ITEMID: 001-83472
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF O'DOWD v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 2 (lack of independence of the investigating body during the initial stages of the investigation);Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 6. The first applicant Bernard O'Dowd, who was born in 1923 and lives in Drumnee, County Meath, Ireland, was the father of Barry O'Dowd and Declan O'Dowd. The second applicant Michael Gabriel O'Dowd, who was born in 1951 and lives in Bleary, was the son of Joseph O'Dowd.
7. On the evening of 4 January 1976, the first applicant was hosting a family get-together at his home in Ballydougan, County Down. At about 6.30 p.m. three masked gunmen forced their way into the house. Barry O'Dowd, Declan O'Dowd and Joseph O'Dowd were shot and killed. The first applicant was hit by nine bullets but survived. About thirty shots were fired during the incident. No organisation claimed responsibility for their deaths. The same night an attack was launched on the home of another Catholic family in Armagh, in which John and Brian Reavey were killed and Anthony Reavey was injured.
8. The three men were believed to have made their getaway in a Morris 1300 car, 3315XZ, stolen earlier from Robert Street, Lurgan.
9. The emergency services – police and ambulance – arrived within a short time. Detectives and Scene of Crime Officers commenced investigations. Post-mortems were held. House to house inquiries were conducted in the area and along the suspected getaway route with negative results. Nineteen spent bullet cases were recovered at the scene and the weapon used was identified as one used in four other attacks. Numerous witnesses were interviewed, including members of the family who were interviewed at length. Ronan O'Dowd stated that he had observed two men standing beside a red car, possibly a “1300”, close to the house, both men were masked and had “walkie talkie” radios. Cathal O'Dowd stated that he had observed a blue coloured “Viva” car near the house that afternoon.
10. Several days before the attack, Ronan O'Dowd had seen masked men running up a lane adjacent to the house, in what the applicants believed was a dummy run for the attack. The family also recollected seeing officers of the Royal Ulster Constabulary (“RUC”) and Ulster Defence Regiment (“UDR”) in fields near the house the day before the attack, which was an unusual occurrence.
11. Police inquiries revealed that a red Morris 1300 had been stolen from Lurgan on 4 January 1976; it was found burnt out on 5 January 1976. Inquiries in Lurgan proved negative. No further information was received on the “Viva” car.
12. Three men were arrested by the police on 5 January 1976 and questioned about the murders. They were released on 8 January 1976 and no charges were preferred.
13. On 20 January 2006, the first applicant stated that one man who had entered the house was similar in appearance to a man whom he named. The man was arrested, questioned but eliminated from the inquiry following verification of his alibi.
14. In May-June 1976, the police questioned the first applicant and asked him to identify a weapon. He identified the weapon as one used in the attack. He was told that it was linked to Robin Jackson, a prominent loyalist paramilitary and to a number of other loyalist attacks.
15. An Inquest held on 11 February 1977 returned open verdicts.
16. After 1976 there were no further developments in the O'Dowd murders until 1999 when John Weir made allegations of police involvement in a range of loyalist terrorist incidents including the attack on the O'Dowds.
17. In the course of an investigation in 1978, the police had arrested a reserve police constable, William McCaughey, who, in the course of questioning, revealed his part in the abduction of a priest and in a variety of other loyalist paramilitary incidents. McCaughey's revelations gave rise to investigations in eleven specific cases, some of which were linked in terms of the identities of those involved, the modus operandi or by virtue of the ballistics examinations of weapons used. Nine suspects were arrested in total, including five police officers and all were eventually charged with offences.
18. One of those implicated was a police officer John Weir who was named as having been involved in the murder of a shopkeeper called Strathearn in Ahoghill in April 1977: he was convicted for that murder in June 1980 and sentenced to life imprisonment. The Government stated that both McCaughey and Weir refused to name the two loyalist paramilitaries also involved with them in the murder unless they received immunity from prosecution. The police and prosecuting authority took the decision prior to the trial not to enter into any process of bargaining with Weir and McCaughey. While both were approached by the police after their convictions to see if at that stage they would give evidence against the loyalist paramilitaries, each again refused to do so unless there was something in it for themselves. The Government stated that during the period in which Weir was detained he was interviewed on a large number of occasions. At no time did he implicate himself or others in any offence other than the Strathearn murder.
19. On 1 February 1993, John Weir was released from prison on licence. In January 1999, he made a statement to a journalist alleging RUC and Ulster Defence Regiment (“UDR”) collusion with loyalist paramilitaries from the Portadown area in the mid-1970s. This statement was published in the Sunday Times newspaper in March 1999. It was obtained by the Patrick Finucane Centre, a human rights non-governmental organisation in Derry (“the Centre”).
20. John Weir's statement made detailed allegations about security force collusion with loyalist paramilitaries in a series of incidents. He alleged inter alia that RUC Reserve Constable Laurence McClure had told him that Robin Jackson had carried out the murders in the O'Dowd home and that the attack had been co-ordinated with the attack on the Reavey family the same night in which security force personnel participated directly. The statement also made links between these incidents and other attacks allegedly carried out by members of the security forces, both RUC and UDR, and loyalist paramilitaries. This group used the farmhouse in Glennane owned by James Mitchell, a RUC reservist, as a base from which to carry out attacks on Catholics and nationalists. Other attacks allegedly included the murder of John and Brian Reavey and wounding of Anthony Reavey in their home on 4 January 1976 (see application no. 34640/04); the murder of Colm McCartney and Sean Farmer at a bogus vehicle checkpoint in August 1975 (see application no. 34575/04); the attack on Donnelly's Bar in which Trevor Brecknell, Michael Donnelly and Patrick Donnelly were killed (see application no. 32457/04); and the attack on the Rock Bar in which Michael McGrath was seriously injured (see application no. 34561/04). Weir also linked these attacks to the Dublin and Monaghan bombings in which 33 people were killed in the Republic of Ireland.
21. On or about 10 June 1999, RTE, an Irish television channel, broadcast a television programme that contained allegations of security force involvement in a number of deaths, including that of Trevor Brecknell. Weir made allegations on that programme that members of the RUC and UDR were directly involved in the attack on Donnelly's Bar. A BBC Spotlight programme produced a similar documentary dealing with these allegations.
