ITEMID: 001-57514
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1989
DOCNAME: CASE OF LAMY v. BELGIUM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-4;No violation of Art. 5-2 and 5-3;Not necessary to examine Art. 6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;J.A. Carrillo Salcedo
TEXT: 8. Mr José Lamy is a Belgian citizen who was born in 1932; he lives at Verviers and is a company director.
On 29 November 1982, a private limited company ("société de personnes à responsabilité limitée - "SPRL Lamy") of which he was the manager and which built industrial premises filed a declaration of insolvency with the registry of the Verviers Commercial Court, and the court adjudged the company bankrupt on the same day.
9. On 18 February 1983, an investigating judge of the Verviers tribunal de première instance (regional court of first instance) questioned Mr Lamy and issued a warrant for his arrest.
The warrant set out several grounds: the seriousness of the offences and of the adverse effects on public order and safety; the scale of the bankrupt company’s liabilities (more than 500 million BF); the needs of the investigation; the accused’s deliberate and unmistakable attempts to deprive the creditors of their security; his expenditure; and the risk of his absconding abroad.
On the back of the warrant the charges listed against the applicant were:
"I. That, being the majority partner in SPRL Lamy at Ensival-Verviers, which was adjudged bankrupt by the Verviers Commercial Court on 29.11.1982, and himself a trader adjudged personally bankrupt by the same court on 30.12.1982, he did at Verviers, Pepinster or elsewhere in the district or Kingdom, within the limitation period, commit:
(a) ... fraudulent bankruptcy by, among other things:
1. misappropriating or concealing assets worth over 10,000,000 F; and
2. withholding his books or other accounting documents or fraudulently removing, deleting or altering their content;
(b) ... ordinary bankruptcy by, among other things:
1. incurring excessive personal and household expenditure;
2. not giving notice of cessation of payments within the time-limit prescribed in Article 440 of the Commercial Code;
3. failing, in the late notice, to give the explanations and accurate information required by Article 441 of the Commercial Code;
4. paying or favouring some creditors to the detriment of the creditors as a whole, after cessation of payments.
II. That as principal, joint principal or accessory, at Verviers or elsewhere in the Kingdom between 1.1.1980 and this day, he did on several occasions fraudulently or maliciously:
(a) forge notarised and public documents, private documents and bank or commercial documents by means of false signatures, or by forging or altering documents or signatures, or by fabricating or inserting terms, provisions, obligations or discharges in documents, or by adding or altering clauses, statements or facts which it was the purpose of the documents to set out and record, in that he inter alia:
(i) submitted a false balance sheet on 29.11.1982;
(ii) kept a separate set of false accounts of his business with Algeria and Libya among others;
(b) use these documents knowing them to be false;
(c) fraudulently misappropriate or, to the the detriment of another, part with bills of exchange, money, merchandise, promissory notes, receipts or documents which he had been given on condition he returned them or used them for specific purposes, in particular:
(i) 789,000 F due in VAT and,
(ii) over 10,000,000 F to the detriment of SPRL Lamy (sale of civil-engineering equipment);
(d) obtain, in order to appropriate property of another, funds, movables, obligations, receipts or discharges, by using assumed names or false status or making other false pretences to induce belief in the existence of fictitious businesses, powers or credit, engender hope or apprehension of success, or otherwise deceive in order more particularly to:
(i) obtain 1,801,429 F from the VAT authority to the detriment of SPRL Lamy.
III. That at Verviers or elsewhere in the Kingdom between 14 January 1974 and this day, being a trader, he did carry on a professional activity for which he was not registered in the Business Register."
After receiving a copy of the warrant, Mr Lamy was taken into custody at the remand prison at Verviers.
10. On 22 February 1983, the applicant, assisted by his lawyer, appeared before the chambre du conseil of the Verviers tribunal de première instance. His counsel filed pleadings in which he disputed in particular that there were "serious and exceptional circumstances" within the meaning of section 2 of the Act of 10 April 1874 (see paragraph 23 below). He also handed over a file concerning, inter alia, the proceedings relating to the applicant’s personal bankruptcy (see paragraph 17 below).
11. After hearing the investigating judge, Assistant Crown Counsel and the defence, the chambre du conseil upheld the arrest warrant. It accepted the reasons given in the warrant and held that the interests of public safety required that the applicant should continue to be held in custody.
12. On 23 February 1983, Mr Lamy challenged the chambre du conseil’s order in the Indictments Chamber of the Liège Court of Appeal. He argued that no reasons were given for the order, the circumstances noted by the chambre du conseil were not such as to justify his detention, and the warrant of 18 February was unlawful as it did not bear any signature and was wrongly dated (18 March 1983).
The prosecution filed pleadings on 28 February 1983.
13. On 10 March 1983, the Indictments Chamber set aside the order on grounds of failure to reply to the applicant’s submissions. At the same time, however, it decided that the arrest warrant should remain in force.
As regards whether there was sufficient evidence of guilt and of serious and exceptional circumstances relating to public safety, the Indictments Chamber founded its judgment on the following reasons:
"It is to be noted that even in his own account of the state of the firm’s affairs, given in the form of submissions, the accused conceded that the balance sheet of 29 November 1982 was inaccurate, although he denied any fraudulent intent and stated that after verification of sums owed to the firm its liabilities came to 220 million francs, against which he set primarily the expected outcome of a hypothetical action against a third party, whose value he said could ‘reasonably’ be put at 300 million francs;
Account must be taken of his admissions concerning the irregular transactions referred to in report 317 of the Verviers police and in the record of his examination by the investigating judge on 18 February 1983, corroborated by the admissions of the co-accused Jungbluth, in police report 292, although the accused now denies their extent;
The foregoing provides sufficient evidence of guilt to justify the impugned arrest warrant, given the extremely large sums involved, the needs of the investigation, which the accused disputed to no avail, and the risk of his attempting to evade justice despite his protestations of good faith and the good intentions he professes - all considerations which are set out in the warrant appealed against, which are serious and exceptional, and which required his arrest in the interests of public safety."
As to the alleged unlawfulness of the warrant, the Indictments Chamber noted, in the first place, that the copy given to the applicant mentioned that the original identified the investigating judge and was signed by him. The court added: "It [could] not be seriously questioned ... that the copy given to the [applicant] bore the date 18 March 1983 instead of 18 February 1983 purely as a result of a clerical error of no consequence". The court concluded that these circumstances in no way made the arrest arbitrary and could not have prejudiced the rights of the defence.
14. Mr Lamy appealed on points of law to the Court of Cassation on 11 March 1983, putting forward three grounds. Firstly, he maintained that mandatory formal requirements had not been complied with, as the arrest warrant was unsigned and the attached order committing him to prison bore the date 18 March 1983. Additionally, he considered the reasoning of the Indictments Chamber’s judgment to be unclear and contradictory. Lastly, he stated that the Indictments Chamber had relied on reports 292 and 317 of the Verviers police - documents that had not been communicated to the accused; in this connection he relied on Article 6 paras. 1 and 3 (art. 6-1, art. 6-3) of the Convention.
15. The Court of Cassation dismissed the appeal on 4 May 1983.
As regards the first ground of appeal, it noted that the formalities provided for in the Code of Criminal Procedure for serving an arrest warrant were not mandatory and that failure to comply with them did not entail nullity. It reiterated the Indictments Chamber’s remarks as to the lack of a signature and the error in the date and concluded that there had been no infringement of the rights of the defence or of the principle of personal liberty.
