ITEMID: 001-72927
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF ACHOUR v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 7
JUDGES: Anatoly Kovler;András Baka;Christos Rozakis;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;Giovanni Bonello;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Loukis Loucaides;Luzius Wildhaber;Mindia Ugrekhelidze;Nicolas Bratza;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens
TEXT: 10. The applicant was born in 1963 and lives in Lyons.
11. On 16 October 1984 the Lyons Criminal Court found the applicant guilty of drug trafficking involving 10 kilograms of hashish and sentenced him to three years’ imprisonment. He finished serving his sentence on 12 July 1986.
12. On 1 March 1994 the provisions of Article 132-9 of the new Criminal Code came into force.
13. On 7 December 1995, in the course of a judicial investigation opened on 30 October 1995, the applicant was arrested at his home. A number of searches, notably at his home address, led to the discovery of two bags of cannabis resin weighing 28.8 kilograms each, and various sums of cash amounting to more than 1,200,000 French francs.
14. The applicant was placed under formal investigation and detained pending trial on 11 December 1995.
15. In a judgment of 14 April 1997, the Lyons Criminal Court found the applicant guilty of a drug offence and sentenced him to eight years’ imprisonment, ordering in addition his exclusion from French territory for ten years. It gave the following reasons for its decision:
“We have here a young man who returned from Guadeloupe in late 1993, with no job or verifiable income, who, having tried his hand in turn at property, trading in linen, crockery, air conditioners, foie gras and, incidentally, counterfeit 200 [French] franc notes (??), found himself, somehow or other – he repeatedly tried to explain this with a story about profitable ‘air conditioners’ – in possession of a considerable pile of money, more than 61 million old [French] francs, at his home (see D351), scattered about and hidden in the unlikeliest places (such as the maintenance hatch under the bath!!).
Better still, the arrest on the morning of 7 December 1995 resulted in the seizure, without a warrant, of two bags of drugs, consisting of more than 50 kilograms of prohibited substances, laid out, packed and wrapped in a manner bearing little resemblance to a craft industry.
Nobody claimed them – which one of H. or Achour was delivering to the other??
What is known is that H. was in possession of 3 kilograms of the same kind of resin (see the expert report, D339) and 33,000 [French] francs in cash, stored in the glove box of his car.
The circumstances outlined above amount to two strands of evidence against Achour, which elicited nothing more than vague and inconsistent explanations in which he accused H. of being the delivery man, claimed ignorance as to the nature of the two bags (!!!), and referred again and again, as a kind of ‘judicial trump card’, to the money-spinning air conditioners (repeatedly) and the savings of his late brother (A.).
A third body of evidence results from shadowing, tracking and telephone-tapping.
Treading stealthily like a Sioux and acting like a secret agent, before and after 30 October 1995, Achour moved about a good deal, showing a preference for mornings, twisting and turning constantly, keeping a sharp lookout where necessary, and receiving his ‘contacts’’ vehicles in his garage (albeit for very short amounts of time)... So what was going on??
What was going on his counsel argued, as, subsequently, did counsel for D. and R., was indeed ‘trading’, but in linen, foie gras (in ‘blocks’), counterfeit banknotes, trousers, but never hashish.
This cunning strategy was supported by the statements of G. (D322), and indeed those of V. and C.
Furthermore, and above all, no air conditioners, foie gras or trousers were seized on 7 December 1995; what was physically observed in this case was hashish, and a sizeable quantity of it.
Accordingly, Couider Achour, who already has several convictions, having, in particular, been sentenced to three years’ imprisonment in October 1984 for a drug offence, cannot lay claim to any favourable consideration, not least because of the particularly well-organised nature of his activities (the court has left aside the pagers, mobile phones, etc. used for ‘contacts’). The public prosecutor, for his part, has sought an eight-year prison sentence and the court agrees with and imposes that penalty, which is still mild when it is borne in mind that the defendant is subject to the rules on recidivism; a proportionate fine and continued detention, in addition, in order to ensure that the sentence is executed and that the offence is not repeated; lastly, as an additional penalty, exclusion from national territory for ten years.”
16. The Criminal Court also sentenced the applicant’s mother and the woman he lived with, S., to two years’ imprisonment, suspended, for handling the proceeds of drug offences.
17. In a judgment of 25 November 1997, the Lyons Court of Appeal increased the applicant’s sentence to twelve years’ imprisonment and upheld the exclusion order. It observed, among other things:
“By Article 132-9 of the Criminal Code, a person is deemed to be a recidivist when, having already been convicted with final effect of an offence punishable by ten years’ imprisonment, he or she commits a further offence carrying a similar sentence within ten years of the expiry of the limitation period for enforcing the previous sentence.
That was so in the case of Couider Achour-Aoul, who, having been sentenced by the Lyons Criminal Court on 16 October 1984, after adversarial proceedings, to three years’ imprisonment for offences under the regulations on buying, possessing, using, trading in and transporting drugs, punishable under Article L. 627, paragraph 1, of the Public Health Code, as applicable at the time, by a term of between two and ten years’ imprisonment, and having completed that sentence on 12 July 1986, committed the offences with which he was charged, which likewise carry a sentence of ten years’ imprisonment pursuant to Article 222-37 of the Criminal Code, in the course of 1995 and up to 7 December of that year.
In convicting him on the charges set out in the order committing him for trial, the court below made a correct analysis of the facts of the case and drew the necessary legal inferences. Its judgment must therefore be upheld as to the finding of guilt.
Despite having been convicted on 16 October 1984 of drug offences relating to the possession of 10 kilograms of cannabis resin, Couider Achour-Aoul, with no declared income since 1993, had no hesitation in committing further drug offences, making a substantial profit which he shared with his family and amassing a sizeable fortune which he invested shrewdly.
A total of 57 kilograms of cannabis resin – a substance extremely harmful to the health of young people, in particular those living in poverty, who are exposed to the illegal and dangerous activities of unscrupulous individuals – was found at his home. He also asked Mr H.M., who had sought his help in finding honest work, to sell hashish on his behalf.
Accordingly, both the nature and the seriousness of the accused’s conduct, reflecting a deep-seated inclination to crime for financial gain regardless of the risk to other people’s lives and occurring at a time when he was subject to the rules on recidivism, dictate that he should be sentenced to twelve years’ imprisonment ...”
18. The applicant appealed on points of law, arguing, among other things, that his classification in law as a recidivist contravened the rule governing the application of successive criminal laws, the Court of Appeal having retrospectively applied the harsher provisions of the new legislation.
19. In a judgment of 29 February 2000, the Court of Cassation dismissed his appeal. It held that the Court of Appeal had been justified in deeming him to be a recidivist, on the following grounds:
“... where a law introduces new rules on recidivism, for them to apply immediately it is sufficient for the offence constituting the second component of recidivism – which the offender may choose to commit or not to commit – to have been committed after the law’s entry into force.”
20. The applicant is due to become eligible for release on 21 June 2006.
21. The relevant provisions of the Criminal Code, as in force before 1 March 1994, were as follows:
“Anyone who, having been sentenced for a serious crime [crime] to a term of imprisonment exceeding one year, commits, within five years of the expiry of that sentence or of the time allowed for its enforcement, a further serious crime or other major offence [délit] punishable by imprisonment shall be sentenced to at least the statutory maximum penalty for that offence and, at most, twice that penalty.”
“The same shall apply to persons who have been sentenced for a major offence [délit] to a term of imprisonment exceeding one year and, within the same period, are found guilty of the same offence or of a serious crime punishable by imprisonment.
Anyone who, having previously been sentenced to a shorter term of imprisonment, commits the same offence within the same period shall be sentenced to a term of imprisonment of at least twice the previous sentence, provided that it does not exceed twice the statutory maximum sentence.
