ITEMID: 001-61875
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: GRANDCHAMBER
DATE: 2004
DOCNAME: CASE OF ASSANIDZE v. GEORGIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Respondent State to take individual measures (Article 46-2 - Individual measures);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 20. The applicant was born in Georgia in 1944. He is currently in custody in Batumi, the capital of the Ajarian Autonomous Republic in Georgia.
21. The applicant was formerly the mayor of Batumi, the capital of the Ajarian Autonomous Republic, and a member of the Ajarian Supreme Council. He was arrested on 4 October 1993 on suspicion of illegal financial dealings in the Batumi Tobacco Manufacturing Company, a private company, and the unlawful possession and handling of firearms. He was convicted on 28 November 1994 and given an immediate custodial sentence of eight years; orders were made for the confiscation of his assets and requiring him to make good the pecuniary losses sustained by the company. On 27 April 1995 the Supreme Court of Georgia, in a judgment on an appeal on points of law, upheld the applicant's conviction of 28 November 1994 for illegal financial dealings but quashed his other convictions. Instead of being transferred to prison to serve his sentence, the applicant remained in custody in the short-term remand prison of the Ministry of Security of the Ajarian Autonomous Republic.
22. By Decree no. 1200 of 1 October 1999, the Georgian President granted the applicant a pardon suspending the remaining two years of his sentence.
The relevant provisions of the decree read as follows:
“... that [the following] shall be granted a pardon:
1. Tengiz David Assanidze, born in 1944, who was tried for offences under Articles 238 § 2, 96.1 and 45 of the Criminal Code and sentenced on 28 November 1994 to eight years' imprisonment by the High Court of the Ajarian Autonomous Republic; the remaining two years of his prison sentence shall be suspended and replaced by release on licence for the same period ...
2. N.V.G., born in 1983 ...
3. M.A.M., born in 1953 ...”
23. Despite the presidential pardon, the applicant remained in custody in the short-term remand prison of the Ajarian Ministry of Security.
24. The Batumi Tobacco Manufacturing Company immediately challenged Presidential Decree no. 1200 of 1 October 1999 in the High Court of the Ajarian Autonomous Republic (“the Ajarian High Court”) on the ground that it had been granted unlawfully. Execution of the pardon was therefore stayed in accordance with Article 29 of the Code of Administrative Procedure.
25. On 11 November 1999 the Ajarian High Court declared the pardon null and void on the ground that the statutory procedure that should have been followed before the President of Georgia could exercise his right of pardon had not been complied with.
26. That judgment was quashed on 28 December 1999 by the Supreme Court of Georgia, which, in accordance with Article 360 of the Civil Code which was then in force, remitted the case to the Administrative and Tax Affairs Panel of the Tbilisi Court of Appeal.
In its submissions to that court, the Batumi Tobacco Manufacturing Company again contended that the pardon contravened the Presidential Decree of 13 May 1998 establishing the rules governing the exercise by the President of Georgia of his right of pardon, added to which the applicant had yet to make good the pecuniary damage the company had suffered.
27. In the meantime, the applicant was charged with further criminal offences on 11 December 1999 (see paragraphs 33 et seq. below).
28. In a decision of 24 March 2000, the Tbilisi Court of Appeal dismissed the Batumi Tobacco Manufacturing Company's complaints as unfounded. It ruled that the procedural defects pleaded (the failure to obtain the opinion of the Pardons Board and the applicant's lack of remorse) did not render the President's order unlawful, as the right of pardon was an absolute constitutional right vested in the President of Georgia. It said that, since the pardon granted to the applicant did not extend to the ancillary award of compensation for pecuniary damage, the company could bring further legal proceedings to enforce that award; as to the remaining points, the company had no grounds for contesting the appropriateness of the pardon or the legality of the President's order. The Court of Appeal also noted that the company was not entitled in law to call for the reopening of the criminal proceedings against the applicant. It stated that it considered the applicant's detention to be in violation of Article 5 § 1 of the European Convention on Human Rights.
29. On 11 July 2000 the Supreme Court of Georgia dismissed an appeal on points of law by the Batumi Tobacco Manufacturing Company as unfounded. It noted that the impugned decision to pardon the applicant had left intact both the applicant's main sentence and the obligation to make good the pecuniary damage caused to the company. This was because the remaining two years of the sentence had been unconditionally suspended, the sentence being commuted to one of release on licence for the same period. The Supreme Court of Georgia said that the sole effect of the presidential pardon had accordingly been to secure the applicant's immediate release, while leaving intact the main and ancillary sentences. As to the President of Georgia's failure to follow the Rules on the Exercise of the Right of Pardon, the Supreme Court found that the decree of 13 May 1998 contained the working rules and regulations of the Office of the President of the Republic and that failure to observe them could under no circumstances prevent the Georgian President exercising his constitutional right of pardon.
30. Even after 11 July 2000 the local authorities in the Ajarian Autonomous Republic continued to hold the applicant in the short-term remand prison of the Ajarian Ministry of Security in Batumi.
31. The question of the legality of the applicant's pardon was referred by the Bureau of the Parliament on 24 June 2002 to the investigation committee of the Georgian Parliament responsible for supervising the lawfulness of civil servants' activities, which delivered its report on 26 September 2002 (see paragraphs 72 et seq. below).
32. On 4 October 2002 the President of Georgia issued a decree amending the presidential decree of 13 May 1998 establishing the Rules on the Exercise of the Right of Pardon. A new Article 10.1 of the decree vested the President of Georgia with the power to pardon convicted persons, as defined by Article 73 § 1, sub-paragraph 14, of the Constitution, without complying with the additional requirements set out in the decree beforehand.
33. On 12 November 1999 Mr David Assanidze, a close relative of the applicant who had been sentenced to twenty years' imprisonment by the Supreme Court of Georgia on 20 September 1996, gave an interview on a television channel broadcasting in the Ajarian Autonomous Republic in which he affirmed that the applicant had been one of his accomplices.
34. Following that interview the applicant, who had remained in custody after being pardoned by the President on 1 October 1999, was charged on 11 December 1999 with being a member of a criminal association in 1993 and with the attempted kidnapping of V.G., the head of the regional department of the Ministry of the Interior for Khelvachauri (Ajarian Autonomous Republic).
35. On 28 December 1999 the Batumi Court of First Instance remanded the applicant in custody pending the investigation of the new charges. According to the applicant, the pre-trial investigation into the case ended on 29 December 1999 and a five-volume case file was compiled.
36. In a decision of 2 March 2000, the Georgian General Prosecutor's Office decided to take no further action, finding that the applicant's prosecution was not based on an arguable case and that all the circumstances and evidence relating to V.G.'s murder had been examined by the Supreme Court of Georgia in its unfettered discretion at Mr David Assanidze's criminal trial in 1996. The General Prosecutor's Office took the view that, since the exhaustive examination of the file relating to V.G.'s kidnapping and murder had not thrown up any evidence whatsoever that the applicant had been a member of the criminal association led by Mr David Assanidze, there were no grounds for charging him in connection with the same case six years after the event.
37. On 20 March 2000 that decision was set aside by the Batumi Court of First Instance on an appeal by the civil party. Consequently, on 28 April 2000 the Prosecutor's Office of the Ajarian Autonomous Republic ordered the criminal proceedings against the applicant to be reopened. It brought the pre-trial investigation to an end by an order dated 29 April 2000.
38. The applicant was committed to stand trial in the Ajarian High Court, where he denied all guilt. He maintained that this second prosecution was the result of a conspiracy to frame him. He denied ever having had any links with Mr David Assanidze or his associates, who prior to their arrest had been living as outlaws in the Ajarian forests. The applicant also said that he had at no stage hired them to kidnap V.G., who had been killed by Mr David Assanidze's gang, and, contrary to what had been affirmed by the three prosecution witnesses, kidnapping a State official would not have helped the applicant to consolidate his power as mayor of Batumi. He asked the judges to find him innocent.
39. The Ajarian High Court found that, even though the applicant had denied helping to organise the kidnapping that had resulted in the victim's murder, his guilt was established by the depositions of three prosecution witnesses: Mr David Assanidze, the leader of the criminal gang, and two gang members, Mr Mamuka Mosiava and Mr Tamaz Jincharadze. On 20 September 1996 all three had been convicted with Mr Tamaz Assanidze, the applicant's brother, of, inter alia, V.G.'s murder.
40. At the applicant's trial, a confrontation was arranged between Mr David Assanidze and the applicant, at which the former affirmed that the applicant had supplied him with funds and two machine guns to carry out the kidnapping.
41. Mr Mamuka Mosiava said that he did not know the applicant and had never met him. He explained that he had merely caught a glimpse of the applicant when accompanying Mr David Assanidze to a meeting with him and had heard him instruct Mr David Assanidze to kidnap V.G.
42. It appears from the judgment that Mr Tamaz Jincharadze, the third witness, was unable to appear in court owing to illness and was heard by the judges in the office of the governor of the short-term remand prison of the Ajarian Ministry of Security. He stated that he did not know the applicant and had only seen him on television. It was through Mr David Assanidze that he had learnt that the applicant's brother, Mr Tamaz Assanidze, had instructed their group to kill V.G. Mr David Assanidze did not want to be involved in murder and had been to see the applicant, whom he was convinced was behind the plot. It was at that meeting that the applicant had told Mr David Assanidze that there was no need to eliminate V.G., only to kidnap him. On 2 October 1993 the three members of the group had waylaid the victim in a street in Batumi and, on attempting to abduct him in accordance with the applicant's instructions, had killed him by accident.