With respect to the second ground of appeal, the Court of Cassation held that the reasons given for the judgment appealed against were neither unclear nor contradictory, as the judgment was based not only on the applicant’s admissions concerning the irregular transactions referred to in reports 292 and 317 but also on the extremely large sums involved, the needs of the investigation and the risk that the accused might try to evade justice. The Indictments Chamber inferred from this that there were serious and exceptional circumstances affecting public safety.
As to the third ground, the Court of Cassation held that Article 6 (art. 6) of the Convention was concerned with the exercise of the rights of the defence in trial courts and not with procedure followed in the matter of detention on remand. Furthermore, the 1874 Act precluded communication of the file to the accused or his counsel at this stage in the proceedings; this was apparent from section 4, taken together with the final paragraph of section 5. The Indictments Chamber had accordingly not been able to "conclude from the non-communication of the file that there had been any infringement of the rights of the defence".
16. The chambre du conseil made reasoned orders extending Mr Lamy’s detention on remand month by month (section 5, second paragraph, of the 1874 Act - see paragraph 23 below). The applicant regained his freedom on 18 August 1983 as the vacation court, exercising the jurisdiction of the Indictments Chamber, took the view that the needs of the investigation no longer precluded his release.
17. On 24 December 1982, on an application by the trustees in bankruptcy for SPRL Lamy, the Verviers Commercial Court adjudged the applicant personally bankrupt.
An application by Mr Lamy to have that judgment set aside was dismissed by the Commercial Court on 24 March 1983, but on appeal the Liège Court of Appeal, in a judgment delivered on 24 April 1985, quashed the judgment of 24 March 1983 and declared the judgment of 24 December 1982 to be null and void.
18. On 28 March 1986, the chambre du conseil of the Verviers tribunal de première instance committed Mr Lamy and five co-defendants for trial at the Criminal Court.
19. An application by Mr Lamy to have that order set aside was declared inadmissible by the Indictments Chamber in a judgment given on 10 December 1986.
20. Mr Lamy’s appeal on points of law against that judgment was dismissed by the Court of Cassation on 4 February 1987.
21. Throughout the proceedings relating to the committal for trial, the applicant pleaded various grounds of nullity. He argued in particular that his counsel had not been able to inspect the file when the arrest warrant was first confirmed by the chambre du conseil and had subsequently had only forty-eight hours’ notice of each appearance, which was not sufficient for preparing the defence.
22. On 12 November 1987, the Verviers Criminal Court convicted the defendant and sentenced him to three years’ imprisonment, suspended for five years in respect of that part of the sentence which exceeded the time already spent in custody on remand, and imposed two fines of 60,000 BF.
Unlike his co-defendants, Mr Lamy did not appeal.
23. Detention on remand is governed by an Act of 20 April 1874, as amended or supplemented by, inter alia, Acts of 23 August 1919 and 13 March 1973. The main provisions relevant in the instant case are set out below:
"After the examination, the investigating judge may issue an arrest warrant where the offence is punishable by three months’ imprisonment or a heavier penalty.
If the accused is resident in Belgium, the investigating judge may issue such a warrant only in serious and exceptional circumstances, where necessary in the interests of public safety.
..."
"In the eventuality provided for in paragraph 2 of section 1, the warrant shall state the serious and exceptional circumstances affecting public safety which justify arrest and shall specify the special features of the case or of the accused’s personality."
"Immediately after the first interview with the investigating judge, the accused shall be allowed to communicate freely with his counsel.
..."
"The arrest warrant shall expire unless, within the five days following the examination, the chambre du conseil renews it on the basis of the investigating judge’s report and after hearing submissions by Crown Counsel and the accused.
If the accused, who shall be asked specifically about his wishes in the matter, desires the assistance of a lawyer, that fact shall be mentioned in the record of his examination by the investigating judge.
In that event, the presiding judge of the chambre du conseil dealing with the case shall cause the place, date and time of the hearing to be entered in a special register at the registry at least forty-eight hours beforehand.
The registrar shall notify these details by registered letter to the lawyer nominated."
"If, within one month after the examination by the investigating judge, the chambre du conseil has not given a ruling on the remand, the accused shall be released unless, in a unanimous reasoned decision, after hearing submissions by Crown Counsel and the accused or his lawyer, the chambre du conseil rules that serious and exceptional circumstances affecting public safety necessitate the accused’s further remand. Such a decision shall state the relevant circumstances and the special features of the case or of the accused’s personality.
The same shall apply each month thereafter if the chambre du conseil has not ruled on the remand by the end of the month.
Prior to a hearing by the chambre du conseil or the Indictments Chamber, the file shall be made available to the accused’s lawyer at the registry for two days. The registrar shall notify the lawyer accordingly by registered letter."
"The accused and the prosecution may appeal to the Indictments Chamber against decisions of the chambre du conseil in the cases provided for in sections 4, 5...."
"Such an appeal shall be entered within the twenty-four hours following the day of the decision in the case of the prosecution and following the day on which the decision was served on him in the case of the accused.
Service shall be effected within twenty-four hours. The relevant document shall advise the accused of his right of appeal and of the time-limit for exercising that right.
Notice of appeal shall be lodged with the registry of the Criminal Court and recorded in the register of criminal appeals.
Crown Counsel shall forward the documents to Principal Crown Counsel.
Notifications to the accused’s lawyer shall be made by the Registrar.
The Indictments Chamber shall give a ruling straightaway after hearing submissions by the prosecution and the accused or his lawyer.
..."
24. It should be noted that section 4 does not contain any provision corresponding to the last paragraph of section 5, which was inserted by the Act of 23 August 1919.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-2


ITEMID: 001-110145
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KAZANTSEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1966 and lives in the town of Pokachi, Tyumen Region.
6. On 1 July 1999 the applicant was arrested and charged with sexual assault of a minor. Immediately upon his arrest, at 3.15 a.m., the applicant was subjected to a body search at the police station. The report stated, inter alia, that no injuries were found on the applicant.
7. On the same day at 5 a.m. the applicant underwent a physical examination in the presence of attesting witnesses A.T. and P. No injuries were noted in the examination report. The applicant alleges that during the examination the officer of the detention facility of the Interior of Pokachi (ИВС Покаческого ГОВД), T., beat him up with a police truncheon and that investigator B. abused him verbally.
8. On the same day at 9 a.m. the applicant was assigned legal counsel.
9. On the same day at 1 p.m. a forensic examination of the applicant was carried out in connection with the criminal charges against him. He was examined by a forensic expert who found two bruises on the right side of the applicant’s back. The report stated that the bruises were inflicted with a “blunt, hard, long object with a round or oval cross-section, such as a police truncheon or a baton”, and that they dated back to less than twenty-four hours before the forensic examination.
10. According to the applicant, on 2 June 1999 he complained about his ill-treatment to K., the investigator of the Pokachi prosecutor’s office, who was investigating his case. She allegedly promised to register his complaint and to bring the matter to the prosecutor’s attention. The applicant claimed that he had complained to the prosecutor’s office again a number of times, but received no reply.
11. On 24 September 1999 the applicant was given access to the results of the forensic examination.
12. On 27 December 1999 the applicant sent a written complaint to the prosecutor’s office of Pokachi complaining about the ill-treatment he allegedly received on the day of his arrest.
13. Having received no reply, on 20 January 2000 the applicant wrote to the Pokachi prosecutor’s office asking for news on his complaint of illtreatment.
14. On 28 February 2000 and on 31 May 2000 the applicant complained to the Prosecutor’s Office of the Khanty-Mansiyskiy Autonomous Circuit about the lack of response to his complaint of ill-treatment. On 1 June 2000 they replied that his letter had been forwarded to the Pokachi prosecutor’s office for a decision.