...”
22. Article 132-9 of the new Criminal Code, which came into force on 1 March 1994, provides:
“Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by ten years’ imprisonment commits, within ten years of the expiry of the previous sentence or of the time allowed for its enforcement, a further offence carrying a similar sentence, the maximum sentence and fine that may be imposed shall be doubled.
Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by ten years’ imprisonment commits, within five years of the expiry of the previous sentence or of the time allowed for its enforcement, a further offence carrying a prison sentence of more than one year but less than ten years, the maximum sentence and fine that may be imposed shall be doubled.”
23. As early as 1893 the Criminal Division of the Court of Cassation held:
“ ... the increase in the sentence in the event of recidivism amounts to an additional penalty not for the first offence but for the second, which the offender may choose to commit or not to commit. Accordingly, new legislation may, without having retrospective effect, lay down the penalties that may be imposed in future for offences committed while it is in force; the offender cannot request the application of the penalties under the previous legislation for an offence committed since the new legislation has been in force, his status as a recidivist being determined by the new legislation.” (Cass. crim., 31 August 1893, D. 1896.1.137)
24. That position has been reiterated in subsequent judgments of the Criminal Division of the Court of Cassation (Cass. crim., 14 June 1945, Bulletin Criminel (Bull. crim.) no. 68; 29 January 1948, Bull. crim. no. 38; 23 March 1981, Bull. crim. no. 103; and 29 February 2000, Bull. crim. no. 95).
25. During the passage through Parliament of a bill amending the general provisions of the Criminal Code, the rapporteur for the Senate stated, among other things (Senate Report no. 271, appended to the record of the sitting of 27 April 1989):
“Article 132-9
Recidivism entailing a serious crime or other major offence punishable by seven years’ imprisonment and a further offence carrying a sentence of seven years or between one and seven years
...
The increased severity of the rules on recidivism applicable where the second offence is punishable by seven years’ imprisonment lies in the extension of the ‘probationary period’ (ten years) within which a convicted person may be deemed to be a recidivist. If the second offence is punishable by a prison sentence of between one and seven years, the rules on recidivism apply only if the ‘relapse’ occurs within a period of five years. In both cases, the maximum sentence and fine that may be imposed are to be doubled in the event of recidivism.
The existing rules on the subject derive from a law of 26 March 1891 and are set out in Article 57 of the Criminal Code. They provide for a form of recidivism that is general in scope but limited in time (the probationary period being five years) where a person who, having been sentenced for a serious crime to a penalty exceeding one year’s imprisonment (i.e., between one year and life), is prosecuted for a further serious crime or other major offence punishable by imprisonment. In such cases the sentence is increased to at least the statutory maximum penalty for the second offence and, at most, twice that penalty.
...”
26. Article 769 of the Code of Criminal Procedure, on criminal records, provides, inter alia:
“... The following shall be removed from a person’s criminal record: entries concerning convictions that have been expunged as a result of an amnesty or of automatic or judicial rehabilitation, or amended in accordance with a decision to rectify the criminal record. The same shall apply, save in the case of convictions for crimes not subject to limitation, to entries concerning convictions dating back more than forty years which have not been followed by a further conviction for a serious crime or other major offence. ...”
NON_VIOLATED_ARTICLES: 7


ITEMID: 001-5677
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: JURSA v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant was a Lithuanian national, born in 1962. He died on 2 September 2000. By letter of 18 October 2000 his wife expressed her wish to pursue the case in his stead.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, a businessman and professional athlete, was suspected of belonging to a Kaunas mafia-type organisation. The police applied to a court requesting his “special supervision” (teismo įpareigojimai) under the Organised Crime Prevention Act (see the ‘Relevant domestic law’ part below). On 17 February 1999 the Kaunas City District Court placed the applicant under “special supervision” finding, inter alia, that he was reasonably believed to belong to a criminal organisation. The court did not specify the facts warranting that suspicion, referring solely to the “the material presented by the police”. The District Court ordered three preventive measures of “special supervision” for a period of six months, namely a requirement to live at his permanent residence, a prohibition on visiting five specific bars in Kaunas, and a requirement to inform the police about all his financial transactions exceeding 2,000 Lithuanian litai (LTL).
The police authorities lodged an appeal against the order, contending that these measures were insufficient. On 26 February 1999 the Kaunas Regional Court examined the appeal in the presence of the applicant and his defence counsel. The court ordered, for a period of six months, two further preventive measures of “special supervision”, namely a requirement for the applicant to return to his house by 10 p.m. and not to leave it before 6 a.m., and a prohibition on driving a motor vehicle. Again, no particular facts were given in support of the finding that the applicant belonged to a criminal organisation, or that he could be involved in any other wrongdoing, within the meaning of the Organised Crime Prevention Act.
With police permission, in August 1999 the applicant underwent out-patient medical treatment in the resort of Palanga on the Baltic Sea coast. On 2 August 1999 the Palanga City District Court, by reference to the decision of 26 February 1999, ordered the applicant to pay 3,000 LTL as an administrative penalty for failure to comply with the requirement to be at a specific place in Palanga at night-time. Upon the applicant’s appeal, on 5 October 1999 the Klaipėda Regional Administrative Court quashed that decision. The Regional Court found that the curfew obligation of 26 February 1999 concerned the place of the applicant’s permanent residence in Kaunas, and that there was no obligation on him with regard to any place in Palanga. The appellate court ruled that the penalty of 2 August 1999 had been unlawful as the applicant had been permitted to go to Palanga by the police.
The applicant was shot dead in Kaunas on 2 September 2000.
The applicant was married and had three minor children. His wife and children are Latvian nationals, and live in Jūrmala in Latvia.
Relevant provisions of the Organised Crime Prevention Act 1997 (Organizuoto nusikalstamumo užkardymo įstatymas).
Pursuant to Article 1, the purpose of the Act is to apply preventive measures in respect of persons who can adversely affect the rights and freedoms of others, create economic and social conditions for the appearance and development of organised crime, or threaten public safety.
Article 4 permits preventive measures with regard to a person who is reasonably believed capable of involvement in a criminal organisation, aiding or abetting such an organisation by financial and material means or by providing relevant information, or is likely to engage in the future in banditry, blackmail, financial or other serious crime.
Article 3 provides that “special supervision” of the person on the basis of a court order is part of the preventive measures permitted under the Act.
Under Article 13 § 4, a police officer must apply to a court for an order placing a person under “special supervision”. The court decides whether or not to grant the request. Upon the request of the person concerned, the police may permit derogations from the measures so ordered.
Paragraph 5 of Article 13 permits the court not to disclose the facts contained in the material presented by the police in support of their “special supervision” application.
Under Article 13 § 8, the person concerned, his lawyer or the police can appeal against the decision of the court on “special supervision”. Pursuant to paragraph 10 of Article 13, the decision of the higher court is final and not subject to further appeal.
Article 14 lists the preventive measures of “special supervision”, including those applied in the present case.
Failure of the person to comply with a measure of “special supervision” is considered an administrative offence under the general rules of administrative law. An administrative penalty may thus be imposed for such a failure. A dispute as to whether the administrative penalty corresponds to the court decision ordering “special supervision” may be resolved by way of a separate court procedure, in accordance with the rules of the Code of Administrative Procedure pertaining to administrative penalties.


ITEMID: 001-4965
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: SZYSKIEWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish citizen, born in 1931 and living in Augustów, Poland.
A.
1. The applicant’s criminal conviction in 1983
In 1983, during the martial law which was in force in Poland at that time, the applicant was convicted of disseminating anticommunist leaflets.
