ITEMID: 001-101114
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: FRANK v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Michael Frank, is a German national who was born in 1956. He is currently confined in a psychiatric hospital in Weissenthurm. He was represented before the Court by Mr W. Karczewski, a lawyer practising in Neuwied. The respondent Government were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 July 1982 the applicant was arrested on suspicion of sexual abuse of a nine-year-old girl. He confessed and was released the same day.
On 26 July 1982 the applicant voluntarily admitted himself to a psychiatric clinic at Andernach.
In the course of the applicant’s trial at Koblenz Regional Court it was established that between 1975 and 1982 the applicant had committed twenty offences of sexual abuse of children. At the time of the first offence the applicant was nineteen years old. The applicant had manipulated the genitals of his victims, girls between the age of eight and ten, with his hands, whereupon he had spontaneous ejaculations or masturbated. He ceased the sexual manipulations as soon as his victims resisted him. The first sixteen offences of sexual abuse had been committed between 1975 and 1978. The victims were schoolmates of the applicant at a special boarding school for visually impaired persons which the applicant, who suffers from a serious congenital visual impairment himself, attended from 1966 to 1978, first as a pupil and later as an apprentice. The other victims were children of relatives or of other acquaintances.
On 18 August 1983 Koblenz Regional Court, following a confession by the applicant and after consulting a medical expert at the Andernach psychiatric hospital, who diagnosed the applicant as suffering from a personality disorder characterised by very low self-esteem and difficulties with social integration as well as from a serious sexual deviation in the form of heterosexual paedophilia, acquitted the applicant. The Regional Court considered that the applicant had committed his offences without criminal responsibility and ordered him to be placed in a forensic psychiatric clinic, since there was a high risk that he would commit further serious sexual offences (Articles 20 and 63 of the Criminal Code, see Relevant domestic law below). Since then the applicant has been confined in psychiatric hospitals for more than twenty-seven years.
The applicant was initially detained in the forensic psychiatric hospital at Andernach, then from 1984 to 1986 in Landeck, where it was established that the applicant’s sexual deviation was the consequence of a compulsive neurotic development and that - among other factors - the applicant’s congenital visual impairment and problematic family background had led to his social marginalisation and prevented him from learning how to deal adequately with his sexuality.
Following a failed therapy attempt the applicant was retransferred to the Andernach psychiatric hospital in 1986, where he stayed until July 1997. An authorisation to work in an external sheltered workshop for disabled persons was revoked in 1992 when the applicant extended his journeys to work without permission on several occasions.
In August 1997 the applicant was transferred to a forensic psychiatric clinic in Alzey, where he entered into a homosexual relationship with a fellow patient. In February 2001 he was transferred back to a ward of the Andernach clinic in Weissenthurm, where he has remained.
Expert opinions established at regular intervals by the respective clinics in the period from 1989 to 2001 (for instance on 25 August 1989, 28 October 1993, 27 September 1995, 29 February 1996, 17 December 1999 and 6 November 2001) while acknowledging that the applicant had adapted to life in the institution and had made some progress in his therapy, highlighted that he had a tendency to trivialise the offences he had committed and was not ready to deal with his personality disorder, and that it could not be ruled out that he would commit similar offences if released. An external expert opinion commissioned by the Regional Court at the request of the applicant and rendered on 11 December 2000 suggested that further therapeutic measures be pursued with the applicant, that accompanied exits from the hospital be allowed, and that his criminal prognosis be reviewed after three years. Subsequent accompanied exits of the applicant from the clinic and further relaxations of his detention did not give cause for complaint.
In 2002 the applicant entered into a further homosexual relationship with a fellow patient, which was qualified by the attending therapists as relatively stable and estimated as the beginning of development towards a mature form of sexuality. Pursuant to an expert report rendered by the clinic on 16 December 2003 the applicant showed progress in dealing with the offences he had committed but there was still a risk that he would commit related sexual offences.
In an expert opinion dated 21 November 2004 the same external expert who had rendered the opinion of 11 December 2000 came to the conclusion that the applicant was not suffering from paedophilia and that the offences committed were to be qualified as compensatory acts of an inhibited and severely visually impaired person, who had considered his victims little adults. In view of the progress made by the applicant, as confirmed by the attending therapist, the expert found that the criminal prognosis for the applicant was rather positive and recommended that following a one-year probationary period a conditional release of the applicant and his placement in supervised accommodation (Betreutes Wohnen) could be considered.
The expert further pointed out that he had hardly ever come across a case where a person detained in a psychiatric hospital had been exposed to so many different treatments and transferred so often from one clinic to another, resulting in alternating positive and negative prognoses. For instance, a course of therapy at the Alzey psychiatric clinic showing positive results was interrupted in 2001 when the applicant was retransferred to the clinic in Weissenthurm.
The applicant’s detention in a psychiatric hospital has been reviewed at regular intervals (compare Article 67d and Article 67e of the Criminal Code, see Relevant domestic law below) by the relevant courts, and his requests for probationary suspension of his detention have repeatedly been refused by the courts.
For instance, by a decision dated 3 November 1995 Koblenz Regional Court, while refusing a further request by the applicant for a probationary suspension of his detention, held that after more than twelve years of detention its further continuation might no longer be proportionate and that therefore the hospital was under an obligation to expedite rehabilitation measures, in particular in view of the applicant’Regional Court reduced the statutory one-year period for the subsequent review of the applicant’s detention to six months.
An appeal by the applicant against a subsequent refusal of a similar request by Koblenz Regional Court was dismissed by the Koblenz Court of Appeal by a decision of 24 April 2002.
On 30 January 2004 Koblenz Regional Court, in a decision confirmed on appeal, again rejected the request of the applicant for a probationary suspension of his detention.
On 14 January 2005 the Koblenz Regional Court rejected a further request for conditional discharge and ordered a review of his detention after six months instead of the statutory one-year period.
On 1 September 2005 Koblenz Regional Court, after hearing the applicant, dismissed his request to have his detention in a psychiatric hospital terminated or suspended on probation (see Article 67d and Article 67e of the Criminal Code). Having heard the applicant on 26 August 2005 in the presence of his counsel as well as the ward physician and another doctor and relying in particular on an expert report by the Andernach psychiatric clinic dated 13 June 2005, the Regional Court found that since the last review of the applicant’s detention on 14 January 2005 the applicant, who had for a while been displaying aggressive behaviour, was now participating regularly in therapy groups again but had only agreed to do so after being informed that a refusal to undergo treatment would have a negative impact on his legal and medical prognosis. While taking into account the length of the applicant’s detention, the Regional Court emphasised the fact that the latter was still at the beginning of a new therapy attempt, that he was trivialising the committed offences on the ground that he had never used force against his victims, that he did not show any empathy with them and was incapable of speaking about his emotions. The Regional Court held that for these reasons there persisted a high risk that the applicant would commit similar sexual offences if released.
