ITEMID: 001-4827
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: KAWKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish citizen born in 1965 and residing in Łódź.

On 6 January 1994 the Zgierz District Prosecutor issued a warrant of arrest against the applicant and on the same day remanded him in custody on suspicion of attempted manslaughter by assaulting the victims in their apartment with a knife and an axe.
. On 25 March 1994 the Łódź Regional Court (Sąd Wojewódzki) granted the Prosecutor’s request for prolongation of the applicant’s detention until 4 July 1994 in view of the need to obtain further expert opinions. On 5 April 1994 the Łódź Regional Court dismissed the applicant’s request for release.
On 26 April 1994 the Łódź Court of Appeal (Sąd Apelacyjny) complied with the applicant’s request to amend the decision of 25 March 1994 and shortened the period for which the applicant’s detention was authorised to 30 June 1994.
On 25 May 1994 the applicant requested his release. The Łódź Regional Court and, upon appeal, the Łódź Court of Appeal, dismissed his request.
On 15 June 1994 the applicant again requested to be released. On 17 June 1994 he underwent a psychiatric examination.
On 28 June 1994 the Łódź Regional Court, acting upon the motion of the Zgierz District Prosecutor, prolonged the applicant’s detention from 30 June until 30 September 1994. The Court considered that the reasons for which the detention had been ordered had not ceased to exist. There was sufficient suspicion that the applicant had committed the criminal offence at issue, supported by the evidence gathered in the course of the investigations. The applicant had to undergo a further time-consuming psychiatric examination. Further investigatory measures had to be taken and evidence had to be obtained.
On 15 July 1994 an additional psychiatric opinion was submitted.
On 19 July 1994 the Łódź Court of Appeal upheld the decision of 28 June 1994. The Court considered that the applicant’s continued detention was necessary in order to ensure the proper conduct of the proceedings in view of the fact that the applicant’s psychiatric examination had not been completed.
On 11 and 28 August 1994 the applicant requested to be released. His requests were subsequently dismissed by the Łódź Regional Court.
On 1 September 1994 the applicant requested his release.
On 5 September 1994 the applicant was informed that the charges against him had been in part modified and he was allowed access to the case-file.
On 21 September 1994 the applicant was served with a bill of indictment. On the same day the Public Prosecutor submitted the indictment to the Łódź Regional Court.
On 4 October 1994 the Łódź Regional Court dismissed the applicant’s request for release of 1 September 1994. The Court considered that there was a reasonable suspicion that the applicant had committed a dangerous offence, supported by the evidence given, inter alia, by the two victims. The reasons for which the detention had been ordered continued to exist. The applicant had failed to indicate in his request any new circumstances which could justify his release.
On 6 October 1994 the applicant’s father appealed against the decision. He submitted that the period of detention had expired on 30 September 1994, whereas the applicant had not received any decision further prolonging his detention.
On 10 October 1994 the applicant’s lawyer appealed against the same decision. He submitted that the Court’s conclusions as to the reasonableness of the suspicion were based on insufficient evidence as only the evidence given by the victims supported the suspicion that the applicant was guilty. The applicant’s detention since 30 September 1994 lacked any legal basis, as the detention period had expired on this date. No further decision relating to the prolongation of the detention had been issued.
On 25 October 1994 the Łódź Court of Appeal upheld the decision of 4 October 1994. The court first considered that the applicant’s arguments as to whether the suspicion against him was reasonable were ill-founded. The court further considered that the applicant’s suggestion that his detention since 30 September 1994 lacked any legal basis was entirely erroneous. The court stated that the applicant’s lawyer must apparently have overlooked the fact that the bill of indictment had been submitted to the court on 21 September 1994. Therefore the time-limits for detention on remand provided for by Article 222 of the Code of Criminal Procedure had ceased to apply, given that this provision applied only to the pre-trial stage of criminal proceedings
On an unspecified later date the applicant challenged all the judges of the Łódź Regional Court, alleging that they were biased against him. On 23 November 1994 the Łódź Regional Court decided that judge J.R. should step down, considering that he had declared, in reply to the applicant’s challenge, that he had known the victims of the offence for many years and that this could make it difficult for him to remain impartial. The court dismissed the applicant’s challenge of the remaining judges, finding that the statutory requirements for them to step down were not satisfied.
The court fixed the date of the first hearing to be held in the case for 27 January 1995. On 23 January 1995 the applicant’s lawyer requested that the hearing be adjourned as he was ill. He further requested the court to obtain a medical expert opinion in order to establish whether in the light of the injuries sustained by the victims the course of the material events could possibly correspond to events as presented in the bill of indictment. He further requested the court to order a reconstruction of the crime, which would allow it to make findings of facts relevant to the determination of the applicant’s criminal responsibility.
Subsequently, on 14, 16, 27 and 31 March 1995 and on 6 April 1995 the applicant requested to be released, but to no avail as the Łódź Regional Court dismissed all his requests.
In April 1995 the applicant complained to the prison medical services that, following pains which he had had in his right eye, he had begun to lose his eyesight.
On 5 June 1995 the Łódź Regional Court convicted the applicant of attempted manslaughter and sentenced him to five years’ imprisonment.
On 6 July 1995 the court informed the applicant that the written grounds of the judgment would be prepared by 10 September 1995.
In June 1995 the Regional Court, supervising the enforcement of sentences ordered that the applicant should be examined by an ophthalmologist. Apparently, this specialist had not found any pathology as regards the applicant’s eyesight, but indicated that a neurological examination was called for. In July the applicant was examined by a neurologist who recommended that he should undergo a comprehensive neurological examination in a specialised hospital.
Subsequently the applicant was transferred to Strzelce Opolskie prison. At the end of July 1995 he was transferred to Wrocław prison.
In a letter of 18 August 1995 the Ombudsman informed the applicant, in reply to his earlier complaints about the allegedly inadequate medical care which he had received in prison, that his allegations had been investigated and that they had proved unfounded. The Ombudsman referred to the fact that upon his admission to the Łódź prison the applicant had only stated that he was short sighted. On 17 January 1995, after the applicant complained that he had had a short loss of consciousness, he had been examined by a neurologist and had undergone a tomography of brain which had not shown any pathological changes. On 1 March 1995 he had been examined by an ophthalmologist, who had stated that his eyesight had not deteriorated since his admission to the prison. It was further stated in the letter that since 1 March 1995 the applicant had not reported any health problems to the prison health services, either after his transfer to the Strzelce Opolskie or after his subsequent transfer to the Wrocław prison. On 3 July 1995 he had only complained of headache.