22. These allegations attracted considerable attention on both sides of the Irish border and became the subject of police investigation in both jurisdictions. The Government stated that the police investigation in Northern Ireland was focussed on determining whether Weir's allegations should be assessed as sufficiently credible to require a full investigation. They obtained from the journalist an edited transcript of the interview with Weir. While his whereabouts were unknown to the RUC, Weir met with senior Irish police officers at the Irish Embassy on 15 April 1999. A copy of his statement was provided by the Garda to the RUC, along with a further statement made by Weir to another journalist dated 3 February 1999. The police analysed the available materials and sought to identify the personalities to be interviewed. It became apparent that some had died and that others, living abroad, could not be traced. A series of seven interviews were conducted, under cautions, between July and December 2001, of those individuals central to Weir's account who could be traced. No charges were preferred. The interviews followed the format of Weir's allegations being put to the interviewee for his or her response. The predominant response was denial of any involvement and claims that Weir had been untruthful. No admissions were made by any interviewee. Interviews were also conducted with less central personalities and with police officers involved in interviewing Weir in 1978. The latter stated that Weir had not mentioned the matters now being alleged.
23. Meetings were held regularly with RUC counterparts in the Republic of Ireland. The RUC co-operated also with the judicial inquiry established in the Republic of Ireland into the Dublin and Monaghan bombings (see the description of the inquiry in the case of Brecknell referred to above). Amongst matters about which the RUC team provided information to the inquiry was ballistics information which linked some of the weapons used to more than one incident. In February 2000 a substantial report was compiled by the RUC for the Garda dealing with Weir's allegations. It profiled Weir and dealt inter alia with a description of the 1978 investigation into McCaughey, Weir and others. It concluded that the investigation would continue but that his credibility was in doubt. According to the Government, despite inquiries being conducted, Weir's whereabouts could not be traced. This report was not disclosed as the investigation was continuing. An internal RUC report dated 27 February 2001 concluded that it would be necessary to interview Weir before any view could be finalised in respect of the credibility of his allegations: such interview was not possible as his whereabouts were not known. The report noted the absence of any previous mention of the allegations before 1999 and that much of what he said was hearsay and speculation. Inquiries made of the British Embassy in Nigeria (where he had a known address) and the criminal intelligence service and others failed to locate Weir. Contact was made with the Garda and the secretariat of the Inquiry into the Dublin and Monaghan bombings without positive result.
24. The Serious Crime Review Team (“SCRT”) was established in March 2004, with responsibilities including the review of all historical murders by way of case assessment for evidential and investigative opportunities. A preliminary case assessment was carried out by a detective chief inspector, who audited all known information and documentation.
25. In light of the preliminary assessment, the case was referred to the Historical Enquiry Team (HET). On 28 April 2006, a Senior Investigating Officer reported on the further review; a number of potential lines of enquiry were identified and recommendations made, including that the HET should extensively interview Weir. This recommendation was approved. The HET director of Investigations, Detective Chief Superintendent James of the London Metropolitan Police Force, took over personal supervision of the investigation which has progressed through the first three of five stages of the HET process (collection of all relevant material; assessment of the investigations to date; review of evidence, with intelligence and open and non-police sources together with a meeting with the families of the victims of the attack). As a number of investigative opportunities were identified and to be followed up, the case was to continue to be processed by HET, which had been put in touch with Weir by the Centre. The Government submitted that if any evidence of police involvement in the murders was found, the Office of the Police Ombudsman for Northern Ireland would then become involved. The Government have provided recent information that Weir finally agreed to meet with the HET in Dublin; he refused, however, to make a written statement or to give evidence in court.
26. There has been contact between the police and family members, their solicitors or the Centre. In particular, there were meetings in September 2002 with Detective Chief Inspector Paterson, and a meeting with the Chief Constable in June and August 2004; members of HET met with families or their representatives on 29 March and 31 May 2006; and there has also been extensive correspondence with the families or their representatives.
See Brecknell, cited above (§§ 39-41).
See Brecknell, cited above (§§ 42-49).
VIOLATED_ARTICLES: 2


ITEMID: 001-89585
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF LITVINOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1968 and lives in the town of Belogorsk in the Amur Region.
5. On 31 December 2003 she brought proceedings against the Social Security Office of Belogorsk on account of a refusal by the latter to increase her child benefit payments according to a certain method of calculation and seeking compensation in respect of pecuniary damage. She also alleged that the Office had not given her access to a number of documents concerning those payments.
6. By a judgment of 30 November 2004 the Belogorsk Town Court dismissed her claims as unfounded. The applicant’s representative lodged an appeal against the judgment on 12 December 2004.
7. The Amur Regional Court scheduled a hearing for 25 February 2005. According to the Government, on 17 February 2005 the Town Court dispatched summonses to the parties. The Government submitted a copy of the cover letter dated 17 February 2005 and sent by the Town Court to the Regional Court and the parties, including the applicant and her representative. The letter bore the outgoing number “1779” and indicated that the Town Court was sending the case file to the Regional Court and that the appeal hearing had been listed for 25 February 2005, at 9 a.m. The Government also submitted a copy of an excerpt from the Town Court’s outgoing correspondence log. The column entitled “outgoing number” contained the figure “1779”, and that entitled “sent to” listed the Regional Court, the applicant, her representative and the respondent. The date below that record read “18 February 2005”.
8. On 25 February 2005 the Amur Regional Court dismissed the applicant’s appeal. Neither the applicant nor her representative was present. The judgment indicated that the appeal had been examined in a public session but did not specify whether the applicant or her representative had been notified of the hearing date.
9. On 17 March 2005 the applicant’s representative made an inquiry to the Town Court about the state of the appeal proceedings. On 22 March 2005 the Town Court sent him a copy of the appeal judgment and indicated that he had been duly informed of the hearing date.
10. The Code of Civil Procedure of the Russian Federation (“the CCP”, in force from 1 February 2003) reads as follows:
“1. Parties ... are to be summonsed to court by a letter sent via registered mail with an acknowledgment of receipt, a court summons with an acknowledgment of receipt, a telegram, by phone or fax or by any other means of communication which guarantees recording of the fact that the court summonses or notifications were received by the parties.
2. A court summons is one of the forms of court notification. Parties are notified by court summonses of the date and place of a court hearing or of particular procedural actions ...
3. A summons or another form of notification is to be served on parties in such a way [as to ensure] that they have enough time to prepare their case and to appear at the hearing.
4. A court notification, addressed to a party, is to be sent to the address indicated by that party or his/her representative. If a party does not reside at the indicated address, the court summons may be sent to his or her place of work ...”
“1. Court summonses and other notifications are to be sent by mail or delivered by a person whom the court authorises to deliver them. The time of service is to be recorded as laid down by post office regulations or on a document which is to be returned to the court.
