ITEMID: 001-107117
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: H. v. ICELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Ms H., is an Icelandic national who was born in 1982. She was represented before the Court by Mr Atli Gíslason and Mrs Jóhanna Katrín Magnúsdóttir, lawyers practising in Reykjavík. The Icelandic Government (“the Government”) were represented by Mrs Björg Thorarensen as their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 8 November 2002 the applicant attended a birthday party with some friends and had dinner with her father in Reykjavík. After dinner she and her father went to a bar in Reykjavík, where they stayed for some time. Her father bought her a beer, which she left on a table and lost sight of when she was dancing. The applicant submitted that the next thing she could remember was having woken up covered in blood, lying next to an unknown man (“J.”) in an unknown house. She did not know how she had ended up injured in his bed. She had panicked and had left as soon as she could.
On the same morning, 9 November 2002, the applicant went to the Emergency Reception Centre for Victims of Rape and Sexual Abuse at the National and University Hospital, which took blood and urine samples and carried out an examination. The examining medical doctor, Mrs K.A., completed a “Forensic examination report” (file no. 916), dated 9 November 2002. This was a detailed form specifically tailored to instances of “Sexual incident/Sexual assault”, with boxes to be completed under a number of headings and sub-headings.
Under the heading “Description of the Offence”, it appeared that the “Scene” was “unclear”, that the “Attacker” was “unknown”, that the occurrence of “Threats” was “Not known”, that it was “Not known” whether she had been “Forced to take drugs/alcohol” and whether “Violence” had occurred.
Thereafter, the following information was rendered under the heading “Patient’s account”:
“[...] She remembers little of what happened after going inside [the bar], but remembers being out on the dance floor. She does not remember having met anyone she knows, or anyone else apart from her father. She had drunk 1 bottle of white wine and 2 beers since 7 o’clock in the evening. Then she remembers nothing until 10 o’clock this morning when she woke up in a strange house on [R]. She was wearing only a short skirt and a bra. Two men lived in the house who she said had been very decent towards her. They had wrapped her in a duvet and blanket. They said they had found her lying in her own blood down in town. They had taken her home and attended to her, and were going to contact a doctor. [...]”
The report further gave details on “Evidence taken on examination”, “Pelvic examination, Gynaecological examination”, “Injuries and other evidence” (which described injuries to her vulva, knee and legs, supported by drawings and photographs), “Conditions of clothing” and Physical examination”.
Then, under the title “Conditions of examination”, Dr K.A. observed:
“A young woman whose face is swollen from crying. She is evidently undergoing great suffering. She remembers very little of the past night, but has given a clear and coherent description of what she does remember. She makes a good impression and is cooperative. She is very credible. She complains of tenderness and pain in her lower body and has difficulty urinating.”
Under the heading “Patient’s account of events” was listed a series of questions regarding notably the “Attacker’s sexual conduct”, in respect of which “Don’t know” was marked for each question, “Yes” or “No” being the other options.
Under the heading “Physician’s conclusion”, the form set out detailed requirements as to the contents of the assessment.
The examining doctor concluded:
“A girl of twenty who has come to the Emergency Centre for Victims of Rape and Sexual Abuse and thinks she was raped last night. She has blood stains on the inside of her thighs and her lower body is tender. She woke up this morning in a strange house wearing only a bra and a short skirt. She had drunk alcohol of her own free will during the evening. She remembers virtually nothing of what happened during the night.
Examination has shown that she has injuries to her genitals. She has haematoma [2x1cm] on the r. labia majora and a long tear [5 cm] in the labial fold with a flap that has been torn up from the skin. Evidently caused by very rough sexual intercourse. Photographs and drawings are enclosed. Samples were taken from the vulva and vagina for semen tests and a Chlamydia sample was taken, but due to tenderness it was not possible to take more samples.
She also has grazes on her knees and legs, and scratches; it is not clear how these were caused. [...]”
Under the heading “Release of physician’s report to the police”, it is stated that Detective Inspector S.K.R. had received the evidence and the physician’s report on 13 November 2002.
On 12 November 2002 the applicant was again examined by Dr K.A., who completed a report on the same date, entitled “Follow-up Appointment I”. It listed a number of questions concerning the “Emotional state and shock reactions that have become more pronounced or appeared for the first time since the attack”. It noted, inter alia, a fear of meeting the attacker by chance, concentration problems due to obsession about the incident and sleeplessness.
The report further noted that she had admitted to having given false information when she first came to the Centre; she knew the identity of the man in question and said he had been lying beside her, naked, when she woke up on 9 November 2002.
Apparently, this follow-up report of 12 November 2002 was received together with the initial report of 9 November 2002 by Detective Inspector S.K.R. on 13 November 2002.
In the meantime, on 10 November 2002 at 9.16 p.m. the applicant lodged a complaint against J. with the police. Interviewed by Detective Inspector S.K.R, she stated that at around 2.30 a.m. she had gone to the bar and continued:
“Dad bought himself a beer and I had a few sips of it. Then he bought me a beer in a glass. I hadn’t felt much alcoholic effect before I drank from the beer that Dad bought me. After that I was dancing on the dance-floor of [the bar]. I remember putting my beer down a few times when I went to urinate; on one occasion I put it down by a small bar counter next to the dance-floor. I lost sight of my beer glass a few times. The last thing I remember from that evening is that I was dancing on the dance-floor. I remember Dad was watching me, and I remember that suddenly it was as if lots of people were on the dance floor, but there had not been many people there while I was dancing at the beginning of the evening. The next thing I remember was that I woke up in a house I didn’t recognise, in a bed I didn’t recognise and beside a man I didn’t recognise. I was wearing only a skirt and a bra. I felt immediately something was wrong. I wrapped the duvet [...] around me and went out of the room; I saw that the man was naked. I looked at a clock on the bedside table and saw that it was about 10 o’clock.”
The applicant further recounted that on her way to the bathroom, she had noticed “a telephone table with a phone on it”. When she had found the bathroom she had gone in and discovered that she had blood on her thighs. She had been unable to urinate. She had examined her lower body and seen the injuries to her genitals. Her knees had also been bruised and she had had scratches on and below her knees.
The applicant stated: “Then I went into the hallway again and phoned my mother.” The applicant had started crying and J. had come out of the bedroom. “He asked me who I was phoning, and I told him and I asked him where I was; then he asked me if I was leaving and I told him I had to go home to my daughter.” The applicant had asked her mother to pick her up and she had then gone looking for her clothes. She had asked J.: “Wasn’t I wearing any clothes when I came here?” to which J. had replied: “No.” The applicant had said: “Surely I didn’t come here like this?” and J. had replied “Yes you did,” and grinned. The applicant had put on a t-shirt belonging to J., her jacket and her boots and gone out. She stated: “I couldn’t find my mobile phone, and he offered to phone it. I gave him my phone number, and he phoned [...]”. At the same time J. had been putting on his outdoor clothes, getting ready to leave along with an older man. They had seemed to be leaving together and J. had told the applicant where he worked.
The applicant’s stepfather had picked her up. When she had got home her mother had noticed that something had happened and asked the applicant, who had shown her the injuries. Her mother had telephoned the emergency service and then taken the applicant to the Emergency Reception Centre for Victims of Sexual Offences.
The applicant stated that she had not told the doctor during her consultation that she had woken up next to this man. She had been in denial that he could have done this to her. She further stated that she had been in deep shock and afraid of pressing charges. She had been very cold, shivered, cried a lot and had much pain from her physical injuries. The applicant had then pointed out:
“[The applicant] says she wishes to state that she is absolutely certain that she did not go home with this man of her own free will. She wishes to state that she has only had close relationships with two men in her life, one of them being the father of her child. She says she has never experienced a ‘blackout’ when drinking alcohol. She says she has never abused alcohol. She says she considers it likely that something was put in the beer she drank last at [the bar]. She says she can tolerate drinking a considerable amount of alcohol before feeling the effects. Also, she does not think it normal that she would not have woken up when suffering her injuries.”
The applicant continued by affirming that when she had woken up she had felt as if a heavy weight was pressing down on her and that she was paralysed. She had also had a headache. She intended to press charges and to demand that the perpetrator be punished and she reserved the right to demand compensation at a later stage. Her interview ended at 11.44 p.m.
The applicant was assisted by an officially appointed lawyer throughout the criminal investigation.
On 11 November 2002 at 4.55 p.m. the police questioned J. He was informed of the charges against him and invited to comment on them. He stated:
“I went out alone to enjoy myself last Friday night. I had drunk about eight cans of beer and felt the strong affect of the alcohol. Between one and two o’clock I went to the bar [...]. There I got talking with a man, an Icelander, who was sitting at a table. I sat with him and we started talking about this and that. After I had been sitting there with him for some time a girl came to the table and it turned out that she was this man’s daughter. I started looking into her eyes and I thought I felt some sort of current between us. The next thing I knew we were inside the women’s toilet in [the bar] and had started kissing. Then we went out onto the dance-floor and danced for a bit. I thought this girl was about as drunk as I was. But I don’t remember having seen her drink anything alcoholic while we were there. Then we went back together to the women’s toilet and started kissing again. While we were kissing, a doorman came into the toilet and threw me out of it, and out of [the bar].”