43. The Ajarian High Court said that it was not just the three witnesses' depositions which confirmed the applicant's guilt, but also the fact that they had been convicted by the Supreme Court of Georgia on 20 September 1996. Without elaborating further on that point, the Ajarian High Court said in conclusion that, even if there was a close relation between the applicant's case and that of Mr David Assanidze and his co-defendants, it constituted an independent criminal act involving participation in the activities of the criminal gang led by Mr David Assanidze and the organisation of V.G.'s kidnapping. In its view, the applicant was directly accountable under the criminal law for his part in those events.
44. Consequently, on 2 October 2000 the applicant was convicted and sentenced to twelve years' imprisonment to be served in a strict-regime prison.
45. The Ajarian High Court noted that since his arrest on 4 October 1993 the applicant had remained in custody at all times and had not been released after being granted a presidential pardon on 1 October 1999. Accordingly, he was deemed to have begun his sentence on 4 October 1993.
46. The applicant appealed on points of law to the Supreme Court of Georgia. The central authorities made various attempts to secure his transfer from Batumi to Tbilisi for the day of the hearing. The Georgian Minister of Justice requested the Ajarian authorities through the intermediary of the Georgian Minister of State Security and the Public Defender (Ombudsperson) to arrange for the applicant's transfer to the capital, but in vain.
47. On 29 January 2001 the Criminal Affairs Chamber of the Supreme Court of Georgia heard the appeal in the applicant's absence; it quashed the judgment of 2 October 2000 and acquitted the applicant.
48. It said, inter alia:
“The preliminary investigation and judicial investigation in the present case were conducted in flagrant breach of the statutory rules. The criminal file does not contain incontrovertible evidence capable of supporting a guilty verdict; the judgment is, moreover, self-contradictory and based on inconsistent conjecture and depositions from persons interested in the outcome of the proceedings that were obtained in breach of the procedural rules.
The convicted person, Tengiz Assanidze, did not admit the offences of which he was accused either during the preliminary investigation or at trial. He said that he had been charged as a result of a conspiracy against him by persons with an interest in his obtaining an unfavourable outcome to the proceedings.
The Supreme Court notes that there is no evidence in the file to refute his arguments. It has been established that Mr David Assanidze and Mr Tamaz Assanidze [the applicant's brother] were convicted on 20 September 1996 and that Mr David Assanidze, who repeatedly said that his accomplice was Mr Tamaz Assanidze, had at no stage implicated Mr Tengiz Assanidze at the material time. It was only on 12 November 1999 – six years and one month after the events – that, in an interview given to Ajarian television, Mr David Assanidze accused Mr Tengiz Assanidze of having been his accomplice. In that interview, Mr David Assanidze also expressed indignation and outrage at Mr Tengiz Assanidze's receipt of a presidential pardon and sought to denounce the authorities' attempts to portray him as an 'innocent lamb'.”
49. The Supreme Court found that the investigating bodies and the court that tried the case at first instance had not sought to establish why Mr David Assanidze had waited for so long before implicating the applicant and had not done so at his own trial. Instead, they had merely affirmed: “Relations between Mr David Assanidze and Mr Tengiz Assanidze were healthy and it is inconceivable that Mr David Assanidze's belated allegations were made out of self-interest.” In the Supreme Court's view, however, the evidence in the case file suggested the contrary and “preclude[d] finding that Mr David Assanidze [had] no interest in making his allegations against the applicant or that they [were] founded and true”. It noted that the applicant had said that relations between him and Mr David Assanidze had become strained as a result of a dispute over the sharing of a family tomb where their fathers were buried. Mr David Assanidze had not denied the existence of that dispute at a hearing on 20 September 1999. The Supreme Court accordingly found that Mr David Assanidze's assertion that there was no ill-feeling between them in private did not reflect the truth.
50. It held that the applicant could not be found guilty on the sole basis of affirmations made by Mr David Assanidze six years after the events in issue.
51. The Supreme Court went on to note that, in addition to Mr David Assanidze, Mr Mosiava and Mr Jincharadze had also belatedly accused the applicant of participating in the activities of the criminal gang led by Mr David Assanidze. They too had only implicated the applicant several years after their trials. However, both men had said that they did not know the applicant and had only learnt of his involvement in the kidnapping through Mr David Assanidze himself. The Supreme Court ruled that in such circumstances Mr Mosiava's and Mr Jincharadze's statements could not constitute true and incontrovertible evidence.
52. It was also noted that their assertions that the applicant had provided the gang with money and two machine guns to kidnap V.G. were not corroborated.
53. After examining other evidence relied on by the court of first instance in the applicant's case and comparing it with Mr David Assanidze's depositions at his trial in 1996, the Supreme Court found:
“Both [the applicant's] indictment and conviction rely solely on the depositions of persons who have a direct interest in the outcome of the proceedings against him and there is no other evidence of his guilt in the case file. The Court must therefore find that Mr Tengiz Assanidze has not committed an offence under the criminal law.”
54. In addition, the Supreme Court found serious procedural defects in the criminal proceedings against the applicant. Among other matters, it noted that on 6 March 2000 the investigating officer in charge of the case had rejected a request by the applicant for a confrontation with Mr David Assanidze regarding the kidnapping charge on the ground that it was unconnected with Mr David Assanidze's case and intended only to delay the proceedings unnecessarily. In the Supreme Court's view, the investigating bodies had failed to carry out a thorough investigation into the allegation that the applicant was implicated in the case.
55. The Supreme Court noted: “According to the impugned judgment, despite its connection with the case of Mr David Assanidze and his co-defendants, the present case concerned an independent criminal act. However, it is stated elsewhere in the same judgment that, in addition to other evidence against him, Mr Tengiz Assanidze's guilt was confirmed by the convictions of Mr David Assanidze and his co-defendants, which have become final.” The Supreme Court added that, in making that affirmation, the trial court “[had] not provide[d] any explanation as to how Mr David Assanidze's and his co-defendants' convictions confirmed Mr Tengiz Assanidze's guilt, since they [had been] convicted of the murder of an official, whereas Mr Tengiz Assanidze was accused of having organised his kidnapping”. Thus, in the Supreme Court's view, the trial court had not in fact decided whether the applicant's case should be treated as part of Mr David Assanidze's case or as an independent criminal act.
The Supreme Court therefore found the applicant's conviction unlawful on other grounds, pertaining to the classification in law of the acts concerned.
56. Consequently, it held:
“Mr Tengiz Assanidze's conviction on 2 October 2000 by the High Court of the Ajarian Autonomous Republic is quashed and the criminal proceedings against him discontinued, as his acts do not disclose any evidence of an offence.
Mr Tengiz Assanidze shall be immediately released.
This judgment is final and no appeal shall lie against it.
Mr Assanidze shall be informed that he has the right to bring proceedings for compensation for the damage caused by the illegal and unjustified acts of the bodies involved in his criminal case.”
57. On 29 January 2001 the President of the Chamber of the Supreme Court forwarded the short version of the judgment acquitting the applicant to the Minister of Justice, the director of the department responsible for the execution of sentences at the Ministry of Justice and the governor of the short-term remand prison of the Ajarian Ministry of Security for execution. He informed them that they would receive the reasoned version of the judgment subsequently.
58. On 5 February 2001 the President of the Chamber sent them the reasoned version of the judgment acquitting the applicant for execution.
59. That judgment was never executed and the applicant remains in custody in the short-term remand prison of the Ajarian Ministry of Security.
60. The applicant's unlawful detention was denounced on a number of occasions by the General Prosecutor's Office of Georgia, the Public Defender, the Georgian Ministry of Justice and the Legal Affairs Committee of the Georgian Parliament. They contacted the local authorities concerned in the Ajarian Autonomous Republic, seeking his immediate release.
61. In letters of 20 April and 22 May 2001, the General Public Prosecutor's Office of Georgia informed the applicant's wife as follows:
“... [I]n response to your letter, I wish to inform you that the General Public Prosecutor's Office of Georgia is making every effort to secure compliance with the judgment of the Supreme Court of Georgia dated 29 January 2001 and to bring Mr Tengiz Assanidze's unlawful detention to an end.”
62. In a letter of 20 April 2001, the Vice-President of the Supreme Court of Georgia informed the applicant's wife that the operative provisions of the judgment of 29 January 2001 acquitting her husband had been sent by facsimile transmission that day for execution to the Georgian Minister of Justice, the director of the department responsible for the execution of sentences at the Ministry of Justice, the governor of the short-term remand prison of the Ajarian Ministry of Security and the governor of the long-term remand prison of the Ajarian Ministry of Security. He added that the reasoned judgment had been sent to them under cover of a letter of 5 February 2001. The Vice-President also said in his letter that on 9 February 2001 the Supreme Court of Georgia had received an acknowledgment of receipt slip signed by the governor of the short-term remand prison of the Ajarian Ministry of Security.
63. On 18 May 2001 the Public Defender wrote directly to Mr Aslan Abashidze, the Head of the Ajarian Autonomous Republic:
“... Your authorities have not yet responded to my recommendation of 31 January 2001, even though Mr Tengiz Assanidze remains in the Ajarian Ministry of Security prison in flagrant breach of the law. ... Under the Public Defender Act, it is both an administrative and a criminal offence not to comply with the Public Defender's recommendations if the Public Defender is thereby obstructed in the course of his or her duties. ... I would therefore ask you to comply with my lawful demands as Public Defender and to hold both the governor of the short-term remand prison of the Ajarian Ministry of Security and the Minister himself accountable.”