2. With a party’s consent, a judge can serve him/her with summonses or notifications to be delivered to another party. A person authorised by the judge to deliver a court summons or another notification is to return a counterfoil of the summons or a copy of the notification bearing the addressee’s signature recording receipt.”
“1. A court summons ... to a person is to be served on him or her against his or her signature on a counterfoil of the summons, which is to be returned to the court ...
...
4. If the current place of residence of an addressee is unknown, an entry to this effect is to be made on the court summons, showing the date and time of the attempted service and the source of the information.”
“Parties are to inform the court of any change in their address in the course of the proceedings. If no such notification is provided, court summonses or notifications are to be sent to the addressee’s last known address and are considered to be delivered even if the addressee no longer lives or resides there.”
“When a defendant’s place of residence is unknown, the court begins examination of a case once it has received information to that effect from the defendant’s last known place of residence.”
“Parties to the case or the prosecutor may lodge an appeal statement within ten days after the judgment was delivered in the final form.”
“1. Upon the receipt of the statement of appeal ... the judge shall:
1) send to the parties copies of the statement of appeal and the enclosed written documents not later than the day after their receipt;
2) notify the parties of the time and place of the appeal hearing...
3) upon the expiry of the time-limit for appeal send the case file to the court of appeal ...”
“1. If a party to the case fails to appear and there is no evidence that the party was duly summonsed, the hearing is to be adjourned ...”
VIOLATED_ARTICLES: 6


ITEMID: 001-59367
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF H.B. v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-2;Violation of Art. 5-3;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: András Baka
TEXT: 7. The applicant, born in 1959, is a businessman residing in Küsnacht in Switzerland.
8. On 8 March 1993 the investigating judge (Untersuchungsrichter) of the Canton of Solothurn issued a criminal charge (Strafanzeige) against unknown persons on suspicion of having committed various criminal offences against the B. company, including forging documents and the improper use of funds obtained by increasing the company’s capital. On 10 March 1993 criminal investigations were opened against unknown persons. On 20 April 1993 the investigating judge heard A.W., who had been deputy director of the B. company until 31 December 1991.
9. On 26 April 1993 the investigating judge issued a warrant of arrest against the applicant and a certain R.B., both being members of the board and managers of the B. company, on suspicion of having committed the offences of forging documents, fraudulently obtaining a false document, disloyal management, and giving incorrect information as to commercial companies (Urkundenfälschung, Erschleichen einer Falschbeurkundung, ungetreue Geschäftsführung und unwahre Angaben über Handelsgesellschaften).
10. On 12 May 1993 the applicant was arrested and detained on remand in the municipality of Solothurn.
11. On the same day, the applicant was brought before the investigating judge who informed him orally of the grounds of his arrest and that he would not be allowed to contact his lawyer. The investigating judge issued a detention order, countersigned by the applicant, informing him of the grounds of his detention, as previously stated in the warrant of arrest.
12. Also on 12 May 1993 the investigating judge issued an order to search the B. company and the applicant’s house. The order stated that the applicant’s lawyer was not allowed to consult the case-file or to participate in the taking of evidence, and he was not to see or to speak with the applicant.
13. Still on 12 May 1993 the applicant filed with the Court of Appeal (Obergericht) of the Canton of Solothurn a handwritten complaint about his arrest and detention and that he had been refused contact with his lawyer. In his appeal, he referred, inter alia, to accusations concerning the B. company’s activities at the end of 1991, and to various reproaches formulated in 1992. He recalled that in 1992 he had offered the B. company’s co-operation with the prosecuting authorities, and that the latter had interrogated A.W. in 1992 and 1993. He pointed out that if he had wanted, he could have undertaken colluding activities as from December 1991.
14. On 14 May 1993 the applicant refused to reply when questioned.
15. On 15 May 1993 the investigating judge amended that part of his order of 12 May 1993 concerning the lawyer’s prohibition to see or speak with the applicant, as that part had been drafted erroneously under stress.
16. On 17 May 1993 the applicant was visited by his lawyer. He was also questioned by the police, though he refused to reply. He insisted that he should first duly be informed of the charges laid against him.
17. In the afternoon of 17 May 1993 the investigating judge informed the applicant that the charges against him concerned an increase of capital of the B. company in 1991, the balance sheet of 1991 and the accusation of disloyal management of the B. company.
18. On 18 May 1993 the applicant’s lawyer filed a complaint with the Court of Appeal against the applicant’s arrest and detention. He requested the applicant’s release, and the lifting of all restrictions of his defence rights. He further complained that there had been no concrete information about the offences laid against him. The applicant’s lawyer also complained that the applicant had not been heard by a "judge or other officer" as required by Article 5 § 3 of the Convention.
19. On 18, 19 and 22 May 1993 the applicant was again questioned.
20. On 22 May 1993 the applicant was released from detention on remand.
21. During the proceedings before the Court of Appeal the investigating judge filed observations in writing. The applicant in his reply dated 8 June 1993 pointed out that for one and a half year sweeping charges had been levelled against the B. company. For over a year the cantonal authorities had been threatening with proceedings in order to obtain documents.
22. As from 16 September 1993 the applicant and his lawyer were permitted to consult the case-file.
23. On 4 October 1993 the Court of Appeal struck the applicant’s appeals of 12 and 18 May 1993 off its list of cases as having lost their purpose. The Court referred to the case-law of the Federal Court (Bundesgericht) as to the requirement in such cases of an appellant’s legitimation according to S. 88 of the Federal Judiciary Act (Organisationsgesetz). The Court found that the applicant had meanwhile been released from detention and that he therefore lacked a practical interest in his appeal.
24. On 8 November 1993, the applicant filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court in which he complained that the Court of Appeal had struck the appeal off its list of cases. He also complained about his detention on remand, the limitations of his defence rights, and that the position of the investigating judge breached Article 5 § 3 of the Convention.
25. On 26 January 1994 the investigating judge filed observations with the Federal Court on the applicant’s public law appeal. With regard to the grounds of detention, he stated that, in view of the applicant’s previous contacts with other persons concerned, it could be assumed that the applicant, would with great probability have known quite clearly which charges were laid against him.
26. On 2 September 1994 the Federal Court dismissed the public law appeal, the decision being served on 21 September. In its judgment, the court examined, with reference to its own case-law, whether or not the applicant was entitled under S. 88 of the Federal Judiciary Act to file a public law appeal. The Federal Court refused to grant the applicant standing, noting, inter alia, that the Court of Appeal had itself stated that it would be able again to examine in a later case whether or not the investigating judge of the Canton of Solothurn complied with the requirements of Article 5 of the Convention.