J. stated that he had waited outside for a short while and then the applicant had come out and they had taken a taxi to J.’s house. The next morning she had given J. her phone number so he could phone her again. He had tried to phone her the next day when he had found her underpants and her top but no one had answered.
At this point, at 5.40 p.m., the questioning stopped for a moment while the police took J. to the technical division where he was photographed and his fingerprints taken. DNA samples were also taken.
The questioning continued at 6.01 p.m. During this part of the questioning J. was asked direct questions and was presented with the applicant’s testimony.
J. was asked why he had asked the applicant to go home with him. He replied that he had wanted to have sex with her but that had not happened as he had thought she was menstruating. J. stated that it was not true that she had woken up dressed in a skirt and a bra and he had been naked. She had been naked and he had been wearing his underpants.
About the applicant’s statement that she had had “blood all over her thighs”, J. stated that it could have been so; he had seen blood on the front of her thighs before going to sleep. When presented with the applicant’s detailed account of her injuries, bruises and scratches J. replied that he knew nothing about it.
When invited to comment on the applicant’s rendering of her observations about her clothing and his statements in reply, J. stated that he did not remember having said what she indicated.
J. was told that the applicant had said that she had given him “her mobile phone number so that [he] could phone it there and then and [sic] she could hear it ring so that she could find it.” J. stated that she had given him his phone number so that he could phone her later, that he did not remember her phone number but that he had it saved in his phone.
J. was further asked to comment on the applicant’s statement that “she remember[ed] nothing from about half past two” in the morning until she had woken up beside him at 10 a.m. J. stated that he knew nothing about that.
J. was then asked whether he had given the applicant “any sort of drug”, to which he replied: “Certainly not.” He was asked whether he had taken drugs recently and he stated that he had not. When asked whether he had “assault[ed the applicant] sexually,” he stated that he had not. When asked whether he had contacted her after the morning of 9 November, he stated that he had tried to phone her the day before the questioning [10 November] because he had found her clothes but no one had answered.
J. further stated that he did not understand the case and that he had no further statements.
His defence lawyer requested that he be asked whether he had seen the applicant having any contact with other men at the bar, apart from J. and her father. J. stated that he had seen her talking to some other men while they had been dancing. He further stated that he had been quite drunk at the time.
On the same date, at 7.05 p.m., the police carried out a search of J.’s home. J. gave them underwear and a T-shirt belonging to the applicant. The police found no further evidence during the search but stated in the search report that the room had appeared to have been recently cleaned. J.’s grandmother had told the police that she had cleaned the room the day before and changed the bedclothes. She could recall that there had been bloodstains on the bedclothes that she had taken off from the bed.
On 12 November 2002 the police interviewed the applicant’s father. He stated that he and the applicant had gone to the bar at around 2.30 a.m. He had bought beers for them and they had sat down at a table and talked. The applicant had gone to the dance floor to dance with some people she appeared to know. He had seen a young man putting his arms around the applicant while she had been talking on the phone and he had embraced her. It had appeared as if she had not approved of this and that she had not known the man at all. The applicant’s father had told the man [J.] that he was her father and that this was not “gentlemanly behaviour”. The man had taken it well and sat down at the table with him. J. had repeatedly expressed his feelings towards the applicant. J. had invited the applicant to dance and she had gone with him to the dance floor. They had danced for a short time and then J. had come to take his jacket, which he had left by the table. At around 5 a.m. the applicant’s father had noticed that she was gone. He had waited for about an hour and then he had gone, taking her phone, which she had left on the table, with him.
On 13 November 2002 the police interviewed Mr S., the doorman at the bar on the night in question, who had stated:
“I was working at [the bar in question] on the night in question; I work there sometimes as a doorman. I remember that [x], the son of the owner of [the bar], came to me and said that there was a man and a woman in the men’s toilet having intercourse. This happens quite often, and when it does we doormen put a stop to it. I went into the men’s toilet and saw straight away that there were two people in one of the toilet cubicles. I knocked a few times because I could hear that there was more than one person in the toilet cubicle. After a little while I asked if there was more than one person in there. A man then answered me and said ‘Wait a moment, there’s been a slight accident.’ Then I knocked again and asked the man to open the door, and I tried to open it myself but I couldn’t. Then I told the man again to open it, and after about 5-10 minutes the man opened the door. Then I saw that there was a woman and a man inside; the woman was about 22 years old, blonde, about 170 cm tall and wearing glasses; her hair was in a pony-tail and reached down just below her shoulders; the man was small and stocky. I saw straight away that there was a lot of blood in there, both on the walls and on the toilet itself, that is, on the seat and the cistern. I also saw blood on the floor. I saw that the woman had quite a lot of blood on her hands, but I didn’t see any blood on him.
I offered to call an ambulance or the police for them, but the man himself turned this down. The woman did not say anything. I then showed her into the women’s toilet so she could wash herself, and I ordered him out into the hall to begin with. I think it was about five o’clock at this stage. I thought it must have been menstrual blood. Then I went out front and told the doorman, [Sn], about the blood and that something had been going on inside. [S] then told the owners of [the bar] about it.
After a short time I then went into the women’s toilet to see about this girl, but when I went in there she wasn’t anywhere near the washbasins. Some girls who were in there indicated to me that there was someone inside one of the toilet cubicles. I went over to the cubicle and knocked, and then I heard that there was more than one person inside the cubicle. This was the largest cubicle in the women’s toilet. They opened the door to me, and I saw that the man had come to her and she was sitting on the toilet. She still had blood on her hands. I didn’t think the man was very drunk; I even thought he was completely sober. On the other hand I thought she was very drunk. I had seen her earlier in the evening and noticed that she was rather drunk. I took the man outside and asked the doormen not to let him in again. The man didn’t show any resistance to this. Then I went back into the women’s toilet, and the woman had come out of the cubicle and was washing her hands. I asked her if she would like to call an ambulance or the police, but she just shook her head.
I saw that she was in a really bad state, so I went with her out to the door to the street and told her to take a taxi and go home. I didn’t see her again that night. I think this all happened between 04:30 and 05.00.
I remember she went outside several times during the evening to get fresh air. I recognise this woman, as she comes regularly to [the bar].”
On different dates between 12 and 18 November 2002 the police photographed and analysed the applicant’s skirt, T-shirt and underwear, in order to identify stains of blood and other organic substances, notably by DNA tests, as well as the bruises on her arms and legs. This information was compiled in a report dated 19 November 2002.
The police requested that tests be carried out on the samples for alcohol and drugs, with specific tests for drugs that could impair judgment. These were samples that had been taken from the applicant when she came to the Emergency Reception Centre on 9 November 2002 as described above. The Pharmacology and Toxicology Laboratory issued the results in a report dated 16 December 2002:
“Ethanol was found to be present in a concentration of 0.62‰ in the blood and in a concentration of 1.78‰ in the urine. Amphetamines, benzodiazepine compounds, cannabinoids, cocain and morphine drugs were not present in measurable quantities in the urine. Gamma-hydroxybutyric acid was not present in measurable quantities in the urine. A standard drug scan of the urine did not detect any drugs that can be found using that method.
The concentrations of ethanol in the blood and urine indicate that the person in question was substantially under the influence of alcohol a few hours before the blood sample was taken.”
The samples taken from the applicant at the Emergency Reception Centre were sent to a forensic laboratory for analysis. The assessment from the University Pathology Laboratory, dated 26 November 2002, includes the following statement:
“According to the foregoing, no sperm cells were detected, [...] nor was there any indication of the presence of semen in the samples taken from the plaintiff or on her clothing (underpants and skirt).”
On different dates between 12 November 2002 and 3 January 2003 the police interviewed several people, mostly friends of the applicant who had met her on the night in question, and also her mother and J.’s grandmother, the grandfather having availed himself of his right not to testify. The grandmother stated, inter alia, that when she had removed the bed clothes she had noticed a bloodstain on the duvet cover and that she had not given this any further thought. She asked J. whether he had hurt himself and he had replied that he had hurt his finger.
The police photographed J.’s home and the bar. The photographs were compiled in reports dated 15 November 2002 and 6 March 2003, respectively.
On 18 February 2003 the police again interviewed the applicant. She was asked whether she wished to change or add anything to her previous statement. She stated that she did not.
She was then confronted with the statement of her father regarding her interactions with J. on the night in question. She stated that she did not remember a man embracing her but she did remember her father standing up while she had been talking on the phone. She had been talking to her friend, G. She further stated that she did remember dancing after talking on the phone but that she did not remember dancing with J.
The applicant was then confronted with the statement of the doorman S. regarding, among other things, his dealings with her and J. in the toilet. She stated that she had nothing to say about the statement, she did “not remember this happening” and referred to her earlier statement.
The applicant was further confronted with parts of J.’s testimony regarding their contact in the bar. She replied that since she did not remember having seen J. at the bar she could not comment on this, and that she remembered only that the first time she had seen him was when she had woken up beside him in the morning.
Lastly, she was confronted with the results of the tests of alcohol and drugs in her blood: “The only thing I have to say about this assessment is that it does not fit with the amount of alcohol I remember drinking.”