2. The proceedings concerning the applicant’s claim for restitution of property
Apparently in 1949, within the framework of agrarian reform, the applicant’s father was awarded a plot of land in S. Later his ownership was listed in the land register run by the Ełk District Court.
In 1969 the municipal administration gave a decision by which the plots in S. were taken over by the State, pursuant to the 1949 Decree allowing for expropriation of agricultural lands which were not used by their owners, considering that the land in question had not been farmed by the applicant’s father.
In 1973 an administrative decision was issued by virtue of the Agricultural Property Regulation Act of 1971 to the effect that a certain J.K. had become the owner of this plot.
The applicant’s father was also awarded other plots in K. In 1969 this land was likewise expropriated by an administrative decision.

In reply to the applicant’s enquiry about the possibility of restitution of these plots, in a letter of 14 December 1992 the Suwałki Regional Office informed him that the plot in S. had been awarded to J.K. pursuant to the Agricultural Property Regulation Act of 1971 and that he had obtained an administrative decision to the effect that he had become the owner of this plot. The plot located in K. had been taken over by the State under the Decree allowing for expropriation of agricultural lands, which were not used by their owners. Therefore the applicant’s request for restitution could not be granted.
On an unspecified later date the applicant lodged a civil action against the State Treasury with the Suwałki Regional Court, claiming that the nationalisation decisions be declared null and void for being unlawful. He further claimed restitution of the plots in S. and K. and compensation for damage he had sustained as a result of the allegedly unlawful expropriation decisions. He claimed in particular compensation for lost profits resulting from the fact that the farms could not have been used as a result of their nationalisation.
On 3 December l993 the Suwałki Regional Court refused to entertain the applicant’s action, considering that civil courts lacked jurisdiction to examine the applicant’s claims for restitution of property.
The applicant appealed against this decision, claiming that the expropriation decisions were not in conformity with the laws in force at the time when they had been given.
On 24 February 1994 the Białystok Court of Appeal upheld the contested decision. The court noted that the applicant sought a judicial review of administrative decisions before the civil court and, eventually, a declaration that they should be declared null and void for being unlawful. However, under legal provisions concerning jurisdiction of ordinary courts and of the Supreme Administrative Court, civil courts lacked jurisdiction to examine appeals against administrative decisions. The court observed that had ordinary courts been allowed to examine appeals against administrative decisions, this could have led to situations in which contradictions would arise between final decisions rendered by the courts and by the administrative court in respect of the same administrative decision. The court further observed that both decisions about which the applicant complained could not be reviewed in any judicial proceedings. The court referred in this respect to the decision of the Supreme Court of 30 June 1992 (decision III CZP 73/92). Consequently, the decision under appeal was in conformity with the law.
On an unspecified later date the applicant lodged with the Supreme Administrative Court an appeal against the administrative decisions of 1969 and 1973.
On 31 August 1995 the Court rejected the applicant’s appeals, considering that under Article 14 of the 1980 Supreme Administrative Court Act an administrative decision could not be appealed against to that court if administrative proceedings in which the decision had been rendered, had been instituted before 1 September 1980.
On 27 February 1996 the Minister of Justice refused to lodge an extraordinary appeal against this decision, finding that it was in conformity with the law.
3. The applicant’s efforts to be awarded veteran status
By a letter of 2 July 1994 the Veterans’ Office informed the applicant that his request to have veteran status awarded to him could not be satisfied. It was further stated that he had been convicted in 1982, whereas the Veterans’ Act provided for granting veteran status only to persons who had been persecuted by the communist authorities in the years 1944 to 1956. Therefore he did not meet the relevant legal requirements.
The applicant lodged an appeal with the Supreme Administrative Court which was rejected on 7 November 1994, the Court considering that no appeal to the court against an information of an administrative body lay, and that no administrative decision had been given in the applicant’s case.
4. The proceedings concerning the applicant’s social insurance entitlements
On 6 March 1996 the Białystok Regional Court quashed a decision of the Social Insurance Board concerning the applicant’s retirement benefits and ordered that the case be reconsidered and that the Board issues a new decision.
On 1 May 1996 the Board gave a new decision. The applicant appealed.
On 25 September 1997 the Białystok Regional Court dismissed the applicant’s appeal against a decision of the Social Insurance Board.
On 19 November 1997 the Białystok Court of Appeal dismissed the applicant’s appeal against this judgment.
On 24 June 1998 the Constitutional Court, in reply to the applicant’s constitutional complaint, informed him that his complaint did not comply with the relevant legal requirements since it had not been drafted and signed by a lawyer. He was further informed that the constitutional complaint could not be lodged as an ordinary appeal against individual judicial or administrative decisions, but that its purpose was to call in question the compatibility with the Constitution of legal provisions, which served as a legal basis for an individual decision.
On 14 July 1998 the Augustów District Court granted the applicant legal aid to be paid by the legal aid scheme, and a lawyer was assigned to represent him in the proceedings before the Constitutional Court. By a letter of 18 August 1998 the lawyer informed the applicant that his complaints did not satisfy the requirements of the constitutional complaint as set out by law.
The applicant complained to the Białystok Bar. By a letter of 8 September 1998 the Białystok Bar informed him that the lawyer’s conduct was not open to criticism, given that the constitutional complaint could not be lodged against individual decisions. The Constitutional Court could only examine whether laws which had served as a basis for an individual decision were compatible with the Constitution.
On 3 December 1998 the Białystok Regional Court dismissed the applicant’s appeal against a decision of the Social Insurance Board concerning the calculation of periods giving rise to the applicant’s retirement pension.
B. Relevant domestic law and practice
1. Administrative proceedings by which a final administrative decision can be declared null and void
Article 196 § 1 of the Code of Administrative Procedure provides that an appeal can be lodged against a second-instance administrative decision with the Supreme Administrative Court on the ground that the decision is not in conformity with the law. Article 207 § 2 states that the Court shall set the decision aside wholly or in part if it establishes that the decision was issued in breach of substantive law; that the proceedings leading to the decision were flawed with a deficiency which led to the decision being null and void; or if such procedural shortcomings had occurred in the proceedings leading to the decision which would justify reopening of the proceedings.
Article 155 of the Code of Administrative Procedure permits the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest if this is not prohibited by specific legal provisions. In particular, a final administrative decision can be annulled if it has been issued by an authority, which had no jurisdiction or without a legal basis or contrary to the applicable law.
In 1980, by virtue of the Supreme Administrative Court Act, the judicial review of second-instance administrative decisions was introduced. Article 14 of the 1980 Act relating to temporal scope of its jurisdiction provided that an administrative decision could not be appealed against to the Court if administrative proceedings in which the decision had been given, had been instituted before 1 September 1980.
2. Provisions concerning the regulation of ownership of agricultural property
Article 63 of the State Treasury Land Property Act of 19 October 1991 provides that the general provisions of the Code of Administrative Procedure concerning amendment or annulment of final administrative decisions do not apply to decisions confirming the ownership of agricultural real property issued in accordance with the Agricultural Property Regulation Act of 1971.
A decision of the Supreme Court of 30 June 1992 states that Article 63 of the State Treasury Land Property Act does not confer a right to claim before a civil court that such decisions be declared null and void (decision III CZP 73/92).
3. Veteran status
The Law of 24 January 1991 on Veterans and Other Victims of War and Post-War Repression repealed the Law of 26 May 1982 on the Special Status of Veterans and enacted new criteria on which veteran status can be granted.
