ITEMID: 001-105322
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: ERMENKOVA v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: The applicant, Ms Stoyanka Nikolova Ermenkova, is a Bulgarian national who was born in 1947 and lives in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Kotzeva, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1974 the applicant and her former husband purchased from the local municipality a one-bedroom flat of 30 square metres in a three-storey building. The municipality had owned the building and the plot of land (part of which served as a yard) since 1949, when it was nationalised.
In accordance with the usual practice in cases of sale of flats on municipal land, the buyers also obtained a 5.82% portion of the construction rights over the entire plot. Following the applicant’s divorce in 1989 she became the sole holder of the title obtained in 1974.
In 1992 the applicant requested from the local municipality an authorisation to construct a small house of approximately 30 square metres on a portion of the yard.
The municipality processed the request. On 3 October 1992 the competent official issued an authorisation to proceed with the elaboration of a plan by an architect. The document containing the authorisation referred to the “construction rights conveyed on N. Ermenkova” under the 1974 contract. It appears that no consideration was given to the fact that these rights did not entitle the applicant to construct a house in the yard.
On 14 May 1993 a building permit was issued.
When issuing the authorisation and the permit, the relevant officials apparently overlooked or disregarded the fact that on 16 October 1992 the land at issue had been denationalised pursuant to a 1992 law on the restitution of nationalised property and had become the property of a Mr T., the heir of the person from whom it had been nationalised in 1949.
The applicant became aware that the property had been denationalised on an unspecified date.
In June 1993 Mr T. asked the municipal authorities to order the suspension of the construction works undertaken by the applicant. In reply the municipality informed him that a building permit had been issued to the applicant.
The house was constructed rapidly and on an unspecified date in 1993 the applicant requested from the local municipality approval of the construction works and authorisation for the use of the house.
This was refused on the grounds that the applicant had never had construction rights over the entire plot and that in any event the land had been private property at the time when the 1993 building permit had been issued. It followed that the permit had been issued unlawfully.
On 8 May 1996 the applicant brought an action against the municipality under the State Responsibility for Damage Act (the SMRDA, the Act’s title having been amended later) claiming that she had suffered damage occasioned by unlawful acts on the part of the municipality. Her initial claim was for 10,000,000 “old” Bulgarian levs (BGL). Later, she increased her claim to BGL 14,000,000.
The Sofia City Court admitted documentary evidence and commissioned expert reports on the value of the house. The court asked the experts to determine its market value as of May 1996, when the action was brought.
In their report of March 1998 the experts concluded that that value was BGL 860,000. At the hearing held in October 1998, in reply to additional questions, the experts added that the up-to-date market value of the house was BGL 14,200,000. The difference was the result of the approximately fifteen-fold devaluation of the Bulgarian currency between mid-1996 and mid-1997.
By a judgment of 6 November 1998 the Sofia City Court found that the municipality had acted unlawfully in that it had issued a building permit in disregard of the fact that the property had been denationalised and that the applicant had never been authorised by the owner to build on his land. Since the denationalisation had been ordered by the same municipality, the relevant officials had known about it. The applicant had incurred expenditure to build a house but could not become its owner. The municipality was therefore liable to compensate her for the damage directly related to the unlawful act. The assessment of that damage, in accordance with the relevant law, had to be based on the market value of the house as of May 1996, when the claim had been brought, plus interest since that date. The value in question was BGL 860,000, as established by the experts. The court awarded that sum to the applicant, plus interest.
Noting that the applicant had claimed BGL 14,000,000 and applying section 10 § 2 of the SMRDA, the court ordered the applicant to pay BGL 525,600 in court fees (the equivalent of 525.60 new Bulgarian levs (BGN)), which represented a fixed 4% fee on the rejected part of the claim.
As the municipality did not appeal, the award of BGL 860,000 (the equivalent of BGN 860) in the applicant’s favour became enforceable towards the end of 1998.
The applicant appealed, claiming, inter alia, that she was entitled to compensation for her actual loss and that the Sofia City Court had awarded an amount which did not reflect her actual loss. The applicant also challenged the Sofia City Court’s decision concerning court fees and costs.
By a judgment of 3 March 2000 the Sofia Appeal Court upheld the Sofia City Court’s judgment.
The court noted that since the municipality had not appealed it could not re-examine the question as to whether the municipality was indeed liable in the particular case, and had to proceed on the basis that it was.
As to the amount of compensation, the relevant principles in tort law mandated that it had to be determined by reference to the moment when the loss had occurred. In the applicant’s case the loss had occurred no later than the date on which the applicant had brought her action against the municipality. In a separate decision dated 30 March 2000, the court ordered the applicant to pay BGN 262 in court fees in respect of the appeal proceedings.
The applicant’s ensuing appeal on points of law was rejected by the Supreme Court of Cassation on 6 March 2001. The court stated, inter alia, that the lower courts had applied correctly the relevant law concerning the relevant date for the assessment of the actual damage. Their conclusions were in conformity with the settled judicial practice.
The applicant has not submitted a calculation on the final amount of the compensation and interest due to her under the final judgment of the Sofia City Court. Seeing that between mid-1996 and mid-1997 the statutory interest rate in Bulgaria was very high, reaching 300 % per annum in September 1996, that amount must have been not lower than the equivalent of BGN 1,500.


ITEMID: 001-88965
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF DYUNDIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicant was born in 1952 and lives in the town of Orsk in the Orenburg Region. He is a journalist.
6. On 21 August 2002 the applicant published an article in issue no. 128\382 of the Orskiy Vestnik newspaper. The article appeared under the headline ‘Tortured suspects confessed to the theft they had not committed’ (“Под пыткой подозреваемые сознались в краже, которой не совершали”). It concerned an investigation into the theft of property of a private company. The company director had identified three of his former employees as prime suspects. Mr S., one of those three, had gone to the Leninskiy District police station of his own will to clear himself of suspicion. The story then switched to a first-person narrative by Mr S., which was preceded by the author’s statement, in bold and in italics: “I switched on the dictaphone recording of S[.]’s story”.
7. Mr S. said that he had been detained overnight at the Leninskiy District police station. The following morning he had been brought to an office where five police officers had been present; Mr G. had been among them. Mr S. continued as follows:
“It was a Saturday. They [the police officers] planned to go to a wedding party after lunch; they reeked of fresh alcohol, it looked like they had already been drinking. They discussed how to torture me - using a crow-bar or otherwise? They tied me to a chair, my legs fastened to the chair legs and my arms cuffed behind the chair back. At first they punched me in the chest with their fists, it hurt. I was in a state of shock. Then, a sudden, stunning blow to the neck... I could not see who delivered the blow and with what object. Someone said: ‘What now? The crow-bar?’ G[.] says: ‘Well, but do not stain my table’. And he took all the magazines off the table. One of them, who squinted a bit, took out a tool that looked like a tyre lever. I do not know how they wanted to torture me. G[.] says: ‘No, let’s try a gas mask first’. They put a gas mask on me... I could not breathe in or out, I felt faint and my head shook...” (emphasis added, see below).
8. The article further continued to relate Mr S.’s story as told by him. After a while Mr S. had signalled his readiness to confess. He had been taken to the office next door, where a young man in civilian clothes had written down his statements. Thereafter, Mr S. had been locked in the basement cell of the police station.
Switching back to author’s speech, the applicant introduced Mr M., a friend of Mr S., who had gone to the police station to confirm Mr S.’s alibi. With the words “Let us give [M.] the floor”, the story continued as narrated by Mr M.:
“At the Leninskiy District police station they took me into office no. 18 on the second floor. The interview was conducted by the investigator G[.], a tall athletic man with red hair.
– Where is the snatch?
– What snatch?
– ...Your friends have already confessed. You are the ‘weak link’. You are an ‘MDP’ – a morally degraded person...
He began beating me. Every word was followed by a blow...
– Where is the loot? You will tell me! I am a paratrooper. I used to crush people like you and I will do the same to you! Ever heard about disappearances? You will be one of them if you do not give back the loot!
...I heard that if the police accidentally break the leg or arm [of a detainee], operational officers have to finish the victim off and secretly bury him so as to hide the traces of torture...
G[.] says: ‘Stop talking like a parrot. Counsel, counsel... Counsel will be at trial, but now you are under pre-trial investigation. Take him to the cell where the faggots are! They are hungry, let them explain to him what he is.’ But he did not hit me. Just banged his fist on the table. As if they started to realise that they had made a mistake and were at a loss what to do next.” (emphasis added, see below).
9. In the conclusion the applicant quoted from a medical report which noted multiple bruises and abrasions on Mr S.’s body. He criticised the passive attitude of supervising prosecutors who had refused to initiate a criminal case against Mr G. and the other police officers, and noted that the prosecutors’ refusals were being appealed against to a court. The real perpetrator had later been identified and convicted of the theft.