On 20 October 2005 the Koblenz Court of Appeal dismissed the applicant’s appeal. The Court of Appeal was convinced that the applicant was still suffering from paedophilia and stressed that this diagnosis had repeatedly been confirmed by attending doctors. The Court of Appeal further emphasised that it was not persuaded by the findings to the contrary of the external expert in 2004. It pointed out that in 1992 the applicant had abused his unsupervised journeys to work in a sheltered workshop in order to visit locations frequented by children and juveniles, that pictures depicting child pornography had been discovered in his room and that he had subscribed to magazines for children and young people. The Court of Appeal held that a probationary suspension of the applicant’s detention would only be possible in the event that his therapy could be regarded as having reached such an advanced stage that the remaining threat to pre-adolescent girls would be low. These conditions had not been met in the instant case and it had to be assumed with certainty that the applicant would sexually abuse little girls if released.
The Court of Appeal referring also to its previous decision of 24 April 2002 further considered that in view of this risk the applicant’s continued detention for more than twenty years was still proportionate. Having regard to the nature of the offences at stake and the obligation of the State to protect the rights of individuals and of the general public it was unjustifiable to release the applicant. Even lifelong detention in a psychiatric hospital could be proportionate and constitutional if justified by protection of the rights of third parties.
On 17 February 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2096/05) on the ground that it had no prospect of success. It held that the courts dealing with the execution of the applicant’s detention were under an obligation to independently assess statements made or opinions rendered by experts and to reach a decision on the resulting prognosis. The Court of Appeal was not bound by the conclusions of the external expert but was free to make its own assessment as to whether the conditions of Articles 20 and 63 of the Criminal Code had been met in the instant case. The Court of Appeal’s conclusion had been in line with the findings of other experts, who had obviously assumed for over twenty years that the applicant was a paedophile. It had had sufficient regard to the external expert’s findings and evaluations and had not come to any arbitrary conclusions. A negative legal prognosis for the applicant had been justified in view of the fact that he did not show any empathy with his victims and had a tendency to trivialise the committed offences. When assessing the proportionality of the continuing detention the Court of Appeal had struck a fair balance between the applicant’s request to be released after more than twenty years of detention in a psychiatric hospital and the threat he posed to society.
On the occasion of a subsequent review of the applicant’s detention Koblenz Regional Court, by a decision of 8 September 2006 after hearing the applicant, and relying on an opinion by the attending doctors of 31 May 2006, again ordered that the applicant remain in a psychiatric hospital. The attending doctors had confirmed the diagnosis of paedophilia and given a negative criminal prognosis for the applicant, in particular in view of insufficient progress made in the course of his therapy and the resulting risk of recidivism. As regards the assessment as to whether the duration of the detention was still proportionate, the Regional Court referred to the Koblenz Court of Appeal’s reasoning in its aforementioned decision of 20 October 2005. The applicant’s related appeal was dismissed by the Koblenz Court of Appeal as manifestly ill-founded by a decision of 18 December 2006.
On 21 January 2008 Koblenz Regional Court obtained an external expert opinion in view of a further review of the applicant’s detention. The expert found that the applicant was suffering from heterosexual paedophilia and that the homosexual relationships he had established with other prisoners had to be qualified as compensatory acts. The expert was of the opinion that the applicant continued to show paedophilic tendencies and that there persisted a risk that the applicant would commit similar sexual offences if released. In view of the external expert’s conclusion and after hearing the applicant, the Regional Court confirmed his continued detention by a decision dated 20 February 2008.
On 17 April 2009 Koblenz Regional Court, after hearing the applicant and on the basis of a statement of the attending doctors of 13 January 2009, again found that a probationary suspension of the applicant’s detention could not yet be envisaged, since the risk persisted that he would reoffend. The applicant’s paedophilia and personality disorder remained unchanged and his capacity and willingness to cooperate in therapy was severely limited due to his lack of acknowledgement of his illness and need for treatment. He was still trivialising the offences committed and was incapable of showing sufficient emotional concern and empathy. The Regional Court, while taking into consideration the considerable length of the applicant’s detention, pointed out that there was no doubt that his placement in a psychiatric hospital was still proportionate. The crimes which had been at the origin of the applicant’s placement in the psychiatric hospital were serious and there persisted a high risk of recidivism. According to the statements of the attending doctors there were no other measures capable of responding to such a risk, in particular since the applicant’s attitude towards his sexuality and paedophilic tendencies was completely unclear. Thus, at present the interest of the safety of the general public could only be protected by means of the applicant’s continued detention and still took priority over the applicant’s interest to be released.
On 7 July 2009 the Koblenz Court of Appeal dismissed a related appeal by the applicant.
The German Criminal Code distinguishes between penalties (Strafen) and socalled correction and prevention measures (Maßregeln der Besserung und Sicherung) to deal with unlawful acts. Penalties (see Articles 38 et seq. of the Criminal Code) consist mainly of prison sentences and fines. The penalty is fixed according to the defendant’s guilt (Article 46 § 1 of the Criminal Code). Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) consist mainly of placement in a psychiatric hospital (Article 63 of the Criminal Code) or a detoxification facility (Article 64 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code). The purpose of these measures is to rehabilitate dangerous offenders or to protect the public from them. Placement in a psychiatric hospital may be ordered against offenders who have acted without, or with diminished, criminal responsibility. The measure must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants concerned, as well as to the danger they present (Article 62 of the Criminal Code).
Pursuant to Article 20 of the German Criminal Code, a person who upon commission of a criminal offence is incapable of appreciating the wrongfulness of the act or of acting in accordance with such appreciation due to a pathological emotional disorder, profound personality disorder, mental defect or any other serious emotional abnormality, acts without guilt.
Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility pursuant to Article 20, the court orders their placement without a maximum duration in a psychiatric hospital if a comprehensive evaluation of the defendant and his act reveals that as a result of his condition he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public.
Article 67d of the Criminal Code governs the duration of detention. If the court considers following the commencement of detention in a psychiatric hospital that the conditions for the measure are no longer met or that further execution of the measure would be disproportionate, it declares the measure terminated (Article 67d § 6).
Article 67e of the Criminal Code provides for review of a person’s detention, inter alia, in a psychiatric hospital. The court may review at any time whether further execution of the detention order should be suspended on probation. It is obliged to do so within fixed time-limits (§ 1 of Article 67e). For persons detained in a psychiatric hospital, this time-limit is one year (§ 2 of Article 67e).


ITEMID: 001-60027
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF SARITAÇ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Feyyaz Gölcüklü;Georg Ress
TEXT: 10. On 15 June 1979 the applicant was arrested on suspicion of membership of an illegal organisation, the THKP-C (Turkish People’s Liberation Party/Front).