15. On 3 July 2000 investigator K. decided not to investigate the applicant’s allegations in criminal proceedings. The parties have not provided any information about this part of the inquiry. The Government stated, in particular, that the relevant files had been destroyed after having reached the time-limit of their storage in archives.
16. The applicant complained about the decision of 3 July 2000 to the superior prosecutor’s office and also challenged it before a court.
17. On 6 September 2000 the Prosecutor’s Office of the KhantyMansiyskiy Autonomous Circuit replied to the applicant that the inquiry into his allegations had been sufficient. It was considered, in particular, that no breach of domestic law arose from the fact that investigator K. had been in charge of the inquiry, because she had not been personally implicated in the alleged illtreatment.
18. On 12 January 2001 the Langepasskiy Town Court of the KhantyMansiyskiy Autonomous Circuit convicted the applicant as charged. Having noted that the applicant had committed the offence while on parole following a previous criminal conviction, the court lifted the parole and sentenced him to an aggregate prison term of fourteen years.
19. On the same date the court examined the applicant’s complaint about a lack of an effective investigation into his allegations of ill-treatment. It quashed the decision of the prosecutor’s office dispensing with criminal proceedings on the grounds that investigator K., who had taken the decision, was also an investigator in the applicant’s criminal case and could therefore be regarded as an interested party; she was therefore precluded from conducting the inquiry into the applicant’s allegations of ill-treatment.
20. The prosecutor’s office resumed the inquiry and assigned the file to Ms I., an investigator of the Pokachi Prosecutor’s Office. On 15 October 2001 Ms I. questioned A.T., who had acted as an attesting witness during the applicant’s physical examination. He explained that on that night he had been remanded in custody, and that he had been in the state of alcoholic intoxication when he was requested by the facility officers to act as an attesting witness during the applicant’s physical examination. He said that the applicant had been “anxious”, but he had not been beaten with a truncheon or otherwise ill-treated. He did not remember much about the events at issue because of the time that had elapsed since; however, he remembered that the applicant had made no complaints of having been beaten. On the same day Ms I. questioned the implicated policemen, T. and B., and they denied the allegations of having used force in general and a truncheon in particular. They admitted that there had been a police truncheon in the room, hanging on the wall, but stated that it had not been used. Ms K., the investigator of the applicant’s criminal case who had formerly conducted the inquiry, was also questioned. She stated that she had not seen any injuries and had not received any complaints from the applicant.
21. On 16 October 2001 the prosecutor’s office decided not to open a criminal investigation into the applicant’s allegations of ill-treatment. The decision referred to the statements of A.T., T., B. and K. and concluded that there was no evidence in support of the applicant’s claims.
22. On 17 October 2001 the prosecutor’s office sent the applicant a letter, attaching a copy of the above-mentioned decision. The applicant claimed that he did not receive this notification and did not know about the decision until February 2002. He therefore sent several complaints to the prosecutor’s office about their failure to comply with the court order and investigate his ill-treatment. He also requested access to the inquiry file.
23. On 25 April 2002 investigator I. replied to the applicant that she had conducted an inquiry into his allegations of ill-treatment within the statutory time-limit of ten days. She indicated that the inquiry file was with the prosecutor’s office of the Khanty-Mansiyskiy Autonomous Circuit.
24. On 22 May 2002 the applicant lodged a complaint with the Court of the Khanty-Mansiyskiy Autonomous Circuit about the failure to investigate his ill-treatment in criminal proceedings. He requested that the court find the refusal to open criminal proceedings unlawful, grant him access to the inquiry file and award him compensation for non-pecuniary damage on account of the authorities’ alleged failure to provide him redress for a violation of his Convention rights. The court returned the applicant’s complaint, stating that it fell under the jurisdiction of the Pokachi Town Court, and instructed the applicant to apply to that court under the procedure provided for by the Code of Criminal Procedure.
25. On 12 August 2002 the applicant submitted his complaint to the Pokachi Town Court and requested it to consider his complaint under the rules of civil procedure.
26. On 19 August 2002 the Court of the Khanty-Mansiyskiy Autonomous Circuit sent the applicant another reply to his complaint, advising him that his action against the decision of the prosecutor’s office had to be lodged under the rules of criminal procedure.
27. On 27 August 2002 the Pokachi Town Court returned the applicant’s complaint and indicated that he had to specify his claims and to distinguish the grounds for his request under civil procedure from those under criminal procedure. On 2 October 2002 it again refused, by letter, to accept the complaint for examination, stating that it could not be considered in civil proceedings. The applicant had to challenge the decision of the prosecutor’s office in criminal proceedings first and then, on the basis of that decision, claim damages under the civil procedure. On 26 December 2002 the same court took a formal decision refusing to accept the applicant’s complaint, citing the aforementioned grounds.
28. The applicant reformulated his complaint under the rules of criminal procedure, and on 20 January 2003 it was accepted for examination.
29. On 2 July 2004 the Pokachi Town Court examined the applicant’s complaint and decided that the decision of 16 October 2001 was lawful and well-founded. It found that the initial decision dispensing with a criminal investigation had been quashed because the investigator had been an interested party, and that in the new inquiry no shortfalls could be found. It noted that the investigator had questioned the police officers implicated, T. and B., as well as the attesting witness, all of whom had denied that the applicant had been subjected to violence or verbal assault. The court found that the prosecutor’s office had sent the applicant a copy of the decision of 16 October 2001 and rejected the applicant’s claims that he should have been informed about the course of the inquiry as lacking any basis in law.
30. The applicant appealed, claiming, inter alia, that he had not been duly informed of the decision dispensing with a criminal investigation, that he had not been given access to the inquiry file, that neither the investigator nor the court had commented on the injuries recorded in the forensic report and that the date of his first complaint to the prosecutor’s office was 27 December 1999 and not 14 February 2000, as stated in the judgment.
31. On 1 September 2004 the Court of the Khanty-Mansiyskiy Autonomous Circuit upheld the judgment of 2 July 2004. It found, in particular, that the existence of injuries, in the absence of other evidence supporting the applicant’s allegations, was not sufficient to find T. guilty of having inflicted them. The court also stated that the failure to notify the applicant of the decision did not render it unlawful, and that during the firstinstance hearing the applicant had not requested access to the inquiry file.
VIOLATED_ARTICLES: 3


ITEMID: 001-77008
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: QUARK FISHING LTD. v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, a Falkland Islands registered company (25.1% owned by island residents and 74.9% owned by Spanish interests), was represented by Mr S.J. Swabey, a solicitor practising in London.
South Georgia and the South Sandwich Islands (“SGSSI”) were acquired by the Crown by settlement. There were no indigenous peoples. From 1908 until 1985 it was a British Dependent Territory and a Dependency of the Falkland Islands. After 18 April 1985, SGSSI ceased to be a dependency of the Falkland Islands and became a British Overseas Territory as defined in the British Overseas Territory Act 2002. The United Kingdom is responsible for its international relations. The government of the SGSSI comprises officials from the United Kingdom who are posted to and operate from the Falkland Islands. There is no democratic mechanism. No one lives on the SGSSI apart from a transient group of scientists working for the British Antarctic Survey.
The applicant owns a fishing vessel – MV Jacqueline – which operated under a Falkland Islands flag and was specially equipped with long lines to fish the Patagonian toothfish, found in the waters of the SGSSI. Fishing in SGSSI waters is regulated pursuant to the Convention on the Conservation of Antarctic Marine Living Resources (“CCAMLR”) to which the United Kingdom is a party. Annual total allowable catches are set by the CCAMLR Commission to particular designated blocks of ocean. The coastal State countries enforce those limits. In the case of the SGSSI, the relevant coastal State is the United Kingdom. From 1997 it operated a licensing system which limited the amount of fish caught by each licensed vessel.