10. The senior operational officer of the Leninskiy District police station, Mr G. sued the applicant and the newspaper’s founder for defamation before the Leninskiy District Court of Orsk. Considering that the extracts in bold above were untrue and damaging to his honour, dignity and professional reputation, he sought compensation for non-pecuniary damage and legal costs. He denied that he had ever used violence against Mr S. or Mr M.
11. The applicant maintained that the contested extracts had been a verbatim reproduction of the personal stories of Mr S. and Mr M. and represented their value judgments on these events. He had acted in good faith and verified that neither Mr S. nor Mr M. had a reason to slander or denigrate Mr G. The extracts either did not refer to Mr G. personally (such as “they reeked of fresh alcohol...”) or did not contain any information damaging to his reputation (such as the statement about him being a paratrooper). The applicant produced in evidence a dictaphone recording of his conversation with Mr S., when Mr M. had been also present. He also relied on the medical report noting Mr S.’s injuries, on the records of the confessions made by Mr S. and Mr M. at the Leninskiy District police station, and on their complaints about ill-treatment lodged with the prosecutor’s office.
12. The District Court took oral evidence from Mr S. and Mr M. Mr S. confirmed the accuracy of the story as reproduced in the article. Responding to questions from both parties, he testified that police officers but not Mr G. had reeked of alcohol, that he had been tied to a chair, that Mr G. had indeed warned them against staining his table, that Mr G. had not used violence against him but had been “merely present”. Mr M. also confirmed his story as narrated in the article.
13. On 29 April 2003 the Leninskiy District Court of Orsk granted Mr G.’s action in part. It noted firstly that the applicant and the newspaper could not claim an exemption from liability for defamation on the ground that they had merely reproduced statements made by others, because no such exemption was provided for in the Mass Media Act. Accordingly, they were required to prove the accuracy of the contested statements. However, in the District Court’s view, neither the medical reports noting injuries on Mr M.’s and Mr S.’s bodies, nor their interview records, nor their oral testimony could be considered relevant evidence or proof of the truthfulness of the allegations that Mr G. had tortured them or made intimidating remarks.
Furthermore,
“...it follows from S[.]’s oral testimony that G[.] had not been in an inebriated state during the interview, that he had not suggested using a gas mask, that he had not resorted to physical violence and that S[.] had not told [the applicant] about that. A comparison of the dictaphone recording of S[.]’s story with the narrative in the article leads to the conclusion that the events were retold in the article in a different chronological order and that the author creatively rewrote S.’s statements, increasing the emotional intensity and emphasising G[.]’s leading part in the use of violence towards the detainees.”
14. The District Court, however, accepted that the statement about Mr G.’s being a paratrooper was not damaging to his reputation and that Mr M.’s statement about the victims being “finished off” by the police did not concern Mr G. personally. The remaining extracts were found damaging to his reputation and liable to rectification.
15. The District Court awarded Mr G. 2,000 Russian roubles (about 70 euros) and legal costs against the applicant.
16. On 31 July 2003 the Orenburg Regional Court, on an appeal by the applicant and the newspaper, upheld the judgment.
17. Article 152 of the Civil Code provides that an individual may apply to a court with a request for the rectification of “statements” (“сведения”) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements.
18. Article 1100 provides that compensation for non-pecuniary damage is payable irrespective of the tortfeasor’s fault if damages were sustained through dissemination of information damaging dignity, honour or reputation.
VIOLATED_ARTICLES: 10


ITEMID: 001-110823
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF YEVGENIY KUZMIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Trial within a reasonable time)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant was born in 1982 and lives in Mariinsk, Kemerovo Region.
6. On 8 September 2003 the applicant was arrested on suspicion of aggravated assault and causing death by negligence in order to extract a confession from a suspect.
7. On 10 September 2003 the Mariinsk Town Court of the Kemerovo Region (“the Town Court”) ordered that the applicant be placed in detention. The court noted, in particular, that the applicant was suspected of a particularly serious criminal offence and that, being a police officer, he could use his professional experience in order to influence witnesses and obstruct the investigation. The decision was upheld on appeal by the Kemerovo Regional Court (“the Regional Court”) on 22 September 2003.
8. On 31 October 2003 the Town Court extended the applicant’s pre-trial detention until 29 November 2003, stating that he was charged with serious and particularly serious offences and that, if at liberty, he could obstruct the establishment of the truth and influence witnesses. On 4 December 2003 the Regional Court upheld that decision on appeal.
9. According to the applicant, on 29 November 2003 – the last day of the period of his pre-trial detention authorised by the Town Court in its decision of 31 October 2003 – the authorities of a detention centre where he was being held at that moment refused to release him with reference to a letter of the Mariinsk Town prosecutor stating that on 28 November 2003 the file of his criminal case had been sent to a court. In the applicant’s submission, the case file was not in fact sent to the court until 1 December 2003.
10. On 7 December 2003 the Town Court scheduled a hearing in the applicant’s case and ordered that the applicant remain in detention. It did not specify the time-limit for the applicant’s detention, nor did it give any reasons for that decision.
11. On 16 December 2003 the Town Court ordered that the case file be returned to the investigating authorities so that the applicant would have an opportunity to study it. It also stated that the preventive measure applied in respect of the applicant “should remain the same”. It did not specify the time-limit for the applicant’s detention, nor did it give any reasons for that decision.
12. On 22 December 2003 the Town Court scheduled a hearing in the applicant’s case and ordered that he remain in detention. It did not specify the time-limit for the applicant’s detention, nor did it give any reasons for that decision.
13. By a decision of 26 May 2004 the Town Court extended the term of the applicant’s detention pending trial until 1 September 2004. It referred to the applicant’s personality, the fact that he was charged with serious and particularly serious criminal offences and the fact that he had pleaded not guilty, which, in the court’s opinion, suggested that he might obstruct the establishment of the truth, if released.
14. On 19 July 2004 the Town Court further extended the applicant’s pre-trial detention until 1 December 2004, relying on the same reasons as those indicated in the decision of 26 May 2004. That decision was upheld on appeal by the Regional Court on 7 September 2004.
15. By a judgment of 22 November 2004 the Town Court convicted the applicant as charged and sentenced him to five years and six months’ imprisonment. That judgment was upheld on appeal by the Regional Court on 22 March 2005.
16. At some point the applicant attempted to have criminal proceedings instituted against the Mariinsk Town prosecutor who, according to him, had provided the authorities of a detention centre where he had been held at the material time false information stating that the file of his criminal case had been sent to a court on 28 November 2003, whereas in reality it had not been sent there until 1 December 2003. The applicant complained that on the basis of that false information, he had remained in detention after 29 November 2003, when the term of his pre-trial detention established in the court order of 31 October 2003 had expired.
17. On 28 June 2005 the Tsentralny District Court of Kemerovo rejected the applicant’s complaint against the decision of the prosecutor’s office of the Kemerovo Region to dispense with criminal proceedings against the Mariinsk Town prosecutor. This decision was upheld on appeal by the Regional Court on 18 August 2005. The courts confirmed that the prosecutor’s office’s decision was lawful and well-founded, since there was no evidence of any criminal offence in the actions of the official in question, as he had not breached any provisions of domestic criminal law, or law on criminal procedure, and there was no evidence of any unlawfulness of the applicant’s detention during the period complained of.
18. Since 1 July 2002, criminal-law matters have been governed by the Russian Code of Criminal Procedure (Law no. 174-FZ of 18 December 2001).
19. “Preventive measures” include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). 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). In exceptional circumstances, and when there exist grounds provided for by Article 97, a preventive measure may be applied to a suspect, taking into account the circumstances listed in Article 99 (Article 100). If necessary, the suspect or accused may be asked to give an undertaking to appear in court (Article 112).
20. The Code makes a distinction between two types of custody: the first being “pending investigation”, that is, while a competent agency – the police or a prosecutor’s office – is investigating the case, and the second being “before the court” (or “pending trial”), at the judicial stage.
21. A custodial measure may only be ordered by a judicial decision in respect of a person who is suspected of, or charged with, a criminal offence punishable by more than two years’ imprisonment (Article 108). The maximum period for detention pending investigation is two months (Article 109). A judge may extend that period up to six months (Article 109 § 2). Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4).
22. From the time the prosecutor sends the case to the trial court, the defendant’s detention falls under the category of “before the court” (or “pending trial”). The period of detention pending trial is calculated up to the date on which the first-instance judgment is given. It may not normally exceed six months from the moment the case file arrives at the court, 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
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-57988
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF AMUUR v. FRANCE
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (victim);Violation of Art. 5-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo
TEXT: 6. The applicants, Mahad, Lahima, Abdelkader and Mohammed Amuur, are Somali nationals. They are brothers and sister born respectively in 1970, 1971, 1973 and 1975.
