ITEMID: 001-86959
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ALEKSEY MAKAROV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1988 and lives in Moscow.
7. The applicant was a member of a public association, the National Bolshevik Party. On 15 November 2005 the Supreme Court of the Russian Federation ordered its dissolution. On 19 January 2006 the Federal Registration Service of the Ministry of Justice refused an application for registration of a political party by the same name. Party members challenged the refusal before the Taganskiy District Court of Moscow.
8. On 13 April 2006 fifteen party members, including the applicant, came to the Taganskiy District Court for a hearing concerning the refusal to register the National Bolsheviks Party. The applicant alleged that near the court building they had been attacked by a group of forty people and had had to defend themselves. According to the Government, the party members, including the applicant, had assaulted passers-by with gas guns and rubber truncheons.
9. On 11 July 2006 the applicant was arrested. The arresting officer indicated in his report that the victims had identified the applicant as one of the perpetrators of the assault.
10. On 12 July 2006 he was charged with participation in mass disorders, involving the use of gas guns, assault and battery, an offence under Article 213 § 2 of the Criminal Code.
11. On 13 July 2006 the Tverskoy District Court of Moscow remanded the applicant in custody. It referred to the gravity of the charge, “his role in the imputed offence”, his record of administrative offences and his frequent absences from his registered place of residence. It also found that his accomplices whose identity had not been established were at large. The court concluded from that that the applicant might abscond or reoffend.
12. On 8 September 2006 the Tverskoy District Court extended the applicant’s detention until 16 November 2006. The court referred to the gravity of the charge, the possibility of his absconding or reoffending and the need for a further investigation. In particular, it was necessary to perform a psychiatric examination on a co-accused.
13. In his appeal submission the applicant complained that the court’s conclusions were hypothetical and were not supported by relevant facts. The applicant had permanent residence in Moscow, attended university and had positive references. There was no risk of his absconding or reoffending.
14. On 4 December 2006 the Moscow City Court upheld the detention order on appeal, finding that it had been lawful, sufficiently reasoned and justified.
15. On 15 November 2006 the Tverskoy District Court ordered a further extension of the applicant’s detention until 11 January 2007. At the hearing the applicant asked to be released on bail or under the personal guarantee of a member of the Russian Parliament. However, the court did not examine the possibility of a more lenient preventive measure. The extension order read as follows:
“The court takes into account that [the applicant] has no criminal record, lives with his parents at his registered place of residence in Moscow, is successfully pursuing studies at [a university in Moscow], and has positive references. However, as he is charged with a serious criminal offence punishable by more than two years’ imprisonment, the court considers that he may abscond or interfere with the investigation if released. The preventive measure should accordingly be maintained.”
16. On 25 December 2006 the Moscow City Court upheld the extension order on appeal.
17. On 11 January 2007 the Tverskoy District Court extended the applicant’s detention until 16 March 2007. The court found that the applicant might abscond or hamper the investigation as he had been charged with a serious criminal offence and had a record of administrative offences. In reply to the applicant’s request to be released on bail or under the personal guarantee of a member of the Russian Parliament, the court held that there was no reason to vary or cancel the preventive measure.
18. The applicant appealed. He denied involvement in any criminal activity and alleged that the criminal proceedings against him were politically motivated and that he was being persecuted for his membership of the National Bolshevik Party. Referring to Article 5 § 3 of the Convention, he complained that his detention was based on the gravity of the charge against him and that the conclusions that he might flee or impede the investigation were hypothetical and were not supported by relevant facts. The District Court had disregarded his arguments that he had positive references, that a member of Parliament had vouched for his attendance and that he was ready to post bail. As to his record of administrative offences, administrative fines had been arbitrarily imposed on him for attendance at peaceful assemblies organised by the National Bolshevik Party. The parties did not inform the Court whether the appeal had been examined.
19. On 2 March 2007 six defendants, including the applicant, were committed for trial.
20. On 12 March 2007 the Taganskiy District Court of Moscow scheduled the preliminary hearing for 20 March 2007 and held that all the defendants should remain in custody.
21. On 24 May 2007 the Taganskiy District Court remitted the case for a further investigation.
22. On 28 June 2007 the Tverskoy District Court extended the applicant’s detention until 6 August 2007 for the same reasons as before. The court found that the positive references and the personal guarantee of a member of Parliament produced by the applicant were insufficient to warrant release. Given the gravity of the charge against him and his record of administrative offences, he might abscond or interfere with the proceedings in some other way. On 1 August 2007 the Moscow City Court upheld the extension order on appeal.
23. On 2 August 2007 the defendants were again committed for trial.
24. On 8 August 2007 the Taganskiy District Court held a preliminary hearing and ordered that all the defendants should remain in custody. It found that the defendants had been charged with a serious offence committed by an organised group some members of which had not yet been identified, and concluded that they might abscond or intimidate the victims and witnesses. It further noted that the defendants’ assurances that they had no intention of absconding were unconvincing and held that there was no reason to apply a more lenient preventive measure.
25. In September 2007 the applicant and his co-defendants lodged applications for release with the Taganskiy District Court. On 12 September 2007 the Taganskiy District Court rejected their applications. It noted that the defendants’ arguments had already been examined and rejected many times when extension orders had been issued. It found that the grounds for the defendants’ detention mentioned in the extension orders were still pertinent and it was still necessary to hold them in custody. The defendants had been charged with a serious criminal offence committed by an organised group, some members of which had not yet been identified. Given the gravity of the charges against them, they might abscond, reoffend or interfere with the establishment of the truth if released.
26. On 26 December 2007 the Taganskiy District Court extended the defendants’ detention until 12 April 2008. It found that the grounds for their detention mentioned in the previous extension orders were still pertinent and a risk remained of their absconding, reoffending or obstructing the justice. The court also noted that the defendants’ arguments about the absence of corpus delicti in their actions and about the lack of evidence of their involvement in the commission of the imputed offence were without substance because, in extending the defendants’ detention, the court could not make any findings as to their guilt or innocence.
27. It appears that the criminal proceedings against the applicant are still pending.
28. Since 1 July 2002 criminal law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001).
29. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112).
30. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).
31. Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).
32. After arrest the suspect is placed in custody “during the investigation”. The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 109 §§ 1-3). The period of detention “during the investigation” is calculated to the day when the prosecutor sends the case to the trial court (Article 109 § 9).
33. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The period of detention “during the trial” is calculated to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
VIOLATED_ARTICLES: 5


ITEMID: 001-5760
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: M.L. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1973 and living in Glasgow
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant met Ms X whilst he was still at school, and on 21 May 1992 a child was born. The child and Ms X initially stayed with the applicant and his parents, but the relationship came to an end in September 1992 when they separated. Both the applicant and Ms X applied to the Glasgow Sheriff Court for custody of their child on 22 and 23 September 1992 respectively. On 23 September 1992, the mother obtained an interim order for the delivery of the child to her, and the child lived with the mother and an older child thereafter. On 26 November 1992 the applicant was awarded interim access to the child by the Sheriff. This allowed him to visit the child on the first Saturday of each month between 1 p.m. and 3 p.m. commencing Saturday 5 December 1992. On 18 June 1993 the two sets of custody proceedings were joined. The applicant sought three continuations (a form of adjournment) during the course of these initial custody proceedings before the Sheriff.
On 21 July 1993 the Sheriff awarded custody of the child to the applicant. Ms X’s appeal to the Sheriff Principal was refused on 23 September 1993. Ms X appealed to the Court of Session on 4 October 1993. With the exception of a ten day delay in lodging the case papers and a six week extension being granted on an unopposed motion of Ms X in respect of the lodging of some further documentation, the appeal to the Court of Session was dealt with according to the relevant Rules of Court. The appeal was successful, and on 24 June 1994 custody of the child was awarded to Ms X.
The applicant appealed to the House of Lords. Under the House of Lords Practice Directions which regulated such appeals, the applicant had three months in which to lodge his appeal, or one month after the final determination of his legal aid application, whichever was the later. The applicant’s appeal was lodged on 19 June 1995.
The applicant was required by the House of Lords Practice Directions to lodge a statement and appendix consisting of the relevant case papers within six weeks of lodging his appeal. He did this on 4 October 1995. The appeal could not be set down until the appendix had been lodged.
Between October and December 1995, the Judicial Clerk of the House of Lords Judicial Office was in correspondence with the applicant’s representatives about a proposal raised by the applicant to provide the House of Lords with a report on the child’s current circumstances. The Judicial Clerk suggested that the applicant write to the Appellate Committee of the House of Lords offering to submit such a report if their Lordships wished. No response was received from the applicant.