On 8 April 2003 Officer S.K.R., accompanied by Officer G.P., went to Lund in Sweden, where suspect J. lived as a student, in order to question him further.
Officer S.K.R. informed J. that the investigation had revealed that he had gone into the toilet in the bar twice with the applicant, first in the men’s toilet, then in the women’s toilet. Officer S.K.R. asked him when it was decided that they would go into the toilet, what had happened between them there and confronted him with specific parts of the testimony of doorman S., the applicant’s mother, and the applicant herself.
J. said that they had gone into the men’s toilet together, where they had closed the door and begun kissing. They had had oral sex. J. gave a detailed account of the event from the moment they entered the toilets until they were ordered to leave by the doorman. He said that the applicant had taken her underpants off, possibly before her injuries, but had not put them on again before leaving the toilet; he had therefore collected them and put them in his pocket. She had already started to bleed between her legs. He said he had then followed the applicant into the women’s toilet, but nothing had happened between them because the doorman had been so quick to follow them in there and had thrown him out of the bar. He said he had waited outside and that the plaintiff had come out shortly afterwards and had sat down on the steps. He had called a taxi and asked the plaintiff if she was going to come home with him which she had done. In his house they had begun undressing each other, and she had been completely naked. He had seen that there was blood coming from her genitals, and he had thought she was starting her period. He denied having had intercourse with her or having moved his body as if he had been.
Suspect J. was questioned about how it was possible that there was no blood on the applicant’s underwear even though she had sustained serious injuries to her genitals. J. said that before he had left the men’s toilet he had taken her underpants and put them in his pocket.
When confronted with doorman S.’s statement, J. commented that he could not remember having told the doorman that there had been a slight accident, but he could remember that the applicant was bleeding between her legs, the causes for which he had ignored.
Officer S.K.R. then asked J. what he had meant when he had said that there had been a slight accident, to which J. responded that he could not remember having said these words when the doorman had told him to open the door.
Nor could J. remember that the doorman had offered to call an ambulance or the police.
Officer S.K.R. then informed J. of the applicant’s injuries and of the assessment made by the Emergency Reception Centre for Victims of Rape and Sexual Abuse, where the applicant had been examined immediately after leaving his home, that she had received these injuries from very rough sexual intercourse. In response to this, J. denied having had sexual intercourse with the applicant either at the bar or after they had gone to his home. He could not offer an explanation regarding the injuries described to him. He said that he had lain on top of the applicant while kissing her and it was perhaps not impossible that the buttons or the zip on his trousers fly had caused the injuries. He did not remember whether the jeans he was wearing that night had buttons or a zip.
On 6 August 2003 the Director of Public Prosecutions informed the applicant and J. that in view of the state of the evidence, which was insufficient for securing a conviction for rape, the case was closed.
On 28 August 2003, after the applicant’s lawyer had requested under Article 114 § 1 of the Code of Criminal Procedure a written explanation of the reasons, the prosecution services replied:
“The plaintiff claims that she has no memory of the events in the case, and considers that this was a consequence of ‘something having been put in the beer from which she had her last drink in [the bar],’ and not from her own consumption of alcohol. In the investigation of the case, blood and urine samples were taken from the plaintiff, and it was requested that these be tested for alcohol and for drugs which can affect judgment. No common drugs of this type were found, but the assessment by the Pharmacology and Toxicology Laboratory includes the following statement: ‘The concentrations of ethanol in the blood and urine indicate that the person in question was substantially under the influence of alcohol a few hours before the blood sample was taken.’
From the description given by the doorman at [the bar], who on two occasions had to deal with the plaintiff and the accused, first in the women’s toilet and then in the men’s toilet of the bar, the only conclusion to be drawn is that the plaintiff had by then already suffered the injuries to her genitals which you mention in your letter. The plaintiff made no complaints regarding her dealings with the accused when the doorman spoke to her; this happened on two occasions, and amongst other things he offered to call an ambulance or the police, but his offer was rejected. No signs of sperm were found in the samples taken from the plaintiff, which can corroborate the statement by the accused that he did not have sexual intercourse with the plaintiff. On the other hand, he admitted that other sexual acts had taken place between them at the bar, but did not admit to further sexual acts with the plaintiff after they arrived at his home.”
The applicant underwent aesthetic surgery in March 2006 on the injuries sustained to the outside of her genitals. In this connection the surgeon stated that the damage could not be repaired perfectly. He could not ascertain the causes but referred the applicant to the doctor who had examined her immediately after the incident. According to a psychologist’s statement of 10 April 2006, the applicant had many of the symptoms of stress and trauma that were common in victims of sexual violence.
On 29 June 2006, almost three years after the Director of Public Prosecutions announced his decision not to prosecute, the applicant’s new representative requested that the case be reopened. In his request he stated that the investigation had been substantially flawed and that the case had not received priority attention from the police. The request was accompanied by documents testifying to the psychological treatment the applicant had undergone since the incident and certificates regarding the mental and physical consequences of the alleged rape. On 23 August 2006 the Director of Public Prosecutions rejected the applicant’s request. In his letter the Director explained the legal conditions for a case to be reopened, namely, that a case could not be reopened unless significant new evidence had come to light or was likely to come to light. He further described the evidence and the facts of the case. After describing the materials accompanying the request, he stated:
“The materials accompanying the request for reopening of the case contain, first and foremost, further descriptions of [H.’s] emotional and mental state following the incidents to which the investigation materials of the case refer, as is discussed above.
[H.’s] emotional and mental suffering, to which the new materials bear witness, are doubtless the consequences of what happened to her in the early hours of 9 November 2002. On the other hand, these materials are not considered as further illuminating what really happened in the dealings between her and the defendant on the night in question. From this it follows that the conditions for the reopening of the case under the third paragraph of Article 7 of the Code of Criminal Procedure [in force at the relevant time] have not been met.”
On 12 September 2006 the applicant’s representative wrote a letter to the Minister of Justice marked “Confidential” in which he criticised the way the authorities had handled the case. He stated that H. had entrusted him with lodging an application with the European Court of Human Rights regarding the case, but before doing so, he considered it right to give the Minister of Justice the opportunity to examine her case and redress her position.
On 6 October 2006 the Ministry replied. After describing the events of the case, the letter stated:
“The scope available to the Minister of Justice to review decisions by the Director of Public Prosecutions regarding the discontinuance of a case is restricted to the condition that the decision is considered as being at variance with the law, or extraordinary in some other respect (compare with the second paragraph of Article 26 of the Code of Criminal Procedure [in force at the relevant time]). This case is not considered to be of such a type as to make it appropriate to apply this provision.”
On 16 October 2006 the applicant’s representative wrote another letter to the Ministry in which he explained that the purpose of the previous letter had been twofold: to have the decision of the Director of Public Prosecutions revised and to request the Ministry to compensate the applicant for the damage she had suffered.
On 28 November 2006 the Ministry informed the applicant’s representative that it had forwarded the claim for compensation to the Attorney-General in Civil Matters who was the competent authority to deal with such claims against the State. On 29 December 2006 the Attorney-General rejected the applicant’s claim with the following arguments:
“In the view of the Attorney-General, no legal grounds exist for granting the aforementioned claims by your client. In this connection, reference may be made to the judgment of the Supreme Court of Iceland in case no. 178/2001. The following is taken verbatim from Section II of the judgment:
‘Under the second paragraph of Article 25 of Act no. 19/1991 [the Code of Criminal Procedure in force at the relevant time], with subsequent amendments, the Director of Public Prosecutions is the supreme authority for exercising the power of prosecution. In exercising it, he is independent of the will of the government authorities and of other parties; under the first sentence of the first paragraph of Article 26 of the same Act, the Minister of Justice monitors the exercise of the power of prosecution.
The prosecution has an obligation to take measures to ensure that cases are investigated and that they are then brought to a conclusion as quickly as possible and in a manner that can be regarded as normal. Failures to meet this obligation may result in liability on the part of the civil servant involved, in accordance with the legislation and rules applying to civil servants. Actions taken by the prosecution involving specified coercive measures may also entail compensatory liability towards those against whom they are applied in accordance with the provisions of section XXI of Act no. 19/1991 or the general principles of Tort Law. This basis for action does not apply to those who suffer injury or damage caused by a criminal offender. The injured party is to have an opportunity to lodge a claim for compensation against the offender in the case, but in other respects no legal relationship exists between the injured party and the prosecution. Neither the injured party nor other parties are expected to influence individual decisions taken by the Director of Public Prosecutions in connection with the exercise of the power of prosecution; regarding such decisions, the Director of Public Prosecutions is independent in his work, as has been stated above. This applies equally to his assessment of whether any necessity exists that justifies a demand that a suspect or an accused person be subjected to coercive measures. From the foregoing it follows that an injured party cannot lodge a compensatory claim against the defendant at a later date based on the assertion that measures, or measures in addition to those that were taken by the authority for exercising the power of prosecution, were needed against the alleged offender. [...].’
The Attorney-General considers it beyond doubt that the above case-law of the Supreme Court applies to your client’s claim for compensation. With reference to this, your client’s compensation claim is rejected on the grounds that no basis can be found, either in Icelandic legislation or in case-law, for any right to compensation on the part of your client against the Icelandic State.”