On an unspecified date in October 1995 the applicant was transferred to another ward of Wrocław prison, to a cell for six inmates. On 19 October 1995 the applicant, following his complaints about his asthma, back pains and problems with his eyesight, was admitted to a hospital in Wrocław prison.
On 27 October 1995 the applicant was served with the written grounds of the judgment of 5 June 1995.
Subsequently the applicant’s lawyers lodged two appeals against this judgment, submitting that the Regional Court had committed errors of law in that it had erroneously applied substantive law and wrongly qualified the offence concerned as attempted manslaughter, whereas it should have been qualified as assault. It was further argued that the court had erroneously assessed the evidence, had disregarded the discrepancies between the testimony of various witnesses and, as a result, had made wrongful findings of fact. The court should have questioned D.W. who, as not having any family links with either the applicant or the victims, would be an impartial and credible witness. His testimony would in particular confirm that the applicant had not acted with an intention to kill.
On 6 November 1995 the applicant requested the Łódź Court of Appeal to expedite the appellate proceedings in his case.
On an unspecified date in November 1995 the doctors of the Wrocław prison hospital found that the applicant suffered from certain degenerative ailment of spine.
On 5 December 1995 the Łódź Court of Appeal informed the applicant that the case-file had not been submitted to that court.
On an unspecified date at the beginning of 1996 the applicant underwent a medical consultation in a public hospital in Wrocław.
On 29 February 1996 the Łódź Court of Appeal partly amended the judgment in that, in the determination of the applicant’s sentence, it relied on different provisions of the Criminal Code as applicable at the material time, and upheld it in its remainder. The court observed that whereas it was true that there had been certain discrepancies between the testimony of the three members of the L. family, the victims of the crime, on the other hand they had been quite concordant in respect of the essential elements of the material circumstances. These discrepancies could be explained by the lapse of time between their first questioning, made in the investigations, and the subsequent ones, made before the trial court. On the whole, the discrepancies were not of such a nature as to diminish the credibility of these witnesses, in particular as regards the weapons used by the applicant and the fact that he had used both of them, i.e. a knife and a kitchen axe. The court further noted that the lower court had summoned witness D.W. for the hearing on 3 June 1995, but as he had failed to attend the hearing, the court had read out his testimony deposed during the investigations, having first requested the parties to state whether they had insisted that this witness be questioned. At this stage the applicant’s lawyers had agreed that this testimony be read out in the court. Thus, the applicant had accepted that it had not been necessary for the court to hear this witness. The court further considered that, in any event, this testimony was in part concordant with the testimony of the other two witnesses, A.S. and D. D. There were no grounds on which to accept that the testimony in question would have entirely exonerated the applicant.
On 5 April 1996 the applicant’s lawyer lodged a cassation appeal against this judgment with the Supreme Court. It was argued that the courts had committed a serious error of law in that the applicant’s offence had erroneously been qualified as attempted manslaughter whereas it should have been qualified as assault. It was further submitted that in the assessment of the evidence the principle in dubio pro reo had not been respected. The Regional Court had committed a procedural error in that it had failed to question witness D.W. and had limited itself to reading out during the trial his testimony submitted during the investigations. It was finally argued that the court had failed to establish certain circumstances relevant for the assessment of the applicant criminal responsibility, in particular as it had failed to order a reconstruction of the circumstances of the crime which would show that the course of the material events could not possibly have been such as established by the court.
On 4 June 1996 the applicant was examined by a medical panel, with a view to establishing whether he was fit for further detention.
On 25 June 1996 the Wrocław Regional Court stayed the enforcement of the applicant’s sentence, having regard to his bad health. The court had regard to a medical certificate of 14 June 1996 and considered that his further staying in prison would be detrimental to his health.
On 27 June 1996 the applicant was discharged from the Surgery Department of the Wrocław prison hospital. A medical certificate issued at his discharge stated that he had been diagnosed as suffering from hernia of the nucleus pulposus. He had been examined by an orthopaedist, a neurologist, and a specialist in neurosurgery. A tomography of the spine had been effected and he had been receiving various medicines to ease his back pain. It was further stated that the applicant’s further serving the sentence could entail a serious danger to his health and that he should be operated on in connection with his spine problems. On an unspecified later date the applicant was released.
From 15 January 1997 to 5 March 1997 the applicant underwent medical treatment in the Neurosurgery Department of the Medical Academy in Bydgoszcz. A medical certificate of 5 March 1997 stated that he suffered from discopathy and painful pressure on spinal cord. A surgical intervention was indispensable, but it could not be envisaged in the applicant’s depressive state and was, accordingly, postponed. However, the postponing of the surgery would ultimately entail very serious risks to the applicant’s health and even life. He was referred to a psychiatric department for further treatment. The date of his next admission to the hospital for neurological treatment was set for 21 July 1997.
From 18 to 26 March 1997 the applicant was treated in the Psychiatry Department of the same hospital. It was established that he suffered from depression.
In May 1997 the applicant apparently started anew to serve his sentence.
On 10 June 1997 the Wrocław Court of Enforcement of Sentences refused to grant the applicant’s request for a conditional release.
On an unspecified date before 10 October 1997 the applicant’s request to have the execution of his sentence stayed was granted in order for him to undergo the operation of the spine.


ITEMID: 001-83173
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: OTOMANSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall
TEXT: The applicant, Mr Andrzej Otomański, is a Polish national who was born in 1956 and presently is detained in Rawicz Prison, Poland. The Polish Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 November 1997 the applicant, who was a police officer, was arrested by the police and detained on remand on a charge of murder.
On 4 August 2000 the Poznań Regional Court (Sąd Okręgowy) convicted the applicant as charged and sentenced him to 25 years’ imprisonment.
The applicant appealed.
On 3 July 2001 the Poznań Court of Appeal (Sąd Apelacyjny) upheld the impugned judgment.
On 3 September 2002 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal as being manifestly illfounded.
The applicant submitted copies of envelopes addressed to the Rawicz Prison Governor (Dyrektor Zakładu Karnego, Rawicz) but which, apparently, contained letters concerning official correspondence in the applicant’s cases pending before the domestic courts.