11. On 11 July 1979 the applicant was detained on remand.
12. On 15 January 1980 the Military Public Prosecutor filed a bill of indictment with the Martial Law Court against the applicant and 127 other defendants. The Public Prosecutor accused the applicant, inter alia, of membership of an illegal armed organisation, namely the THKP/C, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. He further charged the applicant with having been involved in a number of crimes such as armed robbery of public and private properties, and opening fire on several individuals.
13. The prosecution sought the death penalty under Article 146 § 1 of the Criminal Code.
14. On 30 July and 17 October 1980, 24 March 1981 and 23 February 1982 in respect of additional criminal proceedings initiated against the applicant before the Zonguldak, Torba and Izmir Assize Courts (ağır ceza mahkemesi), the courts issued decisions of nonjurisdiction on the ground that the incidents fell within the jurisdiction of the Martial Courts. The cases were joined to the case-file before the İstanbul Martial Court.
15. In a judgment of 8 November 1984 the İstanbul Martial Law Court convicted the applicant of membership of the THKP/C and his involvement in the alleged crimes. It sentenced the applicant to death penalty under Article 146 § 1 of the Criminal Code.
16. As the applicant’s sentence exceeded 15 years’ imprisonment, his case was automatically referred to the Military Court of Cassation (Askeri Yargıtay).
17. On 12 April 1988 the Military Court of Cassation quashed the judgment of the first instance court failed to establish the applicant’s involvement in some of the alleged crimes. It referred the case to the İstanbul Martial Law Court.
18. On 17 August 1990 the İstanbul Martial Law Court convicted the applicant under Article 146 § 1 of the Criminal Code and sentenced him to twelve years and six months’ imprisonment, permanently debarred him from employment in the civil service and placed him under judicial guardianship. The applicant appealed.
19. Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Court of Cassation (Yargıtay) acquired jurisdiction over the case and on 4 January 1994 the case file was transmitted to it.
20. On 18 April 1995 the Court of Cassation upheld the applicant’s conviction.
21. Article 146 § 1 of the Criminal Code provides:
“Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Republic of Turkey or to effect a coup d’état against the Grand National Assembly formed under the Constitution or to prevent it by force from carrying out its functions shall be liable to the death penalty.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91198
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: STEFANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Slobodan Stefanovski, is a Macedonian national who was born in 1969 and lives in Gevgelija. He is represented before the Court by Mr D. Ajcev, a lawyer practising in Gevgelija.
The applicant worked as a warden in company N. (“the employer”) until 30 July 1998 when he was dismissed. On 8 April 1999 the applicant challenged his dismissal before the Gevgelija Court of First Instance (“the first-instance court”).
On 29 September 2000 the first-instance court accepted the applicant’s action, annulled the dismissal decision and ordered his reinstatement. It established that the dismissal decision had not reached the applicant although posted by the employer. It was only on 15 March 1999 that the applicant received this decision by the Employment Bureau (Биро за вработување). The employer’s managing board (“the board”), by a decision of 19 March 1999, rejected the applicant’s objection of 18 March 1999 as out of time. The same day, the employer communicated to the applicant a copy of the dismissal and board’s decisions. It further invited the applicant to the board’s meeting listed for 6 April 1999 to discuss the applicant’s objection of 18 March 1999. This meeting was not held. On 24 March 1999 the applicant lodged a fresh objection which remained undecided.
The court found that the applicant had not violated the rules on working discipline. It further dismissed the employer’s arguments that the applicant’s claim had not been filed in good time. In this connection, it held that the board had accepted jurisdiction to decide on the applicant’s objection of 18 March 1999 and rejected it the next day. The first-instance court held that the employer had failed to prove that the applicant had received the board’s decision on 20 March 1999. The court therefore accepted the applicant’s claim as having been submitted within the statutory time-limit, namely fifteen days following his second objection of 24 March 1999.
The employer appealed, inter alia, that the first-instance court had wrongly considered the applicant’s claim as having been submitted in good time. It provided in support a copy of a Post Office receipt list attesting that the applicant had received a letter from the employer on 20 March 1999 which included the dismissal decision and the board’s decision. It also argued that the dismissal decision should be considered together with the board’s decision.
On 7 March 2001 the Skopje Court of Appeal accepted the employer’s appeal and remitted the case for fresh consideration. It agreed that the employer’s decisions should be considered together and instructed the lower court to order the applicant to specify his claim in that respect. It further found insufficient evidence as regards the alleged breach of working discipline. As to the complaints that the applicant’s claim was out of time, the Court stated that:
“... this court accepts the reasoning of the first-instance court that the applicant’s claim was submitted within the statutory time-limit calculated as of the day of submission of the applicant’s objection in respect of the dismissal decision. In this context the Post Office receipt list does not alter this finding since it is impossible to determine the contents of that letter. This evidence does not substantiate the allegation that the applicant submitted his claim out of time ...”
On 25 March 2002 the first-instance court accepted the applicant’s claim and annulled the dismissal decision of 30 July 1998 and the board’s decision of 19 March 1999. It found, inter alia, that the board had not decided the merits of the applicant’s objection of 18 March 1999 although it should have done so by 3 April 1999. Neither did the board decide on the applicant’s objection of 24 March 1999. The court concluded accordingly that the applicant’s action had been submitted within the fifteen-day time-limit.
On 15 January 2003 the Skopje Court of Appeal accepted the employer’s appeal and overturned the lower court’s decision declaring the applicant’s action as being out of time. It found that:
“... on 19 March 1999 the employer’s second-instance commission decided on the applicant’s objection of 18 March 1999. On the same day, this decision was communicated to the plaintiff (the applicant) so ... the plaintiff could seek protection of his rights before a competent court within fifteen days of the final decision of the party sued, namely ... the second-instance decision.”
In an appeal on points of law, the applicant complained, inter alia, that the first- and second-instance courts, by their decisions of 29 September 2000 and 7 March 2001 respectively, had already accepted his action as having been submitted in good time.
On 4 December 2003 the Supreme Court dismissed the applicant’s appeal. It stated, inter alia, that:
“ ... According to the second-instance court, it is not in doubt that on 18 March 1999 (the applicant) lodged an objection in respect of the dismissal decision of 30 July 1998. (The employer’s) second-instance body decided on 19 March 1999. The same day, the second-instance decision was submitted to (the applicant) who could claim court protection of his rights within fifteen days of (the employer’s) final decision. The first-instance court accepted that (the applicant) ... objected to the dismissal decision. (The employer’s) second-instance body decided straight away ... The time-limit for challenging a dismissal decision cannot restart because the latter has been served again, but now - by (the employer) ...”


ITEMID: 001-118335
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF ABDI v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. The applicant was born in 1975 and is currently detained in HMP Brixton.
7. The applicant arrived in the United Kingdom on 7 May 1995 and claimed asylum. The asylum claim was refused but he was granted exceptional leave to remain until February 2000.
8. On 23 July 1998 the applicant was convicted of offences of rape and indecency with a child and sentenced to eight years’ imprisonment.