The Jacqueline was granted a licence for every year from 1997 until 2001. In that year the applicant sought a licence as usual but was refused by the SGSSI authorities. It was unaware of the reasons.
The applicant applied for judicial review of the refusal before the Supreme Court of the Falkland Islands. Evidence was submitted indicating that the Foreign and Commonwealth Office (FCO) had intervened in order to reduce the number of United Kingdom flagged vessels receiving licences in favour of vessels from other coastal States to avoid adverse diplomatic repercussions in a sensitive area and had indicated that licences should be given to United Kingdom vessels with the best conservation-compliance record, which in their view excluded the applicant. But for this intervention, the SGSSI Director of Fisheries would have given a licence to the applicant. By an order of 1 June 2001, the Chief Justice declared that the SGSSI decision, taken on advice from the FCO and not pursuant to an instruction within the meaning of the SGSSI Order 1985 (SI 1985/449, which forms the constitution of the territory), was not properly based on relevant matters to be taken into account and accordingly was unlawful. He ordered that the application be remitted for fresh consideration.
On 7 June 2001 the Secretary of State for the Foreign and Commonwealth Office in London formally instructed the SGSSI Commissioner to instruct the SGSSI Director of Fisheries to allocate licences to any United Kingdom flagged vessel, other than to two vessels named in the instruction (which did not include the applicant’s).
The applicant challenged the lawfulness of the instruction in the High Court in London.
On 5 December 2001 the High Court judge found, noting the flawed basis on which the FCO had taken the view that the applicant had not complied with conservation measures, that the criteria on which the licences were granted had not been made clear or transparent and there had been manifest unfairness in the way in which the FCO had issued its instructions to exclude the applicant. The instruction was accordingly unlawful and quashed.
On 30 October 2002 the Court of Appeal upheld the lower court’s decision, making adverse comment on the way the authorities had acted. The applicant had sought damages for the losses from the 2001 season and this claim, stayed during the earlier proceedings, was revived, relying on Article 1 of Protocol No. 1.
On 22 July 2003 Mr Justice Collins struck out the claim for damages, accepting the argument of the Secretary of State that Protocol No. 1 had not been extended to the SGSSI.
On 29 April 2004 the Court of Appeal rejected the applicant’s appeal finding that the applicant was unable to bring a claim for damages based on Article 1 of Protocol No. 1 because the latter provision had not been extended to the SGSSI by the United Kingdom. It held that the issue of control over territory – which had founded the extraterritorial reach of the European Convention of Human Rights in other circumstances – was not relevant to a case such as that before it, where a declaration had to be made for the provision in question to apply.
On 13 October 2005 the House of Lords dismissed the applicant’s appeal, also finding that Article 1 of Protocol No. 1 did not apply to the SGSSI.


ITEMID: 001-81672
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: PAD AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: 1. The applicants, Mansur Pad, Salim Ibrahim Manesh, Morad Afrasi, Ali Afrasi, Adel Keshavarz, Said Pourmola Borazan and Veysi Eli Mikail, are all Iranian citizens, apart from Veysi Eli Mikail, who is an Iraqi citizen. They all reside in Iran except for Mansur Pad, who lives in Sweden. They were represented before the Court by Mr Mark Muller, Mr Kerim Yıldız and Ms Anke Stock, lawyers practising in London.
2. The application concerns the alleged torture and killing of seven Iranian men from the village of Razgeh in the Margewar province of northwest Iran by Turkish soldiers on 7 May 1999. The victims of the alleged incident on 7 May 1999 were Vahab Pad, Kamfar Pad, Ghazi Afrazi, Changiz Afrazi, Jaader Ibrahim Manesh, Abdulhallkhleq Keshavarz and Vali Ali Hossain.
3. The applicants are, variously, brothers or fathers of the deceased, save for Said Pourmola Borazan, who claims to be a witness to the events and a friend of the victims.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On Friday 7 May 1999, a holiday in Iran, the seven men referred to above and the applicant Said Pourmola Borazan, all from the village of Razgeh, went on horseback into the mountains near their village (towards the Nari valley) to collect wild vegetables and fruit, such as mushrooms and rhubarb.
6. When they reached the top of Mount Baragawr, which was about 500 metres from the Turkish border, they heard the sound of helicopters. Two fighter helicopters circled overhead a few times and opened fire on the men. Said Pourmola Borazan's horse was killed by a rocket fired from the helicopters. The helicopters landed and the villagers were surrounded by at least forty Turkish soldiers. Seven of the villagers hid together under a rock, except Said Pourmola Borazan, who hid 500 metres away from the others and covered himself with vegetation and snow.
7. The Turkish soldiers captured the seven men on the Iranian side of the border but did not find Said Pourmola Borazan. The alleged facts are accordingly based on the latter's eyewitness evidence.
8. The seven men were handcuffed and taken by force across the border, about 300 metres into Turkish territory, in the region of the village of Halana. They were beaten and cut with knives. The soldiers then made them lie down on the ground and shot them dead with machine guns. According to Said Pourmola Borazan, the Turkish soldiers had forced the men to put on Kurdish costumes and placed guns beside them so that they could claim to have killed some terrorists.
9. Said Pourmola Borazan stayed in his hiding place from about 12 noon or 1 p.m. until approximately 9 p.m., by which time it had turned dark. He emerged from the hiding place and looked around to see if anybody was alive. He then ran back to the village of Razgeh. He informed the relatives of the seven men about the incident. The relatives of the victims and Said Pourmola Borazan went into the mountains to recover the corpses. The Iranian authorities, who were informed of the deaths, granted permission for burial. The funerals took place on 9 May 1999.
10. The applicant Sayyed Majid Pad stated that he had become anxious when the men had not returned by the evening of 7 May 1999. Later, they heard that the Turkish soldiers had captured some Iranians. It took people from the village three days to find the bodies and to bring them back to the village. He claimed that his son Kamfar Pad had forty-five bullet wounds and that his elder son Vahab Pad had received one hundred and ten. Further, Vahab's fingers had been cut. He also alleged that Vali Ali Hossein's hands and legs had been broken in several places and his legs cut to pieces.
11. Two or three days after the burial of the bodies, Iranian government officials came to the village. The applicant Said Pourmola Borazan accompanied the officials to the place where the incident had taken place. He reported the incident to the officials.
12. Sayyed Majid Pad stated that the Iranian Deputy Minister of the Interior visited the village after the incident. The Iranian Government then contacted the Turkish Government for an explanation about the events. The Turkish Government admitted their responsibility in relation to the incident and expressed their apologies for it.
13. Meanwhile, Özgür Politika, a pro-Kurdish newspaper published in Germany, and Orumiyeh Message, an Iranian regional newspaper, reported the incident in their editions of 10-13 May and 16 May 1999 respectively. According to Orumiyeh Message, the Ministry of Foreign Affairs of Iran summoned the Turkish Ambassador to make an official protest about the incident and the violation of border agreements between the two countries. The Ambassador was reportedly asked to inform the Turkish Government of the protest and to inform the Ministry of Foreign Affairs of the outcome.
14. The families of the seven men filed complaints with the Iranian authorities. However, they were not informed of any action taken by the latter. A request by the families to obtain a copy of autopsy reports was refused by the Iranian authorities. The families took the matter up with their parliamentary representatives.