7. The applicants arrived at Paris-Orly Airport on 9 March 1992 on board a Syrian Airlines flight from Damascus (Syria), where they had stayed for two months after travelling there via Kenya. They asserted that they had fled Somalia because, after the overthrow of the regime of President Siyad Barre, their lives were in danger and several members of their family had been murdered. Five of their cousins and thirteen other Somali nationals (including eleven children) also arrived, some on the same flight and others from Cairo on 14 March. However, the airport and border police refused to admit them to French territory, on the ground that their passports had been falsified, and held them at the Hôtel Arcade, part of which had been let to the Ministry of the Interior and converted for use as a waiting area for Orly Airport.
According to the applicants, police officers would drop them off at the airport’s Espace lounge very early in the morning and take them back to the Hôtel Arcade in the evening.
8. On 12 March, in accordance with Article 12 of Decree no. 82-442 of 27 May 1982 (see paragraph 16 below), the Minister of the Interior considered an application by the applicants for leave to enter under the right of asylum.
The applicants were granted legal aid as from 24 March, when CIMADE, a humanitarian organisation, which had in the meantime inquired about their situation, put them in contact with a lawyer.
9. On 25 March the applicants asked the French Office for the Protection of Refugees and Stateless Persons ("the OFPRA") to grant them refugee status pursuant to the Geneva Convention of 28 July 1951. On 31 March the OFPRA ruled that it lacked jurisdiction because the applicants had not obtained a temporary residence permit.
10. On 26 March the applicants applied to the urgent applications judge at the Créteil tribunal de grande instance at short notice seeking an order for their release from confinement at the Hôtel Arcade, which, they asserted, constituted a flagrantly unlawful act (voie de fait).
11. On 29 March at 1.30 p.m., after the Minister of the Interior had refused them leave to enter, the applicants were sent back to Syria, which, according to the Government, had agreed to take them. The other eighteen Somali nationals (see paragraph 7 above), who had not been sent back, were recognised as political refugees by the OFPRA in a decision of 25 June 1992.
On 10 June the United Nations High Commissioner for Refugees ("the HCR") sent the Ministry of the Interior the following fax:
"The four persons were allowed to re-enter Syrian territorywithout difficulty, the French Embassy having obtained guaranteesto that effect from the relevant Syrian authorities. The four Somali nationals were supposed to get in touch with our officelater for their status to be determined, but to date we haveheard nothing from them. We shall keep you informed of anyfurther developments."
Before the Commission the applicants alleged that these guarantees had been given after their expulsion from France.
The Government stated at the hearing before the Court that on 29 July 1992 they had received from the HCR a further fax, worded as follows:
"The Damascus delegation of the United Nations High Commissionerfor Refugees has just informed us that the four members of theAmuur family had recently been recognised as refugees by the HCR,under paragraph 68 of its Statute ... As Syria grants asylum topersons recognised as refugees by the HCR under its Statute,these Somali nationals were not in danger of being refused entryand sent to their country of origin."
12. On 31 March the Créteil tribunal de grande instance issued an order under the expedited procedure in which it ruled that the applicants’ detention was unlawful and directed that they be released. The relevant part of the court’s decision reads as follows:
"Although the lawfulness of refusals to admit aliens ... cannotbe reviewed by an urgent applications judge, ... the currentdetention by order of the Minister of the Interior on premises which are, moreover, not situated in the international zone, isnot provided for by any legislation, as is indeed implicitlyacknowledged by the Minister of the Interior.
Furthermore, under the legislative and constitutional provisionscurrently applicable in France, detention may not be ordered bythe administrative authorities in cases other than those providedfor in Article 35 bis of the 1945 Ordinance, which in any event makes such detention subject to supervision by the ordinary courts.
In French law as it stands at present, therefore, and whateverthe factual circumstances surrounding the entry of the aliens concerned, the applicants must be considered to have been arbitrarily deprived of their liberty; it follows that a flagrantly unlawful act is being committed which it is the dutyof the urgent applications judge to bring to an end.
The Minister of the Interior is accordingly ordered to release the applicants."
No appeal against the above order was lodged by State Counsel’s Office.
13. In the meantime, on 30 March, the applicants had appealed to the Refugee Appeals Board. They sought a ruling that the Minister of the Interior’s decision refusing them leave to enter French territory and the order that they be sent back to Syria were contrary to section 5 (b) of the Law of 25 July 1952 on the suspensive effect of appeals to the Appeals Board, Article 31 para. 1 of the Geneva Convention, which prohibited the imposition of criminal penalties for the unlawful entry or residence of refugees, and Article 33 para. 1 of the same Convention, which prohibited turning away a refugee to a country where his life would be in peril.
14. On 17 April 1992 the Appeals Board found against the applicants. It ruled that the decisions to remove them from French territory were not incompatible with the rule that appeals had a suspensive effect as the appeal had been lodged after the decisions had been carried out, the applicants had not been prosecuted and the French Government had obtained assurances concerning the applicants’ life and liberty from the Syrian authorities.
15. Under a circular from the Prime Minister dated 17 May 1985, on asylum-seekers, the temporary admission to France of aliens seeking asylum requires the issue of two documents in turn: a temporary residence permit "for the purpose of making an application to the OFPRA", valid for one month, and a receipt bearing the words "Asylum applied for", valid as a temporary residence and work permit for three months and renewable. However, an application to the OFPRA can be made only by persons given leave to enter French territory, and the decision to admit an alien is left to the discretion of the Minister of the Interior.
16. Under the procedure laid down in Decree no. 82-442 of 27 May 1982, which was in force at the material time, "Where immigration control is carried out by officers of the national police, any decision to refuse an alien leave to enter France shall be taken ... by the officer in charge of the checkpoint ..."; Article 12 of the decree provides: "Where an alien arriving at the border asks for asylum, a decision to refuse leave to enter France may be taken only by the Minister of the Interior, after the Minister of Foreign Affairs has been consulted." It was the Minister of the Interior’s practice to request the opinion, on an advisory basis, of the representative of the HCR.
17. Article 5, third paragraph, of Ordinance no. 45-2658 of 2 November 1945 on the conditions of aliens’ entry into France and residence there provides:
"Every refusal of leave to enter must be conveyed in a writtendecision, ... setting out reasons specific to the facts of thecase, one copy of which shall be given to the person concerned.An alien who has been refused entry shall be given theopportunity to inform or have informed the person whom he hassaid he intended to visit, his consulate or the lawyer of his choice."
Law no. 89-548 of 2 August 1989 added to the foregoing provisions the following paragraph, which was applicable at the material time:
"In no circumstances may refusal of entry give rise t orepatriation against the will of the person concerned before oneclear day has elapsed. An alien who has been refused leave to enter may be held on premises not under the authority of the prison service and for the time strictly necessary to arrange his departure, as provided in Article 35 bis."
18. Article 35 bis of the Ordinance of 2 November 1945, in force at the material time, provided:
"An alien may be held, if this is absolutely necessary, by areasoned written decision of the Prefect, on premises not underthe authority of the prison service and for the time strictlynecessary to arrange his departure, where:
1. he is not able to comply immediately with a decision torefuse him leave to enter French territory; or
2. being subject to a deportation order, he is unable to leave French territory immediately; or
3. being due to be expelled, he is unable to leave French territory immediately.
For the application of sub-paragraph 1 of this Article, thePrefect may authorise an official having the status of a seniorlaw-enforcement officer (officier de police judiciaire) to signthe decision on his behalf.
State Counsel shall be informed of the decision immediately.
The alien shall immediately be informed of his rights through aninterpreter if he does not understand French.
When twenty-four hours have elapsed from the decision to hold,the case shall be brought before the President of the tribunalde grande instance or a judge designated by him, who, afterhearing the person concerned in the presence of his lawyer, if any, or after the lawyer has been duly informed, shall make anorder for one or more of the supervision and control measures necessary to ensure his departure listed below:
Surrender to the police or gendarmerie of all identity documents,in particular his passport, in exchange for a receipt valid asproof of identity;
Compulsory residence in a specified place;
In exceptional cases, holding for a further period on thepremises mentioned in the first paragraph of this Article. The extension order shall run from the expiry of the twenty-four-hourperiod laid down in this paragraph.
These measures shall cease to apply at the latest when six dayshave elapsed since the issue of the order mentioned above."
19. At the material time the practice of holding in the international zone, also called the transit zone, was the subject of a circular from the Minister of the Interior (unpublished) of 26 June 1990 on the procedures for refusing aliens leave to enter France. The relevant passages of the circular read as follows:
"... An alien who has been refused leave to enter and is waitingto be sent away has the right to freedom of movement inside theinternational zone, where such a zone exists and has facilitiessuitably adapted to the types of surveillance and accommodationrequired for the alien in question. If so, it will be necessaryto provide accommodation and take the necessary measures toensure that he does not enter French territory
...
III.2.1. Holding in the international zone
In practice international zones are to be found mainly at certainports and airports.
...
At airports the international zone means the sealed-off area (or one that can be sealed off) used for the arrival of internationalflights and situated between the passengers’ point of arrival andthe police checkpoints.