9. On 20 May 2002 the Secretary of State for the Home Department issued the applicant with a decision to make a deportation order and on 27 May 2002 he issued an authority for detention until the making of a deportation order.
10. On 2 July 2002 the applicant appealed against the decision to make a deportation order and made a fresh claim for asylum. The appeal was unsuccessful and his appeal rights were exhausted on 4 December 2003.
11. In early 2003 the applicant was interviewed by probation officers who found that he was not suitable for parole. During his time in prison he had received fourteen charges relating to offences against prison discipline. Six of these offences involved fighting. Moreover, he was assessed as presenting a high risk of sexual offending and a medium risk of general offending on release.
12. On 3 September 2003 the applicant’s release became automatic. However, he remained in detention pursuant to the authority issued on 27 May 2002.
13. On 5 April 2004 the Secretary of State for the Home Department issued a deportation order which included a paragraph authorising the applicant’s detention until his deportation. The order was served on the applicant on 19 April 2004.
14. The applicant had claimed to be a member of the Isaaq tribe, which comes from Somaliland, an autonomous region in north-west Somalia. He further claimed that his parents were born in Hargeisa, the capital of Somaliland, although it was accepted that he was born in Mogadishu, in south-central Somalia. Consequently, the authorities initially sought to return the applicant to Somaliland. However, in order to secure the agreement of the Somaliland authorities to the return of a Somalilander to their territory, detailed information about clan-history was required. This was normally done through the provision of bio-data, but this was often difficult to obtain as it required the co-operation of the Somalilander. Consequently, few Somalilanders were returned to Somaliland at this time. As the applicant did not co-operate with the provision of bio-data, the Government decided that it would be preferable to remove him to Somalia.
15. In August 2004 the last carrier willing to take “enforced returns” to Somalia withdrew, with the consequence that it was no longer possible for the Government to remove people without their consent. The carriers were, however, willing to carry those who had signed a disclaimer confirming that they were returning voluntarily. In November 2004 the applicant refused a formal request to sign such a disclaimer.
16. On 20 December 2004 an application for bail was refused by the Chief Immigration Officer.
17. In March 2005 the applicant made further representations for asylum. In September 2005 the Secretary of State for the Home Department refused to treat those representations as a fresh claim.
18. On 11 October 2005 the applicant was again refused bail. In the course of the hearing, however, the immigration judge was wrongly informed that enforced removals to Somalia would be possible in the foreseeable future.
19. In July 2006 the Government concluded an agreement with African Express Airlines which made enforced removals to Somalia possible. The first enforced removal to Somalia took place on 30 November 2006.
20. On 25 September 2006 the applicant was granted permission to apply for judicial review of the decision to detain him but an application for interim relief in the form of an order that he be released from detention was refused.
21. The applicant was issued with removal directions set for 29 November 2006. He sought leave to apply for judicial review of the removal directions and the directions were cancelled pending a decision on that application.
22. The application for judicial review of the decision to detain the applicant was considered by Mr Justice Calvert-Smith in a judgment handed down on 7 December 2006. The judge reiterated the principles established by domestic case-law, most notably in the case of R v Governor of Durham Prison, ex parte Hardial Singh [1984] WLR 704: first, that the Secretary of State for the Home Department could only detain a person that he intended to deport for what amounted to a reasonable period in all the circumstances; and secondly, that if, before the expiry of a reasonable period, it became apparent that the Secretary of State would not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention.
23. The judge first considered the lawfulness of the applicant’s detention up until August 2004. He was satisfied that from 3 September 2003 to August 2004 the Secretary of State had exercised comparative diligence to overcome the obstacles and remove the applicant. In particular, he noted that the applicant could not have been removed between September 2003 and December 2003 because his asylum and deportation appeals were still pending, and between December 2003 and April 2004 he could not be removed because no deportation order had been served. When considered alongside the objections to bail (the risk of re-offending and the risk of absconding), he held that on balance the continued detention of the applicant up to August 2004 was lawful.
24. The period of detention from 3 December 2004, which was the date of the applicant’s first review following his refusal to return voluntarily, to 30 June 2006 was found to be unlawful because of its length, the impossibility during that period of achieving removal, and the misleading statements which had misled decision-makers both inside and outside the Home Department.
25. The judge held that the applicant’s detention after 30 June 2006 was lawful as once again there was a prospect of immediate removal.
26. Both the applicant and the Secretary of State were granted leave to appeal to the Court of Appeal. The Secretary of State contended that the application for judicial review ought to have been dismissed, while the applicant submitted that his continued detention after 30 June 2006 should have been held to be unlawful.
27. In a judgment handed down on 30 July 2007, the Court of Appeal allowed the appeal by the Secretary of State and dismissed the applicant’s appeal. The court held that the period of detention between 3 December 2004 and 30 June 2006 was lawful because the applicant could have returned to Somalia voluntarily. Moreover, the risk of the applicant reoffending was high, which was a worrying prospect in view of the nature of his previous offence. The court held that it was wrong in principle to offset those factors against the applicant’s concerns about returning to Somalia as his removal had already been held not to be in breach of the Refugee Convention or Article 3 of the European Convention on Human Rights.
28. On 13 December 2007 the applicant was refused permission to appeal to the House of Lords.
29. On 1 February 2007 the Secretary of State issued a decision refusing to revoke the deportation order. An Immigration Judge allowed the applicant’s appeal. On 10 May 2007 the Asylum and Immigration Tribunal ordered reconsideration of the Immigration Judge’s decision. The reconsideration hearing took place on 26 February 2008. The Tribunal held that the Immigration Judge had materially erred in law and ordered that the case be reheard. The rehearing took place on 18 December 2008 and, in a determination promulgated on 1 July 2009, the Tribunal dismissed the appeal. The applicant was granted permission to appeal to the Court of Appeal on 18 December 2009. In a judgment dated 23 April 2010 the Court of Appeal allowed the appeal, finding that the applicant would be at risk of ill-treatment which reached the threshold required by Article 3 of the Convention if he were to be removed to Mogadishu. However, on 24 November 2010 the Supreme Court allowed the appeal by the Secretary of State for the Home Department.
30. On 6 December 2010 the applicant was issued with removal directions to Somalia. The removal was to take place on 8 December 2010. On 7 December 2010 the Court granted the applicant interim measures under Rule 39 of the Rules of Court to prevent his removal.
31. The applicant remains in immigration detention pending removal. On 13 April 2007 the Asylum and Immigration Tribunal had ordered that he be released from detention on bail. He was released early the following week but was re-detained on 3 April 2008 after breaching his bail conditions.
32. The present application is only concerned with the first period of detention, which ended shortly after 13 April 2007.
33. During the applicant’s detention from 3 September 2003 to 13 April 2007, reviews were carried out in November 2003, March 2004, June 2004, September 2004, October 2004, November 2004, January 2005, March 2005, May 2005, July 2005, September 2005, October 2005, December 2005, January 2006, February 2006, June 2006, September 2006, October 2006, December 2006, January 2007, February 2007 and March 2007.