No judicial appeal was lodged against the Attorney-General’s above decision.
At the material time Articles 194 and 196 of the Penal Code provided:
Article 194
“Any person who has sexual intercourse or other sexual relations with a person by means of using violence or the threat of violence shall be imprisoned for a minimum of 1 year and a maximum of 16 years. ‘Violence’ here refers to the deprivation of autonomy by means of confinement, drugs or other comparable means.”
Article 196
“Any person who exploits a person’s psychiatric disorder or other mental handicap, or the fact that, for other reasons, he or she is not in a condition to be able to resist the action or to understand its significance, in order to have sexual intercourse or other sexual relations with that person, shall be imprisoned for up to 6 years.”
The Code of Criminal Procedure contained the following provisions of relevance:
Article 112
“After receiving the materials in a case and establishing that the investigation is complete, the prosecutor shall consider whether or not any person is to be prosecuted. If he considers that what has been revealed is not sufficient, or likely, to result in a conviction, he shall take no action; otherwise, he shall put the case before a court as provided for under Article 116.”
Article 114 § 1
“If a case is dropped under Article 112, or prosecution is discontinued under Article 113, the prosecutor who took that decision shall inform the accused person of it and also the victim, where the victim’s identity is known. Reasons for the decision shall be given if requested.”
Article 76 § 3
“If an investigation against an accused person has been discontinued because the case materials are not considered to constitute sufficient evidence for an indictment, the investigation should not then be reopened against that person unless new case materials have come to light or are likely to come to light.”
Article 26 § 2
“If the Minister of Justice considers the dropping of a case by the Director of Public Prosecutions to be at variance with the law, or out of the question on other grounds, he may recommend to the President of Iceland that the decision by the Director of Public Prosecutions be quashed. In such cases, the Minister of Justice shall appoint a special prosecutor to handle the case.”


ITEMID: 001-83588
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF HUMMATOV v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13+3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award
JUDGES: Loukis Loucaides
TEXT: 6. The applicant was born in 1948 in the Lerik Region, Azerbaijan, and currently lives in The Hague, the Netherlands.
7. Until 1988 the applicant was the deputy director of a transport warehouse in the city of Lenkoran, Azerbaijan. In 1988 he joined a political party and began his political career. When the Armenian-Azerbaijani conflict in Nagorno-Karabakh broke out, he joined the national army and became one of its commanders. In the summer of 1993, at the time of the outbreak of a civil and political confrontation in the country, he returned from NagornoKarabakh to his native Lenkoran.
8. In June 1993 the applicant put forward a proposal for an autonomous political formation in the south of Azerbaijan which would, in addition to Lenkoran itself, incorporate several adjacent regions. The central authorities considered this idea unacceptable. On 7 August 1993 the applicant, together with his supporters, proclaimed the creation of the so-called “Talysh-Mugan Autonomous Republic” (“Talış-Muğan Muxtar Respublikası”) within the Republic of Azerbaijan. The applicant was elected its “President”. At the same time, he attempted to take charge of the military units located in Lenkoran, as well as to depose and arrest some regional public officials appointed by the central authorities. Following this, certain public disorder evolved, during which several people were killed.
9. At the end of 1993, the applicant was arrested and detained in the detention centre of the Ministry of National Security. The investigation against him led to accusations of, inter alia, high treason and use of armed forces against the constitutional institutions of the State.
10. In September 1994 the applicant, along with three other detainees, absconded from the detention centre. The applicant went into hiding until August 1995 when he was finally caught and arrested for the second time.
11. According to the applicant, at all times while in pre-trial detention, he was subjected to various forms of ill-treatment. He was not allowed to see a doctor. Under the threat of his wife's arrest and criminal prosecution, he was compelled to give self-incriminating testimony. His close friends and relatives, including his wife and son, were also subjected to persecution and physical ill-treatment by the authorities. Fearing further persecution, his wife and son left the country and sought asylum in the Netherlands.
12. The applicant's criminal case was examined by the Military Chamber of the Supreme Court (Ali Məhkəmənin Hərbi Kollegiyası) sitting in first instance. He was tried together with six other accused persons. On 12 February 1996 the applicant was convicted of high treason (twelve years' imprisonment with confiscation of property), misappropriation of official power (two years' imprisonment), illegal deprivation of liberty (three years' imprisonment), unauthorised possession of weapons (five years' imprisonment), absconding from custody (two years' imprisonment), and creation of illegal armed units (death penalty with confiscation of property). By way of a merger of sentences, the applicant was sentenced to death and confiscation of property. Being a decision of the highest tribunal, this judgment was final and was not subject to appeal at the material time.
13. Following the conviction, in June 1996 the applicant was transferred to the 5th Corpus of Bayil Prison designated for convicts sentenced to death. Despite the existence of the death penalty as a form of punishment under the criminal law applicable at that time, the Azerbaijani authorities had pursued a de facto policy of moratorium on the execution of the death penalty since June 1993 until the abolition of the death penalty in 1998.
14. On 10 February 1998 Parliament adopted the Law on Amendments to the Criminal Code, Code of Criminal Procedure and Correctional-Labour Code of the Republic of Azerbaijan in Connection with the Abolition of the Death Penalty in the Republic of Azerbaijan, which amended all the relevant domestic legal provisions, replacing the death penalty with life imprisonment. The penalties of all the convicts sentenced to death, including the applicant, were to be automatically commuted to life imprisonment.
15. Despite this new penalty, the applicant was kept in the 5th Corpus of Bayil Prison (the former “death row”) up to January 2001. According to the applicant, the conditions of imprisonment in the Bayil Prison were harsh and inhuman, and beatings frequently occurred. He suffered from various serious diseases and could not get necessary and adequate medical treatment (see section C. below). In January 2001 he was transferred to the Gobustan High Security Prison (Qobustan Qapalı Həbsxanası; hereinafter “Gobustan Prison”) for prisoners serving life sentences.
16. In 2000 a new Code of Criminal Procedure (hereinafter “CCrP”) and new Criminal Code of the Republic of Azerbaijan were adopted. Before the new CCrP's entry into force on 1 September 2000, on 14 July 2000 Parliament passed a transitional law allowing the lodging of an appeal under the new CCrP against the final judgments delivered in accordance with the old criminal procedure rules.
17. Shortly after this, at the time of Azerbaijan's admission to the Council of Europe, the applicant was recognised as a “political prisoner” by independent experts of the Secretary General (in the experts' relevant reports the applicant's name was spelled as “Alikram Gumbatov”, possibly following the Russian transliteration of his name). Azerbaijan has made a commitment to either release or give a re-trial to all persons identified as “political prisoners” by these experts.
18. Following the reform of the domestic criminal and criminal procedure law in 2000 and in the light of Azerbaijan's undertaking before the Council of Europe to review the cases of “political prisoners”, on 20 December 2001 the Prosecutor General filed an appellate protest (apellyasiya protesti) with the Court of Appeal, requesting the court to allow the re-examination of the applicant's case. On 24 January 2002 the Court of Appeal upheld this request and allowed an appeal to be lodged against the Supreme Court's judgment of 12 February 1996.
19. On 29 January 2002 the applicant lodged his appellate complaint with the Court of Appeal. He asked the court to initiate a new investigation into the case, to hold a public hearing in an ordinary courtroom with the participation of media representatives and officials of foreign organisations, to obtain the attendance and examination of certain witnesses, and to evaluate the political events in the Lenkoran region in 1993. On 23 April 2002 the Court of Appeal decided to grant the applicant's requests for a new investigation and a public hearing, but dismissed the remaining requests.
20. The hearings on the merits were to be held at the detention centre of the Ministry of Justice. However, on 13 May 2002 the Court of Appeal changed the location of the hearings to Gobustan Prison since, as explained by the court, repair works were being carried out in the Ministry's detention centre. The applicant protested against this decision by refusing to attend any court hearings held in Gobustan Prison. On 14 May 2002 the Court of Appeal ordered his compulsory attendance.
21. The Court of Appeal's hearings on the merits took place in Gobustan Prison, which was equipped with a courtroom with a separate deliberation room, the total surface area of which was 150 square metres. According to the Government, this courtroom contained about 50 seats for observers.
22. The parties were in disagreement about the actual distance between Gobustan Prison and Baku (45 kilometres according to the Government and 75 kilometres according to the applicant). No regular public transportation from Baku to the prison was available. Because of the prison's strict access regime, persons wishing to attend the hearings as observers had to ask the presiding judge for permission to attend the hearing. The presiding judge, in turn, applied to the prison authorities with a request to grant such persons access to the prison. Observers who were granted access to the hearings were subject to a body search before entering the prison's courtroom.
23. The Court of Appeal held more than twenty hearings and examined testimonies from more than 60 witnesses, of which the statements of six persons, given during the first-instance trial, were read out during the hearings.
24. In the course of the appellate proceedings, the applicant submitted a number of petitions in which he, inter alia, challenged the impartiality of the court, requested that the court permit audio and video recording of the hearings, that the hearings be held in public and away from the high security prison, and that testimonies of additional witnesses and other additional evidence be admitted. The majority of these petitions were rejected by the Court of Appeal.