64. On 10 May 2001 the President of the Legal Affairs Committee of the Georgian Parliament wrote to the General Public Prosecutor's Office of Georgia in the following terms:
“... In a decision of 29 January 2001, the Supreme Court of Georgia acquitted Mr Tengiz Assanidze. However, he continues to serve his sentence in a cell at the short-term remand prison of the Ministry of Security of the Ajarian Autonomous Republic. ... This constitutes a serious violation of ... Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms. ... I would therefore ask you to take the necessary measures to prosecute those responsible for failing to comply with the aforementioned judicial decision.”
65. In a letter of 7 June 2001, the director of the department responsible for the execution of sentences at the Georgian Ministry of Justice advised the applicant's wife that her husband was fully entitled to lodge an application against the Georgian State with the European Court of Human Rights. He stated in his letter: “We consider that the authorities of the Ajarian Autonomous Republic are acting in flagrant breach of the law and of human rights.”
66. The central authority's efforts to secure the applicant's release were unsuccessful.
67. According to the Government, on 3 September 2001 the Georgian courts martial prosecuting authority ordered certain officials from the Ajarian Ministry of Security suspected of failing to execute the judgment of 29 January 2001 acquitting the applicant to be charged with offences, in accordance with the Criminal Code. The police are trying to trace those concerned.
68. In a letter of 8 January 2002, the applicant's son informed the Court that his father's health had deteriorated. According to a medical certificate dated 4 December 2001, the applicant was suffering from gastritis, cardiac insufficiency and gastro-oesophageal reflux. As this was causing him severe dietary problems, he required appropriate medical attention as a matter of urgency.
69. On 28 May 2003 the Government produced to the Court a letter of 4 March 2003 from Mr E. Shevardnadze to Mr Aslan Abashidze, Head of the Ajarian Autonomous Republic, in which he stated:
“You are a man with the State's interests at heart and I believe that I can count on your understanding in this situation. ... As you are aware, the Court [in Strasbourg] is very shortly due to decide whether to hold a hearing on the merits in the Assanidze case. The family is seeking three million euros in compensation. It is almost self-evident that Georgia will lose this case and that our State will be heavily condemned. There is a solution to this problem. Were Mr Assanidze to be released, his family would agree to withdraw the application.
I am sure that you will play a part in taking the only decision that is just, that which is in Georgia's interests.”
70. On 3 April 2003 the President of the Ajarian High Court sent a reply to the Georgian President. He began by accusing the Head of State of harbouring persons of Ajarian extraction who had fled Batumi to take refuge in Tbilisi after attempting to organise terrorist attacks on the Head of the Ajarian Autonomous Republic. He then drew the President's attention to the parliamentary committee's report (see paragraphs 72 et seq. below), which highlighted numerous irregularities in the proceedings that had led to the applicant's pardon and acquittal. Relying on the parliamentary committee's findings and Article 2 of Protocol No. 7 to the European Convention on Human Rights, the President of the Ajarian High Court suggested to the President of Georgia that the applicant's trial should be reopened so that his case could be reconsidered in the light of the matters set out in the report.
71. He also said in his letter that the applicant's application to the European Court of Human Rights constituted an abuse of his right of application within the meaning of Article 35 § 3 of the Convention and that he had been aided in that task by the General Public Prosecutor's Office of Georgia, the Public Defender, the Supreme Court of Georgia and the National Security Council. He added that, as the parliamentary committee was a national authority within the meaning of Article 13 of the Convention, the applicant could not be regarded as having exhausted domestic remedies before 26 September 2002, the date of the committee's report. Drawing the Georgian President's attention to this point, he said that the Georgian Ministry of Justice had misled the European Court of Human Rights in its observations.
72. In a letter of 30 July 2002, the Government informed the Court that on 24 June 2002 the investigation committee of the Georgian Parliament responsible for supervising the lawfulness of civil servants' activities had been requested by the Bureau of the Parliament to launch an inquiry into the circumstances in which a presidential pardon had been granted in the Assanidze case. The committee, which was composed of members of parliament assisted by university lecturers and practising lawyers, produced its report on 26 September 2002.
73. Although its terms of reference were confined to issues relating to the presidential pardon, the committee also decided to examine the circumstances in which the applicant had been prosecuted and acquitted in the second set of proceedings. In the introduction to its report, the committee explained its reasons for so extending its terms of reference. In particular, it stated: “[T]he presidential pardon did not constitute an isolated act or separate procedure; in the present case, there was a close relation between all the proceedings and, in order to provide an overall view of the issues, it was considered appropriate to examine the chronology of the various sets of criminal proceedings brought against the applicant, the conduct of those proceedings and the merits of the decisions that were taken.” There were thus two separate parts to the report: one on the legality of the presidential pardon and the other on the decisions of the domestic courts in the criminal proceedings against the applicant.
74. On 12 October 1998 the National Security Council examined the question of measures that needed implementing in the prison system. On a proposal by the Georgian President, it was decided that he would exercise his right of pardon. The prison authorities were asked to study the cases of convicted prisoners in their custody and to submit to the President any requests for a pardon, together with the files and assessments of the prisoners concerned. Requests for a pardon had to be made in these terms:
“Dear President, I repent of the crime I have committed and ask you to remit the remainder of my sentence.”
Requests made in the prescribed terms were examined and the President exercised his right of pardon in a number of cases.
75. The parliamentary committee established that on 15 January 1999 the applicant had sent a letter to the Georgian President asking for the remainder of his sentence to be remitted. Since he had not made his request in the terms referred to above, the committee considered that his pardon did not satisfy the regulatory requirements in force and was therefore invalid. It also noted a number of other failings: “the [applicant's] file” had not been submitted to the Pardons Board appointed by the Georgian President, the applicant's name was not on the combined list of convicted persons seeking a pardon that was submitted to the President by the Ajarian authorities concerned and no appraisal of the applicant had been furnished by the Ajarian prison authorities in support of his request.
76. The committee established that, in breach of the rules in force, the Vice-President of the National Security Council, one of the Georgian President's aides, had prepared and submitted to the President a recommendation for the applicant to be pardoned solely on the strength of the applicant's letter of 15 January 1999. The committee said that that request should have been referred to a court under the rules of criminal procedure and not to the President of Georgia as a request for a pardon.
77. According to the committee, even assuming that the Georgian President had been entitled to grant the applicant a pardon without first complying with the statutory rule requiring requests for pardons to be examined by the competent board in the first instance, the decision had been taken shortly before the general election of October 1999 and was manifestly influenced by political considerations.
78. The committee considered that the reasons given by the Tbilisi Court of Appeal and the Supreme Court of Georgia in their judgments of 24 March and 11 July 2000 respectively did not comply with Articles 60 and 61 of the Administrative Code, which provide an exhaustive list of the grounds on which administrative acts may be declared null and void. Indeed, their effect was to render Article 42 of the Constitution, which guaranteed everyone the right to apply to a court to protect his or her rights, meaningless.
79. It noted that under domestic law a presidential pardon was an administrative act for which judicial review lay in the administrative courts. As the applicant's presidential pardon had been challenged in the courts, it had not become enforceable until 11 July 2000, the date of the Supreme Court's decision.
80. The committee criticised the reason advanced by the Tbilisi Court of Appeal on 24 March 2000 for dismissing the Batumi Tobacco Manufacturing Company's application for judicial review. In particular, it considered that the Tbilisi Court of Appeal had ruled on matters beyond the scope of the application, as the company had not sought an order reopening the criminal proceedings against the applicant. The Court of Appeal should not, therefore, have ruled on the lawfulness of the applicant's continued detention. Since those two issues were within the jurisdiction of the criminal courts, not the administrative courts, the committee considered that the Tbilisi Court of Appeal should have restricted its review to the legality of the contested presidential act.
81. The committee further noted that the presidential pardon concerned only the prison sentence and not the applicant's duty to pay the Batumi Tobacco Manufacturing Company compensation for the pecuniary damage caused. The Tbilisi Court of Appeal should, therefore, also have examined the effects of the presidential pardon on that ancillary punishment.
82. According to the committee, the second set of proceedings in which the applicant was acquitted was, like the first, tainted by various procedural defects at both the investigation and trial stages. In addition, the trial courts 's view, those circumstances should have been “treated as evidence by the courts and examined with a view to establishing the truth”.
83. In order to illustrate this point, the committee conducted a detailed examination of various items of evidence and statements obtained in the criminal proceedings against Mr David Assanidze, Mr Tamaz Assanidze, Mr Nodar Shotadze and fourteen co-defendants, who had been convicted, inter alia, of the murder of the Ministry of the Interior official concerned (see paragraphs 33 et seq. above).
84. The committee thus established that at the trial in the Supreme Court of Georgia in 1996 Mr David Assanidze and Mr Shotadze had “sought to identify” the applicant as one of the organisers of the attack on Mr Aslan Abashidze, the Head of the Ajarian Autonomous Republic. In its view, instead of “ignoring Mr David Assanidze's and Mr Nodar Shotadze's attempts to implicate the applicant in serious offences”, the judges of the Supreme Court of Georgia who heard the applicant's appeal on points of law should have brought “new criminal proceedings against [the applicant] in accordance with Article 257 of the Code of Criminal Procedure in force at the material time”, that is to say, in 1993.
85. The committee considered that, in order to clarify certain details vital to the truth, the Supreme Court of Georgia should have heard evidence not only from the witnesses who were called, but also from Mr David Assanidze, who should have been questioned about his informal meeting with the judge who heard his case in 1996, and the judge himself. It should have sought to establish by whom and in what circumstances that meeting – at which Mr David Assanidze had accused the applicant off the record of taking part in his group's activities – had been recorded, and why the judge concerned had not mentioned it in his judgment of 20 September 1996.