Two envelopes from the Poznan Court of Appeal (Sąd Apelacyjny w Poznaniu) concerning cases no I AK 521/01 and IIWKK 180/01: posted on 16 October 2001 and delivered to the Rawicz Prison on 17 October 2001; posted on 25 October 2001 and delivered to the Rawicz Prison on 26 October 2001. Both envelopes also bear a handwritten note: “Otomański”. An envelope from the Supreme Court in Warsaw, Criminal Chamber (Sąd Najwyższy, Izba Karna, Warszawa) concerning case no. VKK 15/02 (the applicant’s cassation proceedings) posted on 23 July 2002 and delivered to the Rawicz Prison on 25 July 2002.
An envelope from the Poznań Court of Appeal concerning case no. I AKZ 656/02 sent on 24 July 2002 and delivered to the Rawicz Prison on 26 July 2002. An envelope from the Poznań Court of Appeal concerning case no. IIAKZ 901/02 sent on 10 October 2002 and delivered to the Rawicz Prison on 14 October 2002.
An envelope from the Poznan Court of Appeal concerning case no. IIAKZ 446/03 sent on 14 May 2003 and delivered to the Rawicz Prison on 16 May 2003.
The following envelopes from the Poznan Regional Court (Sąd Okręgowy w Poznaniu) and concerning proceedings no. IIIK 248/01: posted on 27 February 2003; posted on 10 March 2003; posted on 20 March 2003 and delivered to the Rawicz Prison on 24 March 2003; posted on 22 April 2003 and delivered to the Rawicz Prison on 24 April 2003.
Article 102 §11 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) of 6 June 1997 (“the 1997 Code”) provides that convicted persons are entitled to uncensored correspondence with the judicial authorities and other State authorities.
Article 242 § 5 of the 1997 Code reads as follows:
“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.”


ITEMID: 001-99987
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: AL-ZAWATIA v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Adam Shafik Saied Al-Zawatia, is a stateless Palestinian who was born in 1973. He currently lives in Hässleholm in Sweden. He was represented before the Court by Ms S. Blomqvist, a lawyer practising in Osby. The Swedish Government (“the Government”) were represented by their Agent, Mrs Inger Kalmerborn, of the Ministry for Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 9 December 2002 the applicant applied for asylum in Sweden. He was not in possession of any identity papers. He claimed that he came from Nablus on the West Bank and that his mother and sister still lived there. He invoked the general situation on the West Bank as his motive for seeking asylum.
4. Following a leading decision by the Director-General for Legal Affairs of the Migration Board (Migrationsverket) in which he considered that stateless Palestinians should be granted residence permits in Sweden on humanitarian grounds due to the serious situation in the region, on 30 October 2003 the Migration Board granted the applicant a temporary residence permit until 30 October 2004 to give him an opportunity to prove his identity.
5. Upon expiry of his temporary residence permit, the applicant applied for a permanent residence permit or, in the alternative, a prolongation of his temporary permit. Without submitting any kind of documentation, he maintained that he was from the West Bank, where he risked persecution by the authorities because, between 1994 and 1997, he had written some critical articles about corruption among high-ranking persons on the West Bank. On 8 November 2004 the Migration Board rejected the application. It noted that the applicant had failed to establish his identity and his place of residence before entering Sweden. A language analysis had shown that the applicant spoke an Arabic dialect spoken by persons originally from the West Bank but living in Jordan. Thus, although the applicant could originate from the West Bank, it was quite possible that he had lived in Jordan before leaving for Sweden. Accordingly, the Board found that the applicant could be deported to Jordan, Syria or the Lebanon.
6. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden) which, on 13 September 2005, upheld the Migration Board's decision not to grant the applicant a residence permit. It found, however, that the applicant should be deported to Jordan, and not alternatively to Syria or the Lebanon. This decision was final and the applicant was ordered to leave Sweden within two weeks.
7. Subsequently, on two occasions, the applicant requested the Migration Board to stay his deportation. On 14 February 2006 and again on 16 May 2006, the Board rejected these requests as it found that there were no impediments to the enforcement of the deportation order.
8. In September 2006 the applicant was apprehended in Germany and transferred back to Sweden in accordance with the Dublin Regulation. Upon his return to Sweden, in October 2006, he renewed his application for asylum and a residence permit in Sweden. He maintained that he was from the West Bank and invoked the situation there as his motive for seeking asylum. Moreover, he stated that he had a serious relationship with a Swedish woman with whom he had been living since June 2003 and that he had strong ties to Sweden.
9. On 15 May 2007 the Migration Board rejected the application. It first noted that the applicant had still not proved his identity but that it was probable that he was from the West Bank or Jordan. It then observed that he had invoked no grounds on which he could be considered as a refugee and that the general situation in the region was not so serious that he could be granted leave to remain in Sweden solely on that basis. Moreover, as concerned his relationship, the Board noted that the applicant could apply for a residence permit on that basis from his home country as prescribed by the Aliens Act. Lastly, it considered that the applicant had not been in Sweden legally for such a long time that he could be deemed to have a closer connection to Sweden than to his home country. The Board also noted that he had not invoked any health reasons. Thus, in conclusion, he could not be granted leave to remain in Sweden and he was to be deported to the West Bank.
10. The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and repeating that he risked persecution by the authorities on the West Bank because, between 1994 and 1997, he had written some critical articles about corruption among highranking persons on the West Bank. These articles had been published in various newspapers on the West Bank and therefore the authorities in his home country were searching for him. He further stressed that he had a very good relationship with his girlfriend and that they were planning to get married. He also submitted that he felt depressed and had been in contact with a doctor for more than three years, and that accordingly it would be unreasonable to demand that he apply for a residence permit based on his relationship from his home country. Lastly, he alleged that he had no connections whatsoever to Jordan and that, therefore, any plans to deport him to that country should be ruled out.