27. On 13 February 1995 the applicant, R.B. and the B. company filed with the Federal Court, pursuant to S. 42 of the Federal Judiciary Act a civil action against the Canton of Solothurn, claiming compensation for unlawful detention. After hearing various witnesses the court gave its judgment on 13 April 1999.
28. In its judgment the Federal Court considered, inter alia, that the applicant’s detention on remand had been lawful in that the investigating judge had correctly assumed that there was a danger of collusion in the applicant’s case, and that he had duly conducted the investigations.
29. The Federal Court furthermore dealt with the applicant’s complaint that during his detention he had been refused contact with his lawyer. The court concluded that the complaint was well-founded and that compensation was due by the Canton of Solothurn.
30. The Federal Court also considered the applicant’s complaint under Article 5 § 2 of the Convention that he had not been duly informed of the reasons of his detention. The court reiterated the various points raised by the applicant in his complaint of 12 May 1993 from which it transpired that he had been informed orally by the investigating judge on that day. The Federal Court found that the investigating judge had duly informed the applicant of the various charges of which he was accused as well as of the object of the investigations. The court concluded that the applicant had had sufficient information to file a complaint against his detention on remand.
31. In its judgment the Federal Court replied to the applicant’s complaint that the investigating judge of the Canton of Solothurn did not comply with the requirements under Article 5 § 3 of the Convention. It noted that in principle the investigating judge was independent of the Public Prosecutor. After summarising its own case-law and that of the Court in the case of Huber v. Switzerland (judgment of 23 October 1990, Series A no. 188), the court concluded that the investigating judge qualified as an independent and impartial officer authorised by law to exercise judicial power within the meaning of Article 5 § 3 of the Convention, inter alia, on the following grounds:
“In the Canton of Solothurn the investigating judge conducts the inquiries or the preliminary investigations ... He closes these proceedings by means of a final order and refers the matter according to S. 97 § 2 of the Code of Criminal Procedure in cases of jurisdiction of the District Court or the District Court President ... to that court “for examination”. In respect of the description of the facts of which an accused is reproached and of their assessment from the point of view of criminal law, the final order will serve as bill of indictment in the cases of jurisdiction of the District Court and the District Court President ... In cases appertaining to the Criminal Court and the Court of Appeal, the final order will contain an application to the Public Prosecutor to file an indictment, or to the Indictment Chamber to close the proceedings ... (T)he investigating judge does not himself represent the prosecution in the court proceedings which follow the preliminary investigations. In cases before the Criminal Court and the Court of Appeal the public prosecutor will be exclusively responsible herefor. In case of jurisdiction of the District Court or the District Court President, there will be no prosecuting authority acting as party. The investigating judge will have no standing in the proceedings ...; as a result, it is excluded that he makes an application in his final order as to the sentence ... This right pertains exclusively to the Public Prosecutor - even in cases where the law does not provide for indictment and representation of the prosecution ... It follows that the final order of the investigating judge only has declaratory, orienting character ...”
32. As a result, the Federal Court ordered the Canton of Solothurn to pay the applicant 3,000 Swiss francs (CHF) as well as 5% interest since 12 May 1993 as he had been refused contact with his lawyer during his detention. The remainder of the action was dismissed. On the other hand, the plaintiffs were ordered to pay CHF 7,490 as procedural costs, and to reimburse the Canton of Solothurn the amount of CHF 15,000.
33. S. 42 of the Federal Judiciary Act provides for actions concerning civil litigation introduced by private persons against Cantons before the Federal Court which will examine the action as the sole instance.
34. According to S. 88 of the Act, an applicant is entitled to file a public law appeal “in respect of those breaches of law, which they have suffered on the basis of laws or orders which are generally applicable or personally concern them”.
35ATF [Arrêts du Tribunal Fédéral] 110 [1980] Ia 140).
36. According to ATF 125 [1999] I 394, a person lacking the required actual practical interest to complain in a public law appeal about a breach of Article 5 of the Convention, may nevertheless claim damages based on Article 5 § 5 of the Convention and introduce an action for compensation. This decision referred to the possibility of cantonal proceedings as well as of filing an action according to S. 42 of the Judiciary Act (see above, § 33). The preceding summary referred to the decision as “stating the case-law more precisely”.
37. The Judiciary Act of the Canton of Solothurn (Gesetz über die Gerichtsorganisation) of 1977 provides in SS. 4 et seq. for the jurisdiction in criminal matters, inter alia, of the District Court (Amtsgericht), the District Court President, the Court of Appeal (Obergericht) and the Criminal Court (Kriminalgericht). Pursuant to S. 15, the District Court will examine offences not pertaining to the jurisdiction of the other courts or of the District Court President. According to S. 72 of the Judiciary Act, the Public Prosecutor will prepare a bill of indictment in cases to be tried by the Court of Appeal or the Criminal Court. He will prepare the bill of indictment before the District Court if it is so agreed with the District Court President or upon request of the accused.
38. According to S. 50 of the Code of Criminal Procedure (Strafprozessordnung) of the Canton of Solothurn, a detained person must be released immediately if there is no longer a reason for his detention. SS. 83 et seq. provide that the investigating judge will conduct the investigations. S. 97 § 2 states that, if in cases before the District Court or District Court President the investigating judge decides to refer the case to court for examination, his final order shall contain a summary description of the facts, the legal description of the offence and the applicable criminal provisions.
39. As regards the relations between the Public Prosecutor’s Office (Staatsanwaltschaft) and the investigating judge, S. 75 of the Judiciary Act states that the Public Prosecutor will supervise the office of the cantonal investigating judge, and that he can issue instructions as to the conduct of business (Geschäftsführung). S. 13 § 2 of the Code of Criminal Procedure provides that in cases to be prosecuted ex officio the Public Prosecutor may at any time instruct the investigating judge to take evidence. S. 101 of the Code of Criminal Procedure provides that in cases before the Court of Appeal and Criminal Court the Public Prosecutor may, after the investigating judge has prepared his final order, order the investigating judge to undertake supplementary taking of evidence.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-2


ITEMID: 001-23192
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: MENSON v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants are Alex, Chris, Daniel, Essie, Kwesi and Samantha Menson. They are siblings of Michael Menson, a black man who was killed as a result of being set on fire by assailants in a racist attack during the night of 27-28 January 1997. The applicants are all British nationals living in England. They are represented before the Court by Bindman & Partners, a firm of solicitors practising in London, England.
At the time of his death, Michael Menson was a single thirty-year old black man. He suffered a mental breakdown in 1991 and was subsequently diagnosed and treated in hospital for schizophrenia. After March 1996, Michael Menson frequently received treatment at Chase Farm Hospital for his mental condition.