86. The committee criticised the Supreme Court for not hearing evidence from two other people who had also been implicated by Mr David Assanidze, and the applicant's son. It considered that the Supreme Court judges who heard the applicant's case should have ordered expert evidence to be obtained to establish when, by whom and how the weapons, the military munitions and technical equipment seized in Mr David Assanidze's case in 1996 had been purchased. Nor had they sought to ascertain why the prosecutor in the applicant's case had declined to make an order joining his case with Mr David Assanidze's.
87. The committee found, lastly, that the Supreme Court of Georgia had “failed to remit the applicant's case to the investigating bodies for further investigation” and should not have taken “a decision to acquit that was illegal, unfair and based on insufficiently investigated facts”.
88. In the committee's view, “the new circumstances revealed in its examination of the case for the purposes of the parliamentary report warranted investigation and analysis”. That proved that “the statutory remedies designed to elicit the truth [had] not yet been exhausted”. Referring to Articles 593 § 2 (g) and 539 of the Code of Criminal Procedure, it suggested that the applicant's trial should be reopened.
89. On 25 March 2003 the General Prosecutor's Office of Georgia refused a request by the civil party for the applicant's case to be reopened and re-examined in the light of the parliamentary committee's findings. It found, inter alia, that the findings did not constitute new circumstances that could warrant a reopening of the applicant's case. In the absence of new circumstances, a judgment of the Supreme Court, which was final and could not be appealed against, could not be challenged under Georgian law.
90. On 8 November 2002 the President of the Supreme Court of Georgia submitted to the Georgian President his observations on the findings in the parliamentary committee's report of 26 September 2002.
91. He described the report as “tendentious”, “biased”, “unconstitutional” and “erroneous”. He noted, firstly, that the parliamentary committee had acted far outside the scope of its terms of reference and, instead of examining the circumstances in which the applicant had received a presidential pardon, had decided to review a judgment of the highest court of the land. In so doing, the committee had, in his view, contravened the fundamental constitutional rule requiring the separation of powers. The report undermined the notions of democracy and the rule of law. The President of the Supreme Court said that under the Constitution no one had the right to demand an explanation from a judge about a case. Criticism by a parliamentary committee of a final judicial decision against which no appeal lay served only to hinder execution of the decision and to discredit the judiciary.
92. As regards the committee's findings on the subject of the presidential pardon, the President of the Supreme Court of Georgia noted, firstly, that the right conferred by the Constitution on the Georgian President to grant a pardon was absolute and unconditional and could be exercised independently of the regulations laying down the principles on which requests for a pardon were to be examined by the Presidential Office. He further noted that in many countries there was no right of appeal against a pardon, which constituted the ultimate act of humanity. The fact that the applicant's request for a pardon had not been examined beforehand by the Presidential Pardons Board could not render the pardon illegal, especially as, in the applicant's case, obtaining his file and details from the Ajarian prison authorities had been no easy task. The President of the Supreme Court of Georgia also pointed out that, in the instant case, the grant of a pardon also represented an attempt at restoring justice to a convicted prisoner who had been held for years in an unlawful place of detention.
93. He added that the section of the report on the Ajarian High Court's judgment of 11 November 1999 declaring the presidential pardon null and void for procedural defects was entirely erroneous. He pointed out that on 11 November 1999 the New Code of Administrative Procedure had yet to come into force and that, in accordance with Article 360 of the Code of Civil Procedure – the statutory provision applicable to contested administrative cases at the time – the Tbilisi Court of Appeal had exclusive territorial jurisdiction to hear applications for judicial review of presidential acts. The President of the Supreme Court of Georgia said that it was regrettable that the committee had omitted to mention that the Ajarian High Court had on 11 November 1999, in breach of the law then in force, assumed jurisdiction to hear an application for judicial review of a pardon granted by the President of Georgia.
94. In his observations, the President of the Supreme Court of Georgia noted that, in describing the judgment acquitting the applicant as biased, incomplete and illegal, the parliamentary committee had at no point mentioned the question of the applicant's interests or his unlawful detention. The President of the Supreme Court considered that the committee was thereby seeking to justify the applicant's continued detention despite his acquittal.
95. The committee had chosen to review the judgment acquitting the applicant on its own initiative, but had not put forward a single plausible argument that pointed to the applicant's guilt. Nor had it shown that the Supreme Court could have returned a guilty verdict on the evidence before it. On the contrary, the committee saw no difficulty in an acquitted defendant being held in custody until such time as the issue of his guilt or innocence had been re-examined in the light of new circumstances. That, said the President of the Supreme Court in conclusion, was “totally unlawful”.
96. The President of the Supreme Court considered it unfortunate that the committee had failed to mention that the applicant had been held since his conviction in the Ajarian Ministry of Security prison, in breach of the law. He noted that Mr David Assanidze, whose televised remarks ought, in the committee's eyes, to have prompted the Supreme Court of Georgia to convict the applicant, was serving his twenty-year prison sentence in the same prison.
97. The passage in the report in which the committee found that the applicant would not have exhausted the statutory remedies until such time as his trial was reopened in the light of the new circumstances revealed by the parliamentary committee was described by the President of the Supreme Court as a “masterpiece of legal invention”. He recommended that the report be translated into various foreign languages so that international human rights organisations would also have access to it.
98. The President of the Supreme Court regretted that the parliamentary committee had yielded to political pressure from certain groups, instead of helping justice to prevail, in accordance with the wish expressed at the end of its report.
99. In conclusion, the President of the Supreme Court of Georgia said that he would leave the issue of the applicant's continued detention following his acquittal to the discretion of the Court in Strasbourg.
100. In the 1080s Ajaria, part of the Bagratid Kingdom known as the “Kingdom of the Georgians”, was laid to waste by Seljuk invaders from the South. In the 1570s it was invaded by the Ottoman Empire. The sanjaks (districts) of Upper Ajaria and Lower Ajaria were formed there and the region was annexed to the vilayet (province) of Childir (Akhaltsikhe). Subsequently, at various times, the Ottomans and the adjoining Georgian principalities fought over the region. Under the terms of Article IV of the Treaty of Adrianople signed on 2 September 1829 between tsarist Russia and the Ottoman Empire, Ajaria was assigned to the latter.
101. Article LVIII of the Treaty of Berlin signed on 13 July 1878 between the Russian and Ottoman Empires provided:
“The Sublime Porte cedes to the Russian Empire in Asia the territories of Ardahan, Kars, and Batum together with the port of the latter.”
102. Articles XI and XV of the Armistice Treaty signed on 30 October 1918 at Mudros between Great Britain and her allies, and Turkey provided:
“XI. ... Part of Trans-Caucasia has already been ordered to be evacuated by Turkish troops, the remainder to be evacuated if required by the Allies after they have studied the situation there.”
“XV. ... This clause to include Allied occupation of Batoum ...”
103. The Armistice Treaty signed at Brest-Litovsk on 3 March 1918 between Germany, Austria-Hungary, Bulgaria and Turkey, and Russia provided:
“IV. ... The districts of Erdehan, Kars, and Batum will likewise and without delay be cleared of the Russian troops. Russia will not interfere in the reorganisation of the national and international relations of these districts, but leave it to the population of these districts to carry out this reorganisation in agreement with the neighbouring States, especially with Turkey.”
104. Article 107 of the Constitution of the Democratic Republic of Georgia, which was adopted on 21 February 1921, provided:
“The inseparable parts of the Republic of Georgia, namely the district of Abkhazia-Sokhoumi, Muslim Georgia (district of Batumi) and the district of Zakatala, shall have the right of self-government for local affairs.”
105. Article 2 of the Moscow Accords dated 16 March 1921 and signed by Russia and Turkey provided:
“Turkey agrees to cede to Georgia suzerainty of the port of Batumi, together with the territory to the north of the border referred to in Article 1 of this Treaty that forms part of the district of Batumi ... on condition that: (a) the populations of these territories enjoy a large degree of local administrative autonomy guaranteeing each community its cultural and religious rights and are permitted to introduce in the aforementioned places an agrarian regime in accordance with their wishes. ...”
106. On 16 July 1921 Ajaria was granted the status of an autonomous Soviet socialist republic forming part of the Soviet Socialist Republic (SSR) of Georgia.
107. Article 6 of the Kars Treaty signed on 13 October 1921 between the government of Turkey and the governments of the Soviet Socialist Republics of Azerbaijan, Armenia and Georgia provided:
“Turkey agrees to cede to Georgia suzerainty of the town and port of Batumi, together with the territory to the north of the border referred to in Article 4 of this Treaty that was formerly part of the district of Batumi ... on condition that:
(i) The populations of the places specified in this Article enjoy a large degree of local administrative autonomy guaranteeing each community its cultural and religious rights and are permitted to introduce in the aforementioned places an agrarian regime in accordance with their wishes.
(ii) Turkey is guaranteed free transit of goods and all materials to or from Turkey through the port of Batumi, free of customs, without hindrance, free of all duties and imposts and with the right for Turkey to use the port of Batumi without special costs. In order to implement this provision, a Committee of Representatives of Interested Parties shall be set up immediately after the signature of this Treaty.”
108. On 24 August 1995, four years after the dissolution of the USSR, the Georgian Parliament adopted a new Constitution, Article 2 § 3 of which provides:
“The internal territorial arrangement of Georgia shall be determined by constitutional law on the basis of the principle of division of power after the full restoration of the jurisdiction of Georgia over all its territory.”
109. On 20 April 2000 the Constitution was amended by a constitutional law which replaced the term “Ajaria” with “Ajarian Autonomous Republic” and added a third paragraph to Article 3 of the Constitution, which reads:
“The status of the Ajarian Autonomous Republic shall be determined by a constitutional law on the status of the Ajarian Autonomous Republic.”