The hearing took place before the Appellate Committee of the House of Lords on 12 June 1996. Judgment was delivered on 4 July 1996, when the appeal was dismissed.
Following the hearing of the appeal the Judicial Clerk wrote on 13 June 1996 to the applicant’s representatives at the request of a member of the Appellate Committee to establish why it took so long for the case to reach a hearing given that it involved a very young child. Again, no response was received from the applicant or his representatives.
Lord Jauncey of Tullichettle, giving the judgment of the House of Lords on 4 July 1996, found, inter alia, as follows:
"The sheriff found as a fact that apart from being subject to respiratory infections [the child] was happy, healthy and well cared for in the mother’s house. In his note he drew attention to the different social backgrounds from which the parties came. The father was, he said, comfortably middle class, while the mother had had none of the educational and social advantages which he had had. The mother’s lifestyle was not particularly stable although that was not unusual for a person of her background. However he concluded that were the mode of life of each parent much the same he would not think that there were sufficient grounds for separating the child from her mother and sister.(...)
In delivering the opinion of the [Court of Session] Lord Morison, after referring to the restrictions imposed on an Appellate Court in disturbing the conclusions of a sheriff as to the child’s best interest, continued:
‘However, in determining whether the sheriff has failed to take sufficiently into account any significant factor, it is legitimate for this court to have regard to any general practice, approach or principles which may be derived from a consideration of previous cases dealing with the custody of young children. (...)’
[It] is in our opinion quite clear, as we understood to be conceded on behalf of the respondent in the present case, that it has been and remains the practice of the courts in Scotland to recognise as an important factor which has to be fully taken into account in a dispute concerning custody between the mother and father of a very young child, that during his or her infancy the child’s need for the mother is stronger than the need for a father. This principle should not be regarded as creating any presumption in favour of the mother, nor, certainly, as a rule of law. But nonetheless there is a generally recognised belief that a mother is ordinarily better able, for whatever reason, to minister to a very young child’s needs than is a father.
It is also clear from the cases cited that this general preference in favour of the mother is substantially strengthened if preservation of the status quo also favours her case for custody. If, as in the present case, the infant has been in the mother’s care since birth and is, as the sheriff found, ‘happy, healthy and well cared for’ the correct approach is that referred to in Wilkinson at p. 212, viz. ‘it may therefore be better, especially where the mother has until the dispute arose had the child in her care, for the child to be in the mother’s custody rather than to embark on the risks inherent in the father’s fulfilling a maternal role or in the creating of a new relationship in which there will be a surrogate mother’.
The opinion at p. 850b expressed the view that in holding the advantages of the father’s background to be decisive the sheriff failed to balance these advantages against the important general considerations above referred to. It went on to point out at p. 850f that the court must take account of this omission. The opinion further criticised the sheriff for failing to have regard to the consequences of material changes which were likely to occur in the future, for example if the father were to marry or move out of his parent’s house unmarried. Having concluded that the sheriff had failed to have regard to the foregoing important matters the [Court of Session] considered that the matter was at large for their determination. They decided that it would not be in [the child]’s best interest to be removed from the care of her mother (...)
At the time of the sheriff court proof [the child] who was only 14 months old had been with her mother since birth apart from the periods of access enjoyed by the father. Her home was with her mother and half sister where she was happy, healthy and well cared for. In awarding custody to the father the sheriff was clearly much influenced by the advantages moral and particularly material which he considered would accrue to [the child] from becoming a member of the father’s family. He did not, as [the Court of Session] pointed out at p. 850c, specifically address the benefit of leaving [the child] where she was with the availability of maternal care nor did he address the situation which would arise in the long term if the father, who was then unemployed, were to obtain employment and/or leave the family home, but rather accepted that he was granting custody to the father’s family or to his mother as much as to the father. Given that the mother’s care for [the child] was not criticised the sheriff undoubtedly erred in not addressing the advantages of the status quo when considering the advantages of an upbringing in the father’s family, which would in effect involve substituting the maternal grandmother for the natural mother. It follows that the [Court of Session] were fully justified in interfering with the sheriff’s decision and in substituting therefore a decision of their own.
(...) My Lords, to summarise, the advantage to a very young child of being with its mother is a consideration which must be taken into account in deciding where lie its best interests in custody proceedings in which the mother is involved. It is neither a presumption nor a principle but rather recognition of a widely held belief based on practical experience and the workings of nature. Its importance will vary according to the age of the child and to the other circumstances of each individual case such as whether she is or is not capable of providing proper care. Circumstances may be such that it has no importance at all. Furthermore it will always yield to other competing advantages which more effectively promote the welfare of the child. However where a very young child has been with its mother since birth and there is no criticism of her ability to care for the child only the strongest competing advantages are likely to prevail. Such is not the case."


ITEMID: 001-58188
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF DE SANTA v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. Mr Maurizio De Santa is the secretary of the municipal welfare agency (Ente Comunale Assistenza) of the city of Udine, where he lives.
8. On 27 December 1977 he applied to the Friuli-Venezia Giulia Regional Administrative Court (“the RAC”) for judicial review of a decision of his employer’s board of governors, which, on 6 September 1997, in adopting the staff regulations, had assigned to him a level of remuneration lower than that to which he considered himself to be entitled on the basis of the collective agreements on contracts of employment negotiated at national level by the unions concerned (accordi nazionali di lavoro del personale degli enti locali). He also contested the discrimination between himself and other employees, who were paid on the basis of the salary scales laid down in the contracts in question.
9. On 10 March 1982 the RAC ordered the municipal welfare agency to file certain documents. In a judgment of 17 November 1982, the text of which was deposited with the registry on 16 May 1983, it dismissed the applicant’s application as being ill-founded.
10. On 28 June 1984 Mr De Santa appealed to the Consiglio di Stato. On 12 December 1984 Udine District Council, which had by then succeeded the municipal welfare agency, lodged a counter-appeal. It contended, as a preliminary point, that the applicant’s appeal was inadmissible for failure to comply with the time-limit; as regards the merits, it argued that the appeal should be dismissed as being ill-founded.
11. On 19 July 1984 the applicant filed an application for a date to be fixed for the hearing. On 22 October 1987 he requested that the case be set down for an urgent hearing. In a judgment of 10 June 1994, the text of which was deposited with the registry on 29 November 1994, the Consiglio di Stato dismissed the objection of inadmissibility and dismissed the applicant’s appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101197
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: NIKOLOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Nikolay Milanov Nikolov, is a Bulgarian national who was born in 1963 and lives in Shumen. He was represented before the Court by Ms N. Milanova, a lawyer practising in Shumen. The Government were represented by their agent Mrs M. Dimova, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 November 1995 the applicant, who is a practising lawyer, initiated before the Novi Pazar District Court private criminal proceedings for defamation and aggravated insult, against Mrs N.T., a former client of his. He alleged that because of certain statements of hers his reputation had been undermined and he had lost a large number of his clients. He joined a civil claim seeking 840,000 old Bulgarian levs in damages.
The applicant was legally represented throughout the proceedings.
On an unspecified date in 1996 all the judges from the Novi Pazar District Court recused themselves and the case was transferred to the Razgrad District Court.
By a judgment of 5 May 1998 the Razgrad District Court found Mrs N.T. guilty of defamation and sentenced her to eight months' imprisonment, suspended for a period of three years. It also partly granted the applicant's civil claim.
On appeal, on 19 October 1998 the Razgrad Regional Court quashed the judgment and remitted the case for a fresh examination. It found that in violation of the relevant legislation the panel of the District Court had not included lay judges throughout the entire proceedings.
On 2 October 2000 the Razgrad District Court discontinued the proceedings as the statutory time limit for prosecuting the offence had expired.
On appeal by the applicant, by a decision of 5 January 2001 the Razgrad Regional Court upheld the discontinuation.
Upon the applicant's cassation appeal, on 28 May 2001 the Supreme Court of Cassation (SCC) upheld the discontinuation of the criminal proceedings and remitted the case for examination of the civil action.
By a judgment of 17 January 2003 the Razgrad Regional Court found that Mrs N.T. had defamed the applicant and partly granted the civil claim awarding him 500 new Bulgarian levs, the equivalent of 250 euros with interest. The judgment stated that it was subject to appeal before the SCC.
A notification that the judgment had been delivered was received by the applicant on 5 February 2003. On 10 February 2003 he appealed.
On 5 June 2003 the SCC held a hearing.
By a judgment of 23 October 2003 the SCC rejected the appeal as inadmissible, finding that the judgment of 17 January 2003 was not amenable to cassation appeal. This was so because under the relevant law judgments of the criminal courts in respect of privately prosecutable offences punishable with less than five years' imprisonment, as in the applicant's case, were not amenable to cassation appeal and, consequently, the civil part of such judgments was likewise not amenable to cassation appeal.