When Michael Menson was not in hospital he lived in his own accommodation in New Southgate, London. However, two months before his death he moved into accommodation for persons with mental health problems at Holden Lodge, North London.
On about 21 January 1997, Michael Menson was given leave from Chase Farm Hospital and went to stay at Holden Lodge.
On the night of 27 January 1997, at about 10 p.m., Chie Menson telephoned Michael Menson at Holden Lodge. She told him that she had received a message from Chase Farm Hospital that he was to return there as soon as possible for his “ward-round”. Some time after that telephone call Michael Menson left Holden Lodge with the apparent intention of returning to Chase Farm Hospital.
It appears that having left Holden Lodge, Michael Menson took the wrong bus for his destination and he ended up getting off the bus in Edmonton, North London. He was subsequently attacked by four white youths who had got off the bus with him. They set his back on fire, probably whilst he was lying face down on the ground.
He was found on fire at approximately 1.40 a.m. on 28 January 1997 by an off-duty fireman who had been passing by in a car. At the time he was found, Michael Menson appeared to be in a severe state of shock with severe burns to his back, buttocks and upper thighs. The off-duty fireman flagged down a passing police car with two police officers in it. They in turn summoned an ambulance.
According to the applicants, the two police officers did not treat the circumstances of Michael’s discovery as suspicious and wrongly assumed that he had set fire to himself. Consequently, they failed to investigate the crime scene at all at that stage or to set in motion any trains of inquiry to search for or identify and catch Michael Menson’s attackers. It was only after specific instructions from Michael Menson’s family at a later stage that the police began to treat the attack as suspicious and to investigate it.
An ambulance arrived and Michael Menson was taken to North Middlesex Hospital where he was admitted and treated. It seems that the police officers left the scene of the incident when Michael Menson was taken to hospital.
Michael Menson was found to have sustained full thickness third degree burns to 30% of his body. Owing to the severity of his burns, he was transferred to the Regional Burns Unit in Billericay Hospital.
Sometime between 2 a.m. and 3 a.m. on 28 January 1997, two officers arrived at the house of Ezekial Adewale, Michael Menson’s friend, in the mistaken belief that he was Michael Menson’s next-of-kin. It appears that the police had made this mistake as a result of inquiries to Chase Farm Hospital where Ezekial Adewale’s name and address were obtained.
The two police officers told Ezekial Adewale that Michael Menson had set himself on fire whilst walking along the North Circular Road in North London. The officers repeated this and stated that Michael Menson had been lucky because they had been passing, saw him on fire and had stopped and helped to extinguish the fire. Ezekial Adewale asked these officers if they had informed Michael Menson’s family. They told him they had not and he immediately gave them the address of Michael Menson’s brothers, Kwesi and Daniel.
Shortly afterwards, again sometime between 2 a.m. and 3 a.m., the same two police officers arrived at Kwesi and Daniel Menson’s home. The police officers told them that Michael Menson had set himself on fire in Edmonton, that he had been seriously injured and had initially been taken to the North Middlesex Hospital but had been subsequently transferred and was receiving treatment in the Regional Burns Unit in Billericay Hospital. The officers then asked Kwesi Menson to sign for some charred papers and two burnt keys which had been found on Michael Menson’s person and asked him whether Michael had been on medication or whether he had a mental health background.
Kwesi and Daniel Menson immediately went to Billericay Hopsital sometime around 3 a.m. They could not see Michael Menson at first because he was still receiving treatment for his burns. At about 11 a.m. they were allowed to see him briefly. He appeared alert and lucid and was able to answer their questions. Kwesi Menson asked his brother what had happened and Michael replied that he had been attacked by four white boys.
Michael Menson’s explanation to his brother conflicted with the report given by the police officers and so Kwesi Menson telephoned Edmonton Police Station at approximately 11.30 a.m. on 28 January 1997. He spoke to a police officer and told her that Michael Menson had told him that he had been attacked by four white boys.
On the evening of 28 January 1997, Alex Menson telephoned the hospital and was able to speak to Michael. Once again, although in pain, he was lucid and able to tell his sister about his recollection of the incident. He said that he remembered catching a bus in the wrong direction and that there had been four white boys on the bus, one of whom had been wearing a black leather jacket. He had got off the bus at the same stop as these white boys and followed them to ask for directions. He remembered that shortly after this he was leaning against something and then had felt something on his back. He then discovered that he was on fire and started to take his clothes off.
Following this conversation Alex Menson spoke to the ward sister at the hospital and a consultant treating Michael Menson and received confirmation that there were no contra-medical indications preventing Michael from being interviewed by the police. She also made requests to the police that they should come and interview Michael Menson about the attack.
Over the next 48 hours, Kwesi Menson again asked Michael Menson about what had happened. Michael Menson gave the same account. Kwesi Menson took notes on these occasions. Kwesi Menson had been asked to keep notes of these conversations by his sister, Alex Menson, because the police had resisted her requests to take a statement directly from Michael.
Kwesi Menson called the police on approximately three occasions from 28 to 29 January 1997 urging them to come to the hospital to take a statement from Michael. Alex Menson also called the police on repeated occasions over the same period requesting them: to take a statement from Michael; to go to the site of the incident; to take finger prints from the telephone box near to the place where Michael had been found; to interview local people; to put up an incident board requesting information; and to launch a media appeal for witnesses.
On 30 January 1997 Detective Inspector Williams came to the hospital, but he arrived at a time when Michael Menson was drowsy. Detective Inspector Williams decided not to take a statement from Michael Menson. Kwesi Menson gave a statement to Detective Inspector Williams summarising Michael’s account of the incident. However, during this meeting Kwesi Menson became very concerned because Detective Inspector Williams did not appear to take a full or accurate record of what Kwesi Menson was saying.
During the period between 28 January to 3 February 1997 Michael Menson received surgical treatment almost every day. When he was not in a post-operative state and up until 31 January, he was lucid, sitting up, talking to his family, feeding himself, doing crosswords, chatting with hospital staff and taking telephone calls. This included a telephone conversation with Ezekial Adewale during which Michael repeated his account of the incident and the attack by four young white men which, he stated, had occurred near a telephone box in Edmonton.
Notwithstanding Michael’s ability to make such statements to his family and friends, neither Detective Inspector Williams nor any other police officer took a statement from him at any stage.
On 3 February 1997 Michael Menson had a cardiac arrest and fell into a coma until 13 February 1997, when he died.