On 10 October 2002 the Georgian Parliament enacted a constitutional law containing similar amendments and additions with respect to Abkhazia. It has not passed any similar legislation with respect to the Tskhinvali region (formerly, the “Autonomous District of South Ossetia”).
110. The proposed constitutional law determining the status of the Ajarian Autonomous Republic (see Article 3 of the Constitution) has not yet been passed.
111. Article 73 § 1, sub-paragraph 14, of the Constitution reads as follows:
“The President of Georgia: ... has the right to grant convicted persons a pardon; ...”
112. The relevant provisions of Article 1 of Decree no. 319 of 13 May 1998 on the exercise of the right of pardon provide:
“The President of Georgia may grant convicted persons a pardon in accordance with Article 73 § 1, sub-paragraph 14, of the Constitution. In order to exercise this right, the President shall examine beforehand requests by convicted persons for a pardon that have been submitted by the Georgian courts, ..., petitions for a pardon lodged by members of parliament, private individuals, groups of private individuals, organisations or public bodies, and requests for convicted persons to be released from an obligation to pay compensation for pecuniary damage under an order of the Georgian courts made in favour of a public undertaking, institution or organisation.
A pardon may be granted at the request of a convicted person if he or she admits his or her guilt and repents.”
“Requests and petitions for a pardon shall be examined by the Pardons Board before being submitted to the President. The board ... shall be set up to carry out a prior examination of requests and petitions made to the President for a pardon and to make recommendations in that regard. The board's recommendations shall be examined by the President, who shall take the final decision.”
“If granted a pardon, the convicted person shall be entitled to:
(a) remission of all the main or any ancillary sentence, with or without deletion of his or her name from the criminal records;
(b) remission of part of the main or any ancillary sentence, in other words, to a reduction in the length of his or her sentence;
(c) have the remainder of his or her sentence commuted to a lesser sentence;
(d) remission of all or part of an order of the trial court to pay compensation for pecuniary damage.”
“A pardon may not be granted to convicted persons:
(a) who have been tried for a serious crime and sentenced to a term of imprisonment of more than five years and have not yet served at least half of their sentence;
(b) who have been sentenced for the first time to a term of imprisonment of less than five years and have not yet served at least a third of their sentence;
...
(f) who are of bad character according to the institution in which they are being held and have a reputation for unacceptable violations of the applicable prison regulations.
Requests by convicted persons falling within the provisions of this Article shall not be examined by the Pardons Board unless special circumstances so warrant.”
“Prior to its examination by the Pardons Board the request for a pardon shall be sent with the file documents produced by the penal institution concerned for opinion to the Supreme Court of Georgia, the General Prosecutor's Office and the Ministry of the Interior.
Prior to being examined by the Pardons Board the request for remission of an obligation to pay compensation for pecuniary damage shall be sent with the file documents to the Supreme Court of Georgia, the territorial administrative authorities and self-governing authorities and any legal entity that is a civil party to the proceedings.
The aforementioned authorities' opinions and legal entity's observations shall be submitted to the Pardons Board within two weeks.”
113. By Presidential Decree no. 426 of 4 October 2002, an Article 10.1 was added to the aforementioned Decree no. 319. It provides:
“The President of Georgia shall have the right to grant a pardon to a convicted person in accordance with Article 73 § 1, sub-paragraph 14, of the Constitution even if the additional conditions set out in this decree are not satisfied.”
114. Article 360 of Chapter XIX of the Code of Civil Procedure, which contained the rules of procedure in administrative-law disputes before the Code of Administrative Procedure came into force on 1 January 2000 provided:
“The application must be lodged with the court of appeal with territorial jurisdiction for the area in which the body from which the contested act emanated is situated.”
115. The relevant provisions of the Code of Administrative Procedure provide:
“The courts of appeal shall hear as courts of first instance applications concerning: (a) the legality of administrative acts of the President of Georgia; ...”
“An application for judicial review of an administrative act shall stay execution of that act.”
116. The relevant provisions of the Constitution are as follows:
“Parliament shall set up committees for the duration of its term to conduct preliminary studies of legislative issues, to implement decisions, and to supervise the activities of the Government and the bodies accountable to Parliament for their work.
In the circumstances set out in the Constitution and the Rules of Parliament, or at the request of at least a quarter of the members of parliament, committees of inquiry and other temporary committees shall be set up. The representation of the parliamentary majority on such committees shall not exceed one-half of the total number of the committee members.”
“Everyone shall be entitled to seek judicial protection of his or her rights and freedoms.”
117. Article 60 of the Administrative Code, as amended on 2 March 2001, reads as follows:
“1. An administrative decision shall be declared null and void
(a) if it emanates from an unauthorised body or person;
(b) if its execution could entail the commission of an offence;
(c) if its execution is impossible for objective factual reasons;
(d) if it is contrary to the law or if there has been a material breach of the statutory rules governing its preparation or adoption.
2. A breach of the law that results in a different decision from that which would have been taken had the law been complied with shall constitute a material breach of the statutory rules on the preparation and adoption of administrative decisions.
3. An administrative decision shall be declared null and void by either the body from which it originated or a higher administrative body on an internal appeal or an administrative court on an application for judicial review.”
118. Article 257 of the former Code of Criminal Procedure, which was in force until 15 May 1999, provided:
“If, during the course of the judicial examination of a case, circumstances come to light that indicate that the offence was committed by a person who has not been charged, the court shall make an order for criminal proceedings to be brought against that person and forward the decision to the inquiry and investigative bodies for execution.”
119. The relevant provisions of the New Code of Criminal Procedure, which came into force on 15 May 1999, are as follows:
“A judgment or other judicial decision shall be ill-founded if: (a) a guilty verdict is returned that is not based on the evidence in the case; (b) there are unresolved conflicts of evidence that call into question the validity of the court's finding; (c) the court failed to take material evidence into account when reaching its decision; (d) the court reached its findings on the basis of evidence that was inadmissible or irrelevant; (e) the court rejected certain evidence in favour of other conflicting evidence without explaining its reasons for so doing; (f) the court did not afford the convicted person the benefit of the doubt.”
“1. The judgment ... may be quashed in whole or in part if new factual or legal circumstances come to light.
2. New factual circumstances shall entail a review of any court decision that is illegal or does not contain reasons. There shall be a review in particular when:
(a) it is judicially established that the evidence of a witness or expert witness or of any other kind that constituted the basis for the impugned court decision was false; (b) it is judicially established that the trial judge, the public prosecutor, the investigating officers or prosecuting authority contravened the law when dealing with the case;(c) fresh evidence has come to light ... that may prove the innocence of a convicted person or the guilt of an acquitted person ...;(d) fresh evidence has come to light that shows that ... the evidence on which the decision was based was inadmissible.”
120. Article 9 of the Institutional Law on the Supreme Court of Georgia of 12 May 1999 sets out the jurisdiction of the various chambers of the Supreme Court, including the Criminal Affairs Chamber:
“The chambers ... of the Supreme Court of Georgia are courts of cassation which ... hear appeals on points of law against the decisions of the regional courts of appeal, the High Courts of the Autonomous Republics of Abkhazia and Ajaria and the Criminal Affairs Panel of the Supreme Court.”
121. The relevant provisions of the New Code of Criminal Procedure are as follows:
“Criminal proceedings may not be brought and pending criminal proceedings shall be discontinued if the act or omission concerned is not an offence under the Criminal Code.”
“Judgments must be prepared for execution at the latest within seven days after the date on which they become enforceable.”
“1. It is for the court which delivered the decision to send the judgment or order for execution. The order relating to execution of the judgment and a copy of the judgment shall be sent by the judge or the president of the court to the body responsible for its enforcement. ... 2. The body responsible for its enforcement shall immediately inform the court which delivered the judgment of its execution. ...”
122. Section 6(1) and (3) of the Detention Act of 22 July 1999 provides:
“Sentences of imprisonment judicially imposed in a judgment shall be served in prison institutions supervised by the Ministry of Justice of Georgia.
In the territory of Georgia, these prison institutions shall be as follows:
(a) ordinary-regime prisons;
(b) strict-regime prisons;
(c) isolation prisons.”
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-59723
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF SCIORTINO v. ITALY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant served in the administration of the Sicily Region from 1945 to 1978, holding different posts.
9. The method and the basis of calculation of the pension to which the applicant is entitled have been modified several times by a series of regional laws.
10. Amongst others, according to Regional Law No. 145/1980, the applicant's pension was recalculated and increased. Further modifications in the determination of the applicant's pension were made on the basis of Regional Law No. 41/1985.
11. In July 1990 the applicant filed an application with the Court of Audit seeking recognition and payment of the increase of pension granted by Regional Law No. 41/1985. On 23 November 1993 the Court of Audit admitted the claim and ordered that the Sicily Region pay the applicant the increases of pension he was entitled to, the revaluation of the amounts due and the statutory interest, accrued from November 1985 to the date on which the applicant would actually receive them.
12. In relation to the delays in complying with the decision of the Court of Audit of 23 November 1993, the applicant filed “compliance” proceedings (“ricorso per l'ottemperanza”) with the Sicily Regional Administrative Court (RAC).
13. On 11 July 1997 the Sicily RAC granted the claim and ordered the competent regional administration to comply fully with the above-mentioned judgment within 60 days from the date when the decision would be served or communicated to the applicant. The Sicily RAC also nominated a special commissioner (“commissario ad acta”) who was to intervene if, upon expiration of the 60 day-period, the administration of the Region had not paid. The commissioner was empowered to take the necessary measures to ensure compliance with the decision within further 30 days at the latest.