11. On 9 November 2007, after having held an oral hearing, the Migration Court rejected the appeal. It first noted that the applicant had still not established his identity but that it was probable that he came from the West Bank. However, it could not be ruled out that he had lived in Jordan and the examination should therefore include both countries. The Migration Court then observed that the applicant had not been politically active in any way. Moreover, although he may have had written some critical articles in the period from 1994 to 1997 about corruption among high-ranking persons on the West Bank, he had been able to remain in the area for more than five years after the alleged articles were published without having encountered any problems. Thus, the Migration Court found it highly unlikely that he would risk persecution for having written those articles upon return. With regard to his relationship, the court considered that he could return to the West Bank to apply for a residence permit on this basis from there. The court further found that the applicant's health problems were not so serious that he could be granted leave to remain in Sweden on this ground.Sweden.
12. The applicant appealed to the Migration Court of Appeal (Migrationsöverdomstolen), maintaining his claims and adding that he and his girlfriend had married on 15 November 2007. His wife had two grownup children from a previous relationship.
13. On 10 January 2008, the Migration Court of Appeal refused leave to appeal.
14. On 4 March 2008 the Migration Board transferred the case to the Police Authority for enforcement of the deportation order to the West Bank, or alternatively to Jordan, should the former option not be possible for some reason.
15. Furthermore, on 31 March 2008, the Migration Board rejected a request from the applicant to re-open the proceedings on the basis of a medical certificate stating that the applicant suffered from depression and that there was a risk of suicide. The Board found that he had invoked no new circumstances of importance as all his claims had, in essence, already been examined.
16. In May 2008 the applicant lodged yet another request that the proceedings be re-opened. He claimed that he was in very poor mental health and had made several suicide attempts. He was receiving treatment for his mental problems which was beneficial for him. However, if the treatment was interrupted, there was a substantial risk that he would again try to commit suicide. Moreover, his wife, who was a nurse, gave him much care and support and it was unreasonable to demand that he apply for a residence permit on the basis of their relationship from his home country. He submitted a medical certificate confirming his very poor and unstable mental health. He also invoked a judgment, delivered on 7 May 2008, by the District Court (tingsrätten) in Hässleholm according to which the applicant had been convicted of illegal driving and aggravated drunken driving and sentenced to probation. It appeared from the judgment that he had tried to commit suicide by getting drunk and driving his wife's car into a road railing.
17. On 19 May 2008 the Migration Board decided to stay the enforcement of the applicant's deportation since it was uncertain whether it was medically possible for him to travel to his home country.
18. On 6 August 2008, the Board decided not to grant the applicant a residence permit in Sweden and lifted the stay of enforcement. It first noted that it had a very limited margin to take into account factors such as an asylum seeker's failed expectations, anxiety about returning to his or her home country and social and financial problems. Moreover, it was not the degree of severity of an illness that was decisive but whether the medical condition rendered the enforcement of a deportation order practically impossible. The Board then considered, on the basis of several medical certificates (see below), that the applicant's state of health was serious but that he remained at home and had declined to be committed to hospital for treatment as he considered that he could cope at home. Moreover, his problems emanated from his insecure situation and wish to remain in Sweden and not from a life-threatening illness. Thus, there were no practical impediments to the enforcement of the deportation order. No appeal lay against this decision.
19. According to medical certificates dated 5 July 2007, 13 March 2008, 29 April 2008 and 28 October 2008, written by Mrs Stål, psychiatrist in Hässleholm, the applicant had been a patient of hers since February 2004 due to depression and had been prescribed antidepressants (Remeron). During their meetings, the applicant had kept stating that he felt disappointed and badly treated by the various Swedish authorities as he had failed to find a job or get a residence permit. He had stated that he had been a successful businessman in the “Arab world” and wanted to get back into business. During his periods of depression, he had lost his appetite, had been unable to sleep and had been apathetic. He had become very depressed and suicidal because he considered his situation hopeless and himself worthless. Following a suicide attempt in August 2007 (when he had driven his wife's car into a road railing), the psychiatrist had prescribed stronger antidepressants (Efexor). His wife had been a great support to him, taking care of him and watching over him.
20. In another medical certificate, dated 25 June 2008, by Mr Appelquist, physician at the Psychiatric Clinic in Kristianstad, it was stated that the applicant had made an emergency visit that day to the clinic because of his depression. He had been apathetic and had suicidal thoughts due to his situation and his fear of being deported.
21. In two other medical certificates, dated 17 July 2008 and 23 October 2008, by Mr Wallin, chief physician at the Psychiatric Clinic in Hässleholm, it was stated that the applicant had visited him in July 2008 and again in October 2008. On both occasions, the applicant had been depressed, apathetic, very anxious and with constant suicidal thoughts. On the second occasion, he had also showed signs of paranoia. However, on both occasions, he had rejected an offer to be committed to a clinic for treatment as he had considered that he could cope at home even though, according to the chief physician, he had been close to being psychotic and almost eligible for being committed to compulsory psychiatric care. The chief physician concluded that, at that time, the applicant was not in a fit state to be deported.
22. On 10 February 2009 the Court decided to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of his deportation to the West Bank or Jordan.
23. Consequently, on 11 February 2009 the Migration Court decided to stay until further notice the enforcement of its decision to expel the applicant.
24. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.
25. Chapter 5, section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act).
26. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6, of the 2005 Act). During this assessment, special consideration should be given to, inter alia, the alien's health status. In the preparatory works to this provision (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien's home country could constitute a reason for the grant of a residence permit.
27. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not be met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act).
28. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist.
29. Where a rejected asylum seeker suffers from ill-health the enforcement of the deportation will occur only if the authority responsible for the deportation deems that the medical condition of the individual so permits. In executing the deportation, the authority in question is also able to ensure that the measures taken will be appropriate with regard to the circumstances of the particular case. For instance, if considered necessary, a special aeroplane can be chartered for the journey and arrangements can be made for medical staff and any necessary equipment to be available on board during the flight. On condition that the individual concerned consents to such measures being taken, arrangements can also be made for his or her assistance in the country of origin upon return. For example, medical records and other medical documentation can be sent in advance so that proper care can be prepared and arrangements be made for the individual to be met and taken care of by medical staff upon arrival.
30. Should an enforcement of an expulsion order lead to serious psychological health problems necessitating treatment in compulsory psychiatric care, the expulsion cannot, under any circumstances, take place without the approval of the chief physician responsible for the care (see, Section 29 of the Act on Compulsory Mental Care (lagen om psykiatrisk tvångsvård, 1991:1128).