Under the 1982 Act, which was subsequently replaced by the 1991 Act, veteran status gives rise to various special employment and social insurance entitlements. The periods of veteran service are taken into account in calculating the periods giving rise to seniority. The same periods are multiplied by two in calculating periods giving rise to a retirement pension. Veterans who remain in employment are entitled to ten days’ additional paid leave per year. They are entitled to retire earlier than other employees: women at the age of 55, and men at the age of 60, if they have satisfied another requirement for the acquisition of a retirement pension, i.e. if they have worked for periods set out in the Retirement Pensions Act. The retired veterans are further entitled to the special veterans’ benefit, paid together with their retirement pension as a certain fixed sum.
4. Constitutional complaint
Under Article 78 of the Constitution of Republic of Poland of 2 April 1997, every person whose constitutionally guaranteed rights or freedoms were breached, is entitled, pursuant to procedure set out by a statute, to lodge a constitutional complaint with the Constitutional Court, claiming that a statute law enacted by Parliament (Sejm) or other legal provision, which served as a legal basis for a final judicial or administrative decision by which his or her rights, freedoms of obligations were determined, are incompatible with the Constitution.


ITEMID: 001-103117
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF DIMITROVA AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2;No violation of Art. 14
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
TEXT: 5. The first and second applicants were born in 1956 and 1975 respectively.
6. The applicants are of Roma origin. The first applicant is the mother, the second applicant the wife, and the third and fourth applicants the brothers of Mr Georgi Gerasimov, also of Roma origin, born in 1976.
7. In the afternoon of 30 May 2003 Mr Gerasimov and three other persons of Roma origin, Mr V.V., Mr I.I. and Mr M.G., were digging out coal in an abandoned opencast coal mine in Pernik. The area was open, with little vegetation, and accessible by a dirt road.
8. At one point another man, Mr B.I., to whom Mr M.G. apparently owed money, passed by on horseback. He asked Mr M.G. when he would pay back the debt and the two of them entered into a short argument. Mr Gerasimov intervened in defence of Mr M.G. After that Mr B.I. left.
9. Some time later Mr Gerasimov and his companions finished digging out the coal and were getting ready to leave. At this moment Mr B.I. returned, accompanied by three friends of his, Mr Z.E., Mr P.K. and Mr N.S., in two cars. A fight flared up between the two groups. The parties disagree as to who started it. Some time later Mr V.V., Mr I.I. and Mr M.G. went to a nearby petrol station, where they asked the staff to call the police, explaining that a friend of theirs had been beaten up. When the police officers reached the scene of the fight they found only Mr Gerasimov, lying on the ground. As he was seriously injured, he was taken to hospital.
10. Later that day the police initiated a search for Mr B.I. and Mr Z.E., suspecting that they had beaten up Mr Gerasimov, but could not find them.
11. Mr Gerasimov was admitted to the hospital in a coma, with a severe cerebral contusion and four wounds to the head. He died in hospital on 4 June 2003.
12. A criminal investigation was opened on 30 May 2003 by the Pernik regional public prosecutor's office.
13. An inspection of the scene of the fight was carried out on 30 May 2003. The record of the inspection stated that the site had not been preserved. The police officers found the van which had been used by the Mr Gerasimov and his companions abandoned at the site. The windscreen was cracked, the side rear-view mirrors were broken and one of the doors had marks of blows from a hard object. Traces of blood were found near the van. Subsequent analysis showed that the blood might have been Mr Gerasimov's. Traces of blood were also found inside the van. Subsequent analysis showed that it might have been Mr B.I.'s.
14. The police also inspected the cars Mr B.I. and his companions had been travelling in. Traces of blood were found in one of them. Subsequent analysis showed that the blood might have been Mr B.I.'s.
15. On 31 May 2003 the police inspected Mr N.S.'s car (not one of those which had been used the day before) and seized two bats and a knife.
16. On 2 June 2003 Mr B.I., Mr Z.E., Mr P.K. and Mr N.S. were examined by a doctor, who found that Mr B.I. had a small knife wound on the lower part of the back and several bruises on the face and body. The other men also had bruises.
17. The clothes worn by Mr B.I. on 30 May 2003 were also examined by an expert, who found matching cuts in his T-shirt and jacket, most likely caused by a knife.
18. A post-mortem examination of Mr Gerasimov's body, carried out on 5 June 2003, concluded that the death had been caused by a severe cerebral trauma. It found a multi-fragment fracture of the parietal bone, with fragments of the bone depressed to 0.5 centimetres in depth on an area measuring 6 x 3 centimetres. It also found five wounds to the head, a wound on the right arm and two parallel stripe-like bruises on the back, measuring 15 x 2 centimetres. There were other bruises on the face and body. The examination concluded that the injuries had been caused by blunt objects and could have been caused in connection with a beating. The two bruises on the back had been caused by long narrow objects.
19. Mr Gerasimov's companions were questioned by an investigator on 31 May 2003. They were once again questioned before a judge on 3 June 2003.
20. Mr V.V. stated that the four of them had gone in his van to dig coal. They had had a pick but not a knife. At the time when Mr B.I. had arrived with his friends, they had been getting ready to leave. Mr Gerasimov had been sitting in the back part of the van, on the sacks of coal. As soon as he had got to the site Mr Z.E. had started hitting Mr Gerasimov's legs with a bat. At the same time Mr B.I. had been shouting “Where do you think you are going, you, where will you run, you damn gypsies, who is going to pay?” Mr Gerasimov had attempted to stop Mr Z.E.'s attack. While the two of them were wrestling, Mr B.I. approached Mr Gerasimov from behind and hit him on the back of the head with another bat. Mr Gerasimov fell to the ground. Thus freed, Mr Z.E. turned to Mr V.V. and hit him with his bat, aiming for the head but missing it. Mr V.V. then ran away.
21. Mr I.I. also stated that when Mr B.I. and Mr Z.E. had arrived they had been carrying wooden bats. Mr Z.E. had attacked Mr Gerasimov and while the two of them had been wrestling, Mr B.I. had approached and hit Mr Gerasimov's head, holding the bat with two hands. Mr I.I. had not seen other blows because he had run away, but before doing so he had seen Mr P.K. and Mr N.S. also approaching Mr Gerasimov. He and his companions had not been carrying knives and had not provoked the others' attack.
22. Mr M.G. stated that he had run away immediately after the other men had arrived, because he had known that they were going to beat them.
23. Two employees of the petrol station where Mr V.V., Mr I.I. and Mr M.G. had pulled into after the attack were questioned on 9 and 10 July 2003. They confirmed that the men had been acting nervously and had said that someone had been beaten up.
24. Mr B.I. was questioned on 31 May 2003. He explained that when he had first seen Mr Gerasimov, Mr V.V., Mr I.I. and Mr M.G. they had threatened and sworn at him. Later, he and his friends had gone out to look for a horse, owned by Mr N.S., which had got lost. When they arrived at the place where the Roma had been, the latter had attacked them. Mr Gerasimov had had a knife and a pick and had stabbed him in the back. He had fallen to his knees. Someone had hit him with the wooden handle of a tool. He had managed to grab the handle and hit Mr Gerasimov back.
25. Mr B.I. was again questioned on 2 and 3 June 2003. This time he denied hitting Mr Gerasimov and said that he had seen someone else hit him in the scuffle.
26. Mr Z.E., Mr P.K. and Mr N.S. were questioned by the investigator on 31 May and 2 June 2003. On 3 June 2003 they were questioned before a judge.
27. Mr Z.E. stated that he and his friends had indeed gone to look for Mr N.S.'s horse. He had been in one of the cars with Mr B.I. He did not know why Mr B.I. had approached the Roma men, but supposed that he had intended to ask them if they had seen the horse. Immediately after he and Mr B.I. got out of the car the Roma men attacked them. Mr P.K. and Mr N.S., who had been following close behind them in the other car, came to their aid, but ran away after the Roma men attacked them too. He and his friends had got into their cars and driven away. In the car he realised that Mr B.I. had been stabbed. He did not know how Mr Gerasimov had ended up fatally injured.