On 26 February 1997 the inquest into Michael Menson’s death before the Coroner’s Court was opened. It was adjourned on a number of occasions. During this time the police reported to the Coroner on several occasions, but copies of these reports were not disclosed to Michael Menson’s family.
In January 1998 an examination into the procedures and practices during the first stage of the investigation into Michael Menson’s death was carried out by the Metropolitan Police Service (“MPS”). In March 1998 the results of this examination were produced. The family were informed that this examination confirmed some of the doubts that the enquiry was not handled as well as it could have been and that an Investigating Officer had been formally appointed to look into the matter. The examination was made available to the Coroner but was kept back from the family as being confidential.
On 19 August 1998 the Menson family sent a letter of complaint to the Police Complaints Authority (“PCA”) concerning the MPS’s decision to withhold evidence from Michael Menson’s family prior to the inquest.
On 25 August 1998 Deputy Assistant Commissioner Townsend of Area 3 of the MPS responded informing the family that the complaint did not fall within section 84 of the Police and Criminal Evidence Act 1984 and therefore would not be recorded as such. This letter went on to respond to points of concern expressed in the letter of complaint.
On 16 September 1998 a verdict of unlawful killing was returned by a jury at Hornsey Coroner’s Court following a hearing lasting just over one week during which evidence had been given by a number of witnesses including fire experts on behalf of the MPS.
On 16 September 1998 Deputy Assistant Commissioner John Townsend issued a statement on behalf of the MPS regretting that for the first 12 hours after the attack on Michael Menson, the police treated it as a case of self-immolation.
On 25 September 1998 the family lodged a further letter of complaint with the PCA setting out the particulars of complaints in detail from the time that Michael Menson was discovered by the police in the early hours of 28 January 1997 until shortly after the inquest. The following criticism of the police’s handling of the case was made in the letter of complaint:
1. There were major errors in the police investigation of Michael Menson’s death, at the very outset of the case (and beyond) which substantially diminished the chances of detecting and prosecuting those responsible for Michael Menson’s death.
2. There was a concerted effort by all key officers (from the officers first on the scene, to Deputy Assistant Commissioner level) to minimise and obscure these errors and deflect criticism from the police.
3. These imperatives led the police:
– to continue, beyond the first 12 hours of the investigation of Michael Menson’s death, to fail diligently or promptly to investigate the death;
– to pressurise, abuse and mislead the Menson family about how Michael Menson met his death and the police investigation, with a view to affecting their ability properly to grieve and be represented at the inquest;
– improperly to influence the Coroner conducting the inquest and to seek to lead the jury to bring a verdict which was least embarrassing to the Metropolitan Police.
4. The police investigation into Michael Menson’s death was affected by racism and the subsequent internal investigation into the quality of the investigation failed even to address this issue.
The PCA appointed the Chief Constable of the Cambridgeshire Constabulary to carry out an investigation into the family’s complaint.
On 20 January 1999 the applicants were advised by Counsel that there were no reasonable grounds for advising the grant of legal aid to bring proceedings against the police in the light of the domestic law in respect of actions in negligence and claims of racial discrimination against the police.
On 15 February 1999 a Report of an Inquiry chaired by Sir William Macpherson of Cluny, a retired High Court Judge, was published into matters arising from the death of Stephen Lawrence, a black 18-year old youth who was murdered by a group of youths on 22 April 1993. The Inquiry investigating his death and its subsequent investigation by the MPS found that institutional racism existed both in the MPS and in other police services and institutions countrywide. The Inquiry found institutional racism primarily apparent in the actual investigation of Stephen Lawrence’s murder, including the police treatment and approach to the victim, key witnesses and the family of Stephen Lawrence and the “lack of urgency and commitment in some areas of the investigation”.
On 4 March 1999 the family of Michael Menson, with the assistance of campaigners, leafleted the area within which the suspects lived appealing for further information in respect of the murder.
On 9 March 1999 a suspect was arrested and later charged in connection with the death of Michael Menson. Two further suspects were arrested and later charged on 11 March 1999. Two of the accused (M.P. and C.C.) were committed for trial at the Central Criminal Court, London, for the murder of Michael Menson and conspiracy to pervert the course of justice. The third accused (H.A.) was committed to stand trial at the Central Criminal Court for conspiracy to pervert the course of justice. On 5 May 1999 another suspect (O.C.) was arrested in northern Cyprus and charged there on 5 August 1999 with the murder of Michael Menson.
On 15 June 1999 the applicants’ solicitor wrote to the PCA asking that the PCA also investigate other areas of complaint including the failure of the pre-inquest investigating teams to co-operate fully with the Racial and Violent Crime Unit and the making of untrue and misleading press statements damaging to Michael Menson’s family.
On 21 October 1999 the applicants’ solicitor was informed that the PCA had felt it wise to delay any further investigation into the applicants’ complaints pending the outcome of the criminal case against the accused in the English courts.
Further letters of complaints were addressed by the applicants’ solicitors to the Director of the Task Force alleging a failure on the part of the Task Force to liaise or to communicate adequately with the Menson family in respect of the criminal proceedings against the accused including the trial taking place in northern Cyprus.
On 25 November 1999 a criminal court in northern Cyprus found O.C. guilty of the manslaughter of Michael Menson and sentenced him to fourteen years’ imprisonment. By letter dated 23 December 2002, the applicants’ lawyer informed the Registry that the accused’s appeal had been rejected on 29 June 2001.
In December 1999 the Central Criminal Court in London found M.P. guilty of murder and sentenced him to life imprisonment. C.C. received a ten-year prison sentence for manslaughter. H.A. (and his co-accused) was convicted of perverting the course of justice in connection with the murder of Michael Menson and the subsequent investigation. All three accused received separate sentences on this count. According to the applicants’ lawyer’s letter of 23 December 2002, all of the accused’s appeals were rejected although the sentence of one of them was reduced.
The applicants maintain that the evidence given in the trials against the accused revealed the inadequacy of the police investigation. The applicants listed twenty-two areas of concern in a letter addressed by their solicitor to the PCA on 22 June 2000, including: the unfounded belief of police officers following the attack on Michael Menson that he had tried to commit suicide; the failure to seal the scene of the crime resulting in a loss of evidence; the failure to record or act on Michael Menson’s accounts to medical and nursing staff that other persons were responsible for what happened to him; the error of the police in recording the deceased’s injuries as non-life-threatening; threats made to and harassment of members of the deceased’s family by the police when, for example, they queried the police appeal for witnesses to come forward; assertions made by a police officer at the inquest that there was no evidence that others were involved in Michael Menson’s death; and the conduct of the police with respect to the conduct of the inquest and the criminal trials.