14. According to the calculations made by the applicant's counsel and covering a period up to 31 December 2000, the applicant was entitled to receive the overall gross sum of 10 254 250 Italian lire (ITL). The Government have not disputed these calculations.
15. On 20 May 1998, the competent regional administration paid to the applicant 289 136 ITL. However, on 4 August 1998 the Presidency of the Sicily region urged the competent regional administration to speed up the compliance with a series of judgments favourable to the applicant, including the one at issue. Subsequently, on 21 June 1999 the applicant received 4 030 000 ITL. Yet the applicant contested this sum and complained that the competent administration had used a different method of calculation than the one envisaged by the RAC judgment of 11 July 1997.
16. In any event, the applicant maintains that on 31 December 2000 he was still entitled to receive the sum of 5 976 400 ITL. The Government have not disputed this allegation.
17. On 19 April 1994 the applicant had lodged another application (No. 1025/94) with the Court of Audit (jurisdictional section for the Sicily Region), claiming that Regional Laws No. 7/1971 and No. 145/1980 had been erroneously enforced and seeking a recalculation of his pension. A first hearing was fixed at 6 November 1998.
18. This controversy was settled by a judgment of 23 March 1999, filed with the registry on 10 May 1999, which partially granted the applicant's claim.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58831
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF VELIKOVA v. BULGARIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 2 with regard to the applicant's death;Violation of Art. 2 with regard to the lack of effective investigation;Violation of Art. 13;No violation of Art. 14;Non-pecuniary damage - financial award;Pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Matti Pellonpää
TEXT: 12. The applicant is a Bulgarian national, born in 1942 and residing in Pleven. At the relevant time she lived in Bukovlak, a village in the district of Pleven.
13. In the early hours of 25 September 1994, the man with whom the applicant had lived for about twelve years, Mr Slavtcho Tsonchev, 49 years old, belonging to the ethnic group of the Romanies (Gypsies), died after he had spent about twelve hours in police custody following his arrest and detention on charges of cattle theft.
14. On 24 September 1994 at 11 a.m. the Pleven police received a telephone call from the village of Bukovlak informing them of the theft of nine cows. Police Sergeant Ivanov and his colleague Petranov were immediately dispatched to the village, where they met Mr N., the person who had been tending the cattle. Mr N. was brought to the police station in Pleven.
There he initially stated that the cows had been stolen by unknown persons who had sprayed him with nerve gas, but then explained that, at about 10 a.m., Mr Tsonchev, accompanied by a 10-year-old boy, had taken away the nine cows through the use of threats and had warned him that if asked about the incident he should maintain that someone had sprayed him with nerve gas. Mr N. affirmed that he was afraid of Mr Tsonchev, who had been drunk at the time of their encounter.
15. In his testimony given later, Sergeant Ivanov relayed the following: “We were told that the perpetrator was Slavtcho [Tsonchev] – a Gypsy from the village of Bukovlak whose nickname was Patcho. We knew this person as he was from our criminally active contingent.”
It transpires from all testimonies that Mr Tsonchev's relatives, who were later questioned in relation to the investigation into his death, also knew the police officers and their nicknames.
16. The same police patrol drove back to the village of Bukovlak, where they were joined by two of the cattle owners and all four started searching the village for Mr Tsonchev. They found him at about 2 p.m. at his aunt and uncle's house. According to Sergeant Ivanov's testimony, Mr Tsonchev was “drinking alcohol in the company of other Gypsies”.
17. According to the testimonies of Mr Tsonchev's cousin and Mrs K., an elderly woman who was a neighbour of Mr Tsonchev's relatives, he had spent the late morning and early afternoon of 24 September 1994 digging a ditch at the house of Mrs K. During this time Mr Tsonchev drank four beers. He had apparently also drunk alcohol before that. According to the same testimony and that of Mr Tsonchev's uncle and aunt, he came to their house in the early afternoon, about fifteen minutes before the arrival of the police. The uncle further testified that Mr Tsonchev had not complained of any medical problem and had behaved normally.
18. The police officers invited Mr Tsonchev to come with them. He answered that he wished to finish his beer, to which the police officers agreed. Mr Tsonchev was then placed in the back seat of the police car, between the two cattle owners. The car first drove for several minutes to the home of the cattle owners. According to the statement of one of the police officers, during this short drive the persons in the back of the car “had an argument with the Gypsy but ... did not beat him. They only talked”. The car arrived at the home of the cattle owners, where a crowd of about twenty to thirty persons had gathered. According to police officer Ivanov they wanted to beat up Mr Tsonchev, but he and his colleague did not allow this to happen. The police car then drove to the Pleven police station where not later than 2.30 p.m. Mr Tsonchev was handed over to Sergeant Kostadinov, the officer on duty.
19. Sergeant Kostadinov stated in his testimony to investigator Enchev that he had locked Mr Tsonchev in the arrest cell, as he had been too drunk to be questioned. Mr N., the person who had reported the cattle theft and who had been waiting at the police station to give evidence, claimed that Mr Tsonchev had been seated on a couch in the hallway.
Both Sergeant Kostadinov and Mr N. testified that Mr Tsonchev had been very drunk. According to Mr N. at some point, while seated, Mr Tsonchev had defecated into his trousers.
It appears that Mr Tsonchev had some verbal exchanges with others while at the police station. An internal police note of 20 October 1994 concerning the death of Mr Tsonchev (see paragraph 33 below) stated that he had denied having stolen the cows. The source of this information was not mentioned in the note. Mr N. on his part relayed in his testimony that at some point Mr Tsonchev had been asked questions about the cattle theft, but had replied that he had slaughtered one of the cows.
20. At 5 p.m. Sergeant Kostadinov contacted by telephone police officer Lubenov who arrived at the police station and started questioning the witness, Mr N. According to officer Lubenov, Mr Tsonchev was too drunk to be questioned.
Police officer Lubenov issued an order for the detention of Mr Tsonchev after having consulted the prosecutor on duty, Ms Popova. The order stated that it was issued on 24 September 1994 at 7 p.m.
21. According to the testimony of police officers Kostadinov and Lubenov, at about 7 p.m. Mr Tsonchev “complained that he was not feeling well” whereupon Sergeant Kostadinov contacted the emergency unit of the local hospital for an ambulance.
At the police station were present Mr N. and one of the owners of the stolen cattle, who had arrived at about 7 p.m. to report that the cows had been found earlier in the afternoon. The two men left shortly after 7 p.m., Mr N. apparently having spent the whole afternoon at the police station. The testimony of Mr N. does not contain any reference to the fact that Mr Tsonchev had displayed signs of ill-health. Apparently, the other person present was not questioned in the course of the investigation, as no such testimony has been submitted by the Government.
According to the internal police note of 20 October 1994, all the above events, including Mr Tsonchev's complaint that he did not feel well and the arrival of an ambulance, happened at about 10 p.m. and not at about 7 p.m. The note did not specify the source of this information.
22. According to the testimony of officers Kostadinov and Lubenov, a physician and a paramedic arrived at the police station shortly after the call for an ambulance and examined Mr Tsonchev briefly. The physician allegedly pressed and touched Mr Tsonchev's body, but said that the latter was too drunk to be examined and that he would examine him when he sobered up.
No written record of this medical examination is to be found among the documents in the files, as submitted by the Government, of all authorities which had dealt with the case. During the investigation into the death of Mr Tsonchev apparently no questions were put to the police officers about the identity of the members of the medical team and no further detail was established.
23. At about 11 p.m. a Mr I.P., who had been arrested for violent behaviour, was brought to the police station and detained there.
According to the internal police note of 20 October 1994, Mr I.P. had testified that Mr Tsonchev was drunk. No such testimony can be found in the material submitted by the Government.
24. According to the testimony of Sergeant Kostadinov, the officer on duty, at a certain point during the night Mr Tsonchev started vomiting in the cell where he had been placed. He was allowed to go to the toilet and was not locked up afterwards, but sat on a couch in the hallway. After midnight Mr Tsonchev went to the toilet again. On his way back to the couch, he fell on the floor. Police officer Kostadinov instructed the detained Mr I.P. to help to get Mr Tsonchev seated on the couch. Officer Kostadinov noticed that Mr Tsonchev was sick and he called the hospital emergency unit again. At that point Mr I.P. was released and left the police station.
The internal note of 20 October 1994 specified that Sergeant Kostadinov had seen Mr Tsonchev lying on the ground at about 1.50 a.m. on 25 September 1994. The source of the information about the hour was not mentioned.
25. According to the police officers' testimonies, the same physician and paramedic, whose identities have not been disclosed, arrived at around 2 a.m. and found Mr Tsonchev dead. The doctor did not draw up a death certificate. This was done later by Dr Dorovski, the forensic expert who visited the site with the investigator, Mr Enchev, and who also conducted the autopsy.
26. Immediately after Mr Tsonchev was found dead, the police informed the investigator on duty, Mr Enchev, who arrived at 2.30 a.m. to inspect the scene.
According to the written record of the inspection, the dead body of Mr Tsonchev was found in the hallway of the first floor, southern section, of the Pleven police station. He was seated on a couch, with two hands hanging on both sides of the couch, and the head hanging back. The victim was dressed in a white shirt, wide open at the chest, with unbuttoned trousers and no underwear. The report further states that “[o]n the right side of the face there was a bruise. Because of the dark colour of the skin, there were no other visible injuries on the body”. The investigator finished the inspection at 3 a.m. The inspection record states that a forensic expert, Dr Dorovski, and three other persons were present during the inspection. None of them signed the record, which was only signed by the investigator.
Photographs of the scene were taken during the inspection. The Government have not submitted copies thereof.