Alternatively, a hotel situated in the immediate proximity of theport or airport may be used to accommodate aliens refused entryto whom Article 35 bis of the Ordinance of 2 November 1945 hasnot been applied, but transfer thereto shall not be deemed toconstitute entry into the territory. The aliens concerned shallbe informed of the above conditions.
...
Where aliens who have been refused leave to enter are held in theinternational zone, the immigration control authorities shallcarry out appropriate surveillance, but this may in nocircumstances take the form of total isolation in a locked room.
...
III.2.3. Aliens’ rights
...
Consequently, in all cases, an alien who has been refused entrywill have the possibility, once the relevant decision has beentaken, of informing or sending word to the person living at theaddress to which he has indicated that he intends to travelaccording to the statements recorded at the time of notification,to his consulate or to a lawyer of his own choice. In practice,the services that have refused entry will be responsible forenabling the alien concerned to communicate with the personslisted above. You will therefore allow him access to a telephoneand let him use it to seek the information he may require, itbeing understood that calls outside France will not be permittedand that the conversation must remain reasonable in length.
...
III.2.5. Asylum-seekers
...
While it is not necessary to describe the procedure forprocessing an application for asylum at the frontier, no orderfor administrative detention may be issued in respect of theperson concerned until a refusal of leave to enter, if there isone, has been served on him.
Where an alien declares that he seeks political asylum when hehas already been served with refusal of leave to enter, but hasnot yet entered the territory, the request shall be regarded asan application for asylum at the frontier and brought as soon aspossible to the attention of the Department of Public Freedomsand Legal Affairs which, after investigating the case, will makeknown the decision taken pursuant to the provisions of Article 12of Decree no. 82-442 of 27 May 1982.
..."
20. The Law of 6 September 1991 amending the Ordinance of 2 November 1945 on aliens’ conditions of entry into France and residence there was the first attempt to legislate on the question of transit zones. When the draft version of section 8 of the Law of 6 September 1991 was presented to Parliament, the Minister of the Interior declared: "aliens in that situation are not detained (retenus), since they are not on French territory, as they are free to leave at any time" (Official Gazette, 19 December 1991, p. 8256).
Section 8 (1) of the Law inserted into the above-mentioned Ordinance an Article 35 quater, which provided:
"... an alien who has been refused leave to enter Frenchterritory at an airport or port, or who has sought asylum there,may be held in the transit zone of that airport or port for thetime strictly necessary to arrange his departure or to considerhis application for leave to enter the territory, and for notmore than twenty days. This zone, whose limits shall be laiddown in a decision of the Prefect, shall extend from the pointsof embarkation or disembarkation on French territory to thecheckpoints for persons entering and leaving the territory. Itmay be enlarged to include within its perimeter one or moreplaces of accommodation ... The order to hold in the transitzone shall be made in a reasoned written decision of the head ofimmigration control or an official having the rank of sergeantdesignated by him. This decision shall be entered in a registerrecording the alien’s civil status and the holding conditions;... the alien shall be free to leave the transit zone at any timefor any foreign destination of his choice ..."
21. The Constitutional Council, on an application by the Prime Minister under Article 61 of the Constitution, ruled on 25 February 1992 that section 8 of the Law of 6 September 1991 was unconstitutional for the following reasons:
"It should be noted in this connection that holding an alien inthe transit zone under the conditions laid down in Article 35quater (I), inserted in the Ordinance of 2 November 1945 bysection 8 (1) of the referred law, does not entail a degree ofrestriction of movement comparable with that which would result from placing him in a detention centre under Article 35 bis of the Ordinance.
However, holding an alien in the transit zone does nevertheless,through the combined effect of the degree of restriction ofmovement it entails and its duration, impinge on the personalliberty of the person concerned within the meaning of Article 66of the Constitution. Although the power to order an alien to beheld may be conferred by law on the administrative authorities,the legislature must make appropriate provision for the courtsto intervene, so that they may carry out their responsibilitiesand exercise the supervisory power conferred on them.
Whatever the safeguards under the provisions of Article 35 quateras regards the holding of aliens in the transit zone, thoseprovisions contain no requirement that the courts must interveneto decide whether or not a person should be held for longer, suchas would enable them to determine, on the facts of the case,whether such a measure was necessary. In any event, a personcannot be held for more than a reasonable period.
It follows that, as it confers on the administrative authorities the power to hold an alien in the transit zone for a lengthy period, without providing for speedy intervention by the courts,Article 35 quater, as inserted into the Ordinance of 2 November 1945 by section 8 (1) of the referred law, is, as itstands, unconstitutional."
22. On 25 March 1992 the Paris tribunal de grande instance, giving judgment in an action for damages brought by three asylum-seekers who had been held in the international zone, in the Hôtel Arcade at Roissy Airport, ruled as follows:
"... holding an alien on the premises of the Hôtel Arcade,given the degree of restriction of movement it entails andits duration - which is not laid down by any provision anddepends solely on an administrative decision, without anyjudicial supervision whatsoever - impinges on the libertyof the person concerned. Total deprivation of freedom tocome and go is not necessary for an infringement of thatfreedom to be made out; it is enough if, as in the instantcase, a person’s liberty has been seriously restricted asa result of the relevant decision.
... we reject as ill-founded the defendant’s submissionthat the complaint of an interference with personal libertyshould be dismissed because the alien was merely preventedfrom entering France, as he was detained in a place whichhad to be regarded as an ‘extension’ of the airport’sinternational zone. No evidence has been adduced of theexistence of any provision of national or international lawconferring any extraterritorial status on all or part ofthe premises of the Hôtel Arcade - which lies, moreover,outside the airport’s perimeter and the area under customscontrol.
... as matters stand, this zone, which is a legal fiction,cannot be exempted from the fundamental principles ofpersonal liberty.
... the indisputable prerogative of the administrativeauthorities, who in the field of immigration control haveexclusive authority to refuse leave to enter Frenchterritory - even, subject to the conditions set out inArticle 12 of the Decree of 27 May 1982, in the case of anapplication for asylum - does not, however, allow theMinister of the Interior to restrict the liberty of analien save in the circumstances and under the conditionsprescribed by law.
...
... under present French legislation on aliens, theadministrative authorities may not temporarily deprive analien of his freedom to come and go except in thecircumstances and in accordance with the procedures laiddown in Article 5 (last paragraph) and Article 35 bis ofthe Ordinance of 2 November 1945. These provisions apply,in particular, to refusal of leave to enter France. Theyfix the maximum period of administrative detention(rétention) and provide that it cannot be extended beyondtwenty-four hours without the authorisation of thePresident of the tribunal de grande instance.
... in the absence of any specific rules governing the holdingof an asylum-seeker in the international zone for the timestrictly necessary for the administrative authorities to considerwhether his application is admissible, those authorities are not,moreover, entitled to invoke to their advantage a necessary,general right to hold an alien in that supervised zone."
State Counsel’s Office appealed against the above judgment to the Paris Court of Appeal. However, on 23 September 1992 the case was struck out of the list on the ground that the appellant had not submitted final pleadings within the time-limit.
23. Following the above-mentioned decision of the Constitutional Council (see paragraph 21 above), Parliament adopted Law no. 92-625 of 6 July 1992, which was itself amended by Law no. 94-1136 of 27 December 1994. This text, which - like the previous version (see paragraph 20 above) - inserted an Article 35 quater into the Ordinance of 2 November 1945, provides:
"I. An alien who arrives in France by rail, sea or air and who(a) is refused leave to enter French territory or (b) applies forasylum may be held in a waiting zone situated at a railwaystation open to international traffic and designated byregulation, a port or an airport, for the time strictly necessaryto arrange his departure and, if he is an asylum-seeker, toinvestigate whether his application is manifestly ill-founded.
He shall be informed immediately of his rights and duties, ifnecessary through an interpreter. This shall be recorded in theregister mentioned below, which shall be countersigned by theperson concerned.
The limits of the waiting zone shall be laid down by the State’srepresentative in the département. It shall extend from thepoints of embarkation or disembarkation to the immigrationcontrol checkpoints. It may include within its perimeter, ornear the station, port or airport, one or more places ofaccommodation providing the aliens concerned with hotel-type services.
II. The order to hold in the waiting zone, for a period whichmay not exceed forty-eight hours, shall be made in a reasonedwritten decision of the head of immigration control or anofficial having the rank of sergeant designated by him. This decision shall be entered in a register recording the alien’scivil status and the date and time when the decision to hold wasserved on him. State Counsel shall be informed of the decision without delay. It may be renewed under the same conditions andfor the same period.
The alien shall be free to leave the waiting zone at any time forany destination situated outside France. He may request theassistance of an interpreter and a doctor and communicate witha lawyer or any person of his choice.