25. On 10 July 2003 the Court of Appeal delivered its final judgment concerning the applicant's criminal case. The Court of Appeal revoked the previous judgment of 12 February 1996 in its part concerning the confiscation of the applicant's property. The Court of Appeal, however, upheld the applicant's conviction and sentenced him to life imprisonment, pursuant to the criminal law applicable at the time the crimes were committed, but subject to the amendments introduced by the Law of 10 February 1998.
26. The applicant lodged an appeal in cassation with the Supreme Court. In his appeal, he complained, inter alia, that the Court of Appeal had breached material and procedural rules of domestic law, that the trial held in Gobustan Prison had not been public and fair, and that the lifeimprisonment sentence had been unlawful.
27. By a decision of 5 February 2004, the Supreme Court rejected the applicant's cassation appeal. The court retained the penalty of life imprisonment, but partly modified the Court of Appeal's judgment by requalifying the underlying offence under Article 279.3 of the new Criminal Code of 2000, instead of applying the old Criminal Code of 1960 as amended by the Law of 10 February 1998. As to the applicant's complaint concerning the alleged lack of publicity of the appellate proceedings, the Supreme Court found that this complaint was unsubstantiated, as all necessary measures had been taken to ensure the possibility for independent observers to attend the trial.
28. The following account has been drawn up from the medical records submitted by the Government, inasmuch as the information contained therein was discernible.
29. After his arrest in August 1995, the applicant was detained in the temporary detention facility of the Baku City Police Office until 7 November 1995. No medical examinations were carried out on him during this time.
30. On 7 November 1995 he was transferred to Investigative Isolator No. 1 and detained there until 28 December 1995. On 8 November 1995 he was examined by a physician who noted that the applicant did not have tuberculosis and that no injuries could be observed on his person. The applicant also informed the physician that he had had two heart attacks in 1992.
31. From 28 December 1995 to 3 June 1996 the applicant was held in the detention facility of the Ministry of National Security. It appears that, during this period, he requested to see a physician several times and complained about heartaches, chest pains and worsening of eyesight. However, no serious diseases were diagnosed.
32. According to the applicant, in the Bayil Prison, where he was imprisoned from June 1996 to January 2001, he was at various periods held in one cell together with five other prisoners whose names were Ismail Bashirov (or Behbudov), Akif Gasimov, Hafiz Hajiyev, Azad Guliyev and Surgay. These persons were already seriously ill with tuberculosis and have all died since then.
33. Throughout 2006 the applicant complained several times of chest pains. In February-March 1997 the applicant was examined several times by a prison doctor and diagnosed with several ailments such as stenocardia, diffuse bronchitis and asthenia. He was 175 centimetres tall and weighed 55 kilograms around that time.
34. On 22 April 1997 the prison doctors diagnosed the applicant with pulmonary tuberculosis. On 23 April 1997 he underwent an X-ray examination which confirmed the diagnosis of “focal tuberculosis of the left lungs”. He was prescribed various medicines, including streptomycin, rifampicin, haemodez, multivitamins and vitamin B. A subsequent medical examination carried out on 15 April 1998 revealed that the disease was still active. On 7 September 1998 it was observed that the disease went into remission.
35. On 19 May 1999 the applicant was diagnosed with “tuberculosis in the remission phase” and prescribed isoniazid, rifampicin and multivitamins. On 7 September 1999 he was prescribed streptomycin and rifampicin.
36. In February 2000 the applicant was visited by representatives of the Helsinki Citizens Assembly who expressed their concern about the applicant's state of health and requested the authorities to take necessary measures. After this, on 16 March 2000, another medical examination by the prison doctors revealed the reactivation of tuberculosis and the necessity of in-patient treatment for the applicant. On 20 March 2000, the applicant was hospitalised in the Specialised Medical Establishment No. 3 for prisoners suffering from tuberculosis, located in the Bina settlement of Baku.
37. According to the applicant, he was ill-treated by the hospital's doctors and started receiving medical treatment only on 26 March 2000. The treatment was based on the World Health Organisation's DOTS (Directly Observed Treatment, Short-course) programme. The applicant was treated with isoniazid, ethambutol, rifampicin, streptomycin, pyrazinamide and multivitamins. On 18 May 2000 the applicant was judged to be “clinically recovered”, as the symptoms of tuberculosis were found to be mostly resolved. On 19 May 2000 the applicant was checked out of the hospital and returned to his prison cell. The actual duration of the applicant's in-patient treatment in the hospital comprised 49 days.
38. On 27 January 2001, after his transfer to Gobustan Prison, the applicant complained to the prison doctor about breathlessness, headaches, sweating, coughing and chest pains and was prescribed certain medications such as isoniazid, rifampicin and others. On 15 June 2001 the applicant was diagnosed with “focal tuberculosis of the left lungs in the consolidation phase” and streptococcal impetigo (a skin infection) and prescribed with medication treatment for the impetigo. On 16 July 2001 new medications were prescribed and it appears that the skin infection was subsequently cured.
39. On 11 February 2002 the applicant was diagnosed with chronic bronchopneumonia and chronic enterocolitis.
40. From 23 April to 3 May 2002 the applicant was on a hunger strike protesting against the alleged unfairness of the proceedings in the Court of Appeal. During this time he was visited by a doctor on a daily basis.
41. On 5 May 2002, following his complaints about pain in his back, he was diagnosed with radiculitis and prescribed treatment with mustard plasters. On 10 May 2002 the applicant was diagnosed with “neurocirculatory dystonia of hypertonic type” and prescribed captopril, adelphan, papaverin, dibazol and other medication.
42. On 22 May 2002 he was examined by a phthisiatrician and complained about coughing, secretion of large amounts of phlegm, headaches, fever and general weakness. He was diagnosed with acute chronic bronchitis and prescribed kanamycin, biseptol, vitamin B and other medication.
43. On 14 November 2002, while the appellate proceedings were underway, the applicant's lawyer wrote a letter to the President of the Court of Appeal, claiming that the applicant's health condition had deteriorated and asking that a medical examination of the applicant be arranged. On 28 November 2002 the applicant was examined by three prison doctors who noted in their report that they did not establish any deterioration in the applicant's condition.
44. On 3 December 2002, pursuant to the same request, the applicant was examined by several prison doctors with the participation of specialists from the Medical Department of the Chief Directorate for Execution of Court Judgments (“CDECJ”), which at the material time was the subdivision of the Ministry of Justice. The applicant was diagnosed with “focal tuberculosis in the consolidation phase”, atherocardiosclerosis and internal haemorrhoids. The doctors concluded that neither out-patient nor in-patient treatment were required and advised the applicant to go on a diet and take warm sitz baths (a type of bath in which only the hips and buttocks are soaked in water), without specifying the type of diet and frequency of sitz baths. According to the applicant, prisoners had no access to hot water in their cells in Gobustan Prison and were allowed to take a hot shower once a week.
45. On 20 December 2002 the applicant was examined by a prison doctor who deemed his condition satisfactory and considered that there was no necessity for in-patient treatment.
46. On 4 January 2003 the applicant was medically examined following his complaints about general weakness, chest pain and headaches. He was diagnosed with ischemia, atherocardiosclerosis and stenocardia and prescribed several types of medication, including corvalol and aspirin.
47. On 9 February 2003 the applicant complained about pain in the anal area and was diagnosed with haemorrhoids.
48. On 18 February 2003 the applicant's lawyer made another request for a medical examination. This request was repeated on 27 February 2003. By a letter of 6 March 2003, the Head of the Medical Department of CDECJ, Mr K. Dadashov, responded that the applicant had been examined on 5 March 2003, that his condition was satisfactory, that in-patient treatment was not required and that he was receiving adequate symptomatic outpatient treatment.
49. On 3 April 2003 the applicant was diagnosed with hypertension and bronchopneumonia, and prescribed a number of medications.
50. On 11 June 2003 the applicant was examined by an independent physician of the Azerbaijani Cardiology Centre who diagnosed him with hypertension, chronic bronchitis and osteochondrosis and prescribed several types of medication.
51. On 25 December 2003, having examined the applicant's medical records, the Head of the Medical Department of CDECJ, issued a medical report (the “CDECJ Report”), in which he expressed his medical opinion on the applicant's state of health.
52. Most of the CDECJ Report consisted of a detailed summary of the applicant's medical record in prison during the period from April 1997 to December 2003. The report mentioned the medical examinations carried out and the treatment prescribed on each occasion. The CDECJ Report stated that each disease had been treated with due care and, when necessary, the applicant had been provided with proper medication and other appropriate treatment, including the in-patient treatment for tuberculosis. The report suggested that, as a result of such treatment, the applicant's state of health had improved. In conclusion, it was stated that, by the time of issuance of the report, the applicant's state of health was satisfactory and that he needed neither out-patient nor in-patient treatment.