28. Mr P.K. said that on 30 May 2003 he had been in Mr B.I.'s house when Mr N.S. had come and said that his horse had got lost. The three men, together with Mr Z.E., had taken two cars and gone looking for the horse. At one point they had approached the Roma men. Mr Z.E. and Mr B.I. had stopped and got out of their car and had immediately been attacked by the Roma. He and Mr N.S. got out of their car as well. He saw someone stab Mr B.I. and was himself attacked by one of the Roma men, who had a bat and a knife. Then he and Mr N.S. got back into their car and drove away, while all Roma men had gathered around Mr B.I. and Mr Z.E. Mr P.K. did not know why the others had attacked them. He stated that none of his friends had been carrying knives or bats.
29. Mr N.S. also stated that he and his companions had been looking for his horse. At one point he and Mr P.K. had seen the other men beating Mr B.I. and Mr Z.E. and had went to separate them. He admitted that they had been carrying wooden bats in the cars in case they were attacked.
30. Mr N.S.'s brother was questioned on 31 May 2003 and confirmed that on the previous day the family's horse had got lost. In the course of the interview the investigator asked him: “Were you there when the gypsies stabbed [Mr B.I.] and do you know what they stabbed him with?” Mr N.S.'s brother responded that he had not seen the attack. Examined again on 20 June 2003, he confirmed that there had been wooden bats in the family's car, but he did not know who had put them there.
31. Mr K.G., who worked in the area, was interviewed on 20 June 2003. He stated that he had seen the fight from the road, while driving to a nearby shop to buy food. He had not stopped the car but had slowed down to watch. He estimated that the distance between him and the fighting men had been between eighty and a hundred metres. He had recognised Mr B.I., whom he knew, and had seen him grappling with someone else, who had then struck him with a knife. Then all the others gathered together and someone had a wooden bat or tool. Mr K.G. did not see anything in Mr B.I.'s hands.
32. Mr B.I. was arrested on an unspecified date.
33. On 2 June 2003 an investigator from the Pernik Regional Investigation Service ordered the arrests of Mr Z.E., Mr P.K. and Mr N.S., finding that there existed reasonable grounds for suspicion that they had acted as accessories in the attempted murder of Mr Gerasimov and noting that they had attempted to abscond. It appears that on the same day the three of them were briefly arrested. However, they were never charged or investigated any further.
34. On 3 June 2003 Mr B.I. was charged with attempted murder committed in an especially cruel manner and with extreme ferocity (Article 116 of the Criminal Code, see paragraph 48 below).
35. On 5 June 2003 the Pernik Regional Court remanded him in pre-trial custody. Referring to the testimony of Mr Gerasimov's companions (see paragraphs 20-22 above), and also taking into account the fact that the charges against Mr B.I. were serious and he had previous convictions, it found that there existed grounds for reasonable suspicion against him and a danger that he might abscond or reoffend.
36. On 11 June 2003 this decision was upheld by the Sofia Court of Appeal.
37. Mr B.I. was released on bail on 25 July 2003.
38. On 10 December 2003 Mr B.I. was charged under Article 119 of the Criminal Code (see paragraph 49 below) with causing Mr Gerasimov's death by a disproportionate reaction to an attack. On the same day he was questioned again. He stated that during the fight on 30 May 2003 one of the Roma men had “almost” stabbed him, the knife only cutting through his clothes, and that, in the general scuffle when he had tried to defend himself, he might have hit Mr Gerasimov. He had not however meant to injure him badly.
39. In a decision of 25 May 2004 a prosecutor from the Pernik regional public prosecutor's office partially discontinued the criminal proceedings against Mr B.I., dropping the initial charge under Article 116 of the Criminal Code of attempted murder committed in an especially cruel manner and with extreme ferocity, brought on 3 June 2003 (see paragraph 34 above) and retaining the charge under Article 119 of the Criminal Code of causing death by a disproportionate reaction to an attack.
40. In that decision, the prosecutor noted that there were two conflicting versions of the events – the first one maintained by Mr Gerasimov's companions, namely that they had been attacked without provocation, and the second one maintained by Mr B.I. and his companions, namely that the Roma men had attacked them with shovels and knives immediately after their arrival at the scene. Taking into account other evidence, namely the reports of the medical examinations of Mr B.I. and his companions, which showed that they had all sustained injuries (see paragraph 16 above), the report of the examination of Mr B.I.'s T-shirt and jacket, showing matching knife cuts (see paragraph 17 above), and the medical reports establishing that some of the blood found at the scene of the fight might have been Mr B.I.'s (see paragraphs 13-14 above), he concluded that the version presented by Mr B.I. and his companions was tenable and the other one not. He also relied on the testimony of Mr K.G., who had stated that he had seen nothing in Mr B.I.'s hands and had seen someone stab him (see paragraph 31 above). On the basis of this evidence, the prosecutor concluded that there had been a fight, in the course of which Mr B.I. had been injured and, acting in self-defence, had hit Mr Gerasimov's head only once, with a wooden bat.
41. The parties disagreed as to whether this decision of the Pernik regional public prosecutor's office had been served on the applicants. The applicants alleged that they had never been formally notified of it. The Government contested this assertion. They presented a list of the documents contained in the investigation file, drawn up by the Pernik regional public prosecutor's office and mentioning a receipt signed by the second applicant when the decision was served. However, the Government said that they could not submit the receipt itself, which had been lost. They also presented a request by the prosecuting authorities, addressed to the Pernik municipality, to be informed of the names and addresses of Mr Gerasimov's lawful heirs, with a view to serving documents on them, and the certificate containing that information, issued by the municipality.
42. The applicants submitted that they had on numerous occasions visited the investigator in charge of the case to inquire about the investigation's progress, but had not been provided with any meaningful information.
43. On an unspecified date Mr B.I. entered into a plea bargain with the prosecution. He confessed to killing Mr Gerasimov in a disproportionate reaction to an attack (Article 119 of the Criminal Code) and accepted a suspended sentence of three years' imprisonment. On 22 June 2004 the Pernik Regional Court approved the agreement, finding that it “did not run counter to the law and public morals”, and discontinued the criminal proceedings.
44. Apparently, the applicants became aware of the Pernik Regional Court decision of 22 June 2004 in August 2004, from publications in the local media.
45. On 20 June 2005 the first applicant requested the Chief Public Prosecutor's Office to apply for the criminal proceedings to be reopened. On 6 July 2005 she was informed that this was not possible, as the one-year time-limit for the prosecuting authorities to make such an application had expired on 22 June 2005, and that her request of 20 June 2005 had not been submitted far enough in advance to allow it to be duly examined and an application for reopening prepared.
46. In a letter dated 24 February 2010 the applicants' initial representative before the Court, Mr Georgiev, informed the Court that in October 2009 his car had been damaged by unknown persons, which had posed a risk to his life when he had later travelled in it. On 17 February 2010 the premises of the non-governmental organisation he heads had been entered by order of the Pernik municipality and numerous documents, including some connected with the present application, had been seized.
47. Article 116 § 1 (6) of the Criminal Code of 1968 provides that anyone committing murder in an especially cruel manner and with extreme ferocity is liable to fifteen to twenty years' imprisonment or life imprisonment with or without a right to parole.
48. Under Article 119 of the Criminal Code, causing death by a disproportionate reaction to an attack is punishable by up to five years' imprisonment.
49. The provisions of the Criminal Code relating to racially motivated offences have been summarised in the Court's judgment in the case of Angelova and Iliev v. Bulgaria (no. 55523/00, §§ 60-63, ECHR 2007IX).