15. On 19 May 1999 Mr Ghani Zaneh, an MP for the Orumiyeh province, and Mr Bahaddin Adab, an MP for the Sanandaj province, wrote to the President of Iran, Mr Khatami, requesting that the incident be investigated and followed up through appropriate international channels. They further requested the Ministry of Foreign Affairs and the Ministry of the Interior to investigate the incident and to send a delegation to the region.
16. The applicant Said Pourmola Borazan claimed that since the incident, he had been seriously affected and had attempted to commit suicide on several occasions. As the applicants and the families of the deceased were not informed of any action taken by the Iranian authorities, the first applicant, Mansur Pad, contacted the Iranian Embassy in Sweden with a view to obtaining information about the outcome of the investigation by the Iranian authorities. However, no response was received.
17. The applicants' legal representative also wrote to the Iranian Embassy in London on 25 January 2000. No response was received to that letter either.
18. As no response was forthcoming from the Iranian authorities, on 9 June 2000 the applicants' legal representative wrote to various Turkish authorities requesting an investigation into the incident and the institution of criminal proceedings against the perpetrators of the crime. In particular, he brought the alleged events to the attention of the following authorities:
19. The applicants received no response to their petitions and alleged that the Turkish authorities had failed to carry out an effective and adequate investigation into their complaints.
20. Subsequent to the impugned events, the Turkish Government made several attempts to offer compensation to the applicants through the Iranian authorities. The authorities of the Turkish Government placed the applicants under considerable pressure to accept the compensation, including threats of violence and daily visits from the Iranian authorities. The Iranian Government also imprisoned the eighth applicant on four separate occasions, in an attempt to silence him and prevent him from telling the truth about the incident. Mr Abdel Khalegh Pad, the brother of the deceased victims Vahab and Kamfar Pad, was harassed by the Iranian Government for taking steps to pursue the investigation into their deaths and was forced to flee the country and take refuge in Sweden.
21. Prior to the alleged events in question, the authorities were informed that a terrorist group would be entering Turkey with arms and equipment. Accordingly, the authorities planned a series of operations in order to prevent the entry of this terrorist group into Turkish territory.
22. On 5 May 1999 operations started in the area between ŞemdinliTekeli and the Iranian-Turkish border.
23. On 6 May 1999, at around 10 a.m., the security forces received information to the effect that an armed group, accompanied by animals and mules loaded with arms and equipment, had entered Turkey at a location 1.5 km away from border stone no. 496 in the Zona Stream area.
24. Given that the location in question was usually used by terrorists making their entry into Turkey in violation of border regulations, the security forces, which were carrying out a search operation in the Alan area at the relevant time, arrived at the scene by helicopter. Thereupon, the members of the suspicious group began to run away in various directions and did not stop despite warning shots from the helicopters. Considering that the land could have been mined and that the terrain was rough, the helicopters did not land but opened fire in order to prevent suspects from fleeing.
25. Next day, after taking the necessary security measures, the security forces carried out a search at the scene of the incident. They found thirtytwo dead mules, one G-3 rifle with one cartridge clip and one hundred and thirty cartridges, three binoculars, one laser meter, one sleeping bag, a large quantity of sugar and flour, cassettes and 2,200 sheep and goats. Although no corpses were found at the scene of the incident, the security forces noticed that there were traces of blood leading in the direction of the Iranian border. Therefore, they concluded that some of the terrorists had either been wounded or their corpses had been carried away by others.
26. On 12 May 1999 the Turkish Ambassador to Iran was summoned to the Iranian Ministry of Foreign Affairs to provide information on the killing of seven Iranian men on 7 May 1999 while they were engaged in cross-border trade. From this the Turkish authorities understood that the seven persons of Iranian origin had been killed during the operation in question. However, there was no allegation by the Iranian authorities that the Turkish security forces had violated Iranian borders. Contrary to the applicants' allegations, no cross-border operation had taken place and the security forces had not arrested or detained anybody in the course of the events.
27. Subsequent to the events of 7 May 1999, the Turkish and Iranian authorities held a number of meetings. In order to maintain good relations between the two States, the Turkish Government agreed to pay the amount of compensation claimed by the Iranian authorities, but stated that such payment should not be treated as an admission of the ill-treatment allegations.
28. On 9 June 2000 the applicant's representative in the United Kingdom, Mr Philip Leach, filed a petition with the Şemdinli Chief Public Prosecutor's office asking for information about the state of the investigation into the killing by the Turkish army forces of the applicants' relatives.
29. In a letter of 7 November 2000, addressed to Mr Philip Leach, the Şemdinli public prosecutor, Mr İsmail Sevinç, stated that the Şemdinli District Governor's office had declined to grant leave to bring a prosecution under Law no. 4438. He gave the information that this decision not to prosecute could be challenged before the Van Regional Administrative Court and that the Chief Public Prosecutor's office could proceed with prosecution should the administrative court set aside the District Governor's decision.
30. This letter was served on the applicants, save for Said Pourmola Borazan, by the Turkish Consulate General in Orumiyeh in Iran. The applicants affixed their fingerprints to a document stating that they had received the letter of 7 November 2000 pertaining to the public prosecutor's decision not to prosecute.
31. On 30 May 2002 the Turkish Government transferred 175,000 United States dollars (USD) to the Ambassador of the Islamic Republic of Iran to be paid to the relatives of the deceased. This amount was received by the Iranian authorities acting as the representatives of the applicants at the latter's request. The parties signed a protocol which stated:
“The parties were unable to carry out a joint investigation to identify the perpetrators of the killing of seven citizens of Iranian Islamic Republic on 6 May 1999 nearby border stone no. 499 at the Turkish-Iranian border. In order to alleviate the grief of the families of the Iranian citizens who lost their lives at the common border, the Republic of Turkey agreed to pay in final settlement USD 25,000 to each family of the deceased, and in total USD 175,000. The Islamic Republic of Iran received the amounts to be paid for delivery to the said families and considered the issue settled in all respects.
This agreement will not serve as a precedent for any other border incident.
On 30 May 2002, USD 175,000 was delivered to Ambassador Mohammad Hossein Lavasani at a meeting in Ankara...”
32. Meanwhile, the Iranian authorities exchanged a number of letters with the families of the deceased regarding the payment of compensation by the Turkish Government. In a letter from the Department of the Interior to Mr Mirlohi, who was in charge of judicial and parliamentary affairs, it was noted that the Turkish authorities had paid compensation for the killing of seven Iranian citizens. However, it was pointed out that the deceased had been regarded as criminals under the laws of the Islamic Republic of Iran given that they had been involved in trafficking.
33. In a letter from the Deputy Minister and Head of Security to the Department of the Interior it was stated that full payment of the compensation in question to the families of the deceased would encourage law-breaking and lead border inhabitants to commit the offences of trespassing and trafficking. It was therefore decided to pay a maximum amount of 10,000 tomans (USD 10,953) to each family in order to prevent the recurrence of similar crimes in future. A representative of the Governorate of Orumiyeh visited the families of the victims to deliver those amounts. However, the families refused to take the money and told the representative that they had instructed a British lawyer, Mr Philip Leach, to take the matter to the European Court of Human Rights.
34. The Criminal Code in force at the material time made it a criminal offence
(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);
(b) to subject an individual to torture or ill-treatment (Articles 243 and 245); and
(c) to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) or murder (Article 450).
Under Article 102 of the Criminal Code, taken in conjunction with Articles 243 and 245, a prosecution for an offence of ill-treatment or torture by a public official must be brought within five years.
35. If the suspected authors of these criminal acts were military personnel, they could also be prosecuted for the above-mentioned crimes. Proceedings in these circumstances could be initiated by the persons concerned (nonmilitary) before the competent authority under the Code of Criminal Procedure or before the suspected persons' hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).