53. Pursuant to another request of the applicant's lawyer to provide urgent medical attention to the applicant, the applicant was examined by the doctors of CDECJ and the Ministry of Health on 10 June 2004. It was observed that he had atherocardiosclerosis, moderate changes in the myocardium, focal tuberculosis in the hardening phase, and residual signs of a craniocerebral trauma. The doctors decided that the applicant's condition was satisfactory and he needed neither in-patient nor out-patient treatment.
54. Upon the applicant's request, on 5 March 2004 the Chairman of the Medical Commission of the Azerbaijani National Committee of the Helsinki Citizens' Assembly issued an independent medical expert opinion (the “HCA Opinion”) based on the applicant's medical records. The expert noted that, in general, as a result of irregular and inappropriate medical examinations, the applicant had been given chaotic and insufficiently substantiated diagnoses and that the prescribed out-patient and in-patient medical treatment had been totally ineffective.
55. Specifically, the expert held that the belated initial detection of tuberculosis and imprecise diagnosis had led to the aggravation of the disease. Instead of the necessary etiopathogenetic therapy, the applicant had been given inadequate symptomatic treatment during a period of three to four months before he was finally diagnosed with tuberculosis, resulting in the progressive character of the disease.
56. The treatment given during the period from 1997 to 2000 did not correspond to any standards of active tuberculosis treatment, including the standards for the DOTS programme. As a result, until April 1998, the disease actually progressed and affected larger areas of the applicant's lungs. Although in September 1998 it was noted in the medical records that the disease went into remission, this fact was not clinically confirmed. As a result of such inappropriate treatment, in March 2000 the applicant's condition deteriorated and required hospitalisation. The in-patient treatment did not correspond to the standards of the DOTS programme, as it was shorter than required and the medicines were under-dosed. The necessary continuation phase of the DOTS treatment was not carried out after the applicant was checked out of the hospital.
57. The expert further noted that the treatment subsequent to the applicant's hospitalisation was also inadequate. In particular, after the medical examination of 27 January 2001, he was prescribed certain medicines based solely on his complaints and without a diagnosis. The dosage of medicines and term of treatment were arbitrary. Moreover, it was not realistically possible to follow certain types of prescribed treatment, such as a diet and sitz baths, in the prison conditions.
58. The expert also noted that, because of the applicant's strict imprisonment conditions, he was deprived of the opportunity to receive urgent medical aid during the daily closure of his wing of the Gobustan Prison from 7:00 p.m. to 11:00 a.m. of the next day.
59. Finally, the expert concluded that, as of the time of issuance of the HCA Opinion on 5 March 2004, due to intermittent arbitrary antibacteriological treatment, the tuberculosis was not cured and appeared to acquire a chronic character with interchanging periods of remission and re-activation. The applicant had not received a precise and clinically confirmed diagnosis as well as any necessary and appropriate medical treatment corresponding to such diagnosis.
60. According to the applicant, as the authorities in Bayil Prison did not allow him to possess any writing material, he was unable to file any written complaints concerning the lack of appropriate medical treatment until he was transferred to Gobustan Prison on 5 January 2001.
61. On an unspecified date in 2001, the applicant made an attempt to file, through a lawyer, a complaint with a first instance court, claiming compensation from the authorities for the damage caused to his health by the allegedly harsh prison conditions and lack of necessary medical treatment. However, according to the applicant, the court refused to accept the complaint without specifying any reason.
62. In February 2004 the applicant filed, with the Sabail District Court, a lawsuit against the Ministry of Internal Affairs, demanding monetary compensation for deterioration of his health in the prison. On 3 March 2004 the Sabail District Court refused to admit the lawsuit, because the applicant failed to designate the Ministry of Finance as a co-defendant. The court noted that, under domestic law, any claim for monetary compensation from the State must be directed against the Ministry of Finance.
63. In March 2004 the applicant filed the lawsuit again, specifically noting the Ministry of Finance as a co-defendant. On 29 March 2004 the Sabail District Court refused to admit the lawsuit for lack of territorial jurisdiction. According to the court, lawsuits against the Ministry of Finance were subject to the territorial jurisdiction of the Nasimi District Court. The applicant challenged this decision in the Court of Appeal.
64. At the same time, he filed a similar lawsuit with the Nasimi District Court. On 13 April 2004 the Nasimi District Court refused to admit the lawsuit on the ground that the applicant had failed to properly formulate and legally substantiate his claim.
65. On 7 May 2004 the Court of Appeal examined the applicant's appeal from the Sabail District Court's decision of 29 March 2004. The Court of Appeal quashed this decision, holding that the Sabail District Court had territorial jurisdiction to examine the case, because one of the codefendants, the Ministry of Internal Affairs, was located within that court's jurisdiction. Accordingly, the case was remitted to the Sabail District Court for examination on the merits.
66. 20 October 2004, after the applicant's release and emigration (see section E. below), the Sabail District Court fixed the date of examination of the case as 10 November 2004.
67. According to a copy of the Sabail District Court's decision of 10 November 2004 submitted by the Government, the court decided, in accordance with Articles 259.0.7, 263 and 264 of the Code of Criminal Procedure, to “leave without examination” the claim against the Ministries of Finance and Internal Affairs due to failure of both the claimant and the defendants to attend the hearing. The claimant's name was specified as “Huseynov Alakram Alakbar oglu”. It appears that the applicant became aware of the existence of this decision for the first time after the Government submitted its copy to the Court.
68. On 3 September 2004 the President issued a pardon decree releasing the applicant, among 244 other convicted persons, from serving the remainder of his prison sentence. On the same day, the President issued an instructive order granting the applicant's request to terminate his Azerbaijani citizenship.
69. According to the applicant, he made this “request to terminate his Azerbaijani citizenship” under pressure by the authorities in exchange for his pardon and subsequent release. On 3 September 2004 he wrote a letter to the President in which he withdrew his earlier “requests” of such nature which he claimed to have made under pressure.
70. The applicant was released from the prison only on 5 September 2004. He was immediately taken to the airport, where he boarded a flight to the Netherlands.
71. On 9 September 2004 the applicant applied for a residence permit in the Netherlands and was granted such permit on 20 September 2004.
72. The applicant sought medical treatment in the Netherlands. According to the records submitted, during medical examinations in 2004 and 2005, he complained of pains in the chest, shortness of breath, coughing, headaches, dizziness and concentration disturbances. It appears that, as of June 2006, the applicant still continued to be tested for tuberculosis.
73. Article 46 (III) of the Constitution of the Republic of Azerbaijan provides as follows:
“No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...”
74. Article 7 of the law provides as follows:
“Judgments and other final decisions delivered by first-instance courts under the [old] Code of Criminal Procedure ... before the entry into force of this [new] Code, may be reconsidered by an appellate court or the Supreme Court of the Republic of Azerbaijan in accordance with Articles 383-407, 409-427 or 461-467 of the [new] Code of Criminal Procedure.”
75. According to Article 27, criminal proceedings in all courts shall be open to the general public, except where it is necessary to protect state, professional or commercial secrets, as well as personal or family secrets of individuals. Article 392.1.6 provides that, during a preliminary hearing, the appellate court decides whether the merits of the appellate complaint will be examined in a public or closed hearing. The Code specifies a number of situations where the public can be excluded from the hearing, such as in cases involving evidence disclosing personal or family secrets (Article 199.4), or a state secret (Article 200.4), or a professional or commercial secret (Article 201.6).
76. The following are the extracts from the Standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (CPT/Inf/E (2002) 1 - Rev. 2006, pp. 3031), in the part concerning healthcare services in prisons:
“34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime. ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay. ...
35. A prison's health care service should at least be able to provide regular outpatient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ...
As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. ...
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).”
77. The CPT report on the 2002 visit to Azerbaijan provides as follows:
“119. ... the brief visit to the Specialised medical establishment No. 3 for prisoners suffering from tuberculosis was of a targeted nature, and focused on the ward for prisoners with multi-resistant tuberculosis. Set up in 1998, the establishment receives for treatment both remand and sentenced prisoners diagnosed to be BK-positive. The treatment continues up to 9 months along the lines of the WHO-recommended DOTS strategy, in close co-operation with the ICRC. ... At the time of the visit, the establishment had a capacity of 850 places distributed into six wards; two new wards – one for women, with 14 places, and another for men, with 88 places - had been inaugurated days before the delegation's visit. The delegation observed that the new wards were of a very high standard.
120. Prisoners with multi-resistant tuberculosis were accommodated in Ward 5, which was holding 145 inmates at the time of the visit, for an official capacity of 200. Some of them had been there since 1998. The delegation was informed that upon the expiry of their sentences, multi-resistant prisoners would be referred to specialised establishments under the Ministry of Health. ... Conditions in the ward were satisfactory: the dormitories were spacious, clean, well-lit and ventilated. ...
121. At the outset of the visit, the ward's head doctor informed the delegation that multi-resistant patients received only symptomatic treatment (e.g. vitamins). The DOTS+ treatment had not yet been introduced, although the Ministry of Justice, in cooperation with the ICRC, was apparently working on this issue. However, it subsequently emerged that some 30 to 40% of the prisoners in the ward were receiving tuberculostatic medicines utilised in case of multi-resistance, which were being provided by their families. At the same time, the rest of the prisoners – who had lost contact with their families or had no financial resources – did indeed receive only symptomatic medication. Such an inequitable situation has the potential of inciting conflicts between inmates. Further, in the absence of a psychologist employed at the establishment, prisoners could not benefit from the psychological support necessary in their situation.”