III. Holding in the waiting zone after four days have elapsedsince the initial decision may be authorised, by the Presidentof the tribunal de grande instance, or a judge delegated by him,for a period not exceeding eight days. The administrativeauthority shall set out in its application the reasons why it hasnot been possible to repatriate the alien or, if he has appliedfor asylum, to admit him, and the time necessary to ensure hisdeparture from the waiting zone. The President of the tribunalde grande instance or his delegate shall give a ruling in theform of an order, after hearing the person concerned in thepresence of his lawyer, if any, or after the lawyer has been dulyinformed. The alien may request the President or his delegate to assign him a lawyer under the legal-aid scheme. He may alsoask the President or his delegate for the assistance of aninterpreter and for a copy of his file. The President or hisdelegate shall rule at the seat of the tribunal de grande instance, except in the districts designated by decree issuedafter consultation of the Conseil d’Etat. In such a case,without prejudice to the application of Article 435 of the New Code of Civil Procedure, he shall give his ruling in public ina hearing room specially created inside the perimeter of the station, port or airport.
An appeal shall lie against the order to the President of theCourt of Appeal or his delegate, who must rule on the appeal, forwhich there is no particular required form, within forty-eighthours. Appeals may be lodged by the person concerned, State Counsel’s Office and the representative of the State in thedépartement. The appeal shall not have suspensive effect.
IV. Exceptionally, holding in the waiting zone may be renewedbeyond twelve days, under the conditions laid down insection III, by the President of the tribunal de grande instanceor his delegate, for a period which he shall determine, which maynot exceed eight days.
V. During the whole of the time that the alien is held in thewaiting zone, he shall enjoy the rights set forth in the secondparagraph of section II. State Counsel and, after the first fourdays, the President of the tribunal de grande instance or hisdelegate may visit the waiting zone in order to verify theconditions of his confinement and inspect the register mentionedin section II.
The conditions for access to the waiting zone of the delegate ofthe United Nations High Commissioner for Refugees or hisrepresentatives and humanitarian associations shall be laid downin a decree issued after consultation of the Conseil d’Etat.
VI. Where holding in the waiting zone is not extended beyond thelimit fixed by the last decision to hold, the alien shall beauthorised to enter French territory on an eight-day visa. Hemust have left French territory by the time this limit expires,unless he obtains a provisional residence permit or a receipt fora residence permit application.
VII. The provisions of the present Article shall also apply toan alien who is in transit at a station, port or airport, wherethe carrier which was to have conveyed him to his country ofdestination refuses to let him embark or where the authoritiesof the country of destination have refused him leave to enter andhave sent him back to France.
VIII. Where the alien’s departure from French territory cannotbe arranged from the station, port or airport to which thewaiting zone where he is being held is attached, he may betransferred to a waiting zone attached to any station, port orairport from which he can leave. Where the transfer decision must be taken within four days fromthe initial decision to hold in the waiting zone, it shall betaken under the conditions laid down in section II of the present Article.
Where transfer is envisaged after four days have elapsed sincethe initial decision to hold, the administrative authority shallinform the President of the tribunal de grande instance or hisdelegate at the time when it applies to them under the conditionslaid down in sections III and IV of the present Article.
In cases where authorisation has been given to prolong or renewholding in the waiting zone, the administrative authority shallinform the President of the tribunal de grande instance or hisdelegate and State Counsel of the necessity of transferring thealien to another waiting zone and carry out that transfer.
For the purpose of determining the length of a prolongation orrenewal of holding in the waiting zone, time shall continue torun notwithstanding a transfer of the alien to another waiting zone."
More precisely, the law of 27 December 1994 extended and relaxed the rules introduced by the Law of 6 July 1992. The procedure laid down in Article 35 quater of the 1945 Ordinance became applicable to aliens arriving in France by rail. The railway stations concerned, which must be "open to international traffic", are designated by an order of the Minister of the Interior and the limits of waiting zones are laid down by the State’s representative in the département. In addition, the waiting zone is no longer defined as a disembarkation and control zone, exceptionally extended to immediately adjacent areas; it can now include, either within the perimeter or close to the station, port or airport, one or more places of accommodation providing aliens with hotel-type services. Moreover, in order to avoid all confusion between waiting zones as provided for in Article 35 quater of the 1945 Ordinance and the administrative detention centres mentioned in Article 35 bis thereof, the Law of 27 December 1994 specifies that the premises used for these two categories must be physically distinct and separate.
24. Decree no. 92-1333 of 15 December 1992 lays down the procedural rules applicable to actions brought in accordance with Article 35 quater of the Ordinance of 2 November 1945 and provides for legal aid for aliens who are the subject of such proceedings.
Under this decree authorisation to hold an alien in the waiting zone for more than four or twelve days (see paragraph 23 above) must be sought from the President of the tribunal de grande instance having jurisdiction, in a reasoned application, which must be dated, signed and accompanied by all the relevant documents, from the head of the immigration control service. He must inform the alien of his right to choose a lawyer or have one assigned to him under the legal-aid scheme if the alien so requests. The application and the accompanying documents may be inspected by the alien’s lawyer as soon as they are received by the registry. They may also be inspected, before the hearing, by the alien himself, who may be assisted by an interpreter if he does not understand French sufficiently well.
25. Decree no. 95-507 of 2 May 1995 lays down the conditions for access by the HCR delegate or his representatives and by humanitarian associations to the waiting zone of railway stations open to international traffic, ports and airports, as defined by Article 35 quater of the Ordinance of 2 November 1945 (see paragraph 23 above).
In particular, it makes provision for representatives of the HCR and humanitarian associations, whose access to the waiting zone is conditional upon individual authorisation by the Minister of the Interior, to hold confidential interviews with the persons held there, and for these representatives and the Minister of the Interior to meet once a year to discuss the way the waiting zones are run.
26. On 12 September 1991 the Parliamentary Assembly of the Council of Europe drew up a report on the arrival of asylum-seekers at European airports. The report, which briefly surveyed the current situation in six large European airports visited by its author, included the following comments about Roissy-Charles-de-Gaulle Airport, Paris:
"Asylum-seekers present the request for asylum to border policeand the French Office for the Protection of Refugees andStateless Persons (Office français de protection des réfugiés etapatrides (OFPRA)) decides on the refugee status.
Neither interpreters nor legal assistance are available forasylum-seekers immediately after presenting the asylum request:assistance is allowed only after entry into France.
Asylum-seekers are detained in a so-called international zone atthe airport, which means that they are not yet on Frenchterritory and the French authorities are therefore not under alegal obligation to examine the request as they would be if arequest was made by someone already on French territory. The international zone has no legal background and must be considered as a device to avoid obligations.
During detention, no access to social workers and in fact nocommunication with the outside world exists. Moreover,asylum-seekers do not always have access to telephones. Onpermission from the border police, a chaplain can visitasylum-seekers. No recreational or educational facilities areput at the asylum-seekers’ disposal.
No legal basis for detention exists and a maximum term is notprescribed by law. The French authorities claim thatasylum-seekers stay in this zone for a maximum of one week andthat children are seldom held. Some asylum-seekers have claimed to have spent six weeks waiting for the Ministry of the Interiorto decide whether their application is to be passed on to OFPRAor whether they will be sent back.
Asylum-seekers in the international zone sleep on the floor and on the plastic chairs. The airport provides them with meals andthere are a few showers for their use in the middle of the nightwhen they are not being used by others.
Due to lack of space at the airport itself, the international zone is extended to one of the floors of the nearby Arcade Hotel."
27. In a recommendation adopted on 21 June 1994 the Committee of Ministers invited the member States of the Council of Europe to apply the following guidelines:
"...
Taking into account that the particular position ofasylum-seekers at the airports may entail specific difficulties,linked to the reception itself as well as the handling of their requests;
Considering that, without prejudice to other principlesapplicable in this field, guidelines based on the fundamentalprinciples in the field of human rights should inspire thepractices of member states with regard to the protection ofasylum-seekers at airports, and contribute to the development oflegislation and the establishment of an administrativeinfrastructure concerning the reception of asylum-seekers in newhost countries,
...
3. ... each State preserves the possibility of sending anasylum-seeker to a third country subject to respect to theprovisions of the Geneva Convention Relating to the Status ofRefugees, in particular its Article 33, and with respect to theEuropean Convention on Human Rights, in particular its Article 3(art. 3).
...
5. The request shall be examined with all diligence required inorder not to prolong the stay of the applicant at the airportbeyond a period strictly necessary for the handling of such arequest.
...
9. When the asylum-seeker has to stay at the border pending adecision, he or she shall be received and accommodated in anappropriate place, whenever possible provided to that effect.
10. The asylum-seeker can be held in such a place only under theconditions and for the maximum duration provided for by law.
..."
28. During its visit to France from 27 October to 8 November 1991 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("the CPT") visited a number of premises for the detention of aliens, including the border police posts at Roissy-Charles-de-Gaulle Airport and the Hôtel Arcade.
In its report, adopted on 4 June 1992, it made the following observations in particular:
"However, unlike the position where administrative detention(rétention) is concerned, there seems to be no legislativeprovision for any judicial supervision or statutory limit on thelength of time spent in the waiting zone in respect of personsrefused entry.