Article 349 of the Code of Criminal Procedure 1974 (the CCP), as in force at the relevant time, listed exhaustively the judgments and decisions that were subject to cassation appeal.
Decisions of second instance courts discontinuing criminal proceedings were amenable to cassation appeal before the SCC irrespectively of their subject mater.
On the other hand, certain second instance judgments, such as those concerning privately prosecutable offences punishable with less than five years' imprisonment, were not amenable to cassation appeal.
The SCC has held that where a case falls into one of the categories of cases where second instance judgments are not amenable to cassation appeal, this is also valid in respect of the civil part of the case, where a civil claim has been admitted for examination in the criminal proceedings. Owing to their subsidiary character, civil claims in criminal proceedings fell to be processed under criminal procedure rules (реш. № 358/2003 от 12 юни 2003 г. по н. д. № 145/2003 г., ВКС, I н. о., реш. № 445/2003 от 10 юли 2003 г. по н. д. № 227/2003 г, ВКС, III н. о.).
In a judgment of 19 February 1999 (реш. № 118 от 19 февруари 1999 г. по н. д. № 31/99 г., ВКС, II н. о.) the SCC held that where the law did not provide for cassation appeal, the fact that a second instance court may have erroneously indicated in the text of its judgment that an appeal was possible was irrelevant. Cassation appeals submitted in such circumstances were inadmissible as the second instance court judgment was final.


ITEMID: 001-84749
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KARADAVUT v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Baka;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Mindia Ugrekhelidze;Riza Türmen
TEXT: 4. The applicant was born in 1963 and lives in Söke.
5. At the time of the events the applicant was employed as an electrician in a private company.
6. On 2 August 1991 the scaffolding on which the applicant was working collapsed and resulted in the applicant’s total disability.
7. On 16 September 1991 the applicant brought an action for damages in the Söke Labour Court.
8. On 3 February 1994 the Söke Labour Court partially upheld the applicant’s claims and awarded 10,000,000 Turkish liras (TRL) for pecuniary damage and TRL 30,000,000 for non-pecuniary damage, plus interest at the statutory rate, running from the date of the incident.
9. The defendant appealed.
10. On 11 October 1994 the Court of Cassation quashed the judgment and remitted the case to the Söke Labour Court. It found that the Labour Court had incorrectly calculated the amount of compensation and interest.
11. The Söke Labour Court rendered its second judgment on 12 September 1995, awarding the same amounts as before.
12. On 23 January 1996 the Court of Cassation quashed the judgment. It held that, although the Söke Labour Court had decided to conform to the Court of Cassation’s previous decision, it had reached the same conclusion as before.
13. On 29 November 1996 the applicant lodged an additional claim with the same court, requesting further damages. These two cases were later joined.
14. The Söke Labour Court issued its third judgment on 12 June 1997. It upheld the applicant’s additional claim lodged on 29 November 1996 and granted TRL 1,574,919,236 for pecuniary damage and TRL 30,000,000 for non-pecuniary damage, plus interest at the statutory rate, running from the date of the judgment and from the date of the incident respectively.
15. The defendant appealed.
16. On 21 October 1997 the Court of Cassation quashed the Labour Court’s decision for the third time on the same ground as before.
17. On 3 November 1998 the Söke Labour Court issued its fourth judgment, dismissing the applicant’s pecuniary damage claims as a whole. In its reasoning, the court held that the Court of Cassation’s assessment method was inapplicable to the incident. It also pointed out that its previous decision regarding the applicant’s non-pecuniary damage claims had become final on 3 February 1994 as the defendant had not challenged it.
18. The applicant appealed.
19. On 4 May 1999 the Court of Cassation quashed the first instance court’s decision on the ground that it had not calculated the applicant’s damage in compliance with the principles stated in its judgment of 11 November 1994.
20. On 17 May 2001 the Söke Labour Court awarded the applicant TRL 1,579,135,521 for pecuniary damage plus interest at the statutory rate, running from the date of the judgment.
21. Both parties appealed.
22. On 8 November 2001 the Court of Cassation quashed the Söke Labour Court’s judgment for the fifth time, criticising the method of calculation applied by the Labour Court.
23. On 16 February 2006 the Labour Court awarded the applicant 1,579 New Turkish liras (YTL) for his pecuniary damage claims, plus interest at the statutory rate, running from the date of the judgment.
24. The applicant appealed.
25. On 12 June 2006 the Court of Cassation upheld the Söke Labour Court’s judgment in full without giving any reasons of its own.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4521
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: PAVLOVIC v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall
TEXT: The applicant, born in 1970, presently resides in Karlskrona, Sweden. In his application form, he states that he has Croatian nationality.
a.

On 19 November 1993 the applicant arrived in Sweden. He requested asylum three days later. He had a Croatian passport but stated that he considered himself to be a citizen of Bosnia-Hercegovina and not of Croatia. He claimed further that he had been a soldier in the Bosnian-Croatian army from which he had deserted.
On 9 September 1994 the National Immigration Board (Statens invandrarverk) rejected the applicant’s request and ordered his deportation to Croatia. The Board found that the applicant held both Bosnian and Croatian citizenship. Noting that the prevailing situation in Bosnia-Hercegovina rendered a deportation to that country impossible, the Board examined the applicant’s situation with respect to Croatia. The Board found that he did not risk to be sent from Croatia to Bosnia-Hercegovina or to be punished for desertion in Croatia.
The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 2 June 1995 the Appeals Board granted the applicant a temporary residence permit until 1 December 1995 and quashed the deportation order. In so doing, the Board referred to a Government decision of 5 May 1995 according to which the worsened situation in Croatia constituted an impediment to the deportation of asylum seekers to that country.
On 16 November 1995 the applicant submitted a new application for a residence permit. He referred to his previous statements and added that he is an ethnic Croat from Kresevo in Bosnia-Hercegovina. Further, he had been informed by his parents in Bosnia-Hercegovina that he had been sentenced to five years’ imprisonment for desertion. He was convinced that, if returned to that country, he would have to serve the sentence and also risk harassment as the majority of the population in his home district were now Muslims. The applicant referred also to the time he had spent in Sweden.
On 24 February 1997 the Immigration Board rejected the applicant’s new application and ordered his deportation to Croatia. The Board had regard to a guiding decision taken by the Swedish Government on 28 November 1996. In that decision the Government stated, inter alia, the following:
(Translation)
“As regards the situation in Croatia and the region, the ongoing peace process, based on a general agreement on peace in Bosnia-Hercegovina, has lead to stabilisation. The relations between Croatia and the Federal Republic of Yugoslavia have improved. Croatia has been admitted into the Council of Europe. Acts of warfare have not occurred on Croatian territory since August 1995. The risk of further conflicts appears unlikely. The general situation in Croatia has improved in such a way since the Government’s previous assessment in May 1995 that nowadays Croatian citizens can generally be afforded protection in Croatia.”
As in its previous decision concerning the applicant, the Board found that he could not be sent back to Bosnia-Hercegovina. The Board considered, however, that the applicant’s submissions did not show that he was unable to go to Croatia.
Following the applicant’s appeal, the Aliens Appeals Board, on 23 April 1997, quashed the Immigration Board’s decision and referred the case back for re-examination. The Appeals Board found that no oral hearing had been held by the Immigration Board, as required by law.
The Immigration Board later held an oral hearing at which the applicant stated that, being a Catholic, he would be persecuted by Muslims in Bosnia-Hercegovina. He maintained further that he had obtained his Croatian passport illegally and that he could not be considered as a citizen of that country. He had no relatives or friends in Croatia and could not see any reasons why Croatia should admit him. Allegedly, during his stay in Sweden he had adjusted to Swedish society.
In a decision of 17 July 1997 the Immigration Board rejected the applicant’s new application and ordered that he be deported to either Bosnia-Hercegovina or Croatia. The Board referred to the Swedish Government’s decision of 28 November 1996 in which the following conclusions were drawn as regards the situation in Bosnia-Hercegovina:
(Translation)
“Recently, the situation in Bosnia-Hercegovina has improved. After the parties signed a general agreement on peace in Bosnia-Hercegovina there is an ongoing peace process in the country. It has been strengthened by the establishment of Government institutions and the general elections held in September 1996. There are still actual restrictions on the movement of people within the territory of the State. The possibility to return to the home district without risking harassment and outrage is, in the present circumstances, dependent on the prevailing ethnic composition of the population in the district. In the Government’s view, it is now possible to return to the home district where one’s own ethnic group is in the majority. This view corresponds to the position taken by the UNHCR in regard to the return of people to Bosnia-Hercegovina. The relative stability enjoyed by “the majority population” in the respective regions leads to the conclusion that asylum seekers from such places in Bosnia-Hercegovina can no longer be considered as generally being in need of protection.”