50. By Article 237 § 1 of the Code of Criminal Procedure of 1974, in force at the material time, the prosecuting authorities could in certain circumstances discontinue criminal proceedings. Pursuant to Article 237 § 3, victims of crimes had to be notified of any decision to discontinue the proceedings and could appeal against the decision to the competent district or regional court.
51. Article 237 § 6 of the Code, as worded between May 2003 and April 2006, provided that the prosecuting authorities were not to adopt any formal decision to discontinue partially criminal proceedings in cases where the charges against the same person and in respect of the same facts were only being amended. That provision was in line with an earlier interpretative decision of the General Assembly of the Criminal Chambers of Supreme Court of Cassation (Interpretative decision no. 2 of 7 October 2002, Тълкувателно решение № 2 от 7 октомври 2002 г. на ВКС по т. н. д. № 2/2002 г., ОСНК), which said:
“A charge brought at the stage of the investigation is intended to define a general, initial, “working” objective of the proceedings. It can be adjusted depending on the evidence gathered and examined in the course of the investigation. In that sense the charge ... is unstable, varying in accordance with the operative developments. The different wording of the charge in respect of the same act and the adjustment of its legal qualification prior to indictment follow the dynamics of the investigation process and any changes in the circumstances resulting from the evidence gathered.”
The General Assembly of the Criminal Chambers of Supreme Court of Cassation went on to conclude that
“[w]here, in the course of the pre-trial proceedings, the factual basis of the charges changes substantially and new charges are brought against the accused, requiring a more severe, the same or a more lenient punishment ..., the prosecutor is to amend the charges and does not have to adopt a decision discontinuing the criminal proceedings in respect of the initial charges.”
52. Until May 2003 Article 60 § 1 of the Code of Criminal Procedure entitled victims of crime to participate in all stages of the criminal proceedings as civil parties. Civil parties were entitled to exercise their procedural rights to the extent necessary for the substantiation of their civil claim.
53. Following an amendment to the Code of 30 May 2003, the participation of victims as civil parties was restricted to the trial stage of the criminal proceedings. That provision remained in force until April 2006.
54. Plea bargaining was provided for in Articles 414ж-414и of the Code of Criminal Procedure. The procedure was applicable in respect of certain categories of offences.
55. The prosecution and the defence could enter into a plea agreement after the investigation had been concluded. The parties had to agree, inter alia, whether an offence had been committed and on the type and severity of the punishment. The prosecutor would then submit the agreement to the competent district or regional court which would examine it in the presence of the prosecutor, the accused and the latter's counsel. If satisfied that the agreement did not run counter to law or morality, the court would adopt a decision approving the agreement and discontinuing the criminal proceedings. No appeal lay against this decision. A plea agreement approved by a competent court had the same binding force as a final conviction and sentence.
56. Prior to May 2003 the participation of victims in plea bargaining was obligatory and they had to consent to the plea agreement. Following amendments to the Code in May 2003, in cases where the agreement had been made at the pre-trial stage of the proceedings victims' participation and consent were no longer obligatory; however, the court examining the agreement could on its own initiative decide to hear their representations.
57. On the contrary, if a plea agreement had been reached at the trial stage of the proceedings, all parties had to consent to it, including the victims, if they had joined the proceedings as civil parties or private prosecutors.
58. Article 192 of the Code provided that criminal proceedings concerning publicly prosecutable offences could only be initiated by a prosecutor or an investigator. The offences referred to in paragraphs 48-50 above are publicly prosecutable ones.
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 14


ITEMID: 001-93461
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: A.M. AND OTHERS v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: The applicants, a family of four, are Russian nationals who were born in 1965, 1965, 1991 and 1996, respectively, and are currently in Sweden.
s, may be summarised as follows.
The first applicant arrived in Sweden and applied for asylum and a residence permit on 15 October 2004. Before the Migration Board (Migrationsverket), he claimed that he had been a major in the Russian army and had witnessed how other officers were involved in illicit smuggling of weapons. He had reported it to his superiors with the result that he had been assaulted and threatened but no investigation had been instituted. A colonel, who had been involved in the smuggling, had threatened to kill the first applicant or have him committed to a psychiatric clinic. To protect his family, he had divorced his wife and moved out of their common home. In October 2003 he had resigned from the military and had commenced a civil employment. About one year later the colonel had contacted him and had wanted him to take part in some form of illegal activity failing which he would be killed. Out of fear, the first applicant had left the country. He submitted a copy of a referral to a psychiatric clinic for forced hospitalisation, dated 10 April 2003, and a medical certificate stating that he had been hospitalised because of concussion and was exempt from work for 15 days, dated 29 April 2003.
On 30 December 2004 the other applicants came to Sweden and joined the first applicant’s request for asylum and residence permits. The second applicant stated that she had chosen to remain in Russia with the children when the first applicant left the country as she had considered that his problems did not concern them. However, in October 2004, the colonel had come to their home and had threatened her and had searched their home and, a few days later, three men had come to their home and had assaulted her. The men had said that they had been sent by the colonel. The second applicant claimed that she and the children had received more threats, by telephone calls and anonymous letters, and had therefore also decided to leave the country. Because of the assault, she was suffering from anxiety and depression.
The children were also heard by the Migration Board and they stated that they felt fine, that they had not had any problems in their home country and that they did not know why they had come to Sweden.
On 9 May 2006 the Migration Board rejected the applicants’ request. It found that the family’s problems emanated from individual persons and not from the Russian authorities and that the family therefore should have exhausted all means to seek protection from the authorities against the aggressors. As they had failed to do so, they had not shown that they were in need of protection in Sweden. The Board found no other grounds on which to grant the family leave to remain in Sweden, even having regard to the fact that the case involved two children.
The applicants appealed to the Migration Court (Migrationsdomstolen), maintaining their claims and adding that the first applicant had reported the smuggling to several authorities within the military in his section and region. A review of the weapons in the unit, carried out on the basis of his report, had not shown any irregularities but he had been threatened with court martial for slander. Consequently, since his reports had led to nothing except threats against himself and his family, it was clear that the authorities protected each other and that the applicants could not count on help or protection from the Russian authorities. Moreover, the first applicant alleged that he had also received several summonses to appear before the police. These had been sent to his address in Russia, proving that some persons were still looking for him and that the family would not be safe in Russia. He submitted three summonses in which he was called to appear before the police on 6 April 2005, 26 April 2005 and 16 December 2005, respectively. He stated that these had been sent to him by the second applicant’s sister in Russia.
The second applicant also submitted a medical certificate, dated 9 January 2008, by A. Braun, psychologist, and T. Wågberg, psychiatrist and chief physician, at the Psychiatric Clinic in Sundsvall. The certificate stated that the second applicant was suffering from Post Traumatic Stress Disorder (PTSD) following an assault in October 2004. She was taking antidepressants and consulted a psychologist on a regular basis which had improved her condition. It further noted that she was doing an internship at a hospital as a paediatrician (her profession in Russia) which was going well.
On 29 May 2008 the Migration Court rejected the appeal. It first seriously questioned the authenticity of the summonses invoked as they were only copies and lacked a case number. Moreover, one stated that the first applicant was called as a witness and the others did not state why he was called. None of the summonses mentioned that he was suspected of having committed any crime. Furthermore, the court observed that the family had not reported the threats to the authorities and that the second applicant had not reported the assault. Thus, they had not made probable that the Russian authorities neither could nor would help or protect them against those individuals threatening them. Consequently, the court concluded that the applicants were not in need of protection in Sweden. Moreover, it considered that the second applicant’Sweden.
Upon further appeal, the Migration Court of Appeal (Migrationsöverdomstolen), on 24 September 2008, refused leave to appeal.
The applicants were then called to a meeting with the Migration Board on 23 October 2008 to prepare for their return to Russia.