... on 1 October 1991 the Government set up a humanitarian aidbody - the International Migration Office ("the OMI").
The CPT wishes to emphasise how important it is that an effectiveappeal should lie against any refusal of leave to enter,particularly in order to protect the persons concerned againstthe risk of being turned away to a State where there are seriousreasons to believe they might be subjected to ill-treatment.Consequently, the CPT would like to be given information aboutthe possibility of appealing against a refusal of leave to enter.In addition, it would like to have information about the averagelength of time spent on premises where persons refused entry areheld and the exact role of the OMI."
29. On 19 January 1993 the French Government supplied the CPT with the following information:
"...
2. The situation of persons refused entry: waiting zones in ports and airports
2.1. The Law of 6 July 1992 on waiting zones in ports andairports (Article 35 quater of the Ordinance of 2 November 1945,as amended, see Appendix 10), as was mentioned in the generalremarks above, laid down very precise conditions for the holdingof an alien refused leave to enter the territory.
2.2. The enactment in question affords aliens a number ofsafeguards concerning
(a) the length of time for which persons may be held in the waiting zone: this is strictly supervised by the ordinary courts and may not exceed the "reasonable" time prescribed by law. A court order is needed where a person is to be held for more than four days, and in no circumstances may the twenty-day limit be exceeded. It should be noted in this connection that the original period of twenty days that could elapse before the ordinary courts intervened has been reduced by this Law to four days only. In addition, the total maximum period has been substantially reduced, from thirty days to twenty days;
(b) the physical and legal conditions of holding in the waiting zone: holding a person entails a reasoned written decision of the head of immigration control, which must be entered in a register, the immediate notification of State Counsel and, after four days, a decision by the President of the tribunal de grande instance, the right of those two judicial officers to enter the waiting zone, the right to communicate with any person of one’s choice, the right to assistance by an interpreter and a lawyer and the right to legal aid.
3. Judicial supervision and the length of time for which a person may be held in the waiting zone
3.1. As mentioned above, after four days a ruling must be givenby an ordinary court. It must reach its decision afterproceedings attended by all the safeguards expressly prescribed by law, and authorisation to hold may not be given for a period exceeding eight days. Exceptionally, the court may renew authorisation for a further eight days. In either case, an appeal against its decision will lie.
3.2. The practical effects of the Law, which came into force on13 July 1992, can already be assessed. At the request of theMinister of the Interior and Public Safety, a large number oforders (nearly forty) demarcating waiting zones have been issuedby the prefects of the départements in which there areinternational ports and airports.
3.3. As regards the time spent in the waiting zone, the twocategories of alien concerned should be distinguished.
3.4. Aliens refused entry and aliens whose journeys have beeninterrupted (no papers):
3.5. Before the Law was passed the time aliens in this categoryspent in the international zone was already less than four days.The general average, which is still less than four days at eachof the checkpoints concerned, is now 1.8 days.
3.6. In that respect the Law on waiting zones has hardlyaffected the length of time spent in them, as time is inevitablyneeded to find a place on a departing plane or ship.
..."
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-59518
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF MEDENICA v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1+6-3-c
JUDGES: Christos Rozakis
TEXT: 8. The applicant arrived in Switzerland in 1966 and qualified as a doctor of medicine in 1970. He worked as a doctor in Geneva Cantonal Hospital. From 1973 onwards he was responsible for coordinating relations between Geneva Cantonal Hospital and the relevant bodies in the Socialist Federal Republic of Yugoslavia. On account of his nationality of origin and knowledge of languages, he was more particularly responsible for looking after the Yugoslav patients in the Geneva Hospital.
9. On 27 March 1981 the Principal Public Prosecutor for the Canton of Geneva commenced criminal proceedings against him following a complaint by the State of Geneva. The applicant was accused of causing Yugoslavia’s welfare institutions to sustain substantial losses with the complicity of an official at the consulate of the Socialist Federal Republic of Yugoslavia in Geneva.
10. On 9 September 1981 and over the period that followed, the applicant was questioned several times by the cantonal investigating judge. On 27 October 1982 he was arrested and charged with fraud, intimidation and forging documents.
11. On 13 January 1984 the Indictment Division of the Canton of Geneva ordered the applicant’s release on bail on payment of a sum as security. On 27 January 1984 the initial investigation was completed and the case file sent to the Principal Public Prosecutor for a decision on whether to proceed with the prosecution. On 1 February 1984 the applicant paid the stipulated sum and was released.
12. He then travelled to the United States of America, where he acquired American nationality and practised as a doctor specialising in the treatment of certain serious forms of cancer.
13. By an initial order of 3 February 1986 the Indictment Division of the Canton of Geneva committed the applicant for trial at the Canton of Geneva Assize Court. That order was subsequently set aside on an application by the applicant.
14. On 11 March 1987 the Indictment Division made a fresh order committing the applicant for trial at the Canton of Geneva Assize Court. Appeals by the applicant against that order were dismissed.
15. At a preliminary meeting on 30 June 1988 the President of the Assize Court discussed the case with a prosecution representative and the applicant’s lawyers in Geneva. He informed them that the case might be set down for trial between January and May 1989.
16. At a hearing on 27 September 1988 the President of the Assize Court informed the parties that the trial would commence on 17 April 1989.
17. The President of the Assize Court held a further hearing on 13 March 1989 after giving notice to the parties. At the hearing one of the lawyers for the defence indicated that he envisaged making “an application for an adjournment of the trial”.
18. On 15 March 1989 the President of the Assize Court made an order for the applicant to appear before the Assize Court on 17 April 1989.
19. On 16 March 1989 he questioned the applicant in the presence of his lawyer. The applicant confirmed that he would attend the trial. After the hearing he returned to the United States.
20. On 17 March 1989 S., one of the applicant’s American patients, applied to the United States District Court for the District of South Carolina, Charleston Division, for orders requiring the applicant to continue to treat him until he could be replaced by another doctor and, in the interim, prohibiting him from leaving the United States. He maintained that his life would be in danger if there were any interruption in the treatment he was receiving from the applicant.
21. On 20 March 1989 the President of the District Court granted the application in the applicant’s absence and made a temporary restraining order prohibiting the applicant from leaving the territory of the United States until he was examined by the District Court at a hearing to be held on 27 March.
22. On 22 March 1989 one of the applicant’s Geneva lawyers and an American lawyer acting for him informed the Canton of Geneva prosecuting authorities of that order.
23. A hearing took place on 27 March 1989 before the President of the United States District Court for the District of South Carolina. The applicant stated that he did not know any doctor who was capable of taking over the treatment of his patients. One of the applicant’s lawyers informed the District Court that under Swiss procedural rules an accused had no guarantee that he or she would be served with the documentary evidence in the case file or that there would be a proper adversarial hearing. He also said that there was a risk that the applicant would face the death sentence in Switzerland.
24. On 28 March 1989 the American court issued a restraining order prohibiting the applicant from leaving the territory of the United States of America and requiring him to surrender his passport. That decision was served on the Swiss authorities, including the Principal Public Prosecutor of the Canton of Geneva, who was given sixty days in which to respond. The applicant was requested to find replacement doctors for his patients.
25. After serving the American court’s order on the Canton of Geneva prosecuting authorities, the applicant’s lawyers made several applications for an adjournment of the trial, on 30 March and 4 April 1989 and at the start of the trial at the Canton of Geneva Assize Court on 17 April 1989.
26. In an order of 19 April 1989 the President of the Assize Court declined to adjourn the trial, holding that the applicant had been absent without good cause. He found that it had not been proved that the accused had been unable to attend the trial for a reason beyond his control. On the contrary, there was a consistent body of evidence that showed that the reason relied on by the applicant had not been beyond his control. The President noted, in particular, that the American order had been made largely in reliance on evidence from the applicant’s patients, in other words on information of no scientific weight; furthermore, the applicant had consistently benefited over a number of years from the support of American figures who were highly influential in South Carolina and close both to the judge and to the applicant. The President observed that the decision appeared very favourable to the applicant, who had not appealed against it, despite being entitled to do so. Lastly, it was not to be overlooked that the applicant had known for a long time that he would stand trial. He had been told the approximate date of his trial in June 1988 and the exact date in September 1988 and it had accordingly been his duty as a doctor to ensure that there was a replacement for him if he really wished to appear for trial.
27. Hearings were held by the Assize Court, composed of the President and twelve jurors, from 17 April 1989 onwards. The applicant did not appear but his two lawyers were present.
28. On 26 April 1989 the applicant lodged an application with the United States District Court for the District of South Carolina to have the restraining order of 28 March 1989 set aside, notably on the ground that it infringed the Fifth and Sixth Amendments of the United States Constitution, which guaranteed personal liberty and the rights of the accused in criminal prosecutions respectively. In reply to a request by the applicant for a hearing date, the District Court informed him on 10 May 1989 that it would not be able to examine the merits of the application for another thirty to sixty days.