27. Dr Dorovski issued death certificate no. 217 on 25 September 1994 indicating “acute anaemia, fat embolism and haematomas on the trunk and the limbs” as the causes of death. He also marked the option “accident” in the column requesting information about the possible circumstances. He left blank the space provided to indicate the time of death.
28. On 25 September 1994 Mr Enchev, regional investigator, issued an order for the opening of a criminal investigation into the death of Mr Tsonchev.
On the same day early in the morning, after 4.25 a.m., investigator Enchev questioned three of the police officers involved, officers Ivanov, Kostadinov and Lubenov. The documents in the files of the authorities which investigated the death of Mr Tsonchev, as submitted by the Government, contain no trace of any questioning of police officer Petranov, who had been together with Sergeant Ivanov during Mr Tsonchev's arrest and his transfer to the police station.
29. The investigator also ordered a biochemical report and a forensic medical report. The forensic medical report was assigned to Dr Dorovski, who had been present at the inspection of the corpse. He was requested by investigator Enchev to answer the following questions:
“1. What traumatic injuries are to be found on the corpse [of Mr Tsonchev]?
2. What was the cause of his death?
3. How were the injuries inflicted?”
30. The forensic expert carried out a post-mortem examination between 8.30 a.m. and 11.30 a.m. on 25 September 1994. He found a haematoma of purple-blue colour under the lower right eyelid; oval bruises of a red-brown colour measuring 2 by 0.5 to 1 cm beneath the lower eyelid and on the opposite side of the face under the cheek bones; one bruise of the same colour on the left side of the lower jaw measuring 0.5 by 0.5 cm; one bruise of a red-brown colour, oblong, measuring 2 by 0.5 cm on the centre of the chin; symmetrical haematomas of a strong purple-blue colour measuring 40 by 18 cm on the front side of both armpits and the upper part of the arms; and three haematomas of purple-blue colour on the left buttock and on the upper back of the left thigh, perpendicular to the femur, measuring 8 to 10 cm by 1.5 to 2 cm.
The laboratory analysis of the blood and the urine of Mr Tsonchev revealed an alcohol content of 0.4 per thousand.
The report concluded:
“The inspection and the autopsy of Slavtcho Tsonchev's corpse discloses a state of acute loss of blood – pale post-mortal spots, anaemic internal organs, massive haematomas on a large surface of the upper limbs and the left buttock, a bruise on the left eyelid, scratches on the face.
The cause of Mr Tsonchev's death was the acute loss of blood resulting from the large and deep haematomas on the upper limbs and the left buttock, as it appears from the autopsy.
The injuries are the result of a blunt trauma. The injuries described as double stripped haematomas on the left buttock resulted from the impact of one or more long hard objects, approximately 2 cm wide. The haematomas in the upper limbs resulted from the impact of – blows by or collision with – a hard, blunt object. They do not have a characteristic shape and it is therefore not possible to identify the object which had caused them. The injuries on the face could have been caused by blows, or could have been the result of falling, as they are located on the protruding parts of the face.
The analysis of the corpse did not disclose any ailment which could be related to the death [of Mr Tsonchev]. No injuries from sharp objects or firearms were found.”
The report placed the time of the death at about ten to twelve hours prior to the autopsy. The report expressed no opinion as to the timing of the injuries which had caused the death. No such question had been put by the investigator.
31. On the morning of 25 September 1994 the applicant, who went to the police station to wait for the release of Mr Tsonchev, was informed that he was dead. When later that day his body was transported to the applicant's house in the village of Bukovlak, the applicant allegedly observed numerous bruises and injuries. Upon her request neighbours called journalists from local newspapers. Mr Tsonchev was buried that evening.
32. On 28 September 1994 the investigator questioned Mr Tsonchev's uncle, aunt and cousin, Mrs K., their neighbour, and Mr N., the person whose cows had been stolen.
33. On 20 October 1994 a colonel from the Directorate of the National Police (Дирекция на националната полиция) in Sofia drew up a note on the death of Mr Tsonchev, apparently in the framework of an internal inquiry conducted within the police department. The note described the events and concluded that the case was within the competence of the investigation authorities. No other document in respect of this police inquiry can be found among the material submitted by the Government.
34. On 21 December 1994 an expert in chemistry issued a report on the analysis of samples of stomach contents as well as liver, kidney and brain tissue taken from the corpse. The purpose of the analysis, as defined by the investigator, had been to search for traces of toxic substances. No such substances were found. Insignificant quantities of aspirin, pain killers and codeine were detected.
35. The material submitted by the Government in response to the Court's request for “all documents contained in the files of all authorities which [had] dealt with the investigation into the death of Mr Tsonchev” does not show any investigation activity after December 1994.
36. In the months following the death of Mr Tsonchev, the applicant regularly visited the office of investigator Enchev to ask for information about the progress of the investigation. In 1995 counsel for the applicant allegedly visited Mr Enchev's office on several occasions and spoke to him on the telephone several times. Mr Enchev allegedly refused to release any specific information. Also, according to the applicant, those of the documents in the investigation file to which counsel was permitted access contained no information concerning any investigation proceedings which may have been conducted after 21 December 1994.
37. On 5 December 1995 counsel for the applicant requested the Pleven Regional Prosecutor's Office (Окръжна прокуратура) to expedite the investigation. As no response was received, on 28 February 1996 counsel filed a request with the Chief Public Prosecutor's Office (Главна прокуратура).
On 19 March 1996 regional prosecutor Popova issued an order suspending the criminal proceedings in the death of Mr Tsonchev. The order stated, inter alia:
“Tsonchev's death [was] caused by a number of internal haemorrhages and acute loss of blood, as a result of deliberate beating. The deceased Tsonchev was detained under a police order for [a maximum period of] twenty-four hours pursuant to the Police Act [Закон за националната полиция], for the theft on 24 September 1994 of nine cows in the vicinity of the village of Bukovlak, Pleven District ...
In the course of the investigation, it proved impossible to determine whether Tsonchev was beaten up in the Pleven police station or outside it. Nor was there any evidence demonstrating whether it was the cattle owners or police officers who did the beating.”
38. In her ensuing appeal of 20 May 1996 to the Chief Public Prosecutor's Office, the applicant argued that the investigation had not been thorough and that there had been significant omissions. She suggested that all evidence indicated that the injuries resulting in the death had been inflicted after the victim had been taken to the police station. She also objected to the significant delays in the investigation.
By an order of 8 July 1996 prosecutor Slavova of the Chief Public Prosecutor's Office granted the applicant's request for the reopening of the investigation. The order stated, inter alia:
“[A] careful reading of the file demonstrates that the investigation [was] not thorough and complete. Not all possible investigations were carried out, for which reason the decision to suspend the investigation is unfounded ...
... it is necessary to establish Mr Tsonchev's particular health problems during his stay at the police station and the findings of the emergency medical team on his state of health. The physician and the paramedic of the emergency unit who examined [Mr Tsonchev] should be found and questioned, and the relevant documents recording the examinations be requested. The reasons why no medical care was offered to the victim should be established (there is no evidence in that respect, at least up to this moment) and, depending on the findings, a conclusion should be drawn as to whether a crime, under Article 123 of the Criminal Code [Наказателен кодекс], was committed. The health condition of Mr Tsonchev prior to his arrest should be ascertained. An additional medical report should be ordered, to be carried out by three forensic experts, which should establish in particular the cause of the death, the manner in which the injuries were inflicted and the time at which the injuries occurred. [This] should be used to identify the person who inflicted the injuries on that same day or on the previous day. The death certificate of Mr Tsonchev should be requested and attached to the file, and [the applicant's] allegation of incorrect documents should be investigated. After all these issues, as well as others that may come up during the investigation, are clarified, a decision on the merits should be taken.”
39. According to the applicant, during the months following the order of the Chief Public Prosecutor's Office, her counsel spoke by telephone, on at least two occasions, with investigator Enchev. In both conversations investigator Enchev allegedly declined to provide any information concerning the investigation. On 6 January 1997 counsel filed a complaint with the Pleven Regional Prosecutor's Office, asserting that no investigation was taking place in defiance of the order of the Chief Public Prosecutor's Office, and requested that investigator Enchev be taken off the case.
Counsel for the applicant received no reply to his written complaint for more than four months. On 22 May 1997 counsel Dimitrov allegedly spoke to investigator Enchev over the telephone. Investigator Enchev informed counsel that he was still the investigator responsible for the case. During the conversation it allegedly became apparent that no investigation had been undertaken since the order of the Chief Public Prosecutor's Office of 8 July 1996. Following this conversation, counsel for the applicant filed another complaint with the Chief Public Prosecutor's Office renewing his request for investigator Enchev to be taken off the case and to expedite the proceedings.
40. On 17 August 1997 counsel received a copy of a letter signed by regional prosecutor Popova and dated 3 June 1997, addressed to the Chief Public Prosecutor's Office. In apparent response to counsel's complaint of May 1997, the letter stated that no further investigation was possible, and that in prosecutor Popova's opinion the investigation should be suspended. According to the prosecutor, “there are no clues as to the identity of the offender and this precludes any further investigation”. She also refused to remove investigator Enchev and expressed her frustration with the numerous complaints raised by counsel Dimitrov.
The investigation has apparently not been suspended as there is no formal order to that effect. In December 1997, in a telephone conversation with counsel Dimitrov, investigator Enchev allegedly confirmed that he was still working on the case.
41. Under Bulgarian law, criminal proceedings can be brought only by the decision of a prosecutor or an investigator (Article 192 of the Code of Criminal Procedure (Наказателно процесуален кодекс)).