The Board noted that, according to information from the United Nations High Commissioner for Refugees (UNHCR), the majority of the population in Kresevo were Catholics. Consequently, the applicant’s fear of persecution was considered to be exaggerated. The Board considered also that the amnesty laws enacted in Bosnia-Hercegovina would be applicable to the applicant.
As regards the possible deportation of the applicant to Croatia, the Board considered that the applicant’s Croatian passport was genuine and noted that the applicant had previously stated that this was the case. According to the Board, there was thus no reason to assume that Croatia would not afford him protection. In this respect, the Board again referred to information available from the Swedish Government and the UNHCR. This view had been confirmed also by the Croatian Government. Finally, the Board found that there were no reasons of a humanitarian nature to grant the applicant a residence permit.
On 9 March 1998 the Aliens Appeals Board upheld the Immigration Board’s decision.
On 16 June 1998 the applicant submitted yet another application for a residence permit to the Appeals Board. He referred to his long stay in Sweden and to the fact that he had already had a temporary residence permit. Furthermore, he claimed that, while serving in the Bosnian-Croatian army, he had seen how his neighbour and a work-mate had been killed. His experiences during the war, a difficult childhood and his fears of persecution and punishment for desertion in Bosnia-Hercegovina had impaired his mental health and rendered the deportation to that country impossible. He could not be deported to Croatia either, as he had no connections to Croatia and as the situation for Bosnian Croats in Croatia had worsened as of late. He invoked a medical certificate issued on 3 April 1998 by chief physician E.A. and psychologist L.L. at the psychiatric clinic at the hospital in Karlskrona, according to which the applicant suffered from insomnia, anxiety and flashbacks from the war.
By a decision of 25 June 1998 the Appeals Board rejected the applicant’s latest application.
In a further medical certificate issued at the above-mentioned psychiatric clinic on 2 December 1998 physician M.N. stated that the applicant, as from 19 November 1998, received treatment at the clinic for a post-traumatic stress syndrome. M.N. found that there was a considerable risk that the applicant would attempt to commit suicide. The applicant states that he has since left the clinic but that he continues to visit his psychiatrist on a regular basis.
Relevant domestic law
Under Section 29 of the Act on Compulsory Mental Care (Lagen om psykiatrisk tvångsvård, 1991:1128), such care shall be terminated at the request of the competent police authority whenever the person placed in care is ordered to be deported. This presupposes, however, that the chief physician finds that the alien’s condition allows that the deportation takes place. According to Section 33, no appeal lies against the chief physician’s decision.


ITEMID: 001-69285
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: GREEN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Anthony Lloyd Green, is a British national who was born in 1981 and lives in Sheffield. He is represented before the Court by Mr P. Mahy, a solicitor practising in Sheffield.
On 7 April 1999 police officers were carrying out a surveillance operation in relation to a property in Catherine Road, Sheffield. As part of the operation, Detective Sergeant (“DS”) Lawrence was driving an unmarked police car which collided with the applicant's bicycle. The applicant was knocked off but got up and ran off. The car then collided with the applicant and ran over his legs. The applicant suffered injuries, including a fractured femur.
On 4 May 1999, the applicant lodged a complaint against the police alleging that he had been deliberately knocked down by the police car. The Chief Constable of the South Yorkshire Police requested an officer from another police force to investigate the complaint and referred the complaint to the Police Complaints Authority (“PCA”) which was to supervise the investigation. The PCA approved the choice of the investigating officer from the West Yorkshire Police.
On 10 June 1999 the applicant made a statement.
On 6 October 1999 the applicant and his solicitor viewed a video recording made from a police helicopter. Subsequently the applicant made a further statement which concluded with his view that it looked as though the police officers had been trying to kill him.
The investigating officer made an interim report, bearing in mind the six month time-limit on road traffic prosecutions, and the Director of Public Prosecutions (“the DPP”) decided to bring proceedings against DS Lawrence for failing to drive with due care and attention.
On 15 November 1999, the investigating officer submitted his final report to the PCA and sent a copy to the Chief Constable. It included 24 statements and 23 other documents and exhibits, including video evidence and copies of tape-recorded interviews with the officers concerned.
On 10 January 2000, the PCA submitted a statement to the Chief Constable that the matter had been investigated to its satisfaction. The applicant was informed of the statement and that, at the conclusion of any criminal matters, the Chief Constable would inform the PCA whether it was proposed to bring any disciplinary charges. If the decision was not to do so, the PCA could recommend, or if necessary, direct that a disciplinary charge be brought.
On 10 March 2000, DS Lawrence pleaded guilty in the Magistrates' Court to driving without due care and attention. He was fined GBP 250, plus costs and five penalty points were imposed on his licence.
The Chief Constable informed the PCA that it was not proposed to bring any disciplinary charges.
On 5 September 2000, the PCA informed the applicant that it did not intend to recommend any disciplinary proceedings, stating inter alia that in the absence of any “irrefutable” evidence of recklessness or intent on the part of DS Lawrence it was not believed that a disciplinary hearing would find any more fault in the officer's conduct than did the criminal trial.
On 13 September 2000, the applicant's solicitors wrote to the PCA alleging that it had misdirected itself in requiring “irrefutable” evidence for bringing proceedings.
On 22 September 2000, the PCA confirmed its decision in the light of the absence “of any evidence of recklessness or intent”.
On 23 November 2000, the applicant applied for judicial review of the PCA's decisions as set out in its letters.
On 26 January 2001, the PCA informed the applicant that a fresh review of the case would be carried out by another member of the Authority, Ms Mitchell, and inviting him to submit any further evidence within 14 days. The applicant's solicitors replied that they wanted to know what evidence the PCA had in order to consider what further evidence to submit.
On 13 February 2001, Ms Mitchell provided the applicant with a schedule listing the statements and documents which would be taken into account.
On 26 February 2001, the applicant's solicitors requested disclosure of the materials in the schedule.
On 13 March 2001, Ms Mitchell declined to disclose the documents.
On 14 March 2001, the applicant withdrew the judicial review proceedings on the basis that the PCA would conduct a full review and make a fresh decision.
On 23 March 2001, the applicant's solicitors made representations that they were unable to make effective submissions without access to the statements and documents, referring to Articles 2 and 3 of the Convention.
By letter dated 3 April 2001, Ms Mitchell replied that pursuant to the Police Act 1996 the Authority was prevented from disclosing information received in connection with its functions save in specified circumstances, including where it was necessary for the proper discharge of those functions. The PCA did not consider that disclosure was so necessary as the applicant had already made a statement himself, knew the identities of the persons whose statements had been received and had seen a copy of the video. It was satisfied that the material available to it did not contain anything on which it required the applicant's representations in order for it to carry out its statutory functions.
The applicant issued judicial review proceedings challenging this refusal of disclosure.
On 21 December 2001, after an oral hearing, the High Court ruled that the PCA should disclose certain material. The judge gave the parties the opportunity to agree what documents should be disclosed. On 1 March 2002, following agreement of the parties, the High Court ordered disclosure of 28 witness statements, some of them redacted, on the basis of an undertaking by counsel that he would not disclose or permit to be disclosed any of the material save to the applicant and his legal advisers.
On 26 March 2002, after an oral hearing, the Court of Appeal allowed the PCA's appeal.
On 17 December 2002, the House of Lords granted the applicant leave to appeal.
Meanwhile, however, the applicant and the PCA agreed that the fresh review should be carried out.
On 30 December 2003, the PCA member issued a provisional decision, of some 12 pages, on the applicant's complaints which included a summary and analysis of the evidence. Referring to various witness statements and the video, she noted that DS Lawrence had intended to stop and search the applicant due to his presence outside a drug dealing house and that when the applicant tried to get away on his bike, the car had clipped the rear of the bike, knocking him to the ground. When the applicant had run off, DS Lawrence had followed in the car; he had driven onto the wrong side of the road and fearing collision with an oncoming vehicle, swerved and in so doing hit the applicant who had run into the road across his path. The independent report analysed the various speeds of the vehicles and bike and assessed that there were a number of deficiencies in the officer's driving plan and manoeuvring. She concluded that, although there was a reasonable prospect of a disciplinary tribunal being satisfied that DS Lawrence's driving fell below the required standard, there would be no recommendation of proceedings due to the passage of time since the incident, the fact that DS Lawrence had been told of the original decision not to bring disciplinary proceedings and the availability of lesser and proportionate means of dealing with his standard of driving. The applicant was invited to comment on the decision.