The Menson family members made formal statements to the Cambridge Constabulary investigating the case on behalf of the PCA in support of these complaints, as well as the complaints set out in the letter dated 25 September 1998 from the applicants’ solicitor.
On 8 February 2000 the PCA wrote to the applicants’ solicitor reporting on the evidence collated to date. The letter stated among other things:
“Carefully examining the first 12 hours will be fundamental to understanding what came later as it appears that once flawed explanations had entered the minds of police officers, to varying degrees it appears it remained present throughout the ensuing period up to, including and after the inquest. To what extent racial stereotyping of both Michael Menson and the Menson family took place and how this may have affected the investigation of his death will be an integral part of the investigation throughout. Similarly we will be examining whether there was an institutional failure by the Metropolitan Police to challenge with sufficient rigour the assumptions made at the start. This will include examining this issue up to and including Chief Officer levels if necessary.”
On 22 April 2000 the PCA wrote to the applicants’ solicitors stating, among other things:
“There is now available a significant body of evidence containing new information about these events, which appears to provide support for the family’s complaints from a number of independent directions ....”
On 13 September 2000 the applicants’ solicitor received an anonymous statement dated 1 September from a member or ex-member of the MPS. This statement, purportedly made on behalf of certain unidentified “serving and retired members”, contained serious allegations of misconduct by certain police officers involved in the investigation, including an allegation that one had lied to the Coroner during the inquest proceedings.
On 2 November 2000 the applicants’ representatives were informed at a meeting that the PCA had begun to interview nine police officers under caution but that only one had chosen to answer questions. A further difficulty was that certain key police officers had retired or were about to retire and could not be interviewed without their consent, and in any event not under caution. A report could not expected before November 2001 at the latest.
One key officer (S.) retired on at the beginning of 2001 and was therefore no longer subject to the police disciplinary code.
On 31 December 2002 the PCA informed the applicants’ solicitors in writing that it had received the Investigating Officer’s report and that the PCA was satisfied with the investigation which had been carried out into the applicants’ complaints. A copy of the report (which was supported by 218 statements, 465 documents, 18 interviews with officers under investigation and 17 appendices) had been made available to the Crown Prosecution Service (“CPS”). The applicants’ solicitors’ were further informed that they would be notified if the CPS decided to bring criminal charges in the event of findings that any police officers had committed a criminal offence. The PCA’s letter concluded:
“I regret that there may be yet further delay while these next steps in dealing with your complaint are completed. The Authority will consider the disciplinary aspects of the case only after any criminal issues have been decided.”
In England it is a rule of the common law that no one can recover damages in tort for the death of another (Baker v. Bolton (1808) 1 Camp. 493).
The Section 1 of the Fatal Accidents Act 1976 confers a right of action for a wrongful act causing death. Section 1(2) of that Act provides that an action may be brought for the benefit of the “dependants” of any deceased person against a person who wrongfully caused the death. If there is no dependency, there is no pecuniary loss to recover as damages. Bereavement damages (currently fixed at £7,500) are only available to parents of a child under the age of 18 (section1A(2)). Funeral expenses are recoverable (section 3(5)).
The statutory survival of causes of action enables recovery on behalf of the deceased’s estate of damages for losses suffered by the deceased before he died. This includes any non-pecuniary loss such as damages for any pain and suffering experienced between the infliction of injury and death.
Domestic case-law on the liability of the police at the relevant time in civil law for acts or omissions in the investigation and suppression of criminal offences is summarised in the Court’s Osman v. the United Kingdom judgment (Reports of Judgments and Decisions 1998-VIII).
On 30 November 2000 the Race Relations (Amendment) Act received Royal Assent. The aim of this Act (“the 2000 Act”) is to bring about changes to the Race Relations Act 1976 (“the 1976 Act”) by allowing applicants to bring proceedings in respect of racially discriminatory acts by (among other public authorities) the police in carrying out their public duties of law enforcement and investigation, and to bring proceedings against the chief officers of police for acts of racial discrimination by police officers under their command. The 2000 Act has no retrospective effect.
Section 75 provides for the application of the provisions of the Act to persons holding statutory office as it applies to private persons. Therefore police constables are subject to its provisions.
A discrimination claim against the police in the conduct of its investigations may only be brought if it falls within the exhaustive provisions set out in the 1976 Act and, in particular, section 20, which deals with the provision of services to the public or a section of the public.
The Court of Appeal has held in the case of Farah -v- Commissioner of Police of the Metropolis [1997] 2 WLR 824 that only those parts of a police officer’s duties involving assistance to or protection of members of the public amount to the provision of services to the public for the purposes of section 20(1) of the 1976 Act. According to the applicants, this greatly limits the scope of any claim under the 1976 Act against the police. In the applicants’ conclusion, there is no provision in the 1976 Act that permits an action to be brought in respect of the police investigation of the attack on Michael Menson or confers any legal remedy in respect thereof.


ITEMID: 001-111569
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: MRDENOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos
TEXT: 1. The applicant, Ms Marija Mrđenović, is a Croatian citizen of Serbian ethnic origin, who was born in 1940 and lives in Slavonski Brod. She is represented before the Court by Ms M. Trninić, a lawyer practising in Slavonski Brod.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 7 October 1991 a bomb was thrown at a house owned by the applicant’s parents-in-law. A close relative of the applicant’s husband was killed and another injured.
5. In February and March 1992 fires were started at a house and adjacent premises owned by the applicant’s husband, B.
6. On 15 January 1993 while the applicant and her husband were returning from a funeral in Staro Petrovo Selo, B. was shot in the back. He was taken to a hospital in Nova Gradiška, where he died on 19 January 1993.
7. On the day of the shooting of the applicant’s husband the police arrived at the scene and carried out a crime scene inspection, which was continued the following day. The crime scene was photographed. The police examined the scene and recovered samples of earth, clothes and biological traces. The footprints found at the scene were not susceptible to forensic examination. A sniffer dog was also used and it was concluded that the perpetrator had walked for about seven hundred metres and had then driven away in a motor vehicle. A special team was formed in the Nova Gradiška Police Station which carried out further investigation. In January 1993 they interviewed more than twenty potential witnesses, including the applicant. However, all these steps were fruitless.
8. On 20 January 1993 an autopsy of B.’s body was carried out.
9. On 16 February 1993 the Nova Gradiška Police Station lodged a criminal complaint against an unknown perpetrator with the Požega County State Attorney’s Office. On 24 October 2001 the case was transferred to the Slavonski Brod County State Attorney’s Office. However, on 30 December 2008 the criminal complaint was dismissed on the grounds that the prosecution had become time-barred.
