ITEMID: 001-105788
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF M. AND OTHERS v. BULGARIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 8 (in case of expulsion to Afghanistan);Violation of Art. 13;Non-pecuniary damage - award
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 6. The first applicant, who was born in 1974 and is a citizen of Afghanistan, left Afghanistan on an unspecified date and entered Bulgaria in 1998.
7. On an unspecified date the first applicant unsuccessfully sought asylum in Bulgaria. The terms of his application, the reasons for the refusal and the relevant dates have not been substantiated by the first applicant.
8. Since 1999 the first applicant has attended the Bulgarian Church of God, a Baptist Church in Sofia. In 2001 he was baptised.
9. The first applicant has two children born in Bulgaria in 2003 and 2005 (the third and fourth applicants). Their mother (the second applicant), born in 1982, whom the first applicant married in 2004, is an Armenian national who has had a permanent residence permit in Bulgaria since an unspecified date. According to the first and second applicants, their first child, born in 2003, has no citizenship and their second child, born in 2005, is a national of Afghanistan.
10. In August 2003 the first applicant submitted a second application for asylum. By a decision of 17 March 2004 he was granted refugee status in Bulgaria on the ground that he risked persecution in Afghanistan on account of his conversion from Islam to Christianity. The short decision stated in its relevant part that according to information from the United Nations High Commissioner for Refugees, conversion to Christianity was “punishable by death in all Afghanistan”. No further details were stated.
11. On 6 December 2005 the Director of the National Security Service, at that time a department of the Ministry of the Interior, issued an order withdrawing Mr M.’s residence permit, ordering his expulsion and imposing a ten-year ban on his re-entering Bulgaria on the ground that he was a “serious threat to national security”. Factual grounds were not indicated. The Director relied on an internal document of 24 November 2005 which stated that the first applicant was involved in trafficking of migrants, mainly citizens of Afghanistan, through Turkey and Bulgaria to Serbia, Montenegro, Greece and Hungary. The Director considered that this activity was as such a threat to national security. Also, it could be used for the transit of terrorists and thus discredit Bulgaria internationally.
12. The deportation order of 6 December 2005 did not specify the country to which the first applicant should be deported. It appears that there was no legal requirement to do so and that in practice deportation orders did not indicate the country of destination.
13. The order of 6 December 2005 also stated that the first applicant should be detained pending expulsion.
14. On 12 October 2006 another government agency, the Migration Directorate of the national police, issued an order for the first applicant’s detention pending expulsion. The relationship between that order and the order of 6 December 2005, which also required Mr M.’s detention, has not been clarified.
15. According to the order of 12 October 2006, Mr M.’s detention was necessary since he posed a serious threat to national security, and also in view of the fact that there was no (direct) transport connection between Bulgaria and the first applicant’s country of origin, which prevented the immediate execution of the measure against him.
16. The orders of 6 December 2005 and 12 October 2006 were both immediately enforceable.
17. On 18 October 2006 the first applicant was arrested and detained at the Centre for Interim Detention of Aliens. He remained there until his release on 3 July 2009 (see paragraph 43 below).
18. The first applicant has not been deported.
19. According to a statement by the Director of Migration, prepared for the present proceedings and submitted in 2009, Mr M.’s deportation was impeded by the fact that he did not have a document valid for international travel, the “lack of transport connections” and his refusal to cooperate. The Director further explained, without providing details, that several possible destinations for his expulsion had been considered and that unsuccessful attempts had been made to remove the obstacles to the execution of the deportation order.
20. At least until April 2007, the first applicant did in fact have a document valid for international travel. He possessed a special refugee passport, issued by the Bulgarian authorities on 16 December 2004, which was valid for international travel until 6 April 2007. The existence of this document, including its number and date of issue, was mentioned in the deportation and detention order of 6 December 2005. It is unclear whether the first applicant presented his refugee passport to the authorities or concealed it, as suggested by the Government.
21. In February 2007 the Migration Directorate of the police wrote to the Embassy of Afghanistan in Sofia requesting that an identity document be issued to Mr M. It reiterated the request in September 2008 and January 2009. By letter of 30 January 2009 the Embassy of Afghanistan informed the Migration Directorate that it was unable to issue the first applicant with a passport since he had expressly stated at a meeting with Embassy representatives that he did not want to have a passport issued and did not want to return to Afghanistan. In those circumstances, the Embassy would not participate in the first applicant’s forced expulsion.
22. In a letter of 14 October 2008 to the first applicant’s representative, in reply to his request for release, the Director of the National Security Agency stated that Mr M.’s detention continued to be necessary despite the Court’s interim measures decision (see paragraph 4 above). That was so because:
“[I]n accordance with the document from the [Court], the [first applicant] should not be deported to Afghanistan. In execution of the expulsion order, he may be deported either to his country of origin or to a third country, where there is no danger for his life and health. The fact that the [deportation] order has not been enforced is the result of the obstinate conduct of [Mr M.] manifested by his frustrating and hampering his deportation from Bulgaria.”
23. On 20 October 2006 the first applicant appealed to the Sofia City Court against the order of 6 December 2005 of the National Security Service and requested a stay of enforcement pending the determination of his appeal. In these proceedings he was legally represented.
24. He argued, inter alia, that mere suppositions, not facts, had served as the basis for the impugned measures, there being no evidence of unlawful activities and no criminal proceedings having been brought against him. He also submitted that the expulsion order was in breach of the prohibition to deport a person to a country where his life was under threat. The first applicant further argued that his expulsion interfered with his right to respect for his family life. He also challenged the order for his detention.
25. The defendant, the National Security Service, submitted a copy of the internal document of 24 November 2005 which had served as the basis for the expulsion order (see paragraph 11 above). It also filed submissions, maintaining, inter alia, that the impugned order did not contravene section 44a of the Aliens Act.
26. On an unspecified date Mr M.’s representative wrote to the Migration Directorate insisting that the deportation order should be revoked in view of Mr M.’s refugee status in Bulgaria.
27. By letter of 1 February 2007 the Director of Migration replied that the order was lawful. He stated, inter alia:
“In accordance with section 67(3) of the Refugees and Asylum Act, execution of the [deportation order] should not be suspended where there are grounds to believe that the alien seeking or having obtained protection imperils national security.
In accordance with Article 33 of the United Nations Convention relating to the Status of Refugees, ‘no Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’.
The benefit of this provision cannot, however, be claimed by a refugee about whom there are grounds to believe that he imperils the national security of the country where he is ...”
28. In October 2007, as a result of legislative amendments, the examination of the first applicant’s appeal against the order of 6 December 2005 fell within the competence of the Supreme Administrative Court.
29. On 30 October 2007 a three-member panel of the Supreme Administrative Court refused the first applicant’s request for a stay of enforcement. The court devoted no attention to his allegations about the risk of ill-treatment in Afghanistan and his request to stay the execution of the deportation order but stated merely that the alleged interference with family life did not warrant a stay of enforcement of the order for his detention. That decision was amenable to appeal before a five-member panel of the Supreme Administrative Court. It is unclear whether the first applicant appealed.
30. By a judgment of 9 June 2008 the Supreme Administrative Court dismissed the first applicant’s appeal against his expulsion and detention.
31. The court noted that an internal Ministry of the Interior document dated 24 November 2005 and submitted by the defendant stated that Mr M. had acted in a way that presented a threat to national security. The court did not accept the first applicant’s arguments that it should engage in detailed examination of the evidence allegedly supporting the view of the Ministry that he posed a threat to Bulgaria’s national security. It stated:
“[The document of 24 November 2005] must be regarded as an official certification which contains data collected by the National Security Service in the exercise of its functions. It has been issued in accordance with section 33 of the Protection of Classified Information Act. It contains evidence and data which have been assessed by the relevant administrative authority as sufficient grounds for ordering [Mr M.’s deportation] for having engaged in unlawful activities threatening national security... It follows that the impugned order is lawful.”
32. The court rejected the first applicant’s argument that the deportation order should be revoked since he lived in Bulgaria by virtue of his refugee status. The court stated that the domestic provisions regulating deportation did not provide for discretion and their interpretation could not vary on the basis of such factors as residence status.
33. The court further noted that Mr M. had been granted refugee status on the basis of his allegation that he had converted from Islam to Christianity and was afraid of persecution in Afghanistan. The court observed that there existed evidence of a danger to the first applicant’s health and life in relation to his conversion. It found, however, that this danger did not stem from the Afghan State and that the applicant had not provided evidence that the authorities would be unable to protect him. Therefore, section 44a of the Aliens Act, which reflected the guarantees of Articles 2, 3 and 5 of the Convention, did not apply.
34. As regards the order for the first applicant’s detention, the Supreme Administrative Court found that it was not amenable to judicial review as it concerned a measure undertaken in the execution of the expulsion order and not a separate administrative decision.