On 11 March 2004, following receipt of the applicant's submissions, the PCA confirmed its decision. It further stated in relation to concerns raised by his solicitors about the way in which allegations of racist conduct had been dealt with that the matter had been investigated (e.g. it had been put to the police officer in interview that it was a deliberate racist act) but that there was ample evidence to provide a full explanation of DS Lawrence's conduct which did not involve any element of racism. While the original investigation had not been carried out in line with the PCA's 2003 Guidelines which had only come into existence subsequently and which required statistical data to be taken into account, it appeared that difficulties in correlation of figures available for 1999 would not have enabled it to be shown if black persons were subjected to a disproportionate number of searches.
On 26 February 2004, the House of Lords dismissed the applicant's appeal. It held that section 80 contained a general ban on disclosure of information received by the Authority except in certain circumstances and that the aim of the PCA in carrying out its functions was to satisfy the legitimate interests of both complainants and the wider public that the investigation of complaints against police officers should be, and should be seen to be, independent and thorough. It considered that the purposes of the legislation would not be served by the disclosure of as much information as possible to the parties while an investigation was being undertaken. It noted, inter alia, that as the applicant was a potential witness in disciplinary proceedings there would be a risk of contamination of evidence if he was allowed sight of other witness statements. It concluded that the procedures adopted by the PCA in cases which concerned breaches of Articles 2 and 3 were such as to involve the applicant adequately in the procedure and to satisfy the requirements of an effective investigation and that accordingly the PCA had been entitled to take the view that the disclosure of the witness statements and other materials was not necessary for the proper discharge of its functions.
Meanwhile, the applicant had brought a claim for damages against the police. On 11 February 2004, these proceedings terminated when the police agreed to pay the applicant GBP 11,000, plus costs.


ITEMID: 001-58921
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF HASAN AND CHAUSH v. BULGARIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (estoppel);Violation of Art. 9;Violation of Art. 13;No violation of Art. 6;Not necessary to examine P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Not necessary to examine Art. 11
JUDGES: Luzius Wildhaber
TEXT: 9. Mr Fikri Sali Hasan (“the first applicant”) was Chief Mufti of the Bulgarian Muslims from 1992 until the events complained of. Mr Ismail Ahmed Chaush (“the second applicant”) was formerly a teacher at the Islamic Institute in Sofia.
In his submissions to the Court the second applicant stated that from February 1995 he had also worked on a part-time basis as secretary to the Chief Mufti's Office (Главно мюфтийство), the national leadership of the Muslim religious organisation, and editor of Musulmanin, its newspaper. The Government disputed these assertions.
10. At the end of 1989 a process of democratisation commenced in Bulgaria. Soon thereafter some Muslim believers and activists of the Muslim religion in the country sought to replace the leadership of their religious organisation. They considered that Mr Gendzhev, who was the Chief Mufti at that time, and the members of the Supreme Holy Council (Висш духовен съвет) had collaborated with the communist regime. The old leadership, with Mr Gendzhev as Chief Mufti of the Bulgarian Muslims, also had supporters. This situation caused divisions and internal conflict within the Muslim community in Bulgaria.
11. Following general elections held in Bulgaria in October 1991 a new government, formed by the Union of Democratic Forces (СДС) and the Movement for Rights and Freedoms (ДПС), took office towards the end of 1991.
On 10 February 1992 the Directorate of Religious Denominations (Дирекция по вероизповеданията), a governmental agency attached to the Council of Ministers, declared the election of Mr Gendzhev in 1988 as Chief Mufti of the Bulgarian Muslims null and void and proclaimed his removal from that position. On 21 February 1992 the Directorate registered a threemember Interim Holy Council as a temporary governing body of the Muslims' religious organisation, pending the election of a new permanent leadership by a national conference of all Muslims.
12. Following these events Mr Gendzhev, who claimed that he remained Chief Mufti of the Bulgarian Muslims, challenged the decision of 10 February 1992 before the Supreme Court. On 28 April 1992 the Supreme Court rejected his appeal. The court found that the decision of the Directorate of Religious Denominations was not subject to judicial appeal. The ensuing petition for review, submitted by Mr Gendzhev against the Supreme Court's decision, was examined by a five-member Chamber of the Supreme Court. On 7 April 1993 the Chamber dismissed the petition. While confirming the rejection of Mr Gendzhev's appeal, the Chamber also discussed the merits of the appeal. It found, inter alia, that the Directorate's decision to declare Mr Gendzhev's election null and void had been within its competence. In so far as the impugned decision had also proclaimed “the removal” of Mr Gendzhev from his position of Chief Mufti, this had been ultra vires. However, it was unnecessary to annul this part of the Directorate's decision as in any event it had no legal consequences.
13. The National Conference of Muslims, organised by the interim leadership, took place on 19 September 1992. It elected Mr Fikri Sali Hasan (the first applicant) as Chief Mufti of the Bulgarian Muslims and also approved a new Statute of the Religious Organisation of Muslims in Bulgaria (Устав за духовното устройство и управление на мюсюлманите в България). On 1 October 1992 the Directorate of Religious Denominations registered the statute and the new leadership in accordance with sections 6 and 16 of the Religious Denominations Act.
14. While the leadership dispute between Mr Gendzhev and Mr Hasan continued, the official position of the Directorate of Religious Denominations, throughout 1993 and at least the first half of 1994, remained that the first applicant was the legitimate Chief Mufti of the Bulgarian Muslims.
15. On 29 July 1994 the Directorate of Religious Denominations wrote a letter to Mr Hasan urging him to organise a national conference of all Muslims to solve certain problems arising from irregularities in the election of local religious leaders. The irregularities in question apparently concerned alleged inconsistencies with the internal statute of the Muslim religious organisation, and not breaches of the law.
16. On 2 November 1994 the supporters of Mr Gendzhev held a national conference. The conference proclaimed itself the legitimate representative of Muslim believers, elected an alternative leadership and adopted a statute. Mr Gendzhev was elected President of the Supreme Holy Council. After the conference the newly elected leaders applied to the Directorate of Religious Denominations for registration as the legitimate leadership of the Bulgarian Muslims.
17. On 3 January 1995 the Supreme Holy Council presided over by the first applicant decided to convene a national conference on 28 January 1995.
18. At the end of 1994, parliamentary elections took place in Bulgaria. The Bulgarian Socialist Party (БСП) obtained a majority in Parliament and formed a new government, which took office in January 1995.
19. On 16 January 1995 the Directorate of Religious Denominations wrote a letter to the first applicant in his capacity of Chief Mufti urging him to postpone the conference. The letter stated, inter alia :
“As the Directorate of Religious Denominations was concerned with [the] irregularities [as regards the election of local muftis] as early as the middle of 1994, it repeatedly ... urged the rapid resolution of the problems ... Unfortunately no specific measures were undertaken ... As a result the conflicts in the religious community deepened, and discontent among Muslims increased, leading to the holding of an extraordinary national conference on 2 November 1994. This brought to light a new problem, related to the shortcomings of the statute of the Muslim religious community... [The statute] does not clarify the procedure for convening a national conference ... Issues concerning the participants, and the manner in which they are chosen ..., are not regulated.
Therefore, for the executive branch of the State it becomes legally impossible to decide whether the national conference is in conformity with the statute [of the Muslim religion] and, accordingly, whether its decisions are valid. These decisions, quite understandably, could be challenged by some of the Muslims in Bulgaria. Any other national conference, except one organised by a joint committee [of the rival leaderships], would raise the same problem. Moreover, the decision of 3 January 1995 of the Supreme Holy Council to hold an extraordinary national conference on 28 January 1995 is signed only by six legitimate members of the Holy Council... [and] ... cannot be regarded as being in conformity with the statute.
The Directorate of Religious Denominations cannot disregard the findings of the [Chamber of the] Supreme Court in its decision of 7 [April] 1993. It is mentioned therein that the Directorate had acted ultra vires when removing Mr Gendzhev from his position of Chief Mufti and that the decision of the Directorate of 10 February 1992 could not have legal consequences.
Extremely worried as regards the current situation and deeply concerned over the well-being of the Muslims in Bulgaria, the Directorate of Religious Denominations supports the opinion of the Chief Mufti [the first applicant] that it is not advisable to rush ahead with the holding of an extraordinary conference before overcoming the conflicts in the religious community ...