31. The provisions on family reunification relating to a spouse, registered partner or cohabiting partner etc. of a person who is resident in Sweden are set out in Chapter 5, Section 3, of the Aliens Act and were given their present wording on 30 April 2006 in connection with the implementation of the E C Directive on the right to family reunification (Directive 2003/86/EC of 22 September 2003, hereinafter "the Family Reunification Directive").
32. Under Chapter 5, Section 3, first paragraph of the Act, unless otherwise provided in Sections 17-17b, a residence permit shall be granted to an alien who is a spouse or cohabiting partner of someone who is resident in Sweden or who has been granted a residence permit to settle in Sweden. The provisions hence provide for a right to obtain a residence permit unless there are special grounds against granting a residence permit. An alien who wants a residence permit in Sweden on account of family ties must have applied for and been granted such a permit before entering the country (Chapter 5, Section 18, of the Act. This rule was also stipulated in the 1989 Aliens Act). An application for a residence permit may not, as a general rule, be approved after entry. However, exemptions from this rule can be made for example if the alien has strong ties to a person who is resident in Sweden and it cannot reasonably be required that he or she travel to another country to submit an application there (Chapter 5, Section 18, second paragraph, point 5). An exemption may also be made if there are some other exceptional grounds (Chapter 5, Section 18, second paragraph, point 6). The requirement that, in principle, residence permits for family members have to be granted before entry into Sweden was introduced as one of a number of measures aimed at reducing the possibilities of obtaining a residence permit by means of marriages or relationships of convenience. Subsequently, the Swedish Government and Parliament have underlined on several occasions that the requirement that residence permits be obtained before entry into Sweden is an important part of measures to maintain regulated immigration. Moreover, the preparatory works to the Aliens Act state that it is important that aliens staying in Sweden illegally do not enjoy a better position than those who comply with decisions by the authorities to return to their country of origin in order to apply for a permit from there (Government Bill 1999/2000:43). The same requirement is found in Chapter III, Article 5, point 3 of the Family Reunification Directive, by which most European Union countries are bound. Many European countries hence require that a residence permit on account of family ties be granted before entry into the country. The Directive has been incorporated into Swedish law (Government Bill 2005/06:72).
33. As regards the exemptions that can be made according to Chapter 5, Section 18, second paragraph, point 5 of the Aliens Act, the preparatory works to the provision (Government Bill 1999/2000:43, p. 55 et seq.) state that the main emphasis should be placed on the question of whether it is reasonable to require that the alien return to another country in order to submit an application there. Relevant elements, which may be favourable for the alien, may be whether he or she can be expected, after returning home, to encounter difficulties in obtaining a passport or exit permit and this is due to some form of harassment on the part of the authorities in the country of origin. It may also be whether the alien will be required to complete a long period of national service or service under unusually severe conditions. It may also be relevant whether the alien has to return to a country where there is no Swedish foreign representation and where major practical difficulties and considerable costs are associated with travelling to a neighbouring country to submit the application there. Relevant elements, which may count against the alien, may be that he or she is staying in the country illegally, that their identity is unclear or if there are strong ties to the country of origin.
34. According to information from the Swedish Consulate-General in Jerusalem, its average processing time for investigating cases concerning ties to Sweden is from one week to two months depending on where the applicant is living. In the event that the applicant is not able to come to Jerusalem, staff from the Consulate-General can go to the West Bank and conduct the interview at the Representative Office of Denmark in Ramallah. According to information from the Consulate-General, people living in Nablus and other towns on the West Bank are generally able to go to Ramallah for an interview. If instead the applicant is deported to Jordan, he can apply for family reunification at the Swedish Embassy in Amman, where processing time for investigating a case concerning ties to Sweden is less than one month. Furthermore, the Swedish Migration Board has stated that the total average processing time in such cases from the filing of an application at a Swedish representation abroad to the Migration Board's decision is a little more than five months. A decision from the Migration Board may be appealed against to the Migration Court and the Migration Appeal Court.
35. The UK Border Agency, Country of Origin Information Report on the Occupied Palestinian Territories from 6 August 2009 stated in so far as relevant:
8.01 The situation in Gaza remained tense with continuing strain on the Israeli/Hamas cease fire ...
8.03 In its Weekly Report: On Israeli Human Rights Violations in the Occupied Palestinian Territory dated 27 May 2009; the Palestinian Centre for Human Rights (PCHR) stated that:
“...Israeli Occupation Forces (IOF) have continued to impose severe restrictions on the movement of Palestinian civilians throughout the West Bank, including occupied East Jerusalem. Thousands of Palestinian civilians from the West Bank and the Gaza Strip continue to be denied access to Jerusalem.”
36. According to a report from the UK Home Office (Operational Guidance Note, Israel, Gaza and the West Bank, February 2009; hereinafter "OGN Feb 09"), the Israeli Health Ministry reported in May 2008 that Israel is providing ambulatory, outpatient and inpatient services to Palestinian patients who access care in the Palestinian Authority (PA) hospitals, at the request of the Palestinian Ministry of Health. At times these services are provided in conjunction with Israeli and international NGOs. Israel also provides public health laboratory services, as well as providing training programmes to Palestinian physicians, nurses and other health professionals. Furthermore, in 2007 over 15,000 permits were granted to Palestinian patients and their companions to receive treatment in Israel. In addition to the public health services available and those provided by charitable and voluntary organisations, the Palestinian population is provided with health care by the Palestinian Red Crescent Society and other Palestinian non-governmental organisations and by UNWRA. As regards the availability of mental health care, the following may be noted. There is one psychiatric hospital on the West Bank with 320 beds as well as two general hospitals with psychiatric units in Nablus and Tulkarm with 4 inpatient beds.