36. Article 165 of the Code of Criminal Procedure provides that a complainant may appeal against the decision of a public prosecutor not to institute criminal proceedings. The appeal must be lodged, within fifteen days from the date of notification of the decision to the complainant, with the president of the assize court within whose territorial jurisdiction the public prosecutor's activities fall.
37. Section 32 of the Notification Act (Law no. 7201) provides that notification which was not served in accordance with the law may be deemed valid if the person concerned learns of its existence. The date of notification is the date on which that person claims to have learned about it.
38. By section 3 (a) of the Advocacy Act, only Turkish citizens are authorised to practise as lawyers in Turkey.


ITEMID: 001-57847
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF ZUMTOBEL v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: Gaukur Jörundsson;N. Valticos;R. Pekkanen
TEXT: 6. The firm of F.M. Zumtobel, which at the material time was a limited partnership (Kommanditgesellschaft) and was subsequently converted into a limited company (Gesellschaft mit beschränkter Haftung), is based in Dornbirn, Austria. Mr Zumtobel was its manager and sole shareholder.
7. The case concerns expropriation proceedings instituted with a view to the construction in the province of Vorarlberg of a provincial highway, the L 52, intended as a bypass for part of the municipality of Rankweil. It appears that the scheme in question dated back to 1960, but that opposition from local landowners had prevented its realisation.
The authorities conducted an investigation into inter alia whether the projected road was compatible with the requirements of environmental protection (Landschaftsschutz). The proposed route was published (zur öffentlichen Einsichtnahme aufgelegt) and the file made available for consultation at the Rankweil council offices from 1 to 31 October 1984.
8. Pursuant to the Provincial Highways Law (Landesstraßengesetz), on the initiative of the Highways Authority of the Provincial Government (Landesstraßenverwaltung), expropriation proceedings relating to a parcel of land of 2,140m2 belonging to the Zumtobel partnership were opened on 28 February 1985. The expropriation would have had the effect of dividing the first applicant’s property, which covered an area of some 55,000m2, into two parcels of approximately 20,000m2 and 30,000m2.
The authorities consulted several experts. The first applicant repeatedly but unsuccessfully requested to be allowed to study various documents in the file, namely a report of the Court of Audit (Rechnungshof), an expert report on the environmental implications, the decision taken by the local authorities of Feldkirch, Meiningen and Rankweil on the proposed section of the road, and an opinion of the environmental department of the Provincial Government.
9. On 25 June 1985 a hearing took place before the Office of the Provincial Government (Amt der Landesregierung), attended by its chairman, the first applicant’s lawyer, and three of its official experts (Amtssachverständige), specialising in environmental protection, highways and road traffic respectively. They submitted their reports and made additional observations. According to the highways expert and the road traffic expert, the proposed section of highway was important because it would improve traffic links between Rankweil and Feldkirch, which went through densely populated built-up areas.
10. On 13 February 1986 the Office made an order for expropriation and fixed compensation at 620 schillings per square metre. At the same time it dismissed two requests by the first applicant, one for full details of the planning procedure for the L 52, and the other for the appointment of an independent road traffic expert to assess whether the planned road was necessary. The Office considered the first request to be irrelevant to the case; as to the second, it stated that the official expert had not shown any bias in favour of the authorities and had submitted a convincing report.
11. The Zumtobel partnership thereupon applied to the Constitutional Court (Verfassungsgerichtshof). It claimed that the expropriation proceedings, which were subject to final review by the Administrative Court (Verwaltungsgerichtshof) and the Constitutional Court, had violated its right of access to a court with full jurisdiction, guaranteed inter alia by Article 6 para. 1 (art. 6-1) of the Convention. It also alleged that there had been a breach of the principle of equality of arms, as the Office had heard its own experts but refused to consult independent ones.
12. On 27 November 1987, at the conclusion of a hearing held in private (Article 144 para. 2 of the Federal Constitution, Bundes- Verfassungsgesetz), the Constitutional Court decided not to entertain the application since, in view of its case-law on Article 6 (art. 6) of the Convention and the authorities’ discretion in determining the routes of highways, the application did not have sufficient prospects of success. Moreover, the alleged violations resulted at the most from the erroneous application of an ordinary law (einfaches Gesetz) and their examination did not involve any constitutional considerations. Finally, the case did not fall outside the Administrative Court’s jurisdiction.
13. The first applicant also challenged the decision of 13 February 1986 (see paragraph 10 above) in the Administrative Court. Relying on substantially the same arguments as in the Constitutional Court, it now complained of breaches of procedural and substantive law; it also asked for an expert to be appointed.
14. The Administrative Court dismissed the appeal on 22 September 1989, after a purely written procedure; the applicants had not asked it to hold a hearing (see paragraph 20 below).
In the court’s opinion, the complaint that the scheme objected to was not based on any reasonable overall plan was not enough to establish that the contested decision had been unlawful. The court added as follows:
"In the context of the power of review conferred on it by Article 41 of the Administrative Court Law (Verwaltungsgerichtshofgesetz), the Administrative Court cannot hold to be unlawful the fact that the respondent authority had regard to road traffic requirements and based its decision principally on the consideration that no other more appropriate solution - than the construction of the proposed section of the L 52 over the land in issue - was possible. As can be seen from the findings of fact in the contested decision, the respondent authority took the view that it was in the interests of road users to divert through- traffic from the Rankweil-Brederis built-up area, which at the same time would create a useful addition to the existing road network in the Feldkirch-Rankweil area."
The court held that the applicant partnership had also failed to cast doubt on the official experts’ reports such as could disclose a procedural irregularity capable of affecting the decision. The fact that the Government Office had not made the commencement of construction work for the L 52 subject to a final decision on the length of the route was not incompatible with the Provincial Highways Law. Contrary to the applicant partnership’s arguments, the Office had indeed taken environmental protection into account when assessing the various relevant interests. The commencement of expropriation proceedings before the adoption of a decree (Einreihungsverordnung) defining inter alia the route and length of the highway and the failure to consult the association of local authorities (Gemeindeverband) of Vorarlberg did not vitiate the impugned decision either. As for compensation in kind (Naturalersatz) or an exchange of land (Tauschanbot), the documents in the case showed that these had not been available as alternative solutions. Finally, the fact that notice of the hearing of 25 June 1985 (see paragraph 9 above) had not been given in the Official Gazette (Amtsblatt) could not have infringed the applicant partnership’s rights, as it had been directly notified of the hearing.
The court also rejected the complaints relating to the hearing of the official experts. It noted to begin with that the Office was obliged to consult them, under the General Administrative Procedure Law of 1950 (Allgemeines Verwaltungsverfahrensgesetz, "the 1950 Law"). The court considered that mere general remarks on the independence of official experts were not enough to prove a specific legitimate doubt for the purposes of Article 7 (1), sub-paragraph 4, of the 1950 Law. The fact that such an expert took part in proceedings to which the Province was a party did not, unless there were special circumstances, constitute a serious reason within the meaning of the 1950 Law to doubt his complete impartiality. In the absence of any formal requirement, there was nothing to prevent a written record being made of an orally delivered expert report, without the expert having to supplement it in writing. Nor had the authorities been obliged to summon the parties to attend the inquiry (Beweisverfahren).