78. The following are the extracts from Treatment of Tuberculosis: Guidelines for National Programmes, World Health Organisation, 1997, pp. 27 and 41:
“Treatment regimens [for new cases] have an initial (intensive) phase lasting 2 months and a continuation phase usually lasting 4-6 months. During the initial phase, consisting usually of 4 drugs, there is rapid killing of tubercle bacilli. Infectious patients become non-infectious within about 2 weeks. Symptoms improve. The vast majority of patients with sputum smear-positive TB become smear-negative within 2 months. In the continuation phase fewer drugs are necessary but for a longer time. The sterilizing effect of the drugs eliminates remaining bacilli and prevents subsequent relapse. ...
Directly observed treatment is one element of the DOTS strategy, i.e. the WHO recommended policy package for TB control. Direct observation of treatment means that a supervisor watches the patient swallowing the tablets. This ensures that a TB patient takes the right drugs, in the right doses, at the right intervals.”
79. The relevant extracts from Azerbaijan Health Sector Review Note, World Bank, Volume II: Background Papers (Report No. 31468-AZ, June 30, 2005) provide:
“Communicable diseases, particularly TB, continue to be a health threat in the country. While non-communicable diseases, accidents, injuries and poisonings represent most of the disease burden in Azerbaijan, communicable diseases – which were decreasing in the late 1980s – re-emerged in the mid-1990s, including tuberculosis (TB), sexually transmitted illnesses (STIs), malaria, diphtheria and new diseases such as HIV/AIDS. This trend is consistent with experience of [other former Soviet Union] countries since 1990. According to official statistics, deaths from infectious diseases in 2002 accounted for 3 percent of total deaths, with men three times more affected than women.
... official statistics indicate that there has been a reduction in mortality due to communicable diseases since the late-1990s. The reduction has brought this type of mortality to a level slightly below that of 1990, but still 2.5 times higher than that of Western European countries. This reported reduction may be explained by the diphtheria outbreak that occurred in 1995, when deaths from infectious diseases peaked. However, when one examines major diseases such as TB, gonorrhea, syphilis and malaria, rates of infection have been steady and/or have actually increased. ...
The incidence of TB has almost doubled since 1990 and is now six times higher than the EU-15 average. While not as high as that of Kazakhstan and the Kyrgyz Republic, the incidence of TB continues to grow in Azerbaijan ...
For example, according to the WHO Global TB Control Report, there were an estimated 109 prevalent cases per 100,000 population in 2003, with a case fatality rate of 14 percent ... In addition, multi-drug resistant tuberculosis (MDR-TB) has been identified as a substantial problem in the prison population ...”
80. The following are findings contained in the pilot study of tuberculosis treatment in Azerbaijani prisons – Gaby E. Pfyffer et al., Multidrug-Resistant Tuberculosis in Prison Inmates, Azerbaijan, Emerging Infectious Diseases, Vol. 7, No. 5, September-October 2005:
“According to the International Committee of the Red Cross (ICRC), the total number of inmates in the Azerbaijan prison system is approximately 25,000. With 4,667 TB [i.e. tuberculosis] cases per 100,000, the incidence in Azeri prisons is nearly 50 times higher than the country average, and the mortality rate may reach 24%. ...
Except for two patients [out of 65 examined] in whom the first symptoms of TB had appeared 9 and 20 years previously, the patients had recent onset of TB disease ... Most prisoners were substantially undernourished (as indicated by low body mass indices) and in poor clinical condition, many with unilateral or bilateral pulmonary infiltrates and cavities. Most of the nonresponding patients ... had been treated inadequately before the ICRC intervention. ...
Analyzing the TB patients in the Central Penitentiary Hospital in Baku was complicated by constraints and biases inherent in the prison environment. Clinical information on the prisoners was limited and mainly based on self-reported data. Conclusions based on analysis of 65 of the approximately 300 TB patients in that hospital are largely fragmentary and may not be truly representative. However, enrolling more patients into our pilot study was not considered, mainly because of frequent transfer of prisoners and high mortality rates. When the DOTS program was implemented by the ICRC, many of the TB patients were either untreated or had received inadequate drug regimens for years.”
81. Resolution 1305 (2002)1 of the Parliamentary Assembly of the Council of Europe on honouring of obligations and commitments by Azerbaijan, provides as follows:
“ii. The Assembly is aware that new trials of persons considered by the experts as political prisoners have started. It is concerned with reports of blatant violations of their procedural and other rights. It reiterates that these trials should respect all provisions for a fair trial as defined in the European Convention on Human Rights, including that they be accessible to journalists. It considers that these trials, which started several months ago, should not be dragged out for a long period and must be concluded rapidly.”
82. Political prisoners in Azerbaijan, Report of the Parliamentary Assembly Committee on Legal Affairs and Human Rights, Rapporteur Mr Clerfayt, 6 June 2003, Doc. 9826, provides:
“44. This concerns the cases of Iskander Gamidov (test case no1), Alikram Gumbatov [sic] (test case no2), and Raqim Gaziyev (test case no3) ...
46. In its Resolution 1272 (2002), paragraph 8, the Assembly had asked Azerbaijan “to give renewed consideration to the political expediency of releasing them”. Instead, new trials were begun of these three recognised political prisoners, following a decision to this effect by the Prosecutor General on 26 December 2001; on the day of writing this report, these trials had not been completed. They are being held in the high security prison in Gobustan.
47. Since I was appointed as a member (Chairperson) of the Joint Working Group in charge of the implementation of Resolution 1272 (2002), I have been able to meet these three symbolic prisoners on two occasions (except for I. Gamidov), as well as their lawyers. I already visited them when I was Rapporteur for accession between 1998 and 2000. I have been of the opinion for a long time, as is also the view of the experts, that they are undoubtedly political prisoners. ...
49. The trial of A. Gumbatov is also proceeding chaotically. The last sitting in his trial, scheduled for 19 May 2003, has been postponed on account of the main judge's indisposition, and no new date has been announced. ...
51. We believe that these retrials, which in reality are appeals disguised as new trials, fall short, as far as the procedure is concerned, of the expectations expressed by the Assembly in its last report on political prisoners in Azerbaijan. The judicial investigation should have been started again from the beginning, and the accusations made against the defendants should not be lifted purely and simply from the previous trials, since the former judgments are currently still in force and consequently the three prisoners do not benefit from the presumption of innocence. Moreover, since these trials are being held in prison (in Gobustan, far from Baku), it is not easy for people to attend. Finally, in some cases, witnesses called by the defence were refused by the court.”
83. Report on the International Mission of Judicial Observation, issued by the International Federation of Human Rights Leagues in November 2002, provides as follows:
“The international mission took place from 4 to 9 July 2002 in Baku. It was made up of Laurence Roques and Christine Martineau, attorneys at law with the Creteil and Paris Bars. The goal of the mission was to monitor the trial of three political prisoners, Messrs. Iskander Gamidov, Alikram Gumbatov [sic] and Raquim Gaziyev, who were being re-tried. ...
The mission was able to attend only two hearings, one on July 5 for Gamidov, the other on July 8 for Gumbatov [sic], after asking the President of the Appeal Court for authorization. ...
[H]earings take place in a specially equipped prison cell that includes a few benches for the audience and legal staff, but can only hold about twenty people, the others having to wait outside. The [defendant is] locked up in a cage under strict supervision. ...
The location of the trials is very difficult to access. The Gobustan prison is two hours away from Baku, and there is no public transport to get there. Each time, the judges, lawyers, families of prisoners and audience have to travel two hours to get to the prison and use their own means of transport, which is very costly.
Conditions of access are those of a prison. Only people who have been authorized by the President of the Appeal Court can attend hearings. Two controls are carried out before entering the courtroom. Cell phones are confiscated at the entrance, and handed back at the end of session.
According to the Minister of Justice, [hearing is] public, since any person who wishes to attend can [do so] and even “international organisations” have been allowed in. In practice, the press and families often have to protest outside the courtroom because they are not allowed in.
Journalists are carefully selected. During the first hearing the mission attended, journalist called out to the President to complain that colleagues, in particular journalists from television, had not been let in.”
VIOLATED_ARTICLES: 13
3
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-92663
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KENEDI v. HUNGARY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of Art. 10;Violation of Art. 13+10;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1947 and lives in Budapest.
6. The applicant, a historian, specialises in the functioning of the secret services of dictatorships, comparative studies of the political police forces of totalitarian regimes and the functioning of Soviet-type States. He has published several works in this field.
7. With a view to publishing a study concerning the functioning, in the 1960s, of the Hungarian State Security Service of the Ministry of the Interior, on 21 September 1998 the applicant requested the Ministry to grant him access to certain documents deposited with it.
8. His request was denied on 10 November 1998; the Ministry made reference to a decision of 29 October 1998 classifying the documents as State secrets until 2048.