37. The health care system in Jordan is considered to be good. According to United Nations Development Programme, 98.5% of the inhabitants have access to public health care, although principally primary health care (see for example the Swedish Ministry for Foreign Affairs report on the Situation of Human Rights in Jordan, 2007, p, 11). About half of the inhabitants of Jordan are originally Palestinians, the great majority of whom now have Jordanian citizenship, which means that they have the same rights and obligations as the “Transjordans” (ibid. pp. 16-17). The International Medical Corps (IMC) confirms that Jordan has one of the best health care systems in the region, However the IMC further notes that Jordan's resources are strained by a massive refugee population (about 60% of its 5.7 million citizens are Palestinian or of Palestinian descent) and that the needs of destitute Iraqis put a large burden on the country's resources. The IMC further states that Iraqis and their Jordanian host population suffer from limited access to medical care, especially secondary and mental health care services. However, to address the needs of the Iraqi refugees and other vulnerable populations in Jordan, the IMC is implementing assistance programmes that aim to improve the quality of primary health care, including mental health services (see information at the IMC web site; http://www.imcworldwide.org.uk/wherewework.asp?pageid=69. As regards the availability of mental health care in Jordan, it should be noted that there are 3 to 5 clinical psychologists, 24 psychiatrists (plus 12 working for the army) and a few counsellors available in Jordan. Psychosocial services offer a total of 450 beds and 30 outpatient clinics (see IOM, “Assessment on Psychosocial Needs of Iraqis Displaced in Jordan and Lebanon”, 2008-04-23, p, 12). Jordan's public health care system is state-subsidised, but the public health care system is overburdened and provides only basic care. Many Jordanian citizens are enrolled in a national health insurance programme not open to foreigners, who must rely on private insurance to cover health care costs. Private insurance is expensive and frequently excludes costly treatment and surgical operations. According to the Jordanian authorities, Iraqi refugees can benefit from emergency health care regardless of their legal status. However, to receive further treatment in public hospitals they need to be residents. For this reason the majority of Iraqis rely on private hospitals whenever they can afford to pay. The IOM report primarily concerns the possibilities for Iraqi refugees in Jordan to obtain mental health care. It may be assumed that the information it contains has a bearing also on the availability of mental health care for Palestinians living in Jordan who are not Jordanian citizens.


ITEMID: 001-59666
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF SAHINER v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 as regards the length of the proceedings;Violation of Art. 6-1 as regards independence and impartiality;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient (as regards independence and impartiality);Non-pecuniary damage - financial award (as regards length);Costs and expenses partial award
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 8. On 29 November 1980 police officers from the Ankara Security Directorate arrested the applicant on suspicion of membership of an illegal organisation, the Dev-Yol (Revolutionary Way).
9. On 26 January 1981 the Ankara Martial-Law Court (sıkıyönetim mahkemesi) remanded the applicant in custody.
10. On 26 February 1982 the military public prosecutor filed a bill of indictment with the Martial-Law Court against the applicant and 722 other defendants. The public prosecutor accused the applicant of membership of an illegal armed organisation, namely the Dev-Yol, 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 acting as an armed look-out for the killers of several individuals, a bomb attack on a coffee house and opening fire on a house.
The prosecution sought the death penalty under Article 146 § 1 of the Turkish Criminal Code.
11. In a judgment of 19 July 1989 the Martial-Law Court, composed of two civilian judges, two military judges and an army officer, found the applicant guilty as charged, sentenced him to life imprisonment (in effect eighteen years assuming good conduct) for offences under Article 146 § 1 of the Criminal Code and permanently debarred him from employment in the civil service. It took from 19 July 1989 until 1993 for the reasons for the judgment to be set down in writing.
12. The applicant lodged an appeal with the Military Court of Cassation (askeri yargıtay).
13. On 23 July 1991 the Martial-Law Court ordered the applicant’s release pending trial.
14. 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 the file was transmitted to it.
15. On 27 December 1995 the Court of Cassation upheld the applicant’s conviction.
16. Article 146 § 1 of the Turkish Criminal Code provides:
“Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Turkish Republic 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.”
17. The provisions governing judicial organisation are worded as follows:
“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.
No organ, authority, officer or other person may give orders or instructions to courts or judges in the exercise of their judicial powers, nor send them circulars or make recommendations or suggestions to them.”
“Judges ... shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution ...”
“... Martial-law courts shall be responsible for dealing with offences under special laws committed by civilians against military personnel and offences committed against military personnel in the course of their duties or on scheduled premises.
The offences and persons falling within the jurisdiction of the martial-law courts in time of war or under martial law, the composition of martial-law courts and the appointment, where necessary, of judges and prosecutors from the ordinary courts to martial-law courts shall be regulated by law.
The personal rights and obligations of military judges ... shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law.”
“The Ministry of Defence shall convene a sufficient number of martial-law courts in areas where martial law applies ...”
“Judicial advisers, military judges and military prosecutors attached to the martial-law courts are appointed, with the agreement of the Chief of Staff, from among the candidates nominated by a committee composed of the personnel director and the legal adviser to the Office of the Chief of Staff, the personnel director and the legal adviser to the army corps to which the judge in question belongs and finally the head of the Military Legal Service at the Ministry of Defence.”
“The army officers serving on martial-law courts are appointed, on the proposal of the Chief of Staff, according to the procedure for appointing military judges ...”
“The officers serving on the martial-law courts and their substitutes shall be appointed, in December, by the commander or the superior of the military establishment within which a martial-law court is formed, from among the officers of that establishment. The officers thus appointed are irremovable for one year.”
“... The aptitude of military judges for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports.
(a) There are three types of assessment report, namely the assessment report for generals, the assessment report for officers (sub-lieutenant – colonel) and the professional assessment report.
...
(b) The superiors in the hierarchy competent to carry out assessment and draw up assessment reports for officers are the following:
First superior in the hierarchy: the commander or superior of the military establishment to which the judge in question belongs and in which a martial-law court is formed.
Second superior in the hierarchy: the commander or the superior immediately above the first superior in the hierarchy.
Third superior in the hierarchy: the commander or the superior immediately above the second superior in the hierarchy ...”
“The Minister of Defence may apply to military judges, after hearing their defence submissions, the following disciplinary sanctions:
(a) a warning ... in writing ...
(b) a reprimand ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108619
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KOSHELEVA AND OTHERS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 4. The applicants’ names and dates of birth are listed in the annex to the present judgment. They live in Velikie Luki, Pskov Region.
5. The applicants are former and current teachers at the boarding school for orphans and children deprived of parental care in Velikiye Luki, Pskov Region («Великолукская средняя школа-интернат для детей-сирот и детей, оставшихся без попечения родителей»). By virtue of a provision in the national law they were entitled to a monthly allowance for purchase of books and magazines (компенсация за книгоиздательскую продукцию и периодические издания) which had not been paid to them for a few years.