34. In April 2006 the Home Office introduced a “secret” policy creating a presumption in favour of the detention of Foreign National Prisoners pending their deportation. The policy, which was not disclosed until mid-2008 and was not formally published until September 2008, constituted a “near blanket ban” on release. During this period, the Secretary of State’s published policy on the detention of Foreign National Prisoners stated that there was a presumption in favour of release. The lawfulness of this policy was considered by the Supreme Court in the cases of Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department [2011] UKSC 12 (see paragraph 37, below).
35. The power to detain a person against whom a decision has been taken to make a deportation order is contained in Paragraph 2 (2) of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”), which provides:
“Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.”
36. The power to detain an individual in respect of whom a deportation order is in force is contained in Paragraph 2 (3) of Schedule 3 to the 1971 Act. It provides:
“Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless [he is released on bail or] the Secretary of State directs otherwise).”
37. There are, however, limitations on the power to detain. Four distinct principles emerge from the guidance given in R v Governor of Durham Prison, ex parte Hardial Singh [1984] WLR 704:
“i. The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
ii. The deportee may only be detained for a period that is reasonable in all the circumstances;
iii. If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
iv. The Secretary of State should act with reasonable diligence and expedition to effect removal.”
38. In the case of Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department [2011] UKSC 12, the Supreme Court briefly considered the Hardial Singh principles. In his leading judgment, which was accepted by the majority of the court, Lord Dyson found that in assessing the reasonableness of the length of the period of detention, the risk of re-offending would be a relevant factor. In this regard, he noted that if a person re-offended, there was a risk that he would abscond either to evade arrest or, if he was arrested and prosecuted, that he would receive a custodial sentence. Either way, his re-offending would impede his deportation. He also considered that the pursuit of legal challenges by the Foreign National Prisoner could be relevant. However, he considered the weight to be given to the time spent on appeals to be fact-sensitive. In this regard, he noted that much more weight should be given to detention during a period when the detained person was pursuing a meritorious appeal than to detention during a period when he was pursuing a hopeless one.
39. Lord Dyson further noted that while it was common ground that the refusal to return voluntarily was relevant to the assessment of the reasonableness of the period of detention because a risk of absconding could be inferred from the refusal, he warned against the danger of drawing such an inference in every case. On the contrary, he considered it necessary to distinguish between cases where the return to the country of origin was possible and cases where it was not. Where return was not possible for reasons extraneous to the person detained, the fact that he was not willing to return voluntarily could not be held against him since his refusal had no causal effect. If return was possible, but the detained person was not willing to go, it would be necessary to consider whether or not he had issued proceedings challenging his deportation. If he had done so, it would be entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings, unless they were an abuse of process, and his refusal to return voluntarily would be irrelevant. If there were no outstanding legal challenges, the refusal to return voluntarily should not be seen as a trump card which enabled the Secretary of State to continue to detain until deportation could be effected, otherwise the refusal would justify as reasonable any period of detention, however long.
40. In the same case of Lumba and Mighty the Supreme Court was called upon to consider the lawfulness of detention which was effected pursuant to the unpublished policy which was inconsistent with the Secretary of State’s published policy (see paragraph 34 above). The applicants in that case were Foreign National Prisoners detained pursuant to the “secret” policy creating a presumption in favour of detention pending deportation, while at all material times the published policy indicated that there was a presumption in favour of release. The question of whether the applicants were lawfully detained divided the court, which concluded, by a narrow margin, that the unpublished policy applied to the applicants was unlawful. As a consequence, they were unlawfully detained and their civil claims in false imprisonment had to succeed. However, as the court found that the power to detain would have been exercised even if the lawful, published policy had been applied, it concluded – once again by a narrow majority – that the applicants should receive only nominal damages.
41. Lord Phillips, Lord Brown and Lord Roger dissented, preferring to find that the applicants’ detention was not unlawful because they would have been detained even if the published policy had been applied.
42. Chapter 38 of the document formerly referred to as the Home Office Operations Enforcement Manual provided that detention had to be reviewed each month and written reasons for maintaining detention had to be provided each month. In the case of Shepherd Masimba Kambadzi v. Secretary of State for the Home Department [2011] UKSC 23, the applicant had been detained pending the making of a deportation order for twenty-seven months. There was no question of a breach of the Hardial Singh principles (see paragraph 37 above) but nevertheless the applicant alleged that his detention had been unlawful as it had not been subject to regular reviews as required by the Secretary of State’s published policy. The Supreme Court concluded by a majority that it was the Secretary of State’s duty to give effect to his published policy if that policy was sufficiently closely related to the authority to detain. In the present case, the court found that this test was met and that the applicant’s detention was unlawful. However, in view of the fact that the applicant would have remained in detention even if the reviews had taken place, the court considered it likely that he would only be entitled to nominal damages.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-102368
LANGUAGEISOCODE: ENG
RESPONDENT: MNE
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: AJDARPASIC v. MONTENEGRO
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: 1. Following the financial crisis in the former Socialist Federal Republic of Yugoslavia, as well as the subsequent collapse of the banking system in the 1990s, in 1998, 2002, and 2003 the Federal Republic of Yugoslavia, as well as the respondent State itself, adopted specific legislation accepting the conversion of foreign currency deposits in certain banks, including the Montenegrobanka and the Jugobanka in Podgorica, into a public debt. The legislation set the time-frame (2017) and the amounts, including interest, to be paid back to the banks’ former clients (see paragraphs 14-27 below). The 1998 and 2002 legislation also explicitly provided that judicial enforcement proceedings instituted on the basis of judgments in respect of the said banks were to be discontinued (“obustavljeni”; see paragraphs 16 and 18 below).
2. The applicants are Mr. Avdulah Ajdarpašić (the first applicant), a Montenegrin national who was born in 1948 and lives in Stuttgart, Germany, and Mr Milorad Kadić (the second applicant), also a Montenegrin national who was born in 1936 and lives in Podgorica.
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
4. On 20 May 1992 the Court of First Instance (Osnovni sud) in Podgorica rendered a judgment in favour of the applicant, ordering the Montenegrobanka to pay him: (i) 60,198.36 German Marks (“DEM”) on account of his foreign-currency savings; (ii) the accompanying interest based on the DEM sight deposit rate (domicilna kamata na deviznu štednju po viđenju); and (iii) 211,154 Yugoslav dinars (“YUD”) for legal costs.
5. On 16 September 1992 the High Court (Viši sud) in Podgorica upheld this judgment and on 23 December 1992 the applicant obtained an enforcement order (rješenje o izvršenju).