35. On 26 October 2006 the first applicant appealed to the Sofia City Court against the detention order of 12 October 2006 issued by the Migration Directorate.
36. In these proceedings, on 21 December 2006 the Sofia City Court refused the first applicant’s request for a stay of enforcement of the detention order. It found, inter alia, that there was no evidence that its immediate enforcement would cause irreparable harm. The refusal was upheld by the Supreme Administrative Court on 13 March 2007.
37. In the proceedings on the merits, the first applicant argued that his lengthy detention was unlawful and in breach of Article 5 § 1 of the Convention and that it disproportionately affected his family life.
38. By a judgment of 2 April 2009 the Sofia City Court found that the order of 12 October 2006 for the first applicant’s detention had been signed by an unauthorised official and declared it null and void. The court held, however, that it did not have the power to order the first applicant’s release. No appeal was lodged against that judgment. It became final on 2 June 2009.
39. On 15 May 2009 the Aliens Act was amended with the aim of incorporating into Bulgarian law Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals.
40. Under the new section 46a of the Aliens Act, the director of the detention centre for aliens is required to submit to the relevant court a list of persons who have been detained for more than six months and the court must decide of its own motion on their continued detention or release.
41. In accordance with this new procedure, the situation of a number of aliens, including the first applicant, was reviewed by the Sofia Administrative Court in a decision of 12 June 2009. The decision was presented to the first applicant to read but he was not given a copy of it.
42. On 30 June 2009 the Director of the Migration Directorate of the national police, referring to the decision of the Sofia Administrative Court of 12 June 2009, issued an order which revoked the order of 12 October 2006 for the first applicant’s detention and imposed on him the obligation to report daily to the local police station. The judgment of the Sofia City Court of 2 April 2009 (see paragraph 38 above) was not mentioned.
43. The order of 30 June 2009 was served on the applicant on 3 July 2009 and he was released on the same day.
44. By a decision of 5 October 2009 the third and fourth applicants were granted refugee status in Bulgaria. The grounds for that decision have not been communicated to the Court.
45. The relevant domestic law and practice are set out in detail in the Court’s judgment in the case of Raza v. Bulgaria (no. 31465/08, §§ 30-42, 11 February 2010). The following additional provisions of domestic law are relevant.
46. Under section 46(3) of the Aliens Act, deportation orders issued on national security grounds do not indicate the factual grounds for imposing the measure.
47. Under section 44a of the Aliens Act, deportation orders may not be executed by way of deportation to a country where there exists a risk to the person’s life or a risk of ill-treatment.
48. A similar prohibition is spelled out in section 4(3) of the Refugees and Asylum Act, in respect of persons who have obtained protection under the Act or have entered Bulgaria to seek such protection. Section 4(4) provides, however, that the right not to be returned to a country where the person concerned risks ill-treatment or death cannot be invoked by aliens, including refugees, about whom there are grounds to believe that they imperil national security. There is no reported case-law under section 4(4).
49. Under section 67(2) of the Refugees and Asylum Act, where the person to be deported has been granted refugee status, the deportation decision is to be annulled. In accordance with section 67(3) of the Act, however, the above does not apply where there are grounds to believe that the person concerned imperils national security or that, having been convicted of a serious criminal offence, he or she may pose a threat to public order. There is no reported case-law under section 67(3).
50. It follows from sections 42(1), 44(4)(3) and 46(4) of the Aliens Act that deportation orders issued on national security grounds are immediately enforceable and that the lodging of a judicial appeal does not suspend their enforcement. Enforcement may be postponed only by a decision of the relevant administrative body in the event of legal or technical obstacles hindering immediate execution (section 44b(1)).
51. In accordance with Article 166 § 2 of the Administrative Procedure Code, in pending appeal proceedings the interested party may request a stay of execution of an administrative decision on grounds of, inter alia, risk of significant or irreparable harm. In some of its decisions the Supreme Administrative Court has held that this does not apply with regard to deportation orders issued on national security grounds. That was so because immediate enforcement was provided for ex lege, in the Aliens Act, and the courts did not have the power to impose a stay of enforcement (see опред. № 1147.от 27.01.2009г. на ВАС по адм.д. № 393/2009г., where a request for a stay of deportation on the ground that the person concerned was seriously ill was refused).
52. In an interpretative decision of 8 September 2009 the Supreme Administrative Court revised its approach and stated that Article 166 § 2 of the Administrative Procedure Code applied even where the immediate enforceability of administrative decisions was provided for ex lege, with the exception of instances where the law did not provide for any judicial review. There is no reported case-law confirming that the interpretative decision also concerned the stay of enforcement of deportation orders on national security grounds.
53. Under section 48 of the Regulations for the implementation of the Aliens Act, in cases where deportation orders are enforced through removal by air, the person concerned shall be escorted by officers of the aliens’ control services to his country of citizenship or another country of his choice to which he may be admitted.
VIOLATED_ARTICLES: 13
5
8
VIOLATED_PARAGRAPHS: 5-1
5-4


ITEMID: 001-114463
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF BODNÁR v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: András Sajó;Paulo Pinto De Albuquerque
TEXT: 4. The applicant was born in 1968 and lives in Debrecen.
5. On 10 April 1992 the applicant brought a civil action against the predecessor of the Hungarian National Fiduciary Private Limited Company (“ÁPV Rt”) before the Budapest Regional Court.
6. The case was transferred to the Pest Central District Court. It appointed an expert, who filed an opinion in January 1995. On 4 November 1996 the court gave judgment, which was quashed by the Budapest Regional Court on 12 December 1997.
7. In the resumed proceedings the District Court delivered its judgment on 27 April 1998. This decision was quashed on appeal on 19 January 2000.
8. The District Court’s judgment of 14 July 2004 was again quashed by the Regional Court on 28 October 2005.
9. Finally the Budapest Regional Court, acting as a second-instance court, gave judgment on 25 April 2007.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98136
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BULYCHEVY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicants were born in 1956, 1956 and 1983, respectively, and live in Lipetsk.
5. The applicants are a married couple and their son.
6. The applicants lived in a flat that in 1992 became unsuitable for living owing to break-down of the sewage system. In July 1993 the first and second applicants, also acting on behalf of their then underage son, brought court proceedings seeking housing from the Lipetsk Town Council (“Town Council”). By judgment of 21 October 1999 the Sovetskiy District Court of Lipetsk (“District Court”) acknowledged that the applicants' flat was unsuitable for living and ordered the Town Council to provide them with a “comfortable housing suitable for four persons in compliance with the applicable legislation”.
7. On 17 January 2000 the Lipetsk Regional Court, acting on appeal, amended the judgment. It specified, in particular, that “the flat should be in a brick building situated within the town centre”. The appeal court also awarded each applicant 1,000 Russian roubles (RUB) in non-pecuniary damage.
8. On an unspecified date the applicants submitted a writ of execution to the Sovetskiy District Bailiffs' Service of Lipetsk. On 28 February 2000 an authorised bailiff opened enforcement proceedings.
9. Further to the applicants' complaint, on 9 April 2001 the District Court declared unlawful the bailiff's failure to enforce the judgment.
10. On 25 September and 2 October 2001 the bailiff and officials of the Town Council inspected two municipal flats and considered them eligible to be offered to the applicants. The latter however refused both flats.
11. By letter of 28 August 2003 the bailiff informed the applicants that the Town Council had allocated funds for purchasing a flat for them.
12. In November 2003 the Council offered to the applicants to buy a flat or, in the alternative, to pay compensation.
13. In March 2004 the Council made two new offers. On 24 June 2004 the applicants accepted resettlement into one of those flats. On 27 August 2004 they obtained an occupancy voucher and the enforcement proceedings were terminated.
14. On 6 September 2004 the applicants received keys to the flat. On the same day the flat was inspected by the housing committee and the applicants signed the inspection record.
15. Thereafter, the applicants complained to various authorities that the judgment of 21 October 1999 had not been properly enforced because repair works were still required. Those were carried out in August 2005.
16. On an unspecified date the applicants brought a court action against the Ministry of Finance and the Ministry of Justice for the loss of profit and compensation for non-pecuniary damage incurred through the belated enforcement of the judgment of 21 October 1999. By a judgment of 23 August 2005 the Taganskiy District Court of Moscow dismissed their action. It found, in particular, that the flats offered to the applicants in September and October 2001 had met the requirements of the housing legislation. Therefore, their refusal to accept those offers had been ungrounded and the delays in the enforcement occurred afterwards could not be imputed to the bailiffs' service. On 18 July 2006 the Moscow City Court upheld the said judgment on appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111231
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: WIATER v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The applicant, Mr Edward Wiater, is a Polish national, who was born in 1931 and lives in Szczecin. He was represented before the Court by Mr B. Sochański, a lawyer practising in Szczecin.