6. The applicants applied to a court seeking recovery of the unpaid allowance.
7. On 28 March 2003 the Justice of Peace of Court Circuit no. 34 of Velikiye Luki in the Pskov Region granted the applicants’ claim for the unpaid allowance and held that the Education Directorate of the Velikiye Luki Town Council should reimburse them various amounts.
8. On 3 June 2003 the Velikiye Luki Town Court of the Pskov Region upheld that judgment on appeal.
9. Following an unspecified period during which the judgment remained unenforced, the applicants allegedly applied to a court for indexlinking of the awards due to the inflation but had their claims rejected. They did not however submit any documents to support this claim, nor did they indicate the date of the judicial decision or the court adopting it.
10. The Government submitted copies of payroll records according to which the awards had been paid to the applicants in April and May 2004.
11. On 16 January 2008 the Court received letters from thirtysix applicants stating that they no longer had interest in pursuing the application due to the timely enforcement of the judgment in their favour. The applicants who sent the letters were nos. 3, 4, 5, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 19, 21, 25, 26, 27, 30, 31, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45, 47, 50, 51 and 53 of the Annex.
12. In their observations received by the Court on 26 May 2008 the remaining seventeen applicants submitted that the town prosecutor’s office had summoned them for interviews, during which the authorities had apprised them of their right not to incriminate themselves and discussed their application.
13. The letter by the deputy prosecutor of Velikiye Luki of 28 December 2007 confirmed that in October 2007 the town prosecutor’s office had held interviews with the applicants concerning alleged breaches of their ‘Convention right to timely payment of the allowance for purchase of books and magazines’. The letter mentioned that the interviews had been conducted following an inquiry by the Government’s representative at the Court to the Prosecutor General of Russia.
VIOLATED_ARTICLES: 34


ITEMID: 001-105181
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF NAKAYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);No violation of Art. 2 (substantive aspect);Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1979 and lives in Urus-Martan, Chechnya.
6. In 1999 the Russian Government launched a counter-terrorist operation in Chechnya.
7. In the autumn of 1999, because of the armed clashes, the applicant and his family moved temporarily to the house of their relative, Mr S. Kh., at 9 Trudovaya Street, Martan-Chu, in Urus-Martan district. The village administration recorded the applicant as an internally displaced person.
8. According to the applicant, on 4 December 1999 between 11 a.m. and 12 noon advancing Russian federal forces subjected the area around MartanChu to indiscriminate shelling. He submitted that the army had used “Grad” (“Град”) or “Uragan” (“Ураган”), multiple rocket launch systems, which were stationed about ten kilometres from the village. Several projectiles hit the village. One of them landed in the yard of Mr S. Kh. and hit a car which was parked there. The applicant was standing next to the car and received numerous splinter wounds, including to the head. According to the applicant’s submissions made to the Court, in June 2005 a part of the projectile which had wounded the applicant remained in Mr S. Kh.’s yard.
9. On 19 December 1999 the administration of Martan-Chu issued a paper which stated that the applicant and his cousin had been wounded as a result of the bombardment of the village on 4 December 1999 and that on the same date they had been taken to the hospital in Novyie Atagi, in Grozny district.
10. As a result of the wounding the applicant’s health deteriorated; he had become unable to work, which was recognised in 2001 by a forensic examination as second-degree disability. He receives a monthly disability pension.
11. According to the submitted documents, the applicant underwent several rounds of treatment in connection with his injuries. Between 4 and 21 December 1999 the applicant was in Novyie Atagi hospital. On 2 February 2000 a splinter was removed from his head. Between 2 and 29 August 2001 the applicant received post-operative treatment.
12. On 2 November 2004 the Urus-Martan district hospital summarised the state of the applicant’s health. According to the document, the applicant’s health had been monitored by the hospital since 2000; he required constant rehabilitation therapy.
13. Between 25 and 29 April 2008 the applicant was examined by the experts of the Chechnya Bureau of Forensic Expertise. According to their evaluation, the applicant had a penetrating wound to the right part of the frontal lobe with damage to the brain; such a wound could have been caused by a shell splinter and was qualified as serious damage to the applicant’s health.
14. On 11 March 2002 the applicant’s mother wrote to the Russian Ombudsman and asked for assistance in relation to the applicant’s situation. She indicated that her son had been injured on 4 December 1999 as a result of the shelling of Martan-Chu and that the family had been bearing the costs of complex medical interventions.
15. On 28 May 2003 the applicant’s mother informed the UrusMartan district prosecutor’s office (“the district prosecutor’s office”) about the applicant’s injury received during the bombardment on 4 December 1999. She alleged that the shelling of the village had been carried out by the servicemen of the “245th regiment”.
16. On 14 August 2003 the applicant’s mother complained about the applicant’s injuries to the Urus-Martan district police department (“the ROVD”) and requested the authorities to institute a criminal investigation into the events.
17. On 16 September 2003 the ROVD refused to institute criminal proceedings in connection with the applicant’s wounding on 4 December 1999. The decision stated that the authorities had conducted an inquiry, which had established the following: a number of armed clashes, including exchanges of gunfire, had taken place between Russian forces and illegal armed groups in the area of the applicant’s residence in 1999. As a result of the bombardment of Martan-Chu the applicant was injured, which had been confirmed by the witness statements of Ms R. N., Mr R. Kh. and Mr B. The projectile, which had hit the yard of Mr S. Kh. and wounded the applicant, had been launched by one of the parties to the conflict. However, it was impossible to establish which party had launched the projectile. Thus, taking into consideration that the applicant had been injured as a result of an accident, the request for the institution of criminal proceedings was to be rejected pursuant to Article 24 § 1 (2) of the Criminal Procedure Code owing to the lack of corpus delicti.
18. On 16 September 2003 the ROVD informed the applicant about their decision concerning the refusal to institute criminal proceedings.
19. On 15 April 2004 the applicant brought proceedings against the Ministry of Finance. The applicant stated that as a result of the wounding on 4 December 1999 he had become incapacitated and unfit for work. He demanded compensation for pecuniary damage in the amount of 184,256 Russian roubles (RUB) and non-pecuniary damage in the amount of RUB 1,500,000.
20. In response to the applicant’s specific request, on 19 November 2004 the Martan-Chu administration issued a note that they “had no information about unprovoked artillery and air strikes” on the village, except for the air strikes which had occurred on 5 December 1999 and hit the households of Mr L.I. and Mr S.E.