10. On an unspecified date the applicant and her two children brought a civil action against the State in the Nova Gradiška Municipal Court, seeking compensation in connection with the death of B.
11. On 6 December 2005 the Municipal Court awarded each claimant 132,000 Croatian kuna (HRK).
12. This judgment was altered by the Slavonski Brod County Court on 21 December 2007. The court lowered the compensation awarded to each child to HRK 90,000 but upheld the sum awarded to the applicant.
13. The applicant and her children lodged an appeal on points of law with the Supreme Court. In respect of the applicant’s children, the appeal was declared inadmissible ratione valoris. As regards the applicant, the Supreme Court reversed the lower courts’ judgment and found that the claim had become time-barred in 1996.


ITEMID: 001-107147
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: KAMCEVA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: The applicant, Ms Verka Kamčeva, is a Macedonian national who was born in 1979 and lives in Radoviš. She was represented before the Court by Mr N. Kamčev, a lawyer practising in Radoviš.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant worked, on a temporary basis, as a teacher in a State-run school K.S. in Radoviš (“the school”). In August 2006, when her contract expired, the school advertised a vacancy announcement for several posts. The school recruited Ms Z.S. for the post for which the applicant also had applied. She complained to several inspection bodies alleging procedural irregularities. These bodies issued instructions, on the basis of which the school annulled the results of the competition.
On 25 September 2006 the applicant brought a civil action requesting payment of damages for having been discriminated on political grounds. She alleged that Ms Z.S., the successful candidate, had not had the required qualifications for the post. The claim was based on sections 6, 7 and 181 (6) of the Employment Act (see “Relevant domestic law” below).
The Radoviš Court of First Instance (“the first-instance court”) heard oral evidence from the applicant, witnesses Ms B.Z., Mr E.Lj., Ms I.A. and Ms Z.K., as well as Mr P.J., the school’s director.
In her statement, the applicant referred to a meeting with Mr P.J. in August 2006 when allegedly he admitted to her that he had been under considerable pressure from other fellow-members of his political party and that he was not able to take any decision by himself. At a next meeting, Mr P.J. confirmed that he had not taken the recruitment decision by himself.
Ms B.Z., a former teacher in the school and unsuccessful candidate for one of the advertised posts, stated that during a meeting held in August 2006, Mr P.J. said that a new contract would not be concluded with some acting teachers since the decision had not been made by himself, but by those who had appointed him director. On that occasion, he also stated that Ministers and Deputy Ministers had called and suggested him to appoint other candidates. She further referred to a discussion that she had on 11 September 2006 with Mr P.J., together with 10 other unsuccessful candidates. On that meeting, Mr P.J. allegedly told them that given their qualifications he “had cried for them”, but that his political party had pressed him to dismiss them, and that 20 people had voted against their recruitment. Mr E.L. and Ms I.A., who were also former teachers in the school and unsuccessful candidates, confirmed Ms B.Z.’s statement.
Ms Z.K., the applicant’s mother-in-law, stated that Mr P.J. told her that he had not made the selection, but that he had brought the list of candidates to the attention of his political party, which in fact, had taken the decision. None of 20 people present at that meeting had voted in favour of the applicant.
Mr P.J. contested the statements described above. He stated that he had selected the successful candidate by himself and that no political party had been involved in the selection process. He further argued that the applicant and witnesses had invented the whole story with the aim to achieve a common objective. Lastly, he confirmed that on the basis of the instructions given by the inspection bodies, he had annulled the results of the competition.
On 24 April 2007 the first-instance court dismissed the applicant’s claim as unsubstantiated. It found that the political affiliation of candidates was not specified as a post requirement in the vacancy announcement. Furthermore, the inspection bodies, on the basis of the complaints submitted by the applicant and other unsuccessful candidates, issued instructions which prompted the annulment of the announcement. The court rejected the witnesses’ statements as unsubstantiated since the vacancy announcement had not required that candidates be of any political affiliation.
The applicant appealed against this decision arguing that the first-instance court had not provided adequate reasons for having ignored the witnesses’ statements that provided clear evidence that she had not been appointed due to political reasons. She asked the court why, despite the fact that she had been the only candidate who had satisfied the post requirements and had previous working experience, the school had appointed Ms Z.S., who had not had the necessary qualifications for the post.
On 29 October 2007 the Štip Court of Appeal dismissed the applicant’s appeal and confirmed the lower court’s decision. It found no grounds to depart from the facts established by the first-instance court and the reasons given. It confirmed that the announcement, on the basis of the instructions given by the inspection bodies, had been annulled. The applicant was served with this decision on 9 November 2007.
Under Article 110 § 3 of the Constitution, the Constitutional Court has jurisdiction to protect human rights and freedoms concerning inter alia the prohibition of discrimination on political grounds.
Section 6 (1) of the 2005 Act provides that a candidate for a post cannot be discriminated against on the basis of his or her race, colour, sex, age, health, religious, political or other opinion.
Section 7 of the 2005 Act defines direct and indirect discrimination.
Section 10 of the 2005 Act provides that the unsuccessful candidate can claim compensation in case of discrimination.
Under section 11, if the candidate produces evidence of practice contrary to section 6 of this Act, the burden of proof is on the employer to prove that there was no discrimination.
Section 181 (6) of the 2005 Act provides that the unsuccessful candidate claiming to have been discriminated against can claim compensation in proceedings before the competent court.
Section 51 of the Rules of Procedure provides that a person who considers that any of his or her rights or freedoms, set forth in Section 110 § 3 of the Constitution, has been violated by an individual decision or action may seek redress before the Constitutional Court within two months from the adoption of the final decision or from the day he or she had knowledge of the action taken, but no later than five years from the day of its occurrence.
Section 82 provides that in its decision for the protection of rights and freedoms, the Constitutional Court shall determine the way of eliminating the consequences from applying the individual decision or action, with which those rights and freedoms had been violated.
In its decision of 20 June 2007, the Constitutional Court dismissed a constitutional appeal (барање за заштита на слободите и правата) submitted by four individuals under Article 110 § 3 of the Constitution. The complainants claimed that they had been dismissed from work due to their ethnic origin and political affiliation. The court, after having interviewed them and held a public hearing, dismissed their appeal as manifestly ill-founded. It appears that the complainants did not claim damages in civil proceedings under sections 10 and 181 (6) of the 2005 Act (U.br.227/2006).