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.
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).
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) as 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 state of health. 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.
As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act).
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 an 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 have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act).
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).
According to Article 27 of the Constitution of the Russian Federation of 12 December 1993 everyone lawfully within the territory of the Russian Federation has the right to move freely and choose his or her place of stay or residence. Moreover, the Law on the right of Russian citizens to liberty of movement and freedom to choose the place of temporary and permanent residence within the Russian Federation (no. 5242-I, adopted on 25 June 1993, hereafter “the 1993 Law”) guarantees the right for Russian citizens to liberty of movement and freedom to choose their place of residence but requires a person to apply for residence registration at a new address within seven days of moving (Sections 1, 3 and 7). This is done by submitting an identity document, an application form and a document showing the legal basis for residence at the indicated address, such as a rent contract or the consent of the flat-owner (Section 9 of the Regulations for registration of temporary and permanent residence of Russian citizens, no. 713, of 17 July 1995). For more details, please, see Tatishvili v. Russia (no. 1509/02, §§ 29-31, ECHR 2007...).
Furthermore, Section 31 of the 1993 Law stipulates that cancellation of a registration at a previous place of residence is carried out by the relevant bodies, either upon a citizen’s application for a registration at a new place of residence or upon his application for cancellation of registration at the previous place of residence. If by the time of registration at a new place of residence, he or she has not cancelled the registration at the previous place of residence, the registration authority (at the new place of residence) is under an obligation to notify, within three days, the registration authority at the person’s previous place of residence so that it can be cancelled.


ITEMID: 001-114778
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF V.K. v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 12 - Right to marry (Article 12 - Marry);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 4. The applicant was born in 1964 and lives in Zagreb.
5. On 30 November 2002 the applicant married M., and on 22 September 2003 a child, K., was born of the marriage.
6. On 14 April 2004 the applicant filed a petition for divorce with the Z. Municipal Court (Općinski sud u Z.).
7. At a hearing on 14 December 2004 the applicant submitted his proposal concerning contact and child maintenance for K. At the same hearing the parties agreed that the marriage be dissolved.
8. On 30 December 2004 M. informed the Z. Municipal Court that she did not agree with the applicant’s proposal as regards child maintenance and asked the court to set an appropriate amount.
9. The applicant lodged a request for expedition of the proceedings with the Z. Municipal Court on 2 February 2005.
10. On 2 August 2005 the applicant brought a separate action in the Z. Municipal Court, contesting his paternity of K.
11. The applicant further lodged a request with the Supreme Court (Vrhovni sud Republike Hrvatske) on 25 August 2005 asking that the proceedings be transferred to another court.
12. The Z. Municipal Court on 15 September 2005 ordered the parties to submit information concerning their incomes. On 22 September 2005 the applicant, and on 18 October 2005 M., complied with this order and submitted the requested information.
13. At a hearing on 31 October 2005 M. failed to appear. At the same hearing the applicant requested the trial court to issue a partial judgment by which the marriage would be dissolved. The trial judge dismissed the applicant’s request and ordered him to submit further documents concerning his financial status.
14. The applicant complied with the above order and submitted the requested documents on 2 November 2005.
15. On 14 December 2005 the applicant again lodged a request for expedition of the proceedings with the Z. Municipal Court.
16. The Z. Municipal Court on 13 March 2006 ordered M. to submit information concerning the child maintenance payments she had received from the applicant. On 19 April 2006 she complied with this order and submitted the requested information.
17. Another hearing was scheduled for 3 May 2006 but it was adjourned since the applicant informed the trial court that he was ill and could not attend the hearing.
18. At a hearing on 10 July 2006 the applicant asked the Z. Municipal Court to join the divorce proceedings with the proceedings in which he was contesting paternity of K. This request was granted, but further proceedings were stayed pending a Supreme Court decision on the applicant’s request for transfer of the proceedings to another court.
19. On 10 November 2006 the applicant asked the Z. Municipal Court to adopt a partial judgment, in respect of the petition for divorce alone.
20. The Supreme Court dismissed the applicant’s request for transfer of the proceedings to another court on 22 November 2006.
21. M. informed the Z. Municipal Court on 8 December 2006 and 9 March 2007 that she and K. had been living in Switzerland and that the applicant had refused to give consent for K. to obtain a passport and to come to Croatia to take part in the paternity proceedings.
22. On 30 March 2007 the applicant informed the Z. Municipal Court that he had given his consent for K. to obtain a passport.
23. A hearing scheduled for 23 April 2007 was adjourned because the applicant had not been properly summoned.
24. Another hearing scheduled for 12 June 2007 was adjourned because the applicant failed to appear. At the same hearing the Z. Municipal Court ordered a DNA test.
25. The Z. Municipal Court ordered the applicant to pay a sum of 10,000 Croatian kunas (HRK) for the DNA test on 26 June 2007.
26. In the period between 12 September and 21 November 2007 the applicant made four payments in instalments for the DNA test. He also asked the Z. Municipal Court to extend the time-limit for payment. The Z. Municipal Court granted the applicant’s request and extended the time-limit for a further thirty days. On 26 November 2007 he informed the Z. Municipal Court of the amount he had managed to pay for the DNA test.
27. On 27 November 2007 the applicant lodged a complaint about the length of the proceedings with the Constitutional Court (Ustavni sud Republike Hrvatske) which was forwarded to the Z. County Court (Županijski sud u Z.) for further examination. In his submissions the applicant complained that the Z. Municipal Court had dismissed his request for the partial judgment by which his marriage could be dissolved. He submitted that the lengthy divorce proceedings had had an adverse effect on his private life and his dignity and that the delay could prevent his marriage to another woman, planned for June 2008. The applicant also asked that the Z. Municipal Court be ordered to adopt a partial judgment by which his marriage with M. would be dissolved.
28. At a hearing on 11 February 2008 the Z. Municipal Court found that the applicant had failed to pay the full amount required for the DNA test, and adjourned the hearing.
29. Another hearing scheduled for 10 March 2008 was adjourned because the applicant informed the trial court that he could not attend the hearing.
30. On 15 May 2008 the applicant asked the Z. Municipal Court to exempt him from the duty to pay for the DNA test, relying on war veterans’ rights, but on 13 June 2008 that court dismissed his request.
31. Another hearing was held on 9 July 2008; the applicant failed to appear.
32. On 25 September 2008 the applicant submitted further complaints to the Z. County Court about the length of the proceedings: he argued that he was a practising Christian and would therefore like to marry again, but had been unable to do so because the Z. Municipal Court had refused to issue a partial judgment by which he could be divorced. He also stressed that he would be humiliated if he had to cancel the planned marriage because he had been unable to divorce.
33. On 26 September 2008 the applicant informed the Z. Municipal Court that he had made a further payment for the DNA test.
34. At a hearing on 15 October 2008 the Z. Municipal Court found that the amount necessary for the DNA blood test had been almost fully paid, and requested the parties to make an arrangement to have DNA samples taken.
35. On 27 October 2008 the applicant, relying on the Court’s case-law, complained before the Z. County Court about the manner in which the paternity proceedings and the DNA blood test had been conducted by the Z. Municipal Court. He pointed out that M. had refused to come to Croatia to have a sample of K.’s DNA taken. He again requested the Z. County Court to order the Z. Municipal Court to adopt a partial judgment concerning the divorce.
36. The Z. County Court accepted the applicant’s complaint about the length of the proceedings on 31 October 2008. It found a violation of the applicant’s right to a hearing within a reasonable time, awarded him HRK 5,000 in compensation and ordered the Z. Municipal Court to adopt a decision as soon as possible, and within six months at the latest. The relevant part of the decision reads:
“ ... the overall length of these civil proceedings cannot be said to have complied with the reasonable time requirement. ... Everything suggests that the court has failed to conduct the proceedings in compliance with the principle of efficiency, since over a period of longer than four years the case has still not been decided by the first-instance court ...