Firmly convinced that the disputed questions in the religious community should not be decided by administrative means by the executive branch of the State ... the Directorate appeals to you to show good will and reach a consensus for the holding of a united conference ...”
20. On 27 January 1995 the Supreme Holy Council presided over by Mr Hasan announced that it had postponed the national conference until 6 March 1995.
21. On 22 February 1995 Mr Shivarov, Deputy Prime Minister of Bulgaria, issued Decree R-12, which reads as follows:
“In accordance with Decree KV-15 of 6 February 1995 of the Council of Ministers read in conjunction with section 6 of the Religious Denominations Act, I approve the statute of the Muslim religion in Bulgaria, based in Sofia.”
22. The statute of the Muslim religion in Bulgaria mentioned in the decree was apparently the one adopted at the rival national conference, organised by Mr Gendzhev and held on 2 November 1994. Decree KV-15, referred to in Decree R-12, determined that Deputy Prime Minister Shivarov should be in charge of supervising the activity of the Directorate of Religious Denominations.
23. On 23 February 1995 the Directorate of Religious Denominations of the Council of Ministers issued a decision which stated that, in accordance with sections 6, 9 and 16 of the Religious Denominations Act and Decree R12 of the Deputy Prime Minister, it had registered a new leadership of the Bulgarian Muslim community. The leadership thus registered included Mr Gendzhev as President of the Supreme Holy Council and, apparently, those elected at the conference of 2 November 1994.
24. Neither Decree R-12 nor the decision of the Directorate of Religious Denominations gave any reasons or any explanation regarding the procedure followed. The decisions were not formally served on Mr Hasan, who learned about them from the press.
25. On 27 February 1995 the newly registered leadership of the Muslim community accompanied by private security guards entered the premises of the Chief Mufti's Office in Sofia, forcibly evicted the staff working there, and occupied the building. The applicants submit that the police, who arrived after the surprise action, immediately stepped in to protect the new occupants of the building. Following the action of 27 February 1995 the new leadership took over all documents and assets belonging to the religious organisation of Bulgarian Muslims in Sofia and, in the months which followed, in various other towns in the country. The Directorate of Religious Denominations allegedly sent letters to the banks where the Muslim religious organisation had its accounts, informing them of the change of leadership. In the following weeks several municipalities, allegedly upon the instructions of the Directorate, registered new regional muftis. Also, the staff of the Chief Mufti's Office and ten Islamic teachers, the second applicant among them, were allegedly dismissed de facto as they were prevented from continuing their work.
26. On 27 February 1995, immediately after the take-over, the first applicant submitted to the Chief Public Prosecutor's Office (Главна прокуратура) a request for assistance, stating that there had been an unlawful mob action and that the persons who had occupied the building of the Chief Mufti's Office were squatters who had to be evicted. By decisions of 8 and 28 March 1995 the prosecuting authorities refused to take action. They found, inter alia, that the new occupants of the building had legal grounds to stay there as they were duly registered by the Directorate of Religious Denominations and represented the religious leadership of the Muslim community in the country.
27. On 23 March 1995, apparently in reply to a request from the first applicant, the Directorate of Religious Denominations sent him, in his capacity as a private person, a letter which stated, inter alia:
“The Muslim religious community in Bulgaria ... has, in 1888, 1891, 1919, 1949, 1986, 1992 and 1995, repeatedly changed its statute as concerns its organisational structure ..., but never as regards its religious foundation. Decree R-12 of 22 February 1995 ... sanctions an [organisational] change, which the religious community itself wished to undertake ...”
This letter was apparently the first document originating from the competent State bodies which implied clearly that the statute of the Muslim religious community approved by Decree R-12 had replaced the previous statute and that the new registered leadership had replaced the first applicant.
28. On 18 April 1995 the first applicant, acting on behalf of the Chief Mufti's Office which he headed, lodged an appeal against Decree R-12 with the Supreme Court. He stated that, on the face of it, Decree R-12 stipulated nothing more than the registration of a new religious organisation. However, from the decisions and the letter of the Directorate of Religious Denominations which had followed, it had become clear that what had taken place was the replacement of the statute and the leadership of an existing religious denomination. Furthermore, it transpired that the motivation behind this act had been the understanding that the Muslim religion in Bulgaria could have only one leadership and one statute. The State did not have the right to impose such a view on Muslims, multiple religious organisations of one and the same religion being normal in other countries, as in Bulgaria. Therefore the Council of Ministers had acted beyond its powers. The resulting interference in the internal disputes of the Muslim religious community was unlawful. At the oral hearing held by the Supreme Court the first applicant also stated that there had been an unlawful interference with Muslims' religious liberties, as enshrined in the Constitution.
29. The first applicant also submitted that the conference of 2 November 1994 had been organised by people outside the Muslim religious organisation over which he presided. Accordingly, they could register their own religious organisation but could not claim to replace the leadership of another. The second applicant asked the Supreme Court either to declare Decree R-12 null and void as being against the law, or to declare that it constituted the registration of a new religious community, the existing Muslim organisation being unaffected.
30. On 27 July 1995 the Supreme Court dismissed the appeal. The court stated that under the Religious Denominations Act the Council of Ministers enjoyed full discretion in its decision as to whether or not to register the statute of a given religion. The Supreme Court's jurisdiction was therefore limited to an examination of whether the impugned decision had been issued by the competent administrative organ and whether the procedural requirements had been complied with. In that respect Decree R-12 was lawful. As regards the request for interpretation of Decree R-12, it was not open to the Supreme Court, in the framework of those particular proceedings, to state its opinion as to whether it had the effect of creating a new legal person, or introducing changes, and whether after this decision there existed two parallel Muslim religious organisations.
31. The national conference of Muslims in Bulgaria organised by Mr Hasan took place as planned on 6 March 1995. The minutes of the conference establish that it was attended by 1,553 persons, of whom 1,188 were official delegates with voting rights. These were representatives of eleven local chapters and of the central leadership. The conference adopted some amendments of the statute of the Muslim community and elected its leadership. The first applicant was re-elected Chief Mufti.
32. On 5 June 1995 the first applicant, acting as Chief Mufti, submitted a petition to the Council of Ministers requesting the registration of the new statute and leadership of Muslims in Bulgaria, as adopted by the conference of 6 March 1995. On 6 October 1995 he repeated the request. However, there was no response from the Council of Ministers.
33. On an unspecified date the first applicant appealed to the Supreme Court against the tacit refusal of the Council of Ministers to register the decisions of the March 1995 conference.
34. On 14 October 1996 the Supreme Court delivered its judgment. It noted that in 1992 the Chief Mufti's Office as represented by Mr Hasan had been duly registered as a religious denomination under section 6 of the Religious Denominations Act and had thus obtained legal personality of which it had not been subsequently deprived. Therefore the Council of Ministers was under an obligation, pursuant to sections 6 and 16 of the Act, to examine a request for registration of a new statute or of changes in the leadership in the existing religious denomination. Accordingly, the Supreme Court ruled that the tacit refusal of the Council of Ministers had been unlawful and ordered the transmission of the file to the Council of Ministers, which was required to examine it.
35. On 19 November 1996 Deputy Prime Minister Shivarov refused to register the 1995 statute and leadership of the Chief Mufti's Office as represented by Mr Hasan. He sent him a letter stating, inter alia, that the Council of Ministers had already registered a leadership of the Muslim community in Bulgaria, which was that elected by the November 1994 conference with Mr Gendzhev as President of the Supreme Holy Council. The Deputy Prime Minister concluded that the first applicant's request “[could not] be granted as it [was] clearly contrary to the provisions of the Religious Denominations Act”.
36. On 5 December 1996 the first applicant, acting as Chief Mufti, appealed to the Supreme Court against the refusal of the Deputy Prime Minister.
37. On 13 March 1997 the Supreme Court quashed that refusal on the ground that it was unlawful and contrary to Article 13 of the Constitution. The refusal constituted “an unlawful administrative intervention into the internal organisation of [a] religious community”. The Supreme Court again ordered the transmission of the file to the Council of Ministers for registration.
38. Despite these Supreme Court judgments the Council of Ministers did not grant registration to the religious leadership headed by Mr Hasan.
39. In February 1997 the government of the Bulgarian Socialist Party stepped down and an interim cabinet was appointed. At the general elections which followed in April 1997 the Union of Democratic Forces obtained a majority in Parliament and formed a new government.
40. On 24 March 1997 the first applicant again requested the Council of Ministers to register the 1995 statute and leadership. There followed informal contacts between the Muslim leadership of Mr Hasan and representatives of the government. The applicants were allegedly told that the government would only agree to register a new leadership of the Muslims if it was elected at a unification conference.