3. In 1977 the applicant was initially diagnosed with narcolepsy (chronic sleep disorder). That diagnosis was confirmed in 1987. Narcolepsy is characterised by excessive sleepiness and sleep attacks. Since 1988 the applicant has been followed by a psychiatrist and received pharmacological treatment. In the following years the applicant was diagnosed with diabetes and hypertension (1989), sleep apnoea (1996) as well as epilepsy (1998). He was hospitalised following an epileptic seizure (1998 and 2003) and a cardiac arrest (1999).
4. In 1998 a psychiatrist treating the applicant advised the applicant to take Vigil (Modafinil) which, in contrast to previous drugs, had positive effects on his condition. The drug was initially provided by a pharmaceutical company free of charge to the applicant’s doctor. Subsequently, the drug became available in pharmacies but was not listed on the Ministry of Health’s register of refunded drugs. The applicant could buy the drug at his own expense.
5. In September 2003 the applicant was admitted to the Sleep Disorder Clinic at the Nowowiejski Hospital in Warsaw. He was diagnosed with narcolepsy and breathing difficulties while sleeping. On the certificate dated 26 September 2003 Doctor MS stated that Vigil (Modafinil) was the basic drug used in the treatment of narcolepsy.
6. In July 2006 the applicant underwent a bypass surgery in the Pomorska Medical Academy. In 2009 he was hospitalised for pneumonia.
7. On 3 December 2003 the applicant requested the Szczecin Branch of the National Health Fund (“the NHF”) to refund him the cost of the drug. He submitted that he suffered from narcolepsy as well as from diabetes. He also had a stroke. He had frequently lost consciousness and was hospitalised on account of those ailments. He claimed that the psychiatrists and neurologists treating narcolepsy were of the view that Vigil (Modafinil) was the only effective drug for his condition. He submitted opinions of two doctors from private practice to that effect. The applicant was not able to afford to buy the drug and submitted that there was no generic drug available.
8. By a letter of 22 December 2003 the applicant was informed that the NHF refunded the cost of drugs in accordance with the Ordinance of the Minister of Health on the register of drugs which were distributed free of charge, against the payment of a lump sum or against a partial payment (“the Ordinance”). The contents of the register of the refunded drugs and related matters were determined by the Minister of Health. The applicant was informed that there was no possibility to refund the cost of those drugs which were non-refundable according to the Ordinance. Lastly, he was advised that he could be assisted by the social services.
9. On 20 January 2004 the applicant requested the Forensic Medicine Department of the Pomorska Medical Academy to prepare an opinion as to whether Vigil (Modafinil) could be considered a life-saving drug in his case. In the opinion of 30 April 2004 Doctor EK, having regard to the applicant’s medical history, replied in the affirmative. She noted that Vigil (Modafinil) was the basic drug used in the treatment of narcolepsy and that it had improved the applicant’s condition. The expert established that the first attacks of narcolepsy had been diagnosed in 1977 and that from 1988 he has been under psychiatric care.
10. It appears that on an unspecified date in 2004 the applicant again requested to be refunded the cost of the drug. On 12 August 2004 the NHF informed him that according to the opinion of the regional consultant in neurology, Professor PN, Vigil (Modafinil) was not a drug routinely used in the treatment of narcolepsy and that it was not a life-saving drug. Furthermore, the limited financial resources of the Regional Branch of the NHF did not permit the refunding of all expensive drugs which were fully at the charge of a patient.
11. In an opinion dated 20 August 2004, which appears to have been commissioned by the applicant, Doctor JW noted that Vigil (Modafinil) was the only tested and widely used drug in the treatment of narcolepsy.
12. On 23 August 2004 the applicant sued the Szczecin Branch of the NHF for reimbursement of expenses incurred in purchasing Vigil (Modafinil) between November 2003 and August 2004 (PLN 4,690.21). In support of his claim he relied on the opinions of 20 January and 20 August 2004. The Szczecin District Court ordered that an opinion be prepared with a view to determining whether Vigil (Modafinil) was a lifesaving drug given the applicant’s condition.
13. The opinion was submitted to the court on 17 November 2005. The expert established that the applicant suffered from narcolepsy (he had been diagnosed in the 1980s), sleep behaviour disorder and breathing difficulties in sleep. In addition, the applicant suffered from hypertension, ischaemic heart disease, type 2 diabetes and epilepsy. The applicant’s sleep disorders increased the risk of strokes. The expert concluded that the applicant’s narcolepsy together with his numerous ailments required that he was treated with Vigil (Modafinil), which in his case was a life-saving drug. The conclusions of the opinion were similar to those in the opinion of 20 April 2004.
14. In its letter of 7 October 2004 the Regional Branch of the NHF again informed the applicant that, despite the positive opinion of the regional consultant in neurology, there was no possibility of individual reimbursement of the cost of the drug which remained fully at the patient’s charge since Vigil (Modafinil) was not a life-saving drug and narcolepsy was not a fatal condition. The drug Vigil (Modafinil) was not listed on the Minister of Health’s register of refunded drugs and thus it was to be purchased exclusively at the expense of the patient. He was further informed that persons in a difficult financial situation could have recourse to social services.
15. On an unspecified date the Civil Section of the District Court transmitted the case to the Labour and Social Security Section of the court, since the latter instance was competent to hear the case. The Labour and Social Security Section of the District Court found that it did not have jurisdiction to hear the case since it examined appeals against administrative decisions, and in the applicant’s case the NHF had not issued any such decision. On 29 May 2006 the District Court found that it did not have jurisdiction to hear the case and transmitted it to the Szczecin Branch of the NHF for a decision in respect of the reimbursement of the cost of the therapy.
16. On 27 January 2006 the applicant requested the Szczecin Branch of the NHF to reimburse him for the cost of the drug. In reply, he was informed that no decision could be given until the delivery of a decision in the case pending before the District Court.
17. On 17 May 2006 the applicant submitted a similar request. On 12 July 2006 the NHF refused his request. It found that Vigil (Modafinil) was neither included on the relevant register of refunded drugs of the Minister of Health nor on the separate register of specific serious diseases and drugs which could be refunded in the treatment of those diseases. The drugs which were not listed in those registers were nonrefundable and remained fully at the patient’s charge. The applicant was further advised that the regional branch of the NHF could, in necessary cases, authorise non-standard medical treatment at the request of the Szczecin Psychiatric Clinic, the establishment where he was treated.
18. The applicant appealed, arguing, inter alia, that he was unable to afford to buy Vigil (Modafinil).
19. On 3 August 2006 the President of the NHF upheld the contested decision. He noted that Article 68 § 2 of the Constitution provided that citizens were ensured equal access to health care services, financed from public funds. However, the conditions and the scope of the provision of services should be established by statute. At the material time those issues were regulated by the 2004 Health Care Services Financed from Public Funds Act (“the 2004 Act”). In accordance with the Act, the NHF was to refund to a pharmacy the price of a drug which appeared on the list of fully or partially refunded drugs.
The Act introduced the rule that patients were to pay a part of the price of drugs sold by pharmacies and designated the Minister of Health as the competent authority to determine the scope of the partial payment as well as of the financing from public funds. It was noted that the NHF had no discretion to exercise in this respect. The Minister of Health was competent to establish the list of drugs which were to be fully or partially refunded in his two ordinances of 17 December 2004 and the drug Vigil (Modafinil) did not appear on that list. Lastly, it was noted that the refund of the cost of a drug by the NHF was only allowed in cases of administering the drug in the framework of the provision of health services by health establishments to patients in accordance with contracts concluded between the NHF and those establishments.
20. The applicant filed a complaint against that decision with the Warsaw Regional Administrative Court. He alleged that the refusal to refund the cost of Vigil (Modafinil) amounted to a violation of Articles 32 (equality), 38 (protection of life) and 68 of the Constitution (equal access to health care services) and a breach of section 15 and 65 of the 2004 Act. He pointed out that for thirty years he had been suffering from a rare neurological disease and that according to medical expert opinions Vigil (Modafinil) was a life-saving drug in his case. Furthermore, the cost of the monthly intake of the drug was in the region of PLN 1,000, while the joint income of the applicant and his wife (both retired) was PLN 2,685.40 and they were already spending monthly PLN 700 on various medications.
21. On 4 December 2006 the Warsaw Regional Administrative Court declared the decision of the President of the NHF and the preceding decision null and void for the lack of competence on the part of that authority to deal with the matter. It noted that the 2004 Act did not envisage the possibility that a patient could seek reimbursement of the cost of medical treatment. Such a possibility was reserved exclusively for entities providing health care services. The court observed that there was no legal basis for the NHF’s decision in respect of the refund for a particular drug. It appears that the applicant did not lodge an appeal with the Supreme Administrative Court.
