillo Salcedo;N. Valticos
TEXT: 10. The applicant is a British citizen and was born on 2 December 1959. Following the death of his mother, he was received into care by the Liverpool City Council under section 1 of the Children Act 1948 ("the 1948 Act") on 1 September 1960. Save for five periods varying between one week and five months when he was discharged to the care of his father, the applicant remained in voluntary care until 18 June 1974. On that date the applicant appeared before the Liverpool Juvenile Court and pleaded guilty to a number of offences including burglary and theft. The court made a care order in respect of him under section 7 of the Children and Young Persons Act 1969. The applicant ceased to be in the care of the Liverpool City Council on attaining the age of majority (18) on 2 December 1977.
During the major part of the period while he was in care the applicant was boarded out with various foster parents, subject to the provisions of the Boarding-Out of Children Regulations 1955 ("the 1955 Regulations"). Under the terms of those regulations the local authority was under a duty to keep certain confidential records concerning the applicant and his care (see paragraph 13 below).
11. The applicant contends that he was ill-treated in care, and since his majority has wished to obtain details of where he was kept and by whom and in what conditions in order to be able to help him to overcome his problems and learn about his past.
12. On 9 October 1978, the applicant was permitted by a social worker in the employment of the Liverpool City Council to see the case records relating to him kept by the Social Services Department of the Council in accordance with its statutory duty. He removed those records without the Council’s consent, retaining them in his possession until he returned them to the Social Services Department on 12 October 1978.
13. It is the practice of the local authorities to keep a case record in respect of every child in care. In respect of children boarded out they were and are under a statutory duty to keep case records by virtue of the 1955 Regulations, which were made under section 14 of the 1948 Act. Regulation 10 of the 1955 Regulations, so far as relevant, provides that:
"10.-(1) A local authority shall compile a case record in respect of -
(a) every child boarded out by them;
(b) ...
(c) ... and the said records shall be kept up-to-date.
(2) ...
(3) Every case record compiled under this Regulation or a microfilm recording thereof shall be preserved for at least three years after the child to whom it relates has attained the age of eighteen years or has died before attaining that age, and such microfilm recording or, where there is none, such case record shall be open to inspection at all reasonable times by any person duly authorised in that behalf by the Secretary of State."
14. In 1979 the applicant, wishing to bring proceedings against the local authority for damages for negligence, made an application under section 31 of the Administration of Justice Act 1970 ("the 1970 Act") for discovery of the local authority’s case records made during his period in care. Section 31 of the 1970 Act provides, inter alia, that the High Court shall have power to order such disclosure to a person who is likely to be a party to legal proceedings for personal injuries.
15. The application was heard by the High Court on 22 February 1980. The local authority objected to the grant of discovery of the records on the ground that disclosure and production would be contrary to the public interest. The principal contributors to those case records were medical practitioners, school teachers, police and probation officers, social workers, health visitors, foster parents and residential school staff. Their contributions to the case records were treated in the strictest confidence and it was in the interest of the effective conduct of the care system that such records should be as full and frank as possible. If discovery were ordered, the public interest in the proper operation of the child-care service would be jeopardised since the contributors to the records would be reluctant to be frank in their reports in the future.
16. The applicant contended that the case records held by the local authority should be made available to him on the general principles of discovery, for the purpose of his proposed proceedings for personal injuries against the local authority. He further argued that it was also in the public interest that some measure of review of the standard of care provided by a local authority to a child in care be available.
17. The judge did not read the records in question, but balanced the public interest in maintaining an efficient child-care system with the applicant’s private interest in receiving access to his case records for the purpose of the proposed litigation. After referring to the case of Re D (infants) [1970] 1 Weekly Law Reports ("WLR") 599, in which Lord Denning, Master of the Rolls, held that case records compiled pursuant to Regulation 10 of the 1955 Regulations were regarded as private and confidential, he concluded:
"I am left in no doubt that it is necessary for the proper functioning of the child care service that the confidentiality of the relevant documents should be preserved. This is a very important service to which the interests - also very important - of the individual must, in my judgment, bow. I have no doubt that the public interest will be better served by refusing discovery and this I do."
18. The applicant appealed from this decision to the Court of Appeal. On 27 June 1980 the Court of Appeal unanimously dismissed the appeal. In the Court of Appeal’s view, the High Court, in its judgment, had correctly balanced the competing interests. It added that the inspection of a document is a course which it is proper for a court to take in certain cases, for example where grave doubt arises and the court cannot properly decide upon which side the balance of public and private interests falls without itself inspecting the documents. However, this was not a case in which such doubt arose as would make it proper for the court itself to inspect the documents. The High Court’s decision was accordingly affirmed and leave to appeal to the House of Lords was refused (Gaskin v. Liverpool City Council [1980] 1 WLR 1549).
19. On 21 October 1980, Liverpool City Council set up the Child Care Records Sub-Committee ("the Sub-Committee") to make recommendations on access to personal social services files and to investigate the allegations relating to the applicant.
20. On 17 June 1982, the Sub-Committee recommended making available case records to ex-clients of the social services, subject to certain safeguards and restrictions relating in particular to medical and police information. As to the applicant, the Sub-Committee viewed with concern the number of placements which he had while in care, and which they recognised could be detrimental to a young person’s development, but found no evidence to suggest that "the officers carried out their duties in other than a caring manner". The applicant was to be allowed access to, and to make photocopies of, his case records, subject however to the exclusion of medical and police information.
21. On 30 June 1982, the Sub-Committee’s recommendations, subject to an amendment which would require the consent of members of the medical profession and police services to be sought to the disclosure of information which they had contributed, were embodied in a resolution of the Social Services Committee. However, Mr Lea, a dissenting member of the Sub-Committee, brought an action challenging the resolution and obtained an interlocutory court order preventing the City Council from implementing it until the trial of the action or until further order.