6. On 5 September 2005 the Montenegrin Ombudsman (Zaštitnik ljudskih prava i sloboda), following the applicant’s enquiry, informed him that pursuant to the 1998 legislation all judicial proceedings relating to the “old-foreign currency savings”, including enforcement proceedings, had to be discontinued, and that the payment of these savings was instead regulated by the Act on the Citizens’ Foreign-Currency Savings 2003 (see paragraphs 14-27 below).
7. On 21 February 2006 the Court of First Instance confirmed that the enforcement of the judgment rendered in favour of the applicant had been discontinued, just like the enforcement of all the other judgments relating to the old foreign-currency savings. At the same time the applicant was advised to seek the payment of his savings in accordance with the Act on the Citizens’ Foreign-Currency Savings 2003.
8. There is no information in the case file as to whether the applicant actually did so.
9. On 22 March 1993 the Court of First Instance in Podgorica rendered a judgment in favour of the applicant, ordering the Jugobanka in Podgorica to pay him: (i) DEM 4,128.26 and USD 2,396.96 on account of his foreign-currency savings; (ii) the accompanying interest based on the bank’s sight deposit rate (u visini kamatne stope koju tužena obračunava na devizne štedne uloge po viđenju); and (iii) YUD 387,346 for legal costs. On an unspecified date thereafter this judgment became final, and on 4 May 1993 the applicant obtained an enforcement order against the Jugobanka.
10. On an unspecified date insolvency proceedings were initiated in respect of the Jugobanka, but on 19 June 2002 the applicant’s claim (potraživanje) was recognised by the Jugobanka’s insolvency administrator (stečajni upravnik). On 21 June 2004 the applicant’s claim was converted into 4, 454.63 euros.
11. On 23 August 2004 the applicant collected the amount statutorily envisaged for 2004 (see paragraph 23 below).
12. On 2 November 2004 the applicant renewed his request for enforcement of the above judgment, this time in respect of the respondent State.
13. Between 18 May 2005 and 25 July 2008 the enforcement judge (izvršni sudija) issued three enforcement orders in favour of the applicant. All three orders were later quashed by a three-judge panel (vijeće) of the Court of First Instance on the grounds that the State had only accepted to gradually pay back the deposits in accordance with the Act on the Citizens’ Foreign-Currency Savings 2003. No instantaneous payment of the entire amount was, therefore, legally possible.
14. Articles 1, 2, 3 and 4 provided that all foreign-currency savings deposited with the “authorised banks”, including the Montenegrobanka and the Jugobanka in Podgorica, before 18 March 1995 were to become public debts.
15. Under Article 10 the State’s responsibility in that respect was to be fully honoured by 2012 through the payment of specified amounts, plus interest, and according to a certain time-frame.
16. Article 22 provided that, as of the date of this Act’s entry into force (12 December 1998), “all pending lawsuits, including judicial enforcement proceedings, aimed at the collection of the foreign currency covered by this Act shall be discontinued”.
17. This Act repealed the Act described above. In doing so, however, it explicitly acknowledged as part of public debt all deposits previously recognised as such. It modified the time-frame for honouring the debt in question (from 2012 to 2016) and specified amended amounts, plus interest, to be paid annually. The annual amounts were EUR 276,10 in 2002, EUR 380 in 2003 and EUR 530 in 2004, while the exact amount of the remaining instalments was to be calculated applying a geometrical progression rate of 10% and a corresponding coefficient for that particular year, the coefficients themselves also increasing annually. The minimum such amount could not be less than EUR 500.
18. Article 36 reaffirmed that “all lawsuits aimed at the collection of the foreign-currency savings covered by this Act, including judicial enforcement proceedings, shall be discontinued.”
19. This Act entered into force on 4 July 2002. It was subsequently amended on two occasions, but these amendments concerned peripheral issues unrelated to the savers’ above-described status.
20. Article 3, inter alia, defines “foreign-currency savings” as all foreign currency deposited by natural persons with one of the “authorised banks based in the territory of the Republic of Montenegro” as recognised as a public debt of the Federal Republic of Yugoslavia (see paragraphs 14 and 17 above).
21. Pursuant to Article 5 § 1 as of the date of this Act’s entry into force Montenegro shall assume the obligations of the authorised banks towards natural persons in respect of their foreign-currency savings.
22. Article 5b explicitly provides that Montenegro shall also assume the obligations of the banks in respect of which insolvency proceedings were initiated.
23. Articles 14 and 15 provide that Montenegro shall honour this debt by 2017 and specify the amounts, and interest, to be paid annually in euros. The annual amounts were EUR 380 in 2004 and EUR 530 in 2005, while the exact amount of the remaining instalments shall be calculated applying a geometrical progression rate of 10% and a corresponding coefficient for that particular year, the coefficients themselves also increasing annually. The minimum such amount may not be less than EUR 500 should the instalment be less than that.
24. Pursuant to Article 18, the banks’ clients may, in advance of the said time-frame and under certain conditions, make use of their deposits converted into Government bonds in order to pay taxes, buy State property or take part in the privatisation of State-owned businesses.
25. Under Articles 16 and 17 former clients of the banks in question can also sell the said bonds to other natural or legal persons. Such trading is exempt from property taxation and capital gains taxation.
26. Articles 16 § 5 and 18 § 2 provide that the Government of Montenegro shall adopt additional technical regulations concerning the bonds in question.
27. This Act entered into force on 9 October 2003 and its amendments on 28 February 2004.


ITEMID: 001-69656
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KAWALKO V. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Kazimiera Kühl, is a German national, who was born in 1926 and lives in Oldenburg, Germany.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 March 1970 the applicant's husband's aunt died. On 30 December 1970 the Jarocin Regional Court (Sąd Powiatowy) declared that 19 family members (amongst them the applicant's husband) were to inherit her estate. On 25 September 1972 “K.K.” filed an application for distribution of the estate with the Jarocin District Court (Sąd Rejonowy).
On 6 March 2000 the court summoned the applicant to join the proceedings as her late husband's successor.
The proceedings are pending before the second-instance court.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
“1. Parties
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-23015
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: FASANG v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Ján Fašang, is a Slovakian national, who was born in 1954 and lives in Hrušov.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 22 February 1992 the applicant married. On 21 May 1993 his wife gave birth to a boy. In accordance with Section 51(1) of the Family Act, the applicant was presumed to be the child’s father.
In February 1996 the applicant’s wife moved to a different place together with the child.
On 3 May 1996 the Banská Bystrica District Court granted the request of the applicant’s wife that she be granted the custody of the child. It further ordered the applicant to contribute to the child’s maintenance. On 1 August 1996 the Banská Bystrica Regional Court upheld the District Court’s judgment.
Subsequently the applicant claimed that the marriage be dissolved. In his action he alleged, inter alia, that he had had sexual intercourse with his wife in January 1992 for the last time, and that they had not lived in a common household since February 1996. The applicant further requested that the child be placed in his custody.
On 11 July 1997 the Veľký Krtíš District Court granted the divorce of the applicant and of his wife. The child was placed in the custody of the mother and the applicant was ordered to pay maintenance.