22. On 14 February 2007 the applicant again requested the President of the NHF to refund the cost of Vigil (Modafinil). In his reply of 31 October 2007 the Director of the Regional Branch of the NHF informed the applicant that, in accordance with the Regional Administrative Court’s judgment, the NHF was not competent to issue decisions in respect of the refund of costs of health care services.
23. On 3 July 2007 the Constitutional Court declined to examine the applicant’s constitutional complaint.
24. On 18 January 2008 the applicant again sued the Regional Branch of the NHF for reimbursement of expenses incurred in purchasing the drug. On 25 January 2008 the Szczecin District Court rejected his statement of claim, having found that the branch of the NHF did not have standing in the proceedings.
25. On 21 April 2008 the applicant unsuccessfully requested the President of the NHF to refund the cost of the drug. His request was forwarded to the Minister of Health as the competent authority to list a drug on the register of drugs which were partially or fully refunded.
26. On 20 June 2008 the Ministry of Health informed the applicant that the company making Vigil (Modafinil) had not applied for the listing of the drug on the register of refunded drugs and therefore the Ministry could not act on the matter.
27. By a decision of 24 June 2008 the Szczecin Branch of the NHF, acting in line with the Warsaw Regional Administrative Court’s judgment, discontinued the proceedings in respect of the applicant’s request for refund.
28. It appears that the applicant continues to buy Vigil (Modafinil) at his own expense.
29. Article 68 of the Constitution reads in so far as relevant:
“1. Everyone shall have the right to have his health protected.
2. Equal access to health care services, financed from public funds, shall be ensured by public authorities to citizens, irrespective of their material situation. The conditions for, and scope of, the provision of services shall be established by statute.
3. Public authorities shall ensure special health care to children, pregnant women, handicapped people and persons of advanced age.”
30. The 2004 Act defined the conditions for and the scope of health care services financed from public funds. It stipulated that the Minister of Health shall set out in an ordinance the list of basic and complementary drugs and the rules concerning payment for those drugs (section 36.5) and the list of drugs in respect of certain serious conditions which were prescribed free of charge, against payment of a lump sum or against a partial payment (section 37.2)


ITEMID: 001-57972
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF DOORSON v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Lack of jurisdiction (new complaint);No violation of Art. 6-1+6-3-d
JUDGES: N. Valticos
TEXT: 7. The applicant is a Netherlands citizen born in 1958 and resident in Amsterdam.
8. In August 1987 the prosecuting authorities decided to take action against the nuisance caused by drug trafficking in Amsterdam. The police had compiled sets of photographs of persons suspected of being drug dealers. These were shown to about 150 drug addicts in order to collect statements from them. However, following a similar action in 1986 when drug addicts who had made statements to the police had been threatened, it turned out that most of those to whom photographs were shown were only prepared to make statements on condition that their identity was not disclosed to the drug dealers whom they identified. In each set of photographs shown there was one of a person known to be innocent. Statements made by persons who identified this photograph as that of a drug dealer were regarded as unreliable and discounted.
9. In September 1987 the police received information from a person referred to by the police under the code number GH.021/87 that the applicant was engaged in drug trafficking. The applicant's identification photograph, which had been taken in 1985, was thereupon included by the police in the collection of photographs shown to drug addicts.
10. A number of drug addicts subsequently stated to the police that they recognised the applicant from his photograph and that he had sold drugs. Six of these drug addicts remained anonymous; they were referred to by the police under the code names Y.05, Y.06, Y.13, Y.14, Y.15 and Y.16. The identity of two others was disclosed, namely R. and N.
11. On 12 April 1988 the applicant was arrested on suspicion of having committed drug offences. It appears that he was subsequently taken into detention on remand.
12. On 13 April 1988 the applicant was shown the photograph made of him by the police and recognised it as a photograph of himself.
13. A preliminary judicial investigation (gerechtelijk vooronderzoek) was opened, during which the applicant's lawyer submitted a request for an examination of the witnesses referred to in the police report in the applicant's case. The investigating judge (rechter-commissaris) accordingly ordered the police to bring these witnesses before him on 30 May 1988 between 9.30 a.m. and 4 p.m. The applicant's lawyer was notified and invited to attend the questioning of these witnesses before the investigating judge.
14. On 30 May 1988 the applicant's lawyer arrived at the investigating judge's chambers at 9.30 a.m. However, after an hour and a half had elapsed and none of the witnesses had appeared, he concluded that no questioning would take place. He therefore left for another appointment. According to the lawyer he did so with the consent of the investigating judge, Judge M., who had promised him that if the witnesses should turn up later that day, they would not be heard but would be required to appear for questioning at a later date so that he would be able to attend. After the lawyer had left, two of the eight witnesses referred to in the police report turned up and were heard by the investigating judge in the absence of the lawyer, witness Y.15 at about 11.15 a.m. and witness Y.16 at about 3 p.m. From an official record of his findings (proces-verbaal van bevindingen) drawn up by Judge M. on 17 June 1988, it appears that Y.15 and Y.16 did not keep a promise to return for further questioning on 3 June.
15. On 19 July 1988 the applicant appeared before the Amsterdam Regional Court (arrondissementsrechtbank) on charges of drug trafficking. At the prosecutor's request, the court decided to adjourn its examination until 25 August 1988.
16. On 25 August 1988 the Regional Court resumed the hearing. As the Regional Court was differently composed, it recommenced its examination of the case. The applicant's lawyer requested the court to refer the case back to the investigating judge for an examination of the six anonymous witnesses and to hear the two named witnesses R. and N. itself. The court refused the first request but ordered the witnesses R. and N. to be brought before it and adjourned the hearing until 4 October 1988. The Regional Court also refused a request made by the defence for the applicant's detention on remand to be terminated or else suspended, being of the opinion that the applicant was still under suspicion and that the reasons for which the detention on remand had been ordered were still valid. One of the judges sitting on this occasion was a certain Judge Sm.
17. On 29 September 1988 the applicant's lawyer submitted to the Regional Court a number of documents including the judgment of the European Court of Human Rights in the case of Unterpertinger v. Austria (judgment of 24 November 1986, Series A no. 110) and the report of the European Commission of Human Rights in the case of Kostovski v. the Netherlands (report of 12 May 1988, application no. 11454/85).
18. On 4 October 1988 the Regional Court resumed the proceedings. In view of the fact that all three judges of the Regional Court had been replaced, the court again recommenced its examination. The defence again made a request to have the six anonymous witnesses examined, which was refused. The named witness N. appeared, R. did not. Both the prosecution and the defence were given the opportunity to put questions to N. Asked to identify the applicant, N. stated that he did not recognise him. On being shown the applicant's photograph, he said that he recognised it as that of a man who had given him heroin when he was ill. However, towards the end of his examination he stated that he was no longer quite sure of recognising the man on the photograph; it might be that the man who had given him the heroin only resembled that man. He further alleged that when shown the photographs by the police, he had only identified the applicant's photograph as that of a person from whom he had bought drugs because at the time he had felt very ill and had been afraid that the police might not give him back the drugs which they had found in his possession. The court adjourned its further examination until 29 November 1988, ordering the appearance of the witnesses R. and N., and - on a motion of the defence - of L., an expert in the field of problems related to drug trafficking and abuse. It ordered the witness R. to be brought before it by the police.
19. On 29 November 1988 the Regional Court resumed its hearing.
The expert L. appeared and was questioned before the court. He doubted whether statements such as that made by the drug addicts in the present case could be qualified as voluntarily made. In any event such statements were in his opinion highly unreliable because before photographs were shown all kinds of promises were made so that when it came to identifying individuals the persons concerned knew exactly what was expected of them by the interrogator, whether police officer or judge.
The witnesses N. and R. did not appear, the latter despite the order that he be brought before the court by the police. The defence thereupon withdrew its request to have R. and N. examined before the court in order to avoid a further adjournment of the hearing which would mean prolonging the applicant's detention on remand.
The applicant's lawyer gave a critical analysis of the statements made by the anonymous witnesses. He remarked moreover that there were no valid reasons for preserving their anonymity as it had not been demonstrated that the applicant had ever taken reprisal action or was of a violent disposition.
20. On 13 December 1988 the Regional Court convicted the applicant of drug trafficking and sentenced him to fifteen months' imprisonment. In so doing it took into consideration the fact that the applicant had previously been convicted of similar offences.
21. The applicant appealed to the Amsterdam Court of Appeal (gerechtshof).
22. By letter of 6 November 1989 the applicant's lawyer requested the procurator general (procureur-generaal) of the Court of Appeal to summon the anonymous witnesses, the named witnesses N. and R. and the expert L. for questioning at that court's hearing, which was scheduled on 30 November.