The applicant, as a plaintiff in the proceedings, has contributed to the length of the proceedings, since the court’s summons to some hearings could not be served on him and he failed to appear at these hearings. His contribution to the length of the proceedings can also be observed through the fact that he has failed to comply with the court’s orders in time (for example to pay for the DNA test).”
37. On the same day the applicant informed the Z. Municipal Court that he was insisting on a DNA test, although in the meantime he had been informed by M. that she and K. would not attend to have a DNA sample taken.
38. On 20 November 2008 the applicant lodged an appeal with the Supreme Court against the Z. County Court decision of 31 October 2008 in the part concerning the amount of the awarded compensation. He also complained that the Z. County Court had ignored his request that the Z. Municipal Court be ordered to adopt an interim judgment on his divorce.
39. On 26 January 2009 the applicant submitted to the Z. Municipal Court a written statement from the Employment Service (Hrvatski zavod za zapošljavanje) confirming that he was unemployed.
40. Another hearing scheduled for 2 April 2009 was adjourned because the applicant informed the trial court that he could not attend this hearing and M. had failed to inform the court when she and K. would be able to attend to have a DNA sample taken.
41. On 23 April 2009 the Supreme Court awarded the applicant further compensation of HRK 3,000 in respect of the length of the proceedings. The relevant part of the decision reads:
“... This court considers that the conduct of the applicant had no influence on the length of the proceedings. On the contrary, the case file reveals that the applicant has demonstrated a strong resolve to have the proceedings concluded as soon as possible and within a reasonable time; this can be seen by his numerous requests that [the court] decide on his petition for divorce, to which the defendant also agreed at the hearing of 14 December 2004 ... Although the first-instance court pointed out that the applicant had contributed to the length of the proceedings by not complying with the summons to appear at the hearings, it is to be noted that it was only the hearing of 12 June 2007 at which he failed to appear despite having been properly summoned. As regards the hearing of 11 February 2008, the applicant was not properly summoned, since the court summons was returned with the notice “informed, did not collect”. As to the applicant’s failure to pay for the DNA test, it is to be noted that he requested that the time-limit for this payment be extended since it concerned a significant amount, given his income and his social circumstances, and the fact that he paid certain amounts in instalments on more than one occasion, in accordance with his financial means. This demonstrated his resolve to comply with the court order.”
42. The applicant further lodged a constitutional complaint with the Constitutional Court on 22 May 2009 against the above decision of the Supreme Court.
43. At a hearing on 7 July 2009 the Z. Municipal Court commissioned a DNA paternity report from Clinical Hospital Š. (Klinička bolnica Š.).
44. M. informed the Z. Municipal Court on 21 July 2009 that she refused to come to Zagreb to have a DNA sample taken.
45. On 6 August 2009 the applicant lodged a request for disqualification of the trial judge, president and all judges of the Z. Municipal Court.
46. On 10 September 2009 the Constitutional Court dismissed the applicant’s constitutional complaint in respect of the length of the proceedings as ill-founded, on the ground that his complaints had been properly addressed by the lower courts.
47. The Clinical Hospital Š. on 21 September 2009 informed the Z. Municipal Court that the parties had failed to appear to have DNA samples taken.
48. The Z. Municipal Court rejected the applicant’s request for disqualification of the judges of that court on 23 September 2009.
49. On 28 September 2009 the applicant again requested the Z. Municipal Court to commission a DNA report.
50. The president of the Z. County Court rejected the applicant’s request for disqualification of the president of the Z. Municipal Court on 2 October 2009.
51. On 7 October 2009 the applicant again requested the Z. Municipal Court to adopt a partial judgment in respect of the divorce alone.
52. The president of the Z. Municipal Court dismissed the applicant’s request for disqualification of the trial judge on 29 October 2009.
53. The Z. Municipal Court on 13 November 2009 again summoned the parties to have DNA samples taken.
54. On 30 November and 1 December 2009 the applicant informed the Z. Municipal Court that he was withdrawing his action concerning his paternity of K., on the ground that the payment of the requested sum for the DNA test had created an intolerable financial burden for him since he was unemployed and without any source of income. He also asked that the marriage be dissolved as soon as possible since his social benefits depended on his marital status.
55. At a hearing on 14 January 2010 the parties reached an agreement on child maintenance and contact between the applicant and K. On the same day the Z. Municipal Court dissolved the marriage of the applicant and M. and decided on the amount of the child maintenance and contact between the applicant and his child. The parties also declared that they would not lodge appeals and the judgment thus became final.
56. On 11 September 2010 the applicant married J.V.
57. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/1990, 135/1997, 113/2000, 28/2001) read as follows:
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
“Family is under the special protection of the State.
Marriage and legal relations in marriage, extra-marital relationship and family shall be governed by law.”
58. The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004, 107/2007) read as follows:
“Marriage cannot be concluded by a person who is already married.”
“(1) Irrespective of the form in which it was contracted, a marriage ceases upon: the death of a spouse, the pronouncement that a missing spouse is deceased, annulment or divorce.
(2) A marriage ceases by annulment or divorce when the judgement of a court concerning the annulment or divorce becomes final ...“
“(1) This Act governs special civil proceedings, non-contentious proceedings and special enforcement proceedings concerning the marital and family affairs under this Act.
(2) Proceedings as in paragraph 1 are urgent.”
“The provisions of the Civil Procedure Act and the Enforcement Act shall be applicable to proceedings under section 263 of this Act, unless otherwise provided under this Act.”
59. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and the Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008, and 123/2008), read as follows:
“(1) If only some of a number of claims are ready for a final decision on the basis of the litigation, or if only part of one claim is ready for a final decision, the court may conclude the trial and adopt a judgment (partial judgment) in respect of the claims or the part of the claim that are ready.
(2) The court is obliged to adopt a partial judgment without delay if, on the basis of admission or waiver of several claims put forward only some become ready for a final decision, or if only part of one claim is ready for this decision ...“
60. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005, 16/2007 and 113/2008), as in force at the material time, read as follows:
“(1) A party to court proceedings who considers that the court has failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with a court at the next higher level of jurisdiction.
(2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Court for Administrative Offences of the Republic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia.
(3) Proceedings for deciding on a request as in sub-section 1 of this section shall be urgent. The rules of non-contentious procedure shall apply mutatis mutandis in those proceedings and, in principle, no hearing shall be held.
(1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and may award him or her appropriate compensation for a violation of his or her right to a hearing within a reasonable time.
(2) The compensation shall be paid out of the State budget within three months of the date on which the party’s request for payment is lodged.
(3) An appeal, to be lodged with the Supreme Court within fifteen days, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. No appeal lies against a Supreme Court decision, but a constitutional complaint may be lodged.”
61. Amendments to the Courts Act in connection with the length-of-proceedings complaint procedure, enacted on 11 December 2009 (Zakon o izmjenama i dopunama Zakona o sudovima, Official Gazette, no. 153/2009), read as follows:
“Section 28 [of the Courts Act] now reads:
...
(5) An appeal, to be lodged with the Supreme Court within fifteen days, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. A further appeal, to be lodged with a panel of judges of the Supreme Court, lies against the decision of the Supreme Court. The panel shall adopt its decision within three months.
(6) The panel of judges referred to in paragraph 5 shall be composed of three Supreme Court’s judges. They shall be elected by a plenary session of the Supreme Court.
... “
VIOLATED_ARTICLES: 12
13
6
VIOLATED_PARAGRAPHS: 6-1