The applicant appealed against the decision on the child’s maintenance and claimed that he had not fathered the child.
On 30 September 1997 the Banská Bystrica Regional Court upheld the relevant part of the District Court’s judgment. The appellate court’s decision stated that the applicant was presumed to be the child’s father in accordance with Section 51(1) of the Family Act.
On 19 November 1997 the applicant requested that the General Prosecutor bring proceedings on his behalf with a view to determining whether or not he had fathered the child born to his former wife. He explained that he did not consider himself to be the natural father of the child and that the issue could reliably be determined only by means of a blood test. The applicant further stated that he was ready to bear the costs of such a test.
On 5 February 1998 the Banská Bystrica Regional Prosecutor’s Office informed the applicant that it had been open to him to deny the paternity in respect of the child within six months after the child’s birth in accordance with Section 57(1) of the Family Act. The letter further stated that it had not been reliably shown that the applicant had not fathered the child. Furthermore, a blood test could not be carried out because of disagreement of the applicant’s former wife. In those circumstances, the requirements laid down in Section 62 of the Family Act for a paternity action to be filed on the applicant’s behalf were not met.
On 24 June 1999 the applicant claimed before the Banská Bystrica District Court that he had not fathered the child. He requested that a blood test be ordered with a view to determining this issue. The applicant explained that his last sexual intercourse with the child’s mother had taken place in January 1992, whereas the child had been born in May 1993.
On 15 February 2001 the District Court dismissed the applicant’s claim as having been lodged out of time. The judgment stated that the applicant had failed to file the action within six months after the child’s birth as requested by Section 57(1) of the Family Act. In the judgment the District Court pointed out that the applicant’s arguments did not appear reliable as he had started contesting his paternity in respect of the child only after his former wife had left him in 1996. The District Court further noted that public prosecutors had established no grounds for bringing paternity proceedings on the applicant’s behalf pursuant to Section 62(1) of the Family Act.
The applicant appealed and alleged that his rights under Articles 6 § 1 and 8 of the Convention had been violated as a result of the dismissal of his action and the refusal to carry out a blood test.
On 10 July 2001 the Banská Bystrica Regional Court upheld the District Court’s judgment of 15 February 2001. The judgment stated that the six months’ time-limit laid down in Section 57(1) of the Family Act was preclusive. As a result of the applicant’s failure to comply with it, his right to directly challenge the paternity of the child before a court had lapsed.
On 1 March 2002 the General Prosecutor’s Office informed the applicant that no reasons had been found for filing an extra-ordinary appeal on points of law against the Regional Court’s judgment of 10 July 2001.
Pursuant to Section 51(1) of the Family Act (Zákon o rodine), the husband of a woman who gives birth to a child during the marriage or not later than three hundred days after its dissolution shall be considered the child’s father.
Section 57(1) provides that a husband can deny paternity before a court within six months after he has learnt that his wife has given birth to a child.
Under Section 62(1), when the time-limit for denying the paternity by the parent concerned has expired, the General Prosecutor may file an action for disproof of paternity provided that the determination of the issue is justified by the interests of society.
According to the practice of the public prosecutors, an action under Section 62(1) of the Family Act can only be filed when there is reliable evidence that the mother’s husband did not father the child.


ITEMID: 001-101817
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ROMAN KARASEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 6-1;Violation of Art. 13+3;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1977 and lives in the town of Kaliningrad.
6. In April 1999 the applicant was arrested on suspicion of murder. On 15 June 2000 the Nesterovskiy District Court of the Kaliningrad Region discontinued the criminal proceedings against the applicant on the charge of acquisition of stolen goods in connection with an act of general amnesty adopted by Parliament. The applicant was released.
7. On 4 May 2001 the applicant was arrested and charged with armed robbery and unlawful possession of weapons. By a judgment of 22 October 2001 the District Court convicted the applicant as charged and sentenced him to twelve years' imprisonment. On 18 December 2001 the Kaliningrad Regional Court upheld the conviction on the charge of robbery but ordered a new trial on the charge of unlawful possession of weapons. The proceedings were then discontinued because the prosecution dropped the case.
8. In relation to the above proceedings, the applicant was detained in Kaliningrad remand centre no. 39/1 from 25 April 1999 to 15 June 2000, from 24 May 2001 to 16 January 2002, and from 23 January to 8 August 2002. On this last date the applicant was transferred to colony no. 13 in the Kaliningrad Region to serve his prison sentence.
9. The applicant provided the following description of the conditions of his detention in the remand centre. During the first period he was held in a cell measuring ten square metres. The cell was equipped with twelve beds but housed up to twenty-four inmates who took turns to sleep. There was constant noise and movement within the cell. The windows were covered with metal blinds blocking access to daylight and fresh air. There was no sink and the water tap was positioned above the toilet pan, which gave off a fetid smell. Inmates were allowed no more than one hour of outdoor exercise per day. The cell was infested with bugs and cockroaches. In support of his description of the conditions the applicant submitted an affidavit by his former cellmate, Mr B., who had been held in the same cell between February and June 2000. B. stated that the cell measured twelve square metres and had housed between twenty-one to twenty-seven persons, while it had had only twelve beds.
10. During the second and third periods applicant was held in a sixsquare-metre cell that contained three two-tier bunks and housed seven inmates. The windows were covered with metal blinds blocking access to natural light and air. There was no ventilation in the cell and in summer, the temperature peaked at 45ºC. In the absence of a sink the water tap was positioned directly above the toilet pan, which was not separated from the rest of the cell. The dining table was only 50 cm away from the toilet. The cell was infested with bugs and cockroaches. The applicant contracted chronic bronchitis. In support of his submissions the applicant produced a written affidavit by his former cellmate, Mr R., who had been held in the same cell from 7 June 2001 to 6 July 2002.
11. The applicant also submitted a copy of a letter dated 28 June 2001 sent by the Kaliningrad Regional Ombudsman to a Mr G., who was detained in remand centre no. 39/1 at the time. As follows from this letter, an inquiry carried out by the Office of the Ombudsman disclosed that detainees in that remand centre were provided with less than one square metre of space per person in the cells. The inquiry also disclosed unspecified deficiencies in the sanitary installations and medical services in the remand centre.
12. The Government affirmed, with reference to a certificate dated 27 April 2007 issued by the administration of the remand centre, that from 25 April 1999 to 15 June 2000 the applicant was held in cells nos. 67, 150, 143, 10, 54, 86, 140, 17, 15, 4/12, 4/8 and 76. These cells measured from seven to twenty-one square metres. Between 24 May 2001 and 8 August 2002 the applicant was held in cells nos. 15, 54, 129, 22, 55, 111, 4/20, 18, 109, 17, 4/11, 158, 14, 155 and 4/19. These cells measured from seven to eighteen square metres. The certificate indicated that it was impossible to supply data about the number of detainees in each cell during the relevant periods because the logbooks for 1999-2002 had been destroyed. According to a certificate dated 20 February 2007, the logbook for the year 2002 was destroyed on the same date in compliance with the five-year storage limit.