The procurator general replied by letter of 22 November that he would summon N., R. and L. but not the anonymous witnesses as he wished to preserve their anonymity. If necessary, the Court of Appeal could decide at the hearing to order these witnesses to be heard in camera by the investigating judge.
23. On 24 November 1989 the applicant's lawyer wrote to the president of the Court of Appeal requesting that the six anonymous witnesses be summoned. In support of this request he pointed out that neither his client nor he had ever had the opportunity to question these witnesses. In this context he referred to the judgment of the European Court of Human Rights in the case of Kostovski v. the Netherlands, which had been delivered four days earlier (judgment of 20 November 1989, Series A no. 166).
24. The hearing of the Court of Appeal on 30 November 1989 was attended by the expert L. but none of the witnesses appeared. The applicant therefore requested that the hearing be adjourned so that they might be summoned for questioning in open court at a later date or, in the alternative, by the investigating judge. The Court of Appeal decided to verify the necessity of maintaining the anonymity of the witnesses and referred the case back to the investigating judge for this purpose. The Court of Appeal also requested the investigating judge to examine the witnesses - after deciding whether their anonymity should be preserved or not - with respect to the facts imputed to the applicant, and to offer his lawyer the opportunity both to attend this examination in the room in which it would take place and to put questions to the witnesses. The court also expressed the wish that the series of photographs used by the police should, if still available, be added to the file. Finally, it ordered the appearance of the witnesses R. and N. and the expert L. before it and adjourned the hearing sine die.
25. On 14 February 1990 the investigating judge heard the witnesses Y.15 and Y.16 in the presence of the applicant's lawyer. The investigating judge was Judge Sm. of the Amsterdam Regional Court, who had taken part in the hearing on 25 August 1988 as a member of the trial court and in the decisions taken on that occasion (see paragraph 16 above).
The lawyer was given the opportunity to put questions to the witnesses but was not informed of their identity. The identity of both witnesses was known to the investigating judge.
Both witnesses expressed the wish to remain anonymous and not to appear in court. Witness Y.16 stated that he had in the past suffered injuries at the hands of another drug dealer after he had "talked" and feared similar reprisals from the applicant. Witness Y.15 stated that he had in the past been threatened by drug dealers if he were to talk. He further stated that the applicant was aggressive. The investigating judge concluded from the reasons given that both witnesses had sufficient reason to wish to maintain their anonymity and not to appear in open court.
Y.15 and Y.16 were extensively questioned, both by the investigating judge and by the applicant's lawyer. The latter inquired, inter alia, into their reasons for testifying against a dealer who they both said sold good quality drugs and asked them whether they were being paid for giving evidence. Neither Y.15 nor Y.16 refused to answer any of the questions put by the applicant's lawyer. They both stated that they had bought drugs from the applicant and that they had seen him selling drugs to others. They again identified him from the police photograph and gave descriptions of his appearance and dress.
Y.16 stated in addition that the police had rehearsed his previous statement with him before taking him to see the investigating judge.
The official record of the examination of Y.15 mentions that the investigating judge, having come to the conclusion that Y.15 had good reasons for not wishing to have his identity revealed or to be heard in open court, placed him on oath; a similar statement is lacking in the official record of the examination of Y.16.
26. On 20 March 1990 Judge Sm. drew up an official record of her findings containing information obtained from the police with regard to witnesses Y.05, Y.06, Y.13 and Y.14. Y.06, who was a foreign national, had been expelled from the Netherlands. Y.13's place of residence was unknown. Y.05 and Y.14 had been seen but attempts to trace them so as to bring them before the investigating judge had not been successful. She added that the sets of photographs could not be spared by the police; however, should the Court of Appeal so order, the police could produce them at the trial.
On the same day Judge Sm. returned the file to the Court of Appeal.
27. After notice had been given to the defence that the hearing of the Court of Appeal would resume on 10 May 1990, the applicant's lawyer requested the procurator general by letter of 17 April 1990 to summon all six anonymous witnesses, Y.05, Y.06, Y.13, Y.14, Y.15 and Y.16, to attend.
On 2 May 1990 the procurator general refused this request on the ground that Y.15 and Y.16 had been heard for a second time in the presence of the applicant's lawyer by the investigating judge, who had been aware of their identity and had found that they had valid reasons for their wish to remain anonymous. He further found that in view of the findings of the investigating judge it would serve no useful purpose to attempt to call the other anonymous witnesses. It was also necessary to take into account the desirability of bringing proceedings to an end as expeditiously as possible (lites finiri oportet).
28. On 10 May 1990 the Court of Appeal recommenced its examination, having changed composition.
The defence again asked the court to hear R. and N. and the six anonymous witnesses. The court, however, further considering the wish of the witnesses Y.15 and Y.16 to remain anonymous, concluded that it had been decided on sufficiently convincing grounds that these two witnesses had good reasons to feel seriously threatened, in view, inter alia, of police records contained in the case file from which it appeared that there was a real possibility that drug dealers might threaten potential witnesses. Accordingly, it did not order them to be summoned. As to the witnesses Y.05, Y.06, Y.13 and Y.14, the court accepted the findings of the investigating judge that it would be pointless to summon them.
On the other hand, the Court of Appeal ordered that the witnesses R. and N. be brought before it by force and adjourned its hearing until 28 August 1990.
29. By letter of 15 August 1990 the defence again requested the procurator general to produce the six anonymous witnesses. By letter of 17 August 1990 they also asked him to call K., a university lecturer in criminology who had done a great deal of research on drug addicts in Amsterdam, and V., a former drug addict who had personal experience of interrogation by the police.
30. The procurator general refused both requests on 22 August 1990.
As regards the six anonymous witnesses, he referred to his earlier decisions of 22 November 1989 and 2 May 1990 and reiterated the finding of the Court of Appeal of 10 May 1990. He based his decision not to call K. and V. on the fact that K. had published a book which rendered his views sufficiently clear and which the defence could quote at the hearing if desired, and on the assumption that V. would not be able to make statements about anything other than his own experiences as a person suspected of drug offences. It was also unnecessary to call either of them in view of the fact that the expert L. would appear at the hearing on 28 August.
31. On 28 August 1990, the Court of Appeal resumed its hearing. The witness V., who was in prison, did not appear. The defence withdrew its request to have him heard but maintained its request that the Court of Appeal should hear the six anonymous witnesses and the expert K. Referring to its decision of 10 May, the Court of Appeal refused to accede to the request of the defence to hear the six anonymous witnesses. However, in view of the judgment of the Supreme Court of 2 July 1990 (see paragraph 46 below), it decided to refer the case back to the investigating judge, requesting her to record her findings as to the reliability of the witnesses Y.15 and Y.16, adding that if in order to appraise their reliability the investigating judge found it necessary to hear them again she should do so. Although the expert K. was present at the hearing on 28 August 1990, having been convened by the defence, the Court of Appeal decided not to hear him. The reason given was that as an expert rather than a witness he could not be expected to contribute to the elucidation of the facts of the case. The witness N. was heard by the Court of Appeal in the applicant's presence and the applicant's lawyer was given the opportunity to question him. N. said that his statement to the police had been untrue and that he did not in fact know the applicant. In pursuance of the court's order of 10 May 1990 that he be brought by force, the named witness R. was present initially. It appears that before he was heard, he asked the court usher who was guarding him for permission to leave for a minute; this being allowed him, he then disappeared and could not be found again. The court subsequently ordered that he be brought before it by force at its next hearing on 22 November 1990. The Court of Appeal heard the expert L., who stated that drug addicts often made unreliable statements concerning alleged drug dealers to the police. He understood from drug addicts that police officers made promises to them and that they made statements only in order to be allowed to leave as soon as possible. Such statements were, in his view, "somewhere between the truth and a lie".
32. On 19 November 1990 the investigating judge, Judge Sm., drew up a record of her findings regarding the reliability of the statements made to her by Y.15 and Y.16 on 14 February 1990. She stated in this document that she could not remember the faces of the two witnesses, but having re-read the records of the interrogations could recall more or less what had happened. She had the impression that both witnesses knew whom they were talking about and had identified the applicant's photograph without hesitation. With regard to the facts of which the applicant stood accused, her impression had been that the witnesses themselves believed their statements to be true. As far as she remembered, both witnesses had answered all questions readily and without hesitating although they had made a "somewhat sleepy impression".