29. In a judgment of 26 May 1989 the Canton of Geneva Assize Court convicted the applicant in absentia and sentenced him to four years’ imprisonment, of which two years, eight months and twenty-five days remained to be served. It also made an order excluding him from Swiss territory for ten years. The Assize Court found the applicant guilty on 300 out of 302 counts of forging documents and of a like number of counts of fraud. The applicant was also found guilty of forgery of documents for procuring the signing by his secretary of seventeen false receipts for expenses in a name she no longer used. The jury assessed the amount of alleged damage at approximately 1,000,000 Swiss francs. On the other hand, the applicant was acquitted by the jury on 672 counts of forging documents. The offences to which the convictions related had been committed between 1973 and 1981.
30. An application for the applicant’s immediate arrest made by the Principal Public Prosecutor after the delivery of the verdict was dismissed by the Assize Court in view, notably, of the fact that the offences of which the applicant had been convicted had been committed a long time before and that a committal warrant could be issued once the judgment had become final.
31. On 17 July 1989 the applicant lodged an application with the Court of Justice of the Canton of Geneva for the conviction in absentia to be set aside, under Article 331 of the Geneva Code of Criminal Procedure (see paragraph 42 below). He maintained that good cause had been shown for his absence at the hearing on 17 April 1989, as he had been compelled to comply with the enforceable decision of the American court – which clearly constituted a reason beyond his control – and that his case should therefore be remitted to the Assize Court.
32. On 20 November 1989 the Criminal Division of the Court of Justice dismissed the application. It noted that the wording of Article 331 of the Geneva Code of Criminal Procedure made it clear that in order to have a judgment of the Assize Court set aside, the convicted person had to show good cause for failing to appear for trial. Referring to the Canton of Geneva Court of Cassation’s case-law, the Criminal Division stated that any failure to appear due to absence, illness or any other case of force majeure, such as unawareness of the investigation or prosecution, could constitute good cause. Whether the reason preventing appearance was beyond the control of the accused was accordingly the criterion for distinguishing a reason that justified quashing a conviction from one that did not.
The Court of Justice held, in particular, that the applicant had been seriously at fault in not transmitting his medical knowledge to other practitioners despite knowing from 1 February 1984 onwards, the date of his release, that he would one day stand trial. His trial had eventually begun five years after his release on bail, so he had had ample time to pass on his experience to others, and to instruct and train them in his method of treatment, even though it was highly sophisticated. Before the American court, he had done no more than make vague statements to the effect that he had long since organised training courses for various doctors with a view to sharing his knowledge with them. However, on each occasion that the question had been put to him, he had repeated that only he could treat his patients and that without his care they would be certain to die. The Court of Justice described that attitude as irresponsible.
The applicant was also held to be at fault for having delayed in appealing against the decision of the American court. The appeal had been lodged on 26 April 1989, that is to say a week after his trial had actually begun, and his application for an adjournment had been dismissed. By that juncture, for reasons of time, he could no longer reverse the course of events he had helped set in motion.
33. On 2 February 1990 the applicant appealed to the Court of Cassation against the judgment of the Court of Justice of 20 November 1989 dismissing his application for relief.
34. On 8 March 1990 the United States District Court for the District of South Carolina set aside the order of 28 March 1989 and ordered the return of the applicant’s passport.
35. On 16 May 1990 the applicant attended the hearing before the Canton of Geneva Court of Cassation.
36. In a judgment of 27 June 1990 the Court of Cassation dismissed the applicant’s appeal as unfounded, holding that he had brought about the situation that had prevented him from leaving his patients and appearing before the Assize Court by his own conduct. In addition, statements he had made to the United States District Court cast doubt on whether he had genuinely intended to travel to Switzerland to stand trial. Further evidence of his bad faith was provided by the fact that he had misled the American court about the procedure that would be followed in the criminal proceedings against him in Geneva. The Court of Cassation considered that the applicant had done everything in his power, notably by making remarks that assisted his opponent’s case, to ensure the eventual success of the application to the American court for an order restraining him from travelling to Switzerland to stand trial. It held that the applicant’s inability to appear before the Assize Court was his own fault in that he had made a decisive contribution to that outcome.
37. On 1 October 1990 the applicant lodged with the Canton of Geneva Court of Cassation a notice of appeal on points of law against the Assize Court’s judgment of 26 May 1989.
38. On 14 February 1991 the Court of Cassation dismissed the appeal. It held that the argument concerning the refusal to remit the case had been conclusively disposed of in its judgment of 27 June 1990. It further held that, in so far as they were not inadmissible as being out of time, having been dismissed in the earlier proceedings, the complaints of violations of the rights of the defence were ill-founded. Lastly, the Court of Cassation rejected the applicant’s argument concerning the legal definition of the offences of fraud and forging documents.
39. The applicant lodged a public-law appeal with the Federal Court, seeking to have set aside the Canton of Geneva Court of Cassation’s judgments of 27 June 1990 and 14 February 1991. He alleged, inter alia, a violation of his right to be heard and to attend his trial and of his right to a fair hearing, equality of arms and a properly composed and functioning court.
40. In a judgment of 23 December 1991, which was served on the applicant’s lawyers on 6 February 1992, the Federal Court dismissed his appeal.
It held that Article 6 § 1 of the Convention did not preclude a trial being held in the defendant’s absence if the defendant refused to attend or was unable to attend through his or her own fault. It considered that the applicant had misled the American court by making inaccurate statements, notably regarding Swiss procedure, in order to secure a judgment making it impossible for him to attend his trial; indeed, his American lawyers had admitted as much. In that connection, the Federal Court noted that the applicant had said that he had been held without charges in Geneva for sixteen months and feared that he would be sentenced to death in Switzerland. He had also stated that the defence had been denied access to the case file and had not been able to take part in the earlier proceedings.
Referring to an opinion on American law that had been sent to the Assize Court by the Swiss embassy in Washington, the Federal Court also agreed with the cantonal authorities’ findings that the applicant had failed to appeal effectively against the American court’s order of 28 March 1989 in that he had not appealed to a court (the Court of Appeal for the Fourth Circuit) that could have found in his favour. The Federal Court noted that, according to the author of the legal opinion, the decision of the American court was contrary to the public interest and defied common sense, and an appeal to the higher court would have had good prospects of success. As regards good faith, the applicant could not avoid his obligation to appear before the Swiss courts by relying on a decision that was ultimately based on equivocal and even knowingly inaccurate statements that he had made to the American court.
The Federal Court held that the Court of Cassation had not acted arbitrarily in finding that, even supposing that the applicant had not brought about the American court’s decision barring him from attending his trial, he had facilitated that decision by supporting his patient S.’s argument. Besides, his American lawyer had not sought to conceal that the aim of the defence had been to obtain an adjournment of the trial in Switzerland. Although that lawyer had been to Geneva and was in close contact with his client’s Geneva counsel, he had not given the American court accurate information about the procedure that would be followed or the sentence the applicant would face if convicted. In the Federal Court’s opinion, it was possible to infer from the foregoing that it was the applicant’s own fault that he had been unable to attend his trial.
41. On 26 July 1995 the applicant was arrested at Munich Airport (Germany) on his way to a conference. He was extradited to Switzerland and transferred to Champ-Dollon Prison. An application he made for a pardon was refused in February 1996. He served the remainder of his sentence, spending part of it in a secure wing of Geneva Cantonal Hospital. On 20 December 1996 he returned to the United States.
42. Under Article 331 of the Canton of Geneva Code of Criminal Procedure, persons convicted in absentia may apply to have their conviction set aside if they show that through no fault of their own they were unaware of the summons to appear or unable to attend the trial.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-94931
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: ZENIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Valeriy Olegovich Zenin, is a Russian national who was born in 1971 and lives in Rostov-on-Don. He was represented before the Court by Mr B. Kudash, a lawyer practising in Rostov-on-Don. The Russian Government (“the Government”) were represented by Mr P. Laptev, the then Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
In October 2001 the applicant was arrested and detained in remand centre no. 61/2 on suspicion of a customs offence. Several other persons were detained in relation to the above offence. The applicant’s detention was extended until 27 April 2002. On that date the criminal case was sent for trial before the Neklinovskiy District Court of the Rostov Region.
On 26 June 2002 the trial court, having detected a number of procedural defects, returned the case to the prosecutor for further investigation. The court also held that “the preventive measure should remain unchanged” and the detainees “should be taken in charge by the Prosecutor’s Office of the Rostov Region”. Under the RSFSR Code of Criminal Procedure, in force at the time, after receiving the case file from the court the investigating or prosecuting authority was thus required inter alia to decide on the detention issue (see “Relevant domestic law” below).
On 1 July 2002 a new Code of Criminal Procedure (CCrP) entered into force. Pursuant to the Law on Transitional Measures, any decision on the remand matter taken before 1 July 2002 was valid within the time-limit for which the preventive measure had been authorised (see “Relevant domestic law” below).