41. The Directorate of Religious Denominations urged the two rival leaderships of Mr Hasan and of Mr Gendzhev to negotiate a solution. On 12 September 1997 the leadership headed by Mr Hasan decided to accept the holding of a unification conference under certain conditions. A five-member contact group was appointed to hold negotiations. On 30 September 1997 representatives of the two rival leaderships signed an agreement to convene a national conference of all Muslim believers on 23 October 1997. The agreement, which was also signed by Deputy Prime Minister Metodiev and the Director of Religious Denominations, provided, inter alia, that the parties would not obstruct the unification process, failing which the Directorate would take appropriate administrative measures. In addition, the leadership of Mr Gendzhev undertook not to dispose of any Muslim property or assets before the conference.
42. The Directorate of Religious Denominations took an active part in organising the national conference. The mayors in many localities distributed to the local chapters forms bearing the seal of the Directorate. These forms were filled out at the meetings of the local chapters which elected delegates to the national conference and were certified by the mayors' signatures.
43. On 23 October 1997, 1,384 delegates attended the conference. Only delegates whose election had been certified by the mayors were allowed to participate. The conference adopted a new statute of the Muslim denomination in Bulgaria and elected a new leadership comprising members of the leadership of Mr Hasan and others. Mr Hasan apparently attended the conference and approved of the new leadership. Six leaders of the group led by him were elected to the new Supreme Holy Council. Mr Hasan was not among them. On 28 October 1997 the government registered the newly elected leadership.
44. Although the religious community which accepted Mr Gendzhev's authority was involved in the unification process, Mr Gendzhev himself and some of his supporters did not sign the agreement of 30 September 1997 and did not attend the conference, considering that it was manipulated by the State. The conference voted a resolution authorising the new leadership to conduct an audit and seek the prosecution of Mr Gendzhev for alleged unlawful transactions.
45. Mr Gendzhev, who claimed that he remained the Chief Mufti, appealed to the Supreme Administrative Court (Върховен административен съд) against the government's decision to register the new leadership. By a judgment of 16 July 1998 the Supreme Administrative Court rejected the appeal as being inadmissible. It found that the Chief Mufti's Office of Mr Gendzhev had no locus standi to lodge an appeal as it had never been validly registered. Decree R-12 of 22 February 1995 had been signed by Deputy Prime Minister Shivarov, who had not been duly authorised by the Council of Ministers. Decree KV-15 did not contain an express authorisation for the Deputy Prime Minister to approve the statutes of religious denominations. As a result the Chief Mufti's Office of Mr Gendzhev had never legally existed and all its acts between 1995 and 1997 were null and void.
46. The relevant provisions of the 1991 Constitution read as follows:
Article 13
“(1) Religions shall be free.
(2) Religious institutions shall be separate from the State.
(3) Eastern Orthodox Christianity shall be considered the traditional religion in the Republic of Bulgaria.
(4) Religious institutions and communities, and religious beliefs shall not be used for political ends.”
Article 37
“(1) The freedom of conscience, the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable. The State shall assist in the maintenance of tolerance and respect between the adherents of different denominations, and between believers and non-believers.
(2) The freedom of conscience and religion shall not be exercised to the detriment of national security, public order, public health and morals, or of the rights and freedoms of others.”
47. The Constitutional Court's judgment no. 5 of 11 June 1992 provides a legally binding interpretation of the above provisions. It states, inter alia, that the State must not interfere with the internal organisation of religious communities and institutions, which must be regulated by their own statutes and rules. The State may interfere with the activity of a religious community or institution only in the cases contemplated in Articles 13 § 4 and 37 § 2 of the Constitution. An assessment as to whether there is such a case may also be undertaken at the time of registration of a religious community or institution.
48. The Religious Denominations Act came into force in 1949 and has been amended several times since then. The relevant provisions of the Act, as in force at the time of the events at issue, read as follows.
Section 6
“(1) A religious denomination shall be considered recognised and shall become a legal person upon the approval of its statute by the Council of Ministers, or by a Deputy Prime Minister authorised for this purpose.
(2) The Council of Ministers, or a Deputy Prime Minister authorised for this purpose, shall revoke the recognition, by a reasoned decision, if the activities of the religious denomination breach the law, public order or morals.”
Section 9
“(1) Every religious denomination shall have a leadership accountable to the State.
(2) The statute of the religious denomination shall establish its governing and representative bodies and the procedure for their election and appointment ...”
Section 16
“(1) The national governing bodies of the religious denominations shall register with the Directorate of Religious Denominations of the Council of Ministers, and local governing bodies with the local municipalities, and they shall submit a list of the names of all members of these governing bodies.”
49. The Act also lays down rules regarding the activities of a religious denomination, imposes requirements as regards its clergy and gives the Directorate of Religious Denominations certain supervisory functions. In its judgment no. 5 of 11 June 1992 the Constitutional Court, while agreeing that certain provisions of the Religious Denominations Act were clearly unconstitutional, found that it was not its task to repeal legal provisions adopted prior to the entry into force of the 1991 Constitution, the ordinary courts being competent to declare them inapplicable.
50. The applicants contended that as a consequence of the provisions of section 6 of the Act, and since there is no public register for recognised religious denominations, in practice a religious community can establish its existence as a legal entity only by producing a copy of a letter or a decision to that effect issued by the Directorate of Religious Denominations. The same applies to the leader of a religious denomination when he needs to provide accreditation.
51. Under Decree no. 125 of the Council of Ministers of 6 December 1990, as amended, the competence of the Directorate of Religious Denominations includes “contacts between the State and religions denominations”, assistance to central and local administrative authorities in solving problems which involve religious matters and assistance to religious organisations as regards education and publications.
52. There are no procedural provisions under Bulgarian law specifically applicable to the examination by the Council of Ministers, or by a deputy prime minister, of a petition for authorisation of a religious denomination. Section 3 of the Administrative Procedure Act (Закон за административното производство), which contains a general legal regime on the procedure for the issuing of and appeal against administrative decisions, provides that the Act is not applicable as regards decisions of the Council of Ministers.
VIOLATED_ARTICLES: 13
9
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-101894
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: AYDEMIR AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicants are Turkish nationals and at the time of lodging their applications they were serving prison sentences in various establishments. The names and dates of birth of the applicants, as well as the names of their representatives, and the dates of introduction of the applications appear in the appendix.
By a decision of the Izmir F-type Prison Disciplinary Board, dated 29 December 2004, the applicants were found guilty of breaching prison order by pressing emergency buttons in the cells and by refusing to participate in prison workshops.
Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, the applicants were all prohibited from corresponding for fifteen days. Their appeal requests were rejected by the Enforcement Judge and subsequently by the Assize Court on 11 and 26 January 2005 respectively, on the basis of the case file, without hearing the applicants or their lawyers, pursuant to Law no. 4675 on Enforcement Judges, of 16 May 2001.
Section 4 of Law no. 4675, which lays down the competences of Enforcement Judges, provides that objections filed against disciplinary sanctions shall be dealt with by such a judge. Section 5 provides that the prisoner concerned, or his or her close relative or legal representative, can file an objection against a disciplinary sanction. Furthermore, Section 6 stipulates that the Enforcement Judge shall decide on the basis of the case file, without holding a hearing. That judge may conduct an examination ex officio or request further information from the parties if the interests of justice so require. An appeal against the decisions of Enforcement Judges lies to the nearest Assize Court.
According to this recent law (Section 5), upon objection against a disciplinary sanction, the Enforcement Judge delivers his/her decision after hearing the defence submissions of the prisoner concerned and collecting all the evidence. The prisoner can present his/her defence submissions in person and/or in the presence of his/her lawyer or only through a lawyer.
The law further provides a remedy for all those prisoners who had previously filed objections with the Enforcement Judges concerning disciplinary sanctions imposed on them before the adoption of this law (Provisional Article 1). Accordingly, those who had previously filed objections with Enforcement Judges against a prison disciplinary sanction now have the possibility of filing a fresh objection with the Enforcement Judge within six months following the adoption of this law, and their cases will be dealt with in accordance with the new procedures.
In their additional observations, the Government provided two sample decisions delivered by the Ankara Enforcement Judge following the adoption of Law No. 6008. In these two cases (nos. E2010/777 K/2010/817 and E2010/935 K 2010/916), dated 24 August 2010 and 24 September 2010 respectively, the Ankara Enforcement Judge re-examined the objections filed by prisoners who had previously received disciplinary sanctions. In both cases, the Enforcement Judge heard the prisoners in person and re-examined the evidence in the case files. At the end of the proceedings, the Enforcement Judge annulled the disciplinary sanctions in dispute, clearing these prisoners from all of the consequences of the offence.