13. With reference to a number of other certificates issued by the national authorities in April 2007, the Government affirmed as follows. In all cells the applicant had been provided with a bed and bedding. Each cell had a table situated at a suitable distance from the toilet, benches and a tap with running water. Each cell had a toilet with a functional flushing system; each toilet was separated from the main area by a screen of one metre in height. Ventilation was provided through openings in the windows; the metal shutters/blinds on the windows did not block the normal flow of air. Each cell also had a functional ventilation system. The shutters/blinds were removed between December 2002 and March 2003. The cells were properly heated to no less than 18ºC. All the necessary sanitary measures were carried out. The remand centre had twenty courtyards, each measuring twelve square metres. The applicant was allowed a one-hour outdoor walk per day. The artificial night light was not strong, but was left on for suicide watch. The applicant was given three meals per day. The applicant had access to medical services and was not intentionally placed with anyone suffering from tuberculosis.
14. From August 2002 the applicant served his sentence of imprisonment in a colony in the Kaliningrad Region. In January and February 2003 he brought civil proceedings against the Ministry of Finance, claiming compensation for unlawful deprivation of liberty from October 2001 to August 2002 and appalling conditions of detention during that period. The case was submitted to the Tsentralniy District Court of Kaliningrad, which indicated remand centre no. 39/1 and the Prisons Directorate of the Kaliningrad Region as co-defendants of the Ministry of Finance.
15. By letter of 5 March 2003, the District Court advised the applicant that a hearing on his claim was listed for 27 March 2003 and explained his procedural rights to him. As regards the applicant's participation, the judge wrote:
“Civil law does not make a provision for transporting detained convicts to a civil court hearing. Thus, the court has no right to bring you to the hearing because that would breach the detention regulations. You have the right to appoint a representative to take part in the examination of your case ... You may also submit a written statement giving your consent to the case being examined in your absence.”
16. Following complaints by the applicant, who insisted on his right to be present at the hearing, on 25 March and 15 April 2003 the deputy President of the Kaliningrad Regional Court reiterated that the refusal to bring him to the hearing had been lawful and that he could make written submissions or appoint a representative.
17. On 22 April 2003 the District Court held a hearing. The representative of the Ministry of Finance waived his right to be present and made written submissions. It appears that the representative of the other two defendants was present at the hearing. The court considered that the applicant had been afforded an opportunity to appoint a representative and that in any event the written submissions were sufficient. The court held that the applicant's detention had been lawful because he had been ultimately convicted of a criminal offence. As regards the conditions of detention, the District Court held that the applicant had not proved the presence of bugs and cockroaches, that the one-hour outdoor exercise allowance was compatible with the detention regulations, and that there was no credible evidence that the applicant had contracted bronchitis. Although the overcrowding of the remand centre was undisputed, the District Court found that it had been caused by (unspecified) objective factors unrelated to the defendants' actions.
18. The applicant lodged an appeal. He submitted, in particular, that he had been denied the right to take part in the hearing.
19. On 23 July 2003 the Regional Court upheld the judgment, endorsing the reasoning of the District Court. It interpreted the applicant's failure to appoint a representative as a valid and lawful ground for examining the case in his absence.
20. In the meantime, the applicant filed another claim against the Ministry of Finance, seeking compensation in respect of pecuniary and non-pecuniary damage incurred through unlawful detention in 1999 and 2000 and appalling conditions in the remand centre.
21. The Tsentralniy District Court indicated the Kaliningrad Regional Prosecutor's Office, remand centre no. 39/1 and the Regional Prisons Directorate as co-defendants.
22. The judge advised the applicant, by the same standard letter, of the hearing date. She indicated that it would take place in his absence because he was a detainee but that he could appoint a representative.
23. The administration of the remand centre provided the court with the following information. The cell space of two hundred and forty-eight cells amounted to 1,630 square metres. Between April 1999 and May 2000 the population of the remand centre varied from 1,682 to 1,945 detainees.
24. On 24 June 2003 the District Court gave its judgment. It dismissed all the claims, finding that the detention had been lawful because the proceedings had been discontinued not by an acquittal but by an act of general amnesty. It also held that the employees of the detention centre had not been responsible for the overcrowding.
25. On 24 September 2003 the Regional Court upheld the judgment on appeal. The applicant was not present or represented.
26. Section 22 of the Custody Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy the sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
27. Order no. 7 issued on 31 January 2005 by the Federal Service for the Execution of Sentences deals with implementation of the “Remand centre 2006” programme. The programme is aimed at improving the functioning of remand centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem. The programme mentions Kaliningrad remand centre no. 39/1 as one of the detention centres affected. As of 1 July 2004, its design capacity was 524 detainees, but it actually housed 830 inmates.
28. Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. Pursuant to Article 1069, State agencies and State officials shall be liable for damage caused to an individual by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage.
29. The Code of Civil Procedure of the Russian Federation (CCP) provides that individuals may appear before a court in person or act through a representative (Article 48 § 1). The court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims concerning damage to health in employment-related disputes (section 26 § 1). In 2005 the Russian Government launched a test project in a number of regions concerning provision of free legal assistance in civil-law matters (decree no. 534 of 22 August 2005).
30. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77 § 1). The Code does not mention any possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or a defendant.
31. On several occasions the Constitutional Court has examined complaints by detainees whose requests for leave to appear in civil proceedings were refused by the courts. It has consistently declared the complaints inadmissible, finding that the impugned provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person's access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving his or her sentence, or the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the applicant's submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004 and no. 94-O of 21 February 2008).
32. Articles 57 and 149 of the CCP provide that the parties can seek the court's assistance in obtaining evidence. The relevant party should indicate the circumstances impeding the access to such evidence and its relevance to the case, as well as the location such evidence should be collected from. An unjustified failure to comply with the court order can lead to a fine on the person or official in possession of the relevant evidence.
33. In a given civil case a civil court can request a court in another location to take specific measures in relation to evidence situated in that location (Article 62 of the CCP). Carrying out such a request is mandatory and must be done within one month of its receipt.
34. Under Articles 58 and 184 of the CCP, a court may hold a session outside the courthouse if, for instance, it is necessary to examine evidence which cannot be brought to the courthouse.
35. Article 392 of the CCP contains a list of situations which may justify a reopening of a finalised case on account of newly-discovered circumstances. By a ruling of 26 February 2010 the Constitutional Court of Russia indicated that this Article should be interpreted as, in principle, allowing the launching of a procedure to have a final judgment re-examined on account of newly-discovered circumstances, such as the finding of a violation of the European Convention in a given case by the European Court of Human Rights.
VIOLATED_ARTICLES: 13
3
6
VIOLATED_PARAGRAPHS: 6-1