33. At the Court of Appeal's hearing on 22 November 1990, the witness R. did not appear, the police having been unable to find him. The court thereupon decided that a new order for R.'s appearance would be pointless. The procurator general brought forward a police officer, I., who had been involved in the investigation and asked that he be heard. The applicant's lawyer protested that the expert K. had not been heard and that the defence had no opportunity to prepare for the questioning of I.; to agree to hear I. now would prejudice the rights of the defence. The Court of Appeal nonetheless acceded to the request, and I. was heard concerning the way in which the investigation had been conducted. I. explained that from 1982 until 1988 he had been a member of a police team set up to fight drug trafficking in the centre of Amsterdam. Over the years that team had built up a good understanding with many of the drug addicts living in that area; making use of that relationship, they had asked them for information on drug dealers. Their cooperation was wholly voluntary. I. denied that the police made promises to drug addicts or put pressure on them; nor were photographs shown to addicts who had been arrested. In his assessment the statements made by drug addicts were therefore highly reliable. Moreover, action was only taken against alleged drug dealers if there were at least eight statements incriminating them. He further confirmed that it had happened in the past that convicted drug dealers, after serving their sentence, had threatened and assaulted drug addicts who had made incriminating statements against them. Although he had never known the applicant to resort to violence or threats, he did not rule out the possibility that he might do so. The defence challenged the reliability of the statements made by the various witnesses, both named and anonymous, pointing to what they considered to be inconsistencies among them. They objected particularly to the admission as evidence of the statements made by Y.15 and Y.16, on the grounds, inter alia, that both were drug addicts and that the investigating judge's record of her findings of 20 March 1990 did not contain a statement that she believed that the witnesses had been telling the truth. Relying on the Hauschildt v. Denmark judgment of the European Court of Human Rights of 24 May 1989 (Series A no. 154), they moreover expressed doubts as to the impartiality of the investigating judge, Judge Sm., in that as a member of the Regional Court she had taken part in the hearing of the Regional Court of 25 August 1988 and in the decisions then made. They protested against the refusal to hear K.
34. On 6 December 1990, the Court of Appeal quashed the Regional Court's judgment of 13 December 1988, as it was adopting a different approach with regard to the evidence. It found the applicant guilty of the deliberate sale of quantities of heroin and cocaine. This finding was based on the following evidence:
(a) the fact, as appeared from the police records, that upon information that the applicant was engaged in drug trafficking his photograph was added to the collection of photographs of persons suspected of that offence;
(b) the statements made before the investigating judge on 14 February 1990 by Y.15 and Y.16 (see paragraph 25 above);
(c) the fact that on 13 April 1988 the applicant had recognised himself on the police photograph (see paragraph 12 above);
(d) the statements made to the police by the named witnesses N. and R. (see paragraph 10 above).
As regards the applicant's complaint that the majority of the witnesses had not been heard in the presence of the applicant or his lawyer, the court stated that it had based its conviction on evidence given by the witnesses N., R., Y.15 and Y.16.
The latter two had been questioned by the investigating judge in the presence of the applicant's lawyer. The Court of Appeal added that it had used their statements "with the necessary caution and circumspection". It held that these statements could be used in evidence, in view, inter alia, of the consistency between them and the testimony of the police officer I. It also found that the reliability of the witnesses and the well-foundedness of their wish to remain anonymous had been sufficiently verified by the investigating judge. The witness N. had been heard in open court both at first instance and on appeal. Although he had retracted his earlier statement to the police, that was the statement which the Court of Appeal chose to believe in light of the testimony of the police officer I. Finally, the mere fact that the defence had not had the opportunity to question R. did not mean that his statement could not be used in evidence. The Court of Appeal rejected the applicant's complaint based on the alleged lack of impartiality of Judge Sm. It noted that the hearing on 25 August 1988 had been summary; the Regional Court had only considered the applicant's request to have the six anonymous witnesses examined and his request for release. During that hearing the Regional Court had not examined the substance of the applicant's case. It did not appear, nor had it been argued, that Judge Sm. had had any dealings with Y.15 and Y.16 before questioning them. An investigating judge in any case did not have to provide the same safeguards as a member of a trial court. Furthermore, no particular facts or circumstances had been suggested or had come to light warranting the conclusion that she had not been able to form an unprejudiced opinion as to the reliability of the witnesses she had examined, or that she had been biased in her examination of those witnesses. The applicant was sentenced to fifteen months' imprisonment. The time which he had spent in police custody and detention on remand was deducted from the sentence.
35. The applicant filed an appeal on points of law to the Supreme Court (Hoge Raad).
Counsel for the applicant submitted a statement of grounds of appeal on 29 November 1991. The complaints put forward, in so far as relevant, were the following.
In the first place, the Court of Appeal ought not to have refused to hear the expert K. The fact that the court had chosen to hear I. at the behest of the prosecution, which had brought him forward at the last moment, meant that the applicant had not had the possibility to obtain the attendance of a witness on his behalf under the same conditions as a witness against him. In addition, the court had failed to give sufficient reasons as to why the statement of K. could not serve the purpose of elucidating the facts, the court not having set out anything either in the record of the hearing or in its judgment with regard to the testimony that K. intended to give.
In the second place, the Court of Appeal ought not to have relied on the statements made by Y.15 and Y.16. It had ignored the wish of the defence to have them brought before the trial court in order that that court might itself see how unreliable they were and in order that the applicant might put questions to them in person.
In the third place, the Court of Appeal ought not to have taken account of the statement of R., whom the defence had not had the opportunity to question; nor should it have decided after he had been allowed to abscond that there was no further point in attempting to obtain his attendance.
In the fourth place, given the fact that the prosecution had brought forward the witness I. at the very last moment and without the defence having had any opportunity to prepare itself, the Court of Appeal should have either declined to hear him or deferred his examination to a later date.
In the fifth place, the Court of Appeal ought not to have relied on witness statements taken by an investigating judge (Judge Sm.) who had previously, as a member of a trial court and on the basis of the evidence then contained in the case file (which included statements of all eight witnesses), taken part in a decision to prolong the applicant's detention on remand. Judge Sm. had, in his view, failed to preserve an appearance of impartiality.
36. In accordance with the advisory opinion of the advocate general (advocaat-generaal), Mr Fokkens, the applicant's appeal was rejected by the Supreme Court on 24 March 1992.
As to the first complaint, the Supreme Court held that the Court of Appeal had given sufficient reasons for not hearing K., especially since the defence had not indicated in what way his statement might be relevant to any decision regarding the charges proffered. Nor had the applicant been denied a "fair hearing" in this respect; it made no difference that, in spite of the protests made by the defence, the Court of Appeal had given the prosecution the opportunity to have a witness heard without previously announcing its intention to bring him forward.
As to the second complaint, it was held that the mere fact that a defendant in a criminal case was not able to question an anonymous witness himself but had to do so through his counsel did not constitute a violation of the right to a "fair trial", guaranteed by Article 6 para. 1 (art. 6-1) of the Convention, or of the right protected by Article 6 para. 3 (d) (art. 6-3-d).
As to the third complaint, the Supreme Court found that the reasoning on which the Court of Appeal had based its decision to make no further attempts to have R. brought before it was not unintelligible; in any case, it could not assess the validity of that reasoning since this was mainly a question of appreciation of facts. In view of the fact that it had proved pointless to repeat attempts to have R. brought before the Court of Appeal by force and of the fact that his statement was sufficiently corroborated by other evidence, in particular the statement made by N. to the police, the Court of Appeal had been entitled to use his statement in evidence.
As to the fourth complaint, it was held that the Court of Appeal had not been bound to construe the protests put forward by the defence either as a request for an adjournment or as a defence plea requiring a reasoned decision.
As to the fifth complaint, the Supreme Court concurred with the Court of Appeal that there was no reason to assume that Judge Sm. had lacked the required impartiality or that the applicant could have had any cause for so fearing. It continued:
"The mere fact that a judge who has been involved in adecision at first instance refusing requests made by thedefence to adjourn the hearing and to refer the case backto the investigating judge for the hearing of anonymouswitnesses and in decisions refusing requests for thetermination or suspension of detention on remand, hasafterwards, pursuant to an order of the Court of Appeal,heard the said witnesses and given an opinion on thereliability of their testimony and on their reasons forremaining anonymous as a rule does not imply that onappeal the requirement of trial by an `impartialtribunal' in the sense of Article 6 para. 1 (art. 6-1)has not been met. It does not appear from the case filethat there are any special circumstances which in thepresent case should lead to a different conclusion."
37. Except for the differences noted below (see paragraphs 45 and following), relevant domestic law and practice at the time of the criminal proceedings complained of were as set out in the Court's above-mentioned Kostovski judgment of 20 November 1989. Reference is therefore made to that judgment, especially pp. 13-17, paras. 22-32. In so far as legal provisions relating to detention on remand are of relevance, reference is made to the Court's Nortier v. the Netherlands judgment of 24 August 1993 (Series A no. 267), pp. 13-14, para. 27.