The applicant did not appeal against the detention order of 26 June 2002. However, the Prosecutor’s Office lodged objections to the remittal. On 27 August 2002 the Rostov Regional Court rejected them. The appeal court did not rule on the remand issue.
On 4 September 2002 the Prosecutor’s Office received the case file. On 6 September 2002 the file was transmitted to an investigator. On the same date, the authorities applied to the Neklinovskiy District Court for an extension of the applicant’s detention. On 9 September 2002 the District Court declined jurisdiction in favour of the Leninskiy District Court.
Having been notified of the outcome of the appeal proceedings in relation to the order of 26 June 2002, the administration of remand centre no. 61/2 ordered on 9 September 2002 the applicant’s transfer to remand centre no. 61/1 within the jurisdiction of the investigating and prosecuting authorities.
On 13 September 2002 the Leninskiy District Court extended the applicant’s detention until 16 October 2002. On 27 September 2002 the Regional Court upheld the order.
In the meantime, on 11 September 2002 the administration of remand centre no. 61/1 rejected the applicant’s request to be released considering that his detention continued to be authorised by the order of 26 June 2002.
On 19 September 2002 the applicant’s lawyer brought proceedings in the Kirovskiy District Court of Rostov-on-Don against both remand centres accusing their respective administrations of “unlawful inaction”. In that connection, the applicant pleaded that after 27 August 2002 there should have been a new detention order issued by a court under the CCrP. He also alleged that the refusal to release him had been unlawful under section 50 of the Custody Act and section 4 of the Judicial Review Act (see “Relevant domestic law” below). The District Court examined the applicant’s claims under the RSFSR Code of Civil Procedure. By a judgment of 22 October 2002, it rejected them considering that the applicant’s detention after 27 August 2002 had been authorised under the order of 26 June 2002; after receiving in early September 2002 the information about the outcome of the appeal proceedings in relation to that order the administration of remand centre no. 61/2 had promptly ordered the applicant’s transfer within the jurisdiction of the investigating and prosecuting authorities to remand centre no. 61/1; the latter had no reason to release the applicant since the order of 26 June 2002 was valid. Lastly, the District Court noted that on 13 September 2002 the applicant’s detention had been extended.
On 4 December 2002 the Regional Court upheld the judgment adding that the applicant’s claim had been confined to the alleged unlawfulness of the refusal to release him while the applicant had not claimed any specific redress, which would be intended to remedy the alleged violation of an individual right; in any event, by the time of the proceedings before the first-instance court the applicant’s detention had already been validly extended until 16 October 2002.
Prior to 1 July 2002 criminal law matters were governed by the RSFSR Code of Criminal Procedure (the RSFSR CCrP). From 1 July 2002 it was replaced by the Code of Criminal Procedure of the Russian Federation (the CCrP).
Under the RSFSR CCrP, the authority in charge of the case (inquirer, investigator, prosecutor or a court) could order detention of an accused (Article 89); the detention period could be extended by a prosecutor (Article 97).
Following arrest the person is detained “pending investigation” until the day when the case is sent to a court for trial (Article 97 of the RSFSR CCrP, Article 109 § 9 of the new CCrP). From the date the prosecutor forwards the case to the trial court, the defendant’s detention was “during the trial” (Article 239-1 of the RSFSR CCrP). The trial court can vary or annul a preventive measure against the defendant (Article 260 of the RSFSR CCrP, Article 255 of the CCrP).
Under the RSFSR CCrP, the trial court was empowered to remit the case for “further investigation” when procedural defects had been detected that could not be remedied at the trial (Article 232 § 1). When doing so, the court had to decide on the application of a preventive measure to the accused (Article 232 § 3). In such cases the defendant’s detention was again classified as “pending investigation”. The investigating and prosecuting authorities were required to comply with the remitting court’s order and to decide on the detention issue, if appropriate.
As follows from Article 331 of the RSFSR CCrP, only a prosecutor had a right of appeal in relation to decisions taken by a first-instance court under Article 232 of the Code; no appeal lay against a court decision under Article 260 of the Code. On 2 July 1998 the Constitutional Court declared Article 331 of the Code unconstitutional.
Under Article 108 § 11 of the existing CCrP, a detention order is amenable to review before a higher court by way of an ordinary appeal.
Under Article 110 of the existing CCrP, the authority in charge of the criminal case (an inquirer, investigator, prosecutor or a court) can annul or replace a preventive measure with another one. Annulment of a preventive measure indicated by an inquirer, investigator or a prosecutor at the pre-trial stage of proceedings requires consent from the prosecutor. A preventive measure indicated by a court can be annulled or replaced only by a court.
During the preliminary investigation a detainee can apply to the authority in charge of the criminal case (inquirer or prosecutor) with an application for release. The authority’s refusal is amenable to review by a court under Article 125 of the CCrP.
Article 125 of the CCrP provides for judicial review of the decisions or (in)actions on the part of an inquirer, investigator or a prosecutor, which has affected constitutional rights or freedoms. The judge is empowered to verify the lawfulness and reasonableness of the decision/(in)action and to grant the following forms of relief: (i) to declare the impugned decision/(in)action unlawful or unreasonable and to order the respective authority to remedy the violation; or (ii) to reject the complaint.
Pursuant to the Law on Transitional Measures, as amended on 29 May 2002, any decision on the remand matter taken before 1 July 2002 was valid within the time-limit for which the preventive measure had been authorised (section 10).
Under Law of 15 July 1995 no. 103-FZ “On Detention of Persons Suspected and Accused of Criminal Offences” (the Custody Act), the prison governor should release the detainee, having received a court order or the prosecutor’s decision to this effect. The prison governor should notify the authority in charge of the criminal case and the prosecutor that the authorised period of detention expires within twenty-four hours. If the authorised period of detention has expired and no decision to extend it or release the detainee has been received, the prison governor should immediately release the detainee (section 50).
The Act concerns all (in)action by a public authority except those for which there is a specific court procedure provided for by the legislation (section 3). Section 4 of the Act provides that a Russian citizen can bring a court action against a public authority, if the latter’s (in)action has violated his or her rights or freedoms. If the plaintiff’s claim is justified, the judge declares the impugned (in)action unlawful and requires the respondent authority to grant this claim, or otherwise remedies the violation of the person’s rights or freedoms (section 7). A subsequent claim for compensation arising out of the above decision should be examined with reference to the Civil Code (ibid).


ITEMID: 001-81230
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SHAPOVAL v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mrs Melaniya Danylivna Shapoval, is a Ukrainian national, who was born in 1936 and currently resides in the village of Kniazhychi, Cherkassy region. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs Valeriya Lutkovska and Mr Yuriy Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a former member and employee of “Knyazhyky”, an agricultural production co-operative (hereinafter “the APC”).
In February 2000, upon the Decree of the President of Ukraine “On immediate measures for acceleration of reform in agriculture” of 3 December 1999, the members of the APC decided to divide it into property and land shares (земельні і майнові паї), following which in March 2000 the applicant received a land ownership certificate (land certificate, transformed on 31 May 2002 into the State act on land ownership).
On 27 July 2000 the applicant instituted proceedings in the Monastyryshchensky District Court of Cherkassy Region (“the Monastyryshchensky Court”) against the APC seeking to receive compensation for unpaid salary and to be paid the value of her property share.
On 9 November 2000 the Monastyryshchensky Court allowed her claims and ordered the APC to pay her UAH 13,855 in compensation for salary arrears and for her property share.
The execution proceedings were initiated on 1 December 2000.
On 10 April 2001 the APC was re-organised in a joint stock company “Knyazhyky”.
In January 2002 the applicant instituted proceedings in the Monastyryshchensky Court against the Monastyryshchensky District Department of Justice, seeking compensation for damage caused by its failure to execute the judgment of 9 November 2000, and requesting the court to oblige the Department to execute that judgment.
On 5 February 2002 the Monastyryshchensky Court rejected her claims as being unsubstantiated. The applicant did not appeal against this decision.
On 23 July 2002 the Cherkassy Regional Department of Justice informed the applicant that the judgment of 9 November 2000 could not be executed due to the debtor’s lack of funds.
On 25 July 2003 the Bailiffs’ Service seized from the debtor UAH 500, and on 30 July 2003 the applicant was paid UAH 495.
On 24 May 2005 the Bailiffs’ Service discontinued the enforcement proceedings due to the debtor’s lack of funds. The applicant did not challenge that decision before the domestic courts.
The Law of Ukraine of 10 June 1996 “On privatisation of property in agriculture” provided for privatisation of the State-owned collective farms and enterprises through their transformation into collective agricultural companies or joint stock companies.
The Decree of the President of Ukraine 3 December 1999 “On immediate measures for acceleration of reform in agriculture” provided for a possibility for members of collective agricultural companies to receive in kind their land and property shares and to establish private farms or other privately owned agricultural enterprises.