With reference to the complaints of lack of access to the case file, the court stated that it could not find that the Office had disregarded procedural rules, compliance with which could have led to a different decision. As the applicant partnership had not been a party to the environmental protection proceedings (Landschaftsschutzverfahren), it could not claim a right of access to that file. As to the Court of Audit’s report, the observations of the department for planning and the environment (Raumplanungs- bzw. Umweltabteilung) and those of the relevant local authorities, there was nothing to show that these documents could have been material to the applicant partnership’s case or that the Office had based its decision on them. The report of expert B. had been included in the expropriation proceedings file but, contrary to the applicant partnership’s arguments, the authorities were not obliged by law to supply photocopies of the entire case file or of certain documents in it.
The Administrative Court also found that there had been no breach of Article 6 (art. 6) of the Convention and declined to refer the matter to the Constitutional Court.
With regard to the request for an independent expert to be appointed to report inter alia on "the economic viability, the reasonableness and hence the lawfulness" of the proposed route of the L 52, the court cited a judgment given by an enlarged chamber in 1978 and stated:
"[That judgment shows that] the Administrative Court is not allowed, in a case which has been before the respondent administrative authority, to put itself in the place of that authority and take evidence, which the latter may have omitted to take, or to supplement the investigation by itself taking investigative measures to establish the facts. The Administrative Court can, however, take evidence in order to determine whether an essential procedural requirement has been breached, and it is therefore entitled to take investigative measures in order to establish whether a procedural defect is essential or whether the respondent authority could have reached a different decision if that procedural defect had been avoided; it can also do so for the purpose of reviewing the assessment of the evidence. In view of the above findings with reference to the weighing up by the respondent authority of the interests at stake and the facts on which its decision was based, however, the Administrative Court sees no reason to order the investigative measure sought."
15. The first applicant had meanwhile applied to the Feldkirch District Court (Bezirksgericht) to determine the amount of compensation. On 17 December 1987 this was set at 9,963,032.50 Austrian schillings (ATS).
On 28 May 1988, on appeal (Rekurs) to the Feldkirch Regional Court (Landesgericht), the amount was reduced to ATS 4,560,000. On 6 October 1988 the first applicant’s appeal on points of law (Revisionsrekurs) against this decision was dismissed by the Supreme Court (Oberster Gerichtshof).
16. In Vorarlberg expropriation for the purpose of construction of a provincial highway can take place only after the Provincial Government has issued a decree giving a brief description of the route of the highway and stating its approximate length (Article 5 of the Provincial Highways Law). Landowners who are affected by the measure can, once the plan has been made public, contest its appropriateness before the administrative authorities, and then challenge the decree in the Constitutional Court.
Such an expropriation is permissible only if it is not possible to construct or retain a section of highway which is more suitable from the point of view of traffic requirements, environmental protection and the financial implications (Article 44 (1)).
17. On an application (Beschwerde) the Constitutional Court will determine whether an administrative decision (Bescheid) has infringed a right guaranteed to the applicant under the Constitution or whether the decision applied a decree (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law (Article 144 para. 1 of the Federal Constitution).
18. Under Article 130 of the Federal Constitution, the Administrative Court has jurisdiction to hear inter alia applications alleging that an administrative decision is unlawful.
19. Article 41 (1) of the Administrative Court Law (Verwaltungsgerichtshofgesetz) reads as follows:
"In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority’s lack of jurisdiction or from breaches of procedural rules (Article 42 (2), sub-paragraphs 2 and 3) ..., it must examine the contested decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary."
Under Article 42 (2) of the Law,
"The Administrative Court shall quash the impugned decision:
1. if it is unlawful by reason of its content,
2. [or] because the respondent authority lacked jurisdiction,
3. [or] on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or
(b) the facts require further investigation on an important point, or
(c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority."
20. Proceedings in the Administrative Court consist essentially of an exchange of written pleadings (Article 36). If one of the parties so requests the Administrative Court may hold an adversarial hearing which in principle is held in public (Articles 39 and 40).
21. If the court quashes the challenged decision, "the administrative authorities are under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court’s view of the law (Rechtsansicht)" (Article 63 (1)).
22. If an expert opinion proves necessary in expropriation proceedings, the authority consults, in accordance with Article 52 (1) of the General Administrative Procedure Law (see paragraph 14 above), "the official experts attached to the authority or placed at its disposal". Under Article 53 in conjunction with Article 7 of that law, such experts must stand down "if there are ... serious reasons liable to give rise to doubts as to their complete impartiality".
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80960
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GARABAYEV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (in case of extradition to Turkmenistan);Violation of Art. 5-1-f;Violation of Art. 5-4;Violation of Art. 5-3;Violation of Art. 13+3;Not necessary to examine Art. 13+5;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 6. The applicant is a citizen of Russia and Turkmenistan. He was born in 1977 and currently resides in Moscow.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. The applicant was employed as an accountant in the Central Bank of Turkmenistan. On 4 March 2002 the applicant was registered at the Russian Consulate in Turkmenistan as a Russian citizen residing in Ashkhabad, and on 17 March 2002 he was issued a Russian passport (no. 51 N 0956182). In August 2002 the applicant resigned and, with his wife and son, born in 1999, moved to Moscow to apply for a PhD course.
9. On 27 September 2002 the Prosecutor General of Turkmenistan sent a request to the Prosecutor General of the Russian Federation to detain and extradite the applicant on criminal charges. The request was made on the basis of the CIS Convention on legal assistance and legal relations in civil, family and criminal cases (the 1993 Minsk Convention). In Turkmenistan the applicant was charged with large-scale embezzlement of state property, committed through abuse of power. In particular, the request stated that in the period between 25 July and 3 September 2002 the applicant had transferred financial assets to the value of 40 million US dollars from the correspondent account of the Central Bank of Turkmenistan in the Deutsche Bank AG (Frankfurt-am-Main, Germany) to the Russkiy Depozitarny Bank (Moscow), Latekobank and Pareksbank (Riga, Latvia) and to HSBC (Syangan, China). The assets had later been withdrawn from the accounts and not returned to Turkmenistan. Criminal proceedings were instituted against the applicant in Turkmenistan. On 25 September 2002 a warrant for his arrest had been issued by a prosecutor and he had been put on the wanted list.
10. On 27 September 2002 the applicant was arrested in Moscow pursuant to an order of the Prosecutor General of Turkmenistan and placed in the temporary detention ward of the Moscow City Department of the Interior (изолятор временного содержания ГУВД г. Москвы).
11. On 11 October 2002 the applicant's lawyer, Ms Stavitskaya, submitted a complaint to the Prosecutor General's Office (PGO). She argued that the applicant should not be extradited to Turkmenistan because he was a Russian national. She referred to the relevant provisions of the Russian Constitution, the Citizenship Act, the Code of Criminal Procedure (CCP) and the 1993 Minsk Convention, none of which allowed extradition of a Russian national to another jurisdiction. The complaint referred to human-rights reports on the situation in Turkmenistan, which gave rise to a well-established fear that torture and other forms of inhuman or degrading treatment would be used against the applicant. She also stated that, as the applicant could not be legally extradited, on account of his Russian nationality, his detention for that purpose was unlawful.
12. On 11 October 2002 the Human Rights Centre Memorial (“Memorial”), a Russian NGO, contacted the Prosecutor General about the applicant's detention and possible extradition to Turkmenistan. It referred to the applicant's Russian nationality. It further referred to the situation in Turkmenistan and, in particular, to the absence of fair-trial guarantees and the lack of impartiality and independence of the judiciary. It referred to the facts that in Turkmenistan arrest warrants were signed personally by the President of Turkmenistan and were not subject to any review, that the sentences given in all politically important cases were pre-determined and that the use of torture was widespread. On 12 and 17 October Memorial issued press releases concerning the applicant's case. It stated that the applicant was being persecuted in Turkmenistan in connection with a politically motivated case against the former deputy head of the Central Bank of Turkmenistan, who had been accused by the President of financing the opposition and embezzling state funds, and who had fled Turkmenistan in 2001. Memorial gave details of the persecution of the employees of the Central Bank and their relatives, including the arrest of the applicant's mother, sister and uncle and confiscation of their property.