22. On 26 January 1983, Liverpool City Council passed a further resolution. As regards future records this reiterated the general terms of the resolution of 30 June 1982 and added certain further restrictions to protect information given in confidence and to provide for the non-disclosure of the whole or part of the personal record in particular cases, but as regards information obtained and compiled before 1 March 1983 it was resolved that this should be disclosed only with the consent of the suppliers thereof. Pursuant to this policy the resolution went on to instruct the Council’s officers to contact the various suppliers of information to the Gaskin file immediately with a view to disclosure. The local authority’s officers were, however, ordered not to implement this resolution pending the outcome of the legal action brought by Mr Lea. This action was discontinued on 13 May 1983 and on 29 June the local authority confirmed a further resolution to the effect that the resolution of 26 January would be implemented as from 1 September 1983.
23. On 24 August 1983 the Department of Health and Social Security issued Circular LAC (Local Authority Circular) (83) 14 to local authorities and health authorities pursuant to section 7 of the Local Authority Social Services Act 1970 setting out the principles governing the disclosure of information in social services case records to persons who were the subject of the records. The general policy laid down in paragraph 3 of the circular was that persons receiving personal social services should, subject to adequate safeguards, be able to discover what is said about them in social services records and with certain exceptions should be allowed to have access thereto. Paragraph 5 set out under five headings the reasons for withholding information. These included the protection of third parties who contributed information in confidence, protecting sources of information, and protecting social service department staff’s confidential judgments. Paragraphs 6 to 9 set out in more specific terms the policy governing client access to case records. Paragraph 7 in particular defined the considerations to be weighed on the other side of the balance whenever an application was made for access, the most relevant for the purposes of the present case being that "information shall not be disclosed to the client if derived in confidence from a third party without the consent of the third party". However, it was then provided in paragraph 9 that since existing records had been compiled on the basis that their contents would never be disclosed, material entered in the records prior to the introduction of the new policy should in no event be disclosed without the permission of the contributor of the information.
24. On 31 August 1983, the High Court granted the Attorney General leave to apply for judicial review of the resolution of 26 January 1983 as amended by that of 29 June 1983 on the ground that it went beyond what were considered to be the proper limits and, in particular, omitted certain important safeguards which were contained in Circular LAC (83) 14. Pending the trial of the action an injunction was granted restraining the local authority from implementing the resolution of 26 January 1983.
25. On 9 November 1983, Liverpool City Council confirmed a further resolution of its Social Services Committee of 18 October 1983 setting out certain additional grounds on which information should be withheld. The resolution provided that the information in the applicant’s file should be made available to him if the contributors to the file (or as regards some information the Director of Social Services) consented and that the various contributors of the information contained in the file should be contacted for their permission before the release of that information. Following the passing of this resolution, which was in line with Government Circular LAC (83) 14 (see paragraph 23 above), the Attorney General withdrew his application for judicial review.
26. The applicant’s case record consisted of some 352 documents contributed by 46 persons. On 23 May 1986 copies of 65 documents supplied by 19 persons were sent to the applicant’s solicitors. These were documents whose authors had consented to disclosure to the applicant. The size of each contribution disclosed varied from one letter to numerous letters and reports.
27. Those contributors who refused to waive confidentiality, although not asked to give reasons, stated, inter alia, that third-party interests could be harmed; that the contribution would be of no value if taken out of context; that professional confidence was involved; that it was not the practice to disclose reports to clients; and that too great a period of time had elapsed for a letter or report still to be in the contributor’s recollection.
Furthermore, in June 1986, one contributor refused his consent to disclosure on the ground that it would be detrimental to the applicant’s interests.
28. In a letter of 15 July 1986, the Director of Social Services of Liverpool City Council wrote to the applicant’s solicitors in the following terms:
"I refer to your letter dated 11 June 1986.
I would wish to be as helpful as possible to you, but at the end of the day suspect that we may have genuine differences of opinion. At least I take that to be the implication of the questions you asked.
I do not think therefore, that we can take this correspondence further in a profitable way because, as I have said, it is, in the last analysis, for the provider of information, retrospectively collected, to release or refuse to release, in their absolute discretion, the information supplied from the ‘confidential’ embargo originally accorded to it. The reasons for releasing or not releasing are irrelevant whether they are good, bad or indifferent.
I regret I do not feel able to help you further."
29. On 1 April 1989 the Access to Personal Files (Social Services) Regulations 1989 came into force. These regulations, made under the Access to Personal Files Act 1987 and further explained in Local Authority Circular LAC (89) 2, impose upon social services departments a duty to give to any individual access to personal information held concerning him, except for personal health information which originated from a health professional and subject to the exceptions in Regulation 9. This latter provision exempts from the obligation of disclosure, inter alia, any information from which the identity of another individual (other than a social service employee), who has not consented to the disclosure of the information, would be likely to be disclosed or deduced by the individual who is the subject of the information or any other person who is likely to obtain access to it.
According to the Government, the effect of Regulation 9 (3) is that, in future, case records will be compiled on the basis that the information contained therein is liable to be disclosed, except in so far as disclosure would be likely to reveal the identity of the informant or another third party. However, by virtue of section 2 (4) of the Access to Personal Files Act 1987, the 1989 Regulations apply only to information recorded after the Regulations came into force, that is, after 1 April 1989. As in the case of Circular LAC (83) 14, which governed the adoption of the resolution mentioned in paragraph 25 above and the subsequent partial release of documents to Mr Gaskin, the Access to Personal Files (Social Services) Regulations 1989 do not have retrospective effect.
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 10