9. On 10 December 1998 the applicant brought an action against the Ministry, basing his claim on section 21 of Act no. 63 of 1992 on the Protection of Personal Data and the Public Nature of Data of Public Interest. Claiming a right of unrestricted access to the documents, he submitted that the data he sought were necessary for the purposes of his ongoing historical research.
10. On 19 January 1999 the Budapest Regional Court found for the applicant, granting him access to the documents for research purposes. It observed that the documents in question had indeed been classified during the Communist era. However, according to section 28(2) of Act no. 65 of 1995 on State and Service Secrets, they would have had to have been characterised as such again before 30 June 1996. Since this characterisation had not taken place, the documents had lost their classified nature ipso iure by 1 July 1996, irrespective of the decision of 29 October 1998.
11. On 20 April 1999 the Supreme Court rejected the respondent’s appeal as it had been introduced outside the statutory time-limit.
12. On 1 November 1999 the Ministry proposed access to the applicant if he signed a confidentiality undertaking.
13. On 10 October 2000 the applicant requested the enforcement of the judgment, arguing that the respondent’s imposition of a condition of confidentiality was unacceptable. On 21 December 2000 the enforcement procedure was initiated and an enforcement order issued. In its reasoning, the Budapest Regional Court observed that the respondent did not have the right to require confidentiality from the applicant as a precondition to the access granted by the enforceable judgment.
14. On 21 November 2001 the Supreme Court upheld on appeal the decision of 21 December 2000 but deleted from the reasoning the confidentiality observation.
15. Meanwhile, on 12 June 2001 the Ministry brought an action with a view to having the enforcement proceedings terminated. On 25 February 2002 the Pest Central District Court dismissed the action, holding that the respondent’s proposal of 1 November 1999 was unsatisfactory and that, therefore, the initiation of enforcement proceedings had been lawful. On 15 October 2002 the Regional Court dismissed the Ministry’s appeal.
16. On 29 October 2002 the Ministry issued the applicant with a permit for access to documents, but restricted him from publishing the information thus acquired to the extent that “State secrets” were concerned.
17. In the absence of a permit granting unrestricted access to all the documents concerned, the court found that there had not been compliance with the enforcement order, and on 23 June 2003 the Ministry was fined 100,000 Hungarian forints (HUF) (approximately 400 euros (EUR)).
18. On 18 December 2003 all but one of the documents were transferred to the National Archives and thus became public.
19. A further enforcement fine of HUF 300,000 (approximately EUR 1,200) was imposed on 22 October 2004 in respect of the one remaining classified document. The Ministry filed an objection, arguing that the document was no longer at its disposal since it had been transferred to the Archives of the Ministry of Defence on 6 February 2004.
20. On 26 January 2005 the District Court dismissed the respondent’s objection, holding that a change in the physical whereabouts of the document did not exempt the Ministry from its obligation to grant the applicant access.
21. On 10 June 2005 the District Court dismissed the Ministry’s request to have it established that the Archives were its successor in the matter.
22. On 24 January 2006 the Regional Court quashed the decisions of 22 October 2004, 26 January 2005 and 10 June 2005, and remitted the case to the first-instance court.
23. On 21 April 2006 the District Court again dismissed the Ministry’s request to have it established that the Archives were its successor in the matter. However, on 4 July 2006 it observed that the newly founded Ministry of Local Government and Regional Development was indeed the successor. On 20 October 2006 it rejected the new Ministry’s request to have the proceedings interrupted pending the succession arrangements.
24. On 5 June 2007 the Regional Court dismissed the new Ministry’s appeals against the decisions of 21 April, 4 July and 20 October 2006. The Ministry’s petition for a review by the Supreme Court was to no avail.
25. To date, the applicant has not had unrestricted access to the remaining document in question.
26. Section 21 of Act no. 63 of 1992 on the Protection of Personal Data and the Public Nature of Data of Public Interest provides as follows:
“(1) If an applicant’s request for data of public interest is denied, he or she shall have access to a court.
(2) The burden of proof concerning the lawfulness and well-foundedness of the refusal shall rest with the organ handling the data.
(3) The action shall be brought within 30 days from the notification of the refusal against the organ which has denied the information sought.
...
(6) The court shall give priority to these cases.
(7) If the court accepts the applicant’s claim, it shall issue a decision ordering the organ handling the data to communicate the information of public interest which has been sought.”
27. Section 28(2) of Act no. 65 of 1995 on State and Service Secrets (which entered into force on 1 July 1995) provides as follows:
“The review of the classification of classified documents originating from before 1980 shall be terminated within one year from the entry into force of this Act. Once this time-limit has passed, the documents shall cease to be classified.”
VIOLATED_ARTICLES: 10
13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97031
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KUBASZEWSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant was born in 1944 and lives in Kleczew.
7. At the material time the applicant was a member of the Kleczew Municipal Council.
8. On 22 March 2000, in the course of a session of the Kleczew Municipal Council, the applicant gave a speech in his capacity as a member of the Council. The purpose of the debate was to take a vote on whether the Municipal Board (Zarząd Gminy) had made appropriate use of the 1999 municipal budget. In this context the applicant made the following statements:
“What the members of the Municipal Council received is all lumped together; it is unclear what costs how much ...
According to the Municipal Council’s resolution of 22 June 1999, spending on investments was to be increased. The money was to be spent on modernising and renovating the purification plant and building access to it.”
9. The applicant had doubts as to whether that investment had in fact been made. He also referred to another investment project, the sanitary sewage system, saying:
“It is unclear how many metres have been built. It is important, because this is public money. Everyone knows how to spend his own money, but where public money is concerned, it is being spent as much as possible.”
10. The applicant further compared the Kleczew municipality with the neighbouring Wilczyn municipality, which had had a small budget but had managed to construct an interceptor sewer at much less expense, which was an example of rational public spending (gospodarność), and said:
“And this is shocking; with contractors earning 660,880 zlotys, is this not money laundering in our municipality?”
11. The applicant asked the members of the Board many other questions relating to the 1999 budget.
12. During a break in the session the applicant gave an interview to a journalist from the local newspaper, the Local Express (Ekspres Powiatowy).
13. On 24 March 2000 the “Local Express” published an article entitled “Where is the million?” with the subtitle “Kleczew municipal councillor accuses Municipal Board of money laundering”. The article read that “according to the councillor’s statement made at the session of the Municipal Council, one million zlotys from the municipal budget allocated for the autonomous activity of the municipality has disappeared”. The article went on to cite the following statement made by the applicant:
“... I made these calculations because there was something not right here, a million is missing and I am sure of that. Maybe the Municipal Board is money laundering? I will inform the institutions which deal with controlling the municipalities of the matter”
14. On 10 May 2000 seven members of the Kleczew Municipal Board lodged a claim with the Konin Regional Court (Sąd Okręgowy) for the protection of their personal rights. Among other things, they sought an order requiring the applicant to publish an official apology in the local newspaper.
15. On 17 April 2002 the Poznań Regional Court gave judgment finding that the statements made by the applicant at the Council meeting on 22 March 2000 and given to the press had been untrue and had infringed the plaintiffs’ personal rights (by tarnishing their good name and reputation). The court further found that the plaintiffs were public officials and their good name, reputation and reliability were of great importance. It ordered the applicant to publish an official apology in the Local Express and to make a statement of apology at the next Municipal Council session for his statements made at the 22 March 2000 session and subsequently reproduced in the Local Express of 24 March 2000.
16. On an unspecified date the applicant appealed against that judgment.
17. On 28 November 2002 the Poznań Court of Appeal (Sąd Apelacyjny) partly amended the first-instance judgment. It found that most of the applicant’s statements made at the session on 22 March 2000 had fallen within the limits of permissible criticism and that the applicant, as a representative of the local community acting in their interest, had had the right to ask critical questions relating to the way public money was spent by the Municipal Board. The court found, however, that the applicant’s allusion to money laundering made during the session of the Municipal Council had gone beyond the limits of permissible criticism and that by that statement, referring to a type of crime traditionally associated with organised criminal groups, the applicant had infringed the plaintiffs’ personal rights. The court ordered the applicant to publish an official apology for his allusion to money laundering in the Local Express and to make the same apology at the next session of the Municipal Council.
18. On an unspecified date the applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy).
19. On 1 August 2003 the Supreme Court refused to entertain that appeal.
20. The applicant appealed against that decision but, on 17 October 2003, the Supreme Court dismissed his appeal as inadmissible in law.
21. On 27 July 2007 the Konin District Prosecutor instituted criminal proceedings against the applicant for making false accusations about another person before a prosecuting body. Notification of the possible commitment of a crime was lodged by the Mayor of Kleczew.
22. The criminal proceedings against the applicant are pending.
23. Article 23 of the Civil Code contains a non-exhaustive list of rights known as “personal rights” (dobra osobiste). This provision states:
“The personal rights of an individual, such as health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected under civil law regardless of the protection laid down in other legal provisions.”
24. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person faced with the threat of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him or her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.
25. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:
“The court may grant a suitable sum as pecuniary compensation for non-pecuniary damage (krzywda) suffered by anyone whose personal rights have been infringed. Alternatively, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement, the person concerned may ask the court to award a suitable sum for the benefit of a specific social interest. ...”
VIOLATED_ARTICLES: 10