21. On 2 December 2004 Urus-Martan Town Court (“the town court”) rejected the applicant’s claim. It stated that although as a result of the shelling on 4 December 1999 the applicant had been wounded and became partially incapacitated, he had failed to provide sufficient evidence which would allow the court to establish a causal link between the actions of the artillery of the Russian armed forces and the damage alleged by the applicant. In its ruling the court referred to the decision of 16 September 2003 to refuse criminal proceedings.
22. On 8 December 2004 the Martan-Chu administration issued a note to confirm that both on 4 and 5 December 1999 the village had been subjected to indiscriminate bombardment from the direction of the advancing Russian forces. On 4 December 1999 one of the projectiles had hit Mr S. Kh.’s yard and had destroyed his property, as confirmed by an official evaluation of damages and by witness statements. The shelling was also confirmed by the villagers’ statements. At the relevant time the applicant had been registered as an internally displaced person, was living with his relatives in MartanChu and had become partially incapacitated as a result of the injury received on 4 December 1999.
23. The applicant appealed against the judgment of 2 December 2004 alleging that the town court had been partial and had failed to assess the evidence properly.
24. On 28 December 2004 the Chechnya Supreme Court upheld the judgment. It found that the applicant’s appeal concerned reassessment of the evidence examined by the first-instance court and confirmed that the applicant had failed to substantiate his allegations with appropriate evidence. The Supreme Court also pointed out that the applicant had failed to appeal against the authorities’ refusal to institute criminal proceedings on 16 September 2003, and emphasised that that decision was still valid and therefore had served legitimately as the basis for the court’s findings.
25. On 28 January 2005 the applicant asked the town court to set aside the ROVD decision not to institute criminal proceedings and to oblige the authorities to open a criminal investigation into his injuries.
26. On 18 February 2005 the town court allowed the applicant’s complaint and quashed the decision of 16 September 2003. The court stated that the police had failed to carry out basic investigative measures such as the examination of the crime scene, collection of evidence and forensic assessment of the applicant’s health.
27. On 29 May 2006 the applicant wrote to the ROVD and referred to the court decision of 18 February 2005. He asked about the latest developments in the case.
28. On 15 June 2006 the ROVD referred to their previous decision of 16 September 2003 not to institute criminal proceedings.
29. On 4 April 2008 the applicant again wrote to the ROVD and referred to the town court decision of 18 February 2005.
30. On 21 April 2008 the district prosecutor’s office remitted inquiry file no. 1159/809 opened in connection with the applicant’s complaint to the ROVD for additional examination and decision on the merits. Following this development, the ROVD carried out a number of investigative measures.
31. The Government, in response to the Court’s request, submitted thirty-five pages from the investigation file dated between April and July 2008. They argued that the remaining documents (no list or number of which has been provided) could not be disclosed, in the absence of guarantees by the Court to protect the data containing State secrets. Referring to Article 161 of the Criminal Procedural Code, the Government stated that the remaining documents could not be divulged without harming the interests of the investigation and the interests of the participants to the proceedings. The submitted documents and the parties’ submissions may be summarised as follows.
32. On 23 April 2008 the investigator examined Mr S.Kh.’s household and noted marks of shrapnel on some walls. Nothing of relevance to the investigation was collected.
33. According to the Government’s submissions, in April 2008 the local police in Martan-Chu had questioned two neighbours and the applicant’s cousin, who confirmed the circumstances in which the applicant was wounded on 4 December 1999. The police also questioned Mr M., who at the relevant time had headed the local administration in Martan-Chu. He corroborated the applicant’s submissions and testified that he had inspected Mr S.Kh.’s household shortly after the explosion and recorded the destruction. None of these statements were made available to the Court.
34. The police also obtained copies of the applicant’s medical file from the Achkhoy-Martan hospital.
35. According to the documents submitted, Mr S.Kh. died in May 2004.
36. The criminal investigation file was eventually opened by the ROVD on 2 May 2008 under Article 111 part 2 of the Criminal Code – causing of serious injuries by universally dangerous means.
37. The applicant was questioned on 23 April and 18 June 2008 (only the record of the latter has been submitted to the Court). He explained that on 4 December 1999 at about noon he and his cousin had been wounded as a result of a shell exploding in the courtyard of Mr S. Kh.’s house.
38. On 13 May 2008 the Chechnya Bureau of Forensic Expertise concluded that the applicant’s injuries could have been caused by a piece of shrapnel and that they constituted grievous bodily harm.
39. On 18 June 2008 the applicant was accorded the status of a crime victim in the proceedings.
40. On 18 June 2008 the applicant’s mother was questioned. She gave similar account about the applicant’s wounding and about the treatment he had to undergo. She indicated that she was not aware who exactly had shelled the village, but she had heard that these were troops headed by General Shamanov.
41. On 26 June 2008 the applicant sought an award of RUB 1,500,000 in compensation for damage to his health against the perpetrators of the crime. On the same day the investigator accorded the applicant the status of a civil claimant.
42. On 2 July 2008 the investigation was adjourned for failure to identify the culprits. The decision stated that in order to identify the persons who had committed the crime the investigator had sent a number of requests for information to the various bodies of the Ministry of Defence and the Ministry of the Interior. Nothing of relevance to the investigation was obtained. No copies of any such requests or answers have been submitted to the Court.
43. On 5 November 2008 the investigative department of the Ministry of the Interior of Chechnya ordered that the investigation be resumed. The reason for the decision was that unspecified investigative measures had not been taken.
44. In February 2009 the applicant collected additional statements from his cousin, two neighbours and his mother and submitted them to the Court. These detailed statements concern the shelling and subsequent developments. In particular, the applicant’s cousin stated that the attack had been carried out from the north and with the use of multiple-launch rocket systems. He further stated that for several years after the event parts of the “Grad” rockets could be found in the village and described the one found in their courtyard. He alleged that on 4 December 1999 twenty-eight rockets (“Grad” is designed to launch forty projectiles) had hit the village and listed other households and places where the explosions had taken place. He alleged that in early December 2008 an investigator had collected one part of the projectile from the village for an expert evaluation. The applicant’s mother alleged that the investigator had informed her on the telephone that the expert report had identified the metal object collected in autumn 2008 in Martan-Chu as the tail part of the “Grad” missile. It appears that the investigation is still pending.
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 2