ITEMID: 001-23429
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: DUCHEZ v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant is a French national who was born in 1957 and lives in Coulouvray (Manche). She is a regular warrant officer in the Air Force.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a regular member of the armed forces and has been married to one of her colleagues since 28 August 1980. Since joining the army she has received an “unmarried person’s” service allowance which is designed to compensate for the unique requirements that service life imposes on military personnel.
After she married she requested her service allowance to be re-calculated at the higher “head of the family” rate paid to her husband. She relied on the Costa judgment of 15 November 1991 in which the Conseil d’Etat had declared obsolete the reference to the notion of head of the family in the light of the provisions of the Parental Authority Act of 4 June 1970. This judgment had had the effect of making servicewomen married to servicemen eligible for the “head of the family” service allowance instead of the “unmarried person’s” service allowance for the same family situation.
Relying on that case-law authority, the applicant asked the military authorities to bring her service allowance into line with the higher allowance paid to her husband. Her request was refused.
On 19 December 1991 she appealed to the Chief of the Air Department of the Ministry of Defence.
Basing his decision on the decree of 13 October 1959 governing service allowances, the Chief of the Air Department dismissed her appeal on 25 May 1992 on the ground that, where a serviceman and servicewoman were married to each other, family expenses could not be taken into account twice and the “head of the family” allowance paid to both spouses.
On 5 August 1992 the applicant lodged an application with the Orléans Administrative Court for judicial review of the Ministry of Defence’s decision. In her submission, no provision of the 1959 decree supported the ministry’s refusal to grant her a “head of the family” allowance and the ministry’s interpretation of the decree had been discriminatory.
On 29 December 1994 the court set aside the ministry’s decision on the following grounds:
“Firstly, the provisions of the Parental Authority Act of 4 June 1970 have rendered otiose the notion of head of the family referred to in the aforementioned decree of 13 October 1959 governing service allowances and secondly, the Ministry of Defence has no legislative or regulatory power to treat Mrs Duchez as an ‘unmarried person’ for the purposes of the aforementioned provisions in refusing her the allowance requested. It follows, without there being any need to examine the ground submitted under the Equal Pay Act of 22 December 1972, that Mrs Duchez is justified in requesting judicial review of the aforementioned decision of 25 May 1992 refusing her a ‘head of the family’ service allowance from 1 January 1987.”
On the same date the National Assembly passed the Budget Amendment Act for 1994, which came into force on the date of its publication in the Official Gazette (Journal officiel) on 30 December 1994. Section 47-II of that Act provides:
“Subject to final court decisions, individual service allowances that are challenged on the basis of the effects of the Parental Authority Act of 4 June 1970 (Law no. 70-459) on the provisions of Decree no. 59-1193 of 13 October 1959 governing service allowances are hereby validated.”
On 25 March 1995 the Minister of Defence appealed against the Orléans Administrative Court’s judgment relying on, inter alia, section 47-II of the 29 December 1994 Act.
In an order of 6 March 1996 the President of the Nantes Administrative Court of Appeal upheld the judgment of the Orléans Administrative Court.
The Minister of Defence appealed to the Conseil d’Etat, which, in a judgment of 30 March 1998, set aside the judgment of the Nantes Administrative Court of Appeal. It held that the ground of appeal based on the submission that the notion of the “head of the family” referred to in the decree of 13 October 1959 had become obsolete was no longer valid following the enactment of the legalising Act of 29 December 1994. The Conseil d’Etat noted, among other things, that
“The effect [of Articles 1 and 3 of the decree of 13 October 1959] is that any married member of the armed forces, regardless of sex, may receive the “head of the family” service allowance but, where both spouses are members of the armed forces, the higher family allowances are non-cumulative and are paid to the head of the household alone. Mrs Duchez’s and her husband’s entitlement to a service allowance was determined on that basis. It is not disputed that the applicant’s husband has already received the “head of the family” allowance. The Minister of Defence’s subsequent dismissal of the applicant’s claim for the head of the family allowance on the ground that her husband had already received it does not in itself infringe the principle that men and women should receive equal pay for equal work...”
1. Civil Code
Under Article 213 of the Civil Code (Parental Authority Act of 4 June 1970 (Law no. 70-459)) “spouses are jointly responsible for the family’s moral and material well-being. They are responsible for their children’s upbringing and for preparing their future”.
Legislative and regulatory provisions governing service allowances
“Officers and rank-and-file personnel in receipt of a monthly salary shall be paid an expenses allowance known as a ‘service allowance’ to compensate for the various specifically military obligations and in particular frequent changes in postings.”
“The service allowance shall vary according to the recipient’s rank and their family and housing situation.”
“The annual rates of the service allowance shall be determined by joint order of the Minister of Defence, the Minister for Economic Affairs and Finance and the Minister of State for the Civil Service.
“The following shall be regarded as the head of the family:-
married members of the armed forces;
other military personnel having at least one dependent child or living with their widowed mother, on condition that she habitually lives under their roof and is not liable for income tax.
The definition of ‘dependent child’ shall be that used in the tax legislation.”
“Military personnel in receipt of the head of the family service allowance who receive a change of posting for the requirements of the Service entailing a relocation within the meaning of the above-mentioned decree of 21 March 1968 shall be paid a flat-rate salary supplement ...”
“Military personnel in receipt of the head of the family service allowance shall also be paid an extra flat-rate supplement on the occasion of each posting imposed for Service reasons and entailing a relocation within the meaning of the aforementioned decree of 21 March 1968. This supplement shall be payable from the seventh posting for officers, and from the fourth posting for the rank and file, calculated – in respect of non-commissioned officers and senior corporals – from the date on which they qualify for a monthly salary and – in respect of corporals and soldiers – from the date on which they qualify for a special incremental salary ...”
“Subject to final court decisions, individual service allowances that are challenged on the basis of the effects of the Parental Authority Act of 4 June 1970 (Law no. 70-459) on the provisions of Decree no. 59-1193 of 13 October 1959 governing service allowances are hereby validated.”
In the Costa decision of 15 November 1991 the Conseil d’Etat ruled as follows:
“In refusing Mrs Strasser, née Costa, who is a Supply Corps captain, a flat-rate supplement to the service allowance ..., the Minister of Defence had regard solely to the fact that she was receiving an ‘unmarried person’s’ allowance ... and to the fact that Lieutenant Strasser, her husband, receives the ‘head of the family’ service allowance.
Firstly, the provisions of the Parental Authority Act of 4 June 1970 have rendered otiose the notion of head of the family expressly referred to in the aforementioned decree of 13 October 1959 governing family expenses allowances and, secondly, the Ministry of Defence does not have any legislative or regulatory power to treat Mrs Strasser, née Costa, as an ‘unmarried person’ in refusing to grant her the allowance requested. It follows that Mrs Strasser, née Costa, is justified in maintaining that, in the decisions complained of, the Ministry of Defence wrongly refused to award her the flat-rate supplement to the service allowance.”
In the Minister of Defence v. Préaud judgment of 11 July 2001, the Conseil d’Etat held:
“Bonuses paid to military personnel for skills and meritorious service are claims that must be regarded as possessions within the meaning of Article 1 of Protocol No. 1 to the European Convention on Human Rights and Fundamental Freedoms. The aforementioned provisions of section 47-1 of the 29 December 1994 Act were enacted after the Conseil d’Etat, sitting in its judicial capacity, had decided on 15 January 1992 that military personnel serving abroad continued to enjoy all the permanent fringe benefits and after the decree of 2 December 1994 had amended the decree of 23 December 1976 to prevent non-commissioned officers serving abroad from receiving the allowances. These provisions, which came into force after Mr Préaud had brought his dispute with the State before the Nantes Administrative Court, had the effect of depriving him retroactively of his entitlement to the allowances. Neither the aim of preventing military personnel serving abroad from maintaining the benefits in question during the transitional period preceding publication of the decree of 2 December 1994, nor the aim of avoiding any discrimination arising between civil servants and members of the armed forces or between servicemen and women who have taken legal proceedings and those who have not, nor the concern to avoid the financial consequences of the aforementioned decision of the Conseil d’Etat qualify as grounds of public interest of a kind to justify the interference with Mr Préaud’s possessions brought about by the retroactive deprivation of the bonus for skills and meritorious service to which he was legally entitled during his postings abroad. Accordingly, we reject as ill-founded the Minister of Defence’s submission that the Administrative Court erred in law in ruling that the provisions of section 47-I were incompatible with those of Article 1 of Protocol No. 1 to the European Convention on Human Rights and Fundamental Freedoms. ...”