38. The public prosecutor has the power to call witnesses and experts to the hearing (Article 260 CCP). In his summons to the accused he gives a list of the witnesses and experts to be brought forward by the prosecution. If the accused wishes to call witnesses, he can - according to Article 263 - submit a request to the public prosecutor no later than three days before the court hearing to summon a witness before the court. As a rule, the public prosecutor should summon the witness, but - according to Article 263 para. 4 - he may refuse to do so if it is to be reasonably assumed that no prejudice to the rights of the defence will be caused if the witness is not heard in open court ("Indien redelijkerwijs moet worden aangenomen, dat de verdachte niet in zijn verdediging kan worden geschaad wanneer een door hem opgegeven getuige ... niet ter terechtzitting wordt gehoord"). He has to give a reasoned decision in writing and must at the same time inform the defence of its right under Article 280 para. 3 (see paragraph 40 below) to renew the request to the trial court at the hearing.
39. At the opening of the trial hearing the prosecutor hands to the court a list of all the witnesses called, which is then read out by the registrar (griffier) (Article 280 para. 2).
40. If the public prosecutor has failed to summon a witness at the request of the accused, or declined to do so, the defence may ask the court to have that witness summoned (Article 280 para. 3). The court so orders, unless it finds that the non-appearance of this witness cannot reasonably be considered prejudicial to the rights of the defence ("De rechtbank beveelt dat de ... getuige ... zal worden gedagvaard of schriftelijk opgeroepen, tenzij zij ... van oordeel is dat door het achterwege blijven daarvan de verdachte redelijkerwijs niet in zijn verdediging kan worden geschaad" - Article 280 para. 4).
41. A request by the defence to hear a witness who has not been placed on the list of witnesses, who has not been convened to attend the trial and whose summons the defence has not sought in accordance with Article 280 falls under Article 315 CCP (see paragraph 42 below). It appears from the judgment of 23 December 1986 by the Supreme Court that the trial court needs only accede to a request of this nature if it finds it necessary to do so.
42. Under Article 315 CCP the trial court has the power to order of its own accord the production of evidence, including the summoning of witnesses whom it has not yet heard.
43. If it finds that there is occasion to do so, the trial court may order that a witness be brought to its hearing by the police (Articles 282 para. 1 and 315 CCP).
44. If at the trial the trial court finds it necessary to have any factual question examined by the investigating judge, it must suspend the hearing and refer the question to the investigating judge along with the case file. The investigation carried out by the investigating judge in these cases is deemed to be a preliminary judicial investigation and is subject to the same rules (Article 316 CCP).
45. Appeal proceedings against the conviction or sentence at first instance involve a complete rehearing of the case. Both the prosecution and the defence may ask for witnesses already heard at first instance to be heard again; they may also produce new evidence and request the hearing of witnesses not heard at first instance (Article 414 CCP). The defence enjoys the same rights as it does at first instance (Article 415 CCP).
46. In its judgment of 2 July 1990, Nederlandse Jurisprudentie (Netherlands Law Reports, "NJ") 1990, no. 692, the Supreme Court considered that it had to be assumed in light of the European Court's Kostovski judgment that the use of statements by anonymous witnesses was subject to stricter requirements than those defined in its case-law until then. It defined these stricter requirements in the following rule: such a statement must have been taken down by a judge who (a) is aware of the identity of the witness, and (b) has expressed, in the official record of the hearing of such a witness, his reasoned opinion as to the reliability of the witness and as to the reasons for the wish of the witness to remain anonymous, and (c) has provided the defence with some opportunity to put questions or have questions put to the witness. This rule is subject to exceptions; thus, according to the same judgment, the statement of an anonymous witness may be used in evidence if
(a) the defence have not at any stage of the proceedings asked to be allowed to question the witness concerned, and
(b) the conviction is based to a significant extent on other evidence not derived from anonymous sources, and
(c) the trial court makes it clear that it has made use of the statement of the anonymous witness with caution and circumspection.
47. The Act of 11 November 1993, Staatsblad (Official Gazette) 1993, no. 603, has added to the CCP a number of detailed provisions relating to the "protection of witnesses". It entered into force on 1 February 1994. The additions include the following. Article 226a now provides that the identity of a witness may remain secret if there is reason to believe that the disclosure of his identity may threaten his life, health, safety, family life or socio-economic existence and if the witness has made it clear that he does not wish to make any statement because of this. The decision is made by the investigating judge, who must first hear the prosecution, the defence and the witness himself. An appeal against the decision of the investigating judge lies to the trial court (Article 226b). The investigating judge may order that a threatened witness be heard in the absence of the accused, or of counsel, or of both, so as not to disclose the identity of the threatened witness; in that event, the prosecution authorities may not attend the questioning of the witness either. The investigating judge must then allow the defence to put questions of its own to the witness, either through the use of telecommunication or in writing (Article 226d). Article 264 now lays down that the prosecution may refuse to summon a threatened witness. If the trial court has ordered that a witness be heard and that witness turns out to be under threat, he must be heard in camera by the investigating judge (Article 280 para. 5). The statement of an anonymous witness taken in accordance with the above-mentioned provisions may only be used in evidence against a person accused of crimes in respect of which his detention on remand is permitted (Article 342 para. 2 (b)). A new paragraph has been added to Article 344 to the effect that a statement of a person whose identity is not apparent may only be used in evidence if the conviction is based to a significant degree on other evidence and if the defence has not at any time during the trial sought to question that person or have him questioned.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-4687
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: GRACE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Irish citizen, born in 1932 and living in Dublin. He was the husband of Breda Grace.
He is represented before the Court by Mr G. O’Neill, a lawyer practising in Dublin.
On 17 May 1974 Breda Grace was killed in a terrorist bombing in Dublin. The cars used for the bombing were stolen in Belfast in Northern Ireland on the same day.
The Irish authorities conducted extensive inquiries but were unable to bring charges against any person. The files remain open. The Royal Ulster Constabulary (RUC) in Northern Ireland has conducted an inquiry into the theft of the vehicle and related offences which did not produce any results. However, there was no formal murder inquiry by the RUC.
On 6 July 1993 ITV, a television station in the United Kingdom, broadcast a programme in which the adequacy of the RUC inquiry was discussed.


ITEMID: 001-69123
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF DERECİ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 6-1;Non-pecuniary damage - global award;Pecuniary damage - global award;Costs and expenses partial award - Convention proceedings
TEXT: 6. The applicant was born in 1950, and lives in Hatay.
7. On 10 February 1994 the applicant was arrested and placed in police custody by officers from the anti-terrorism branch of the Istanbul Security Directorate on suspicion of involvement in the activities of an illegal armed organisation, namely the TKEP/L (Turkey’s Communist Labour Party/Leninist).
8. On 24 February 1994 the applicant was brought before the public prosecutor and then the investigating judge at the Istanbul State Security Court. The same day the investigating judge ordered the applicant’s detention on remand.
9. In an indictment dated 17 May 1994, the public prosecutor initiated criminal proceedings against the applicant and eleven other defendants before the Istanbul State Security Court (“the court”), accusing them, inter alia, of membership of an illegal armed organisation and of involvement in activities that undermine the constitutional order of the State. The prosecution sought the death penalty under Article 146 § 1 of the Criminal Code.
10. By a letter of 24 February 1995, the court requested from the First and Second Divisions of the State Security Court that the two case files pending before them be transmitted to it for examination, as some of the defendants had been put on trial for similar charges before these courts.
11. On 22 May 1995 the court decided that the criminal proceedings pending before the Konya State Security Court should also be joined to the present case as the applicant was being prosecuted for similar charges before that court.
12. At the hearings of 27 July 1995, 8 March, 20 May, 19 July, 23 September and 20 November 1996, the court obtained testimonies from the complainants, who claimed to be the victims of the acts of the defendants and eye witnesses to the events.
13. On 27 January 1997 the court joined the case with that pending before the First Division of the Istanbul State Security Court. In the other case, the applicant was also accused of being a member of the same organisation and the activities in which he was allegedly involved were similar.
14. On 11 April 1997 the Court of Cassation set aside the decision to join the two criminal proceedings.
15. By a letter of 10 September 1997, the court requested that the case files pending before the Fifth and the Second Divisions of the State Security Court be sent to it for examination, as the facts were allegedly the same as in the present case.
16. At the hearings of 19 November 1997 and 26 January 1998, the complainants of a robbery which had taken place in the Ağaoğlu and Aslantaş Commercial Centres were heard. The court noted that some of the witnesses had already made statements before the Seventh Division of the Istanbul Assize Court in relation to the incident at the Aslantaş Commercial Centre. Accordingly, it issued a letter to the Seventh Division of the Assize Court asking the latter to transfer the case file to it.
17. During the hearings held on 17 June and 5 August 1998, the court noted that the information requested from the Assize Court had not been received. It therefore repeated the earlier request.
18. On 7 October 1998 the Assize Court informed the State Security Court that it was unable to provide that information, as no defendant’s name had been mentioned in the letter of request.