In accordance with the law as in force at the relevant time and until 1 January 2000, a decision to terminate pending criminal proceedings was subject to appeal by the victim to the higher prosecutor (Article 237 § 6 of the Code as in force until 1 January 2000). In practice, as in the applicant's case, appeals to the higher prosecutor were also possible against a decision to suspend criminal proceedings (Article 239 of the Code as in force until 1 January 2000). No further remedies existed under the relevant law.
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 14


ITEMID: 001-103813
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: DRIJFHOUT v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, NN cel Baarn alias Nn.p109.v.20081101.1101, yclept Tjitske Drijfhout, claims to be a Netherlands national. She gives an address in Amsterdam. She states her profession as “student”. Her date of birth is given on the application form as “1 January 1900 (as stated by the respondent)”.
2. The applicant was represented before the Court by Mr J. Hemelaar, a lawyer practising in Leiden.
3. , may be summarised as follows.
4. On 30 October 2008, the applicant was arrested on suspicion of having committed criminal offences. Because she refused to identify herself, the applicant was, pursuant to article 61a of the Code of Criminal Procedure (Wetboek van Strafvordering), detained in order for her identity to be established. She was registered as “NN cel Baarn”.
5. On 31 October 2008 she was released and handed over to the aliens’ police (vreemdelingenpolitie) who held her (ophouding), pursuant to article 50 §§ 2 and 4 of the Aliens Act 2000 (Vreemdelingenwet 2000), for similar purposes.
6. The applicant, through her counsel Mr Hemelaar, wrote to the police officer responsible arguing that the applicant was being wrongly held. Appended to the letter were a number of statements of fellow suspects, all of whom claimed to know that the applicant had Netherlands nationality. All mentioned the fact that she had had to prove her identity to be admitted to higher education or employment. One, going by the name of “Roelof Pieters”, claimed to have seen the applicant’s passport. Another, called “Agnes Wijbrandse” in the document, claimed to have seen her driving license. All fellow suspects stated that they had given copies of identity documents to Mr Hemelaar, whom however they had instructed not to circulate them any further.
7. After the initial holding measure had been extended for 48 hours, the applicant was placed in aliens’ detention with a view to her expulsion (vreemdelingenbewaring). In the course of an interview with the aliens’ police on 3 November 2008, she stated among other things that she had Netherlands nationality by birth, held a Netherlands passport and was “presumably” entered in the population register.
8. The same day the applicant appealed against her deprivation of liberty with the Regional Court of The Hague. For the purpose of these proceedings, she was registered as “Nn.p109.v.20081101.1101”, date of birth 01 January 1900, Netherlands nationality. In the statement of grounds of appeal submitted by her counsel it was claimed that she was “a normal Dutch young lady” (een normale Hollandse jonge dame) and still a minor.
9. On 5 November 2008 the applicant lodged a request with the Provisional Measures Judge (voorzieningenrechter) for the suspension of her aliens’ detention. In her written statement she claimed to be of age and to have a job.
10. Also on 5 November 2008 the applicant was released.
11. In the further course of the proceedings of the Regional Court, the applicant admitted to the first name Tjitske. Eventually her appeal was rejected by the Regional Court (rechtbank) of The Hague, sitting in Utrecht, by decision of 2 December 2008.
12. The applicant lodged a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), this time under the name Tjitske Drijfhout.
13. On 15 January 2009, the Administrative Jurisdiction Division dismissed the applicant’s further appeal on summary reasoning.
14. On 15 April 2010, the Court put the following questions to the Agent of the Government:
“1. In relation to Article 35 § 2 (a) of the Convention:
a. Is the person who lodged the above application as Ms Tjitske Drijfhout, the same person who was apprehended (aangehouden), questioned and subsequently put in aliens’ detention on or around 31 October 2008?
2. If so, and in relation to the alleged facts:
a. At what point in time was the applicant apprehended?
b. For how long was the applicant held for questioning (ophouden voor verhoor)?
c. Following her apprehension, did the applicant provide any information as to her identity?
d. If not, was it easily possible for her identity to be established in another way at that time?
e. If her identity could not be established, was the applicant’s apprehension prolonged pursuant to article 61 § 2 of the Code of Criminal Procedure (Wetboek van Strafvordering)?
f. What measures were taken at that time in order to establish the applicant’s identity?
g. Did the applicant provide any information as to her nationality and, if so, in what way has she co-operated in establishing that nationality?
h. On what grounds was it concluded that the applicant fell under the provisions of the Aliens Act (Vreemdelingenwet)?
i. Did the applicant, at the time she was placed in aliens’ detention or subsequently, provide further information allowing her identity or nationality to be established and, if so, how?
j. When was the applicant taken into aliens’ detention and when was she released?
k. Did the aliens’ detention come to an end as a result of the applicant herself demonstrating at any time that the provisions of the Aliens Act 2000 at issue could not be applicable to her?
l. At what point in time and in which manner did the applicant’s identity become clear?”
15. On 18 May 2010 the Agent of the Government replied as follows:
“(...) The Government will – out of necessity – limit itself to a short reply, since it cannot confirm that the applicant is the person who was apprehended, questioned and subsequently put in aliens’ detention on or around 31 October 2008. A female person was indeed apprehended, questioned and put in aliens’ detention on that date, but she was merely known as ‘NN cel Baarn’ and ‘Nn.p109.v.20081101.1101’. Her fingerprints led to a positive identification, but the matching fingerprints were registered under ‘NN onbekend’ (NN unknown), reference number 1602200810. The latter were taken from a female apprehended in the course of a house-squat in the city of Utrecht on 16 February 2008, whose identity remained unknown.
For the sake of completeness, I should add that the person apprehended on or around 31 October 2008 appealed against the measure of aliens detention under the details mentioned above. Her representative informed the District [i.e. Regional] Court that she was also known as ‘Tjitske’. On 2 December 2008, higher appeal against the District Court’s judgment was lodged by ‘Tjitske Drijfhout, alias NN cel Baarn alias Nn.P109.v.20081101.1101’.
Upon receipt of your letter, the aliens’ police in Utrecht checked the information provided in the application. It appears that Tjitske Drijfhout, born in Amsterdam on 1 January 1900 and residing at Van Ostadestraat 55 hs, 1072 JB, Amsterdam, is unknown in the municipal database. There is, however, a person known as Tjitske Drijfhout, born on 1 January 1950. The above mentioned appeal to the District Court was lodged by a person claiming to be of minor age. The age of the apprehended person was estimated between 25 and 35. Under no circumstance could the apprehended person have reached the age of (nearly) sixty, let alone the age of (nearly) hundred-and-ten. Furthermore, the postal code of 1072 JB does not relate to the address provided.
The Government is of the opinion that – since at least part of the personal data submitted by the applicant are proven to be false – there is no reason to assume that the name provided by the applicant would be correct. The applicant’s identity has therefore not been disclosed, as a result of which the application should be declared inadmissible for being anonymous, as stipulated in Article 35 § 2(a) of the Convention. The Government refers to the Court’s decision to that effect in the case of Blondje v. the Netherlands (Appl. No. 7245/09). The fact that – other than the applicant in that case – the applicant in the present case has chosen to provide a somewhat less obvious pseudonym, does not alter that conclusion. ”
16. A copy of this letter was transmitted to the applicant’s representative for comment. In a letter dated 11 August 2010, the latter admitted that 1 January 1950 was not the applicant’s date of birth but did not give any other date. He claimed that the wrong postcode, which differed only slightly from the actual postcode of the address given, was an honest mistake. He further admitted that the person referred to as NN cel Baarn and Nn.p109.v.20081101.1101 in the domestic proceedings was the applicant.
17. On 28 September 2010 Court requested the applicant to establish her identity by submitting a copy of a valid identity document held by her.
18. By letter dated 29 September 2010 the applicant’s representative, Mr Hemelaar, replied as follows (translation):
“In the above-mentioned case you requested me, in your letter of 28 September 2010, for a copy of a valid identity document of the applicant.
I have been informed by the applicant that she cannot comply with that request, because she does not now hold a valid identity document from which her name as stated appears (omdat zij thans niet beschikt over een geldig identiteitsbewijs waaruit haar naam als opgegeven blijkt).
In the Netherlands there is no obligation to have an identity document. People can go through life without an identity document. Especially since the law has been changed and fingerprints are required, there is much resistance against applying for a passport in the circles in which the applicant moves. The situation of being ‘identity document-less’ (identiteitsdocumentloos) now occurs more frequently in those circles than it used to.
On behalf of the applicant, I point out that if the mere fact that the State denies the stated identity were enough to impose a duty of proof on the applicant, the effective exercise of the right of petition [would be] undermined. As you will be aware, especially in cases of aliens’ detention identity documents are usually unavailable. If now the State takes the position that the stated identity is incorrect (as in fact the Netherlands State does in a large number of cases, often on the fallacious reasoning that ‘The stated identity cannot be correct, because if it were correct, the authorities of the country of origin would issue/have issued a laissez-passer’), then no applications at all could be lodged against violations of human rights in cases of aliens’ detention.
In certain cases a Netherlands citizen may in fact be asked for an identity document in specific situations and the failure to produce one may attract penal sanctions (such as a 50 euro fine or an extension of detention on remand) and such sanctions were in fact imposed on the applicant. But a general obligation to purchase a passport or identity card, or possess one, does not exist in the Netherlands.
My client takes the view that she has not submitted an anonymous complaint and also refers to the decision of the Council of State, the highest administrative court in the Netherlands, from which it appears that the Council of State did not base its decision on that fiction either. My client has stated a name and an address (albeit with the wrong postcode). That ought to be sufficient. Unlike in the case of ‘Blondje’ the Council of State has considered this sufficient. It appears incorrect to the applicant that the State should all of a sudden adopt a different position in the present case.”