19. On 22 February 1999 the prosecutor submitted his observations on the case, in which he sought the applicant’s conviction and sentence pursuant to Article 146 § 1 of the Criminal Code.
20. On 25 October 1999 the applicant read out his forty-page written observations and submitted them to the court. At the same hearing the applicant’s lawyer requested an extension to prepare the defence.
21. At the hearing of 29 May 2000, the court decided to ask the Fourth Division of the Istanbul Assize Court about the outcome of criminal proceedings brought against the police by one of the co-accused, concerning an allegation of ill-treatment. By a letter dated 19 June 2000, the Assize Court stated that the case was still pending before the Court of Cassation.
22. In the course of the criminal proceedings the applicant made numerous requests for his release pending trial. The State Security Court dismissed these requests at each of the twenty-two hearings held between 17 August 1994 and 16 August 2000. In ordering the applicant’s continued detention each time, it relied on “the nature of the offences charged, the state of evidence and the content of the case file”.
23. In particular, during the hearing held on 20 November 2000, the applicant’s lawyer reminded the court that his client had been kept in detention for six years and ten months, contrary to the provisions of domestic law as well as the Court’s established case-law. On the same day, due to the change in the representation for the prosecution, the case file was deposited with the new prosecutor for the submission of his observations.
24. On 27 November 2000 the applicant’s lawyer applied to the Fifth Division of the State Security Court, asking it to set aside the decision on the applicant’s continuing detention. In his petition he stated that his client had been detained for a long period despite the absence of any danger that he would destroy the evidence, which had all been collected in the case file, or that he would abscond. The Fifth Division rejected the request on similar grounds (paragraph 22 in fine above), namely “having regard to the content of the case file and the state of evidence”.
25. On 28 February 2001 the court noted an unrelated letter sent by the First Division of the Assize Court, when it realised that the latest letter concerning the prosecution of the police officers had been mistakenly addressed to the First Division instead of the Fourth.
26. On 4 June 2001 the applicant was released pending trial.
27. Of the eight hearings held between 22 October 2001 and 5 May 2003, five were adjourned at the request of the defence.
28. On 3 September 2003 the court noted that the Fourth Division of the Assize Court had sent the wrong judgment, instead of the one requested.
29. On 23 February 2004, due to a further change in the representation of the prosecution, the proceedings were postponed to 3 May 2004. Subsequently, the case file was deposited with the new public prosecutor for the submission of his observations on the case.
30. On 8 December 2004 the court decided to adjourn its deliberations on the judgment until after 1 April 2005, when the new Criminal Code was due to come into force, having regard to the fact that the latter’s provisions could affect the nature of the offence and the punishment to be imposed on the applicant.
31. A full description of the domestic law may be found in the Demirel v. Turkey judgment (no. 39324/98, §§ 47-49, 28 April 2003).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-86578
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GURLESEN AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
TEXT: The applicants, whose names and dates of birth appear in the appendix, are all Turkish nationals. They are represented before the Court by Mr K. Bayraktar, a lawyer practising in Ankara.
The applicants were shareholders of a plot of land located in Keçiören, Ankara.
On an unspecified date the Keçiören Municipality (hereinafter “the Municipality”) expropriated the applicants’ plot of land and paid them the sum of 7,521,210,000 Turkish liras (TRL) in compensation for expropriation.
On 24 November 1998 the applicants initiated proceedings against the Municipality before the Ankara Civil Court seeking additional compensation.
On 20 December 1999 the first-instance court awarded the applicants additional compensation of TRL 31,756,220,000 plus interest at the statutory rate accruing from 24 December 1998.
On 8 February 2000 the applicants commenced enforcement proceedings against the Municipality.
On 3 July 2000, on an appeal by the Municipality, the Court of Cassation quashed the judgment in part in respect of some of the applicants due to procedural irregularities and remitted the case to the first-instance court.
On 20 February 2001 the Ankara Civil Court remedied the procedural irregularities indicated by the Court of Cassation and awarded additional compensation to the applicants on the same terms as determined in its previous judgment.
On 11 June 2001 the Court of Cassation upheld the judgment of the first-instance court.
Between February 2000 and June 2001 the Municipality of Keçiören made certain payments to the applicants in several instalments in the total sum of TRL 27,935,977,000. On 19 September 2003 the Ankara Enforcement Office declared that the applicants had an outstanding claim of TRL 116,518,578,000 as of that date.
On 26 October 2006 the applicants signed an agreement with the Municipality whereby the latter agreed to make the outstanding payments by the end of February 2007 with the proviso that the applicants renounce 12.5% of their claims and discontinue all enforcement proceedings.
The outstanding payments for additional compensation were made in January and February 2007 by the Municipality.


ITEMID: 001-57421
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1983
DOCNAME: CASE OF ALBERT AND LE COMPTE v. BELGIUM (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
TEXT: 1. The present case was referred to the Court on 12 March 1982 by the European Commission of Human Rights ("the Commission"). The case originated in two applications (nos. 7299/75 and 7496/76) against Belgium lodged with the Commission in 1975 and 1976 by two Belgian nationals, Dr. Alfred Albert and Dr. Herman Le Compte.
2. On 28 May 1982, the Chamber constituted to examine the case relinquished jurisdiction in favour of the plenary Court (Rule 48 of the Rules of Court). By a judgment of 10 February 1983, the latter held that there had been a breach of Article 6 para. 1 (art. 6-1) of the Convention in that the Appeals Council of the Ordre des médecins (Medical Association) had not heard the applicants’ cases (in French: "causes") publicly and had not pronounced its judgment publicly. It found, on the other hand, that there had been no violation of that Article (art. 6-1) as regards the applicants’ other complaints, and no violation of Articles 3 and 11 (art. 3, art. 11) with respect to Dr. Le Compte (Series A no. 58, paras. 21-22 and 31-44 of the reasons and points 1, 3 and 4 of the operative provisions, pp. 13 and 17-22).
The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 8 to 17 of the above-mentioned judgment (ibid., pp. 9-11).
3. At the hearings of 27 September 1982, counsel for Dr. Le Compte had asked the Court, in the event of its finding a breach of the Convention, to afford his client just satisfaction under Article 50 (art. 50). He had, however, expressed the view that the question was not yet ready for decision. The Commission’s Delegates, for their part, had requested the Court to defer ruling on this point in the absence of any indication from Dr. Albert or his counsel.
In its judgment of 10 February 1983, the Court reserved the question and referred it back to the Chamber under Rule 50 para. 4 of the Rules of Court (ibid., paras. 45-46 of the reasons and point 5 of the operative provisions, p. 22). On the same day, the Chamber invited the Commission to submit, within the coming two months, its written observations, including notification of any friendly settlement at which the Government of the Kingdom of Belgium ("the Government") and the applicants might have arrived (Series A no. 58, p. 29).
4. On 12 April 1983, the President granted an extension of this time-limit until 10 May.
On 19 May, the Secretary to the Commission, acting on the Delegates’ instructions, transmitted to the Registrar a copy of a note drafted by Dr. Le Compte’s lawyer. The note, which was dated 28 April 1983 and referred to a similar document filed in the case of Le Compte, Van Leuven and De Meyere (judgment of 18 October 1982, Series A no. 54, pp. 5-6, para. 4), contained two series of claims.
(a) First, Dr. Le Compte sought the adoption by the Government of measures providing partial reparation in the form of
(i) "the complete and effective expunction of all the sanctions imposed on him, both disciplinary and penal";
(ii) the withdrawal of a circular issued by the Minister of Justice, prohibiting all dispensing chemists in Belgium from making up prescriptions written by the applicant on and after 26 December 1975.
(b) Second, Dr. Le Compte claimed
(i) "as compensation for the prejudice suffered", an award of 10,000,000 BF per annum since the striking of his name from the register of the Ordre;
(ii) reimbursement of the costs incurred before the Court of Cassation and the Convention organs, to be calculated by applying "the same criteria and scales as those utilised in the European Court’s judgment of 18 October 1982, the amounts remaining the same" (Series A no. 54, pp. 9 and 11, paras. 20, 23 and 25).
The Delegates, for their part, confined themselves to referring to their memorial of 30 March 1982 in the case of Le Compte, Van Leuven and De Meyere and to the judgment of 18 October 1982 in that case. They left it to the Court’s discretion to afford just satisfaction, on the basis of those documents.
5. By Order of 20 May 1983, the President directed that the Agent of the Government should have until 20 June 1983 to submit his observations. At the Agent’s request, he extended this time-limit until 20 July.
The Government’s reply was received at the registry on 29 June.
6. On 1 June 1983, the Deputy Secretary to the Commission informed the Registrar that Dr. Albert was claiming no more than a token award of one Belgian franc for non-pecuniary damage.