13. On 15 October 2002 Mr Sergey Kovalev, a member of the State Duma, sent a letter to the head of the International Department of the PGO concerning the applicant's case. He reminded the official of the applicant's Russian nationality and referred to the risk of torture and to the lack of fair-trial guarantees if the applicant were to be extradited to Turkmenistan.
14. On 18 October 2002 the applicant was transferred to a pre-trial detention centre (учреждение ИЗ 77/3).
15. On 18 October 2002 the chief assistant to the Prosecutor General issued an order for the extradition of the applicant to Turkmenistan. This order was approved by the Prosecutor General on 22 October 2002. The applicant and his lawyers were not informed of the order at the time and did not receive a copy of it.
16. On 24 October 2002 the applicant was extradited to Turkmenistan. The applicant submitted that, early in the morning, he was taken by the officers of the PGO to Domodedovo Airport and brought to the premises of Turkmen Airlines. There he was briefly shown a copy of the decision of the Prosecutor General to extradite him. The officers of the Turkmen law-enforcement bodies brought him to the plane through the border control, where he was not required to show a passport. The applicant demanded a meeting with his lawyer, but this was refused.
17. The Government referred, in their memorials, to the information obtained from the PGO, according to which the applicant had been escorted to the plane by the officers of the Ministry of Justice. The applicant had not applied to the escort with a request for a meeting with his lawyer, and in any event the escort was not authorised to deal with detainees' complaints. The Government confirmed that the applicant had seen the decision to extradite him on 24 October 2002.
18. On 18 and 24 October 2002 the applicant's lawyer submitted complaints to the Moscow City Court. She challenged the lawfulness of the applicant's detention in view of his Russian nationality and the lack of grounds for his extradition. In her second complaint she also referred to the decision of the Prosecutor General to extradite the applicant and stated that the applicant had neither been officially informed of the decision nor received a copy of it.
19. On 28 October 2002 a judge of the Moscow City Court replied to the applicant's lawyer's complaint of 18 October in a letter stating that the complaint concerning the lawfulness of the applicant's detention should have been submitted to a competent district court. He further said that the complaint did not raise the issue of lawfulness of the decision to extradite, but that in any case a review should take place in the presence of the person who was to be extradited. Since the applicant had been already extradited to Turkmenistan on 24 October 2002, he could not take part in the proceedings. On 5 November the same judge replied to the lawyer's complaint of 24 October stating that the complaint about the unlawfulness of the decision to extradite could not be reviewed in the applicant's absence. The applicant's lawyer appealed to the Supreme Court.
20. On 11 November 2002 the PGO replied to the applicant's lawyer stating that the decision to extradite had been taken pursuant to the request of the Prosecutor General of Turkmenistan in relation to a criminal charge and was in conformity with international law.
21. On 14 November 2002 the European Court of Human Rights requested information from the Government, under Rule 49 § 2 (a) of the Rules of Court, concerning the applicant's detention and extradition to Turkmenistan, and asked whether his claims that he might be subjected to treatment contrary to Article 3 of the Convention had been reviewed by a competent national authority.
22. On 5 December 2002 the Moscow City Court reviewed the lawyer's complaint of 24 October. It found that the decision to extradite the applicant had been unlawful in view of his Russian nationality, proof of which - a copy of his Russian passport - was contained in the case file. The City Court further found that the decision had not been officially served on the applicant or his lawyer, as a result of which he had been deprived of the possibility to challenge it under the national law. The applicant's detention was also found to be unlawful. No appeal was lodged against this decision, which became final on 16 December 2002.
23. On 8 December 2002 the First Deputy to the Prosecutor General applied to the Presnenskiy District Court of Moscow seeking to establish that the applicant had fraudulently obtained Russian nationality. The application was directed against the Ministry of Foreign Affairs, the Russian Consulate in Ashkhabad and the applicant himself. The prosecutor submitted that the applicant had obtained Russian nationality as the spouse of a Russian national, pursuant to the relevant provisions of the Citizenship Act, and had submitted to the Russian Consulate a copy of the marriage certificate of 15 September 1998. However, the marriage had allegedly been dissolved by a district court in Ashkhabad, Turkmenistan, on 7 June 2001 and that ruling that had become final on 19 June 2001.
24. On 27 December 2002 the Presnenskiy District Court found that the applicant had submitted fraudulent information to the Russian Consulate. The court refused to nullify the applicant's Russian nationality, since a decision of this nature could only be taken by the President of the Russian Federation. Neither the applicant, nor his wife nor his lawyer was informed of the proceedings or present at the hearing.
25. Having learnt of the proceedings, the applicant's lawyer appealed against the decision to the Moscow City Court on 16 January 2003. She challenged the authenticity of the Ashkhabad district court's ruling, which had been accepted as the basis of the decision. She submitted a statement from the applicant's wife in which she categorically denied the divorce. Reference was also made to the fact that the applicant, his wife and his lawyer had not been informed of the proceedings and had taken no part in them.
26. On 27 January 2003 the Russian Embassy in Turkmenistan, acting also on behalf of the Ministry of Foreign Affairs, submitted a request to the Moscow City Court to reinstate the ten-day time-limit for appealing against the decision of 27 December 2002, because the decision had been delivered to them on 18 January 2003. On 30 January 2003 the Presnenskiy District Court reinstated the term. In its appeal the Embassy submitted that the decision of the court was based on a wrong interpretation of Turkmen family law and that the court decision on divorce was not final. They further stated that the applicant had been deprived of the opportunity to participate in the court hearing. At the relevant time he had been detained in Ashkhabad and the Russian Consulate had been denied access to him, in violation of the relevant international treaties. They referred to Articles 6 and 13 of the European Convention on Human Rights.
27. On 16 May 2003 the Moscow City Court quashed the decision of 27 December 2002 because measures had not been taken to guarantee the applicant's participation in the proceedings. The case was remitted to the Presnenskiy District Court.
28. On 17 September 2003, on an application by the PGO, the Presnenskiy District Court terminated the proceedings concerning the allegedly fraudulent acquisition of Russian nationality, due to a change in circumstances. The decision became operative on 27 September 2003.
29. The applicant submitted an account of his detention in Turkmenistan in a letter of 28 February 2003. He stated that once he arrived in Ashkhabad he was brought to the office of the Prosecutor General and questioned for four hours. He was refused water and cigarettes and threatened with torture and reprisals against his family. During the questioning he was hit on the head and back, the effects of which lasted for several months. The applicant denied the charges brought against him.
30. He was then taken to the pre-trial detention centre of the Ministry of National Security. He described the conditions as follows: three people were detained in a cell measuring about ten square metres, they were each given a plate of food twice a day, there was no toilet in the cell and they were taken out to the toilet twice a day, there was no radio or TV in the cell and they received no news from the outside. The applicant was taken outside for 15-20 minutes' exercise during the first 20 days, and for two months he was not allowed any exercise. The applicant submitted that during his stay in detention he was constantly in fear that he or his close relatives would be subjected to torture, which is wide-spread in Turkmenistan.
31. He was questioned twice without a lawyer. He attempted to instruct a lawyer through his relatives, but was told that he was not entitled to one. His relatives found out that he was detained in the pre-trial detention centre, and informed him that his mother had been sentenced to seven years in prison, and his uncle for a longer term. His sister's and parents-in-law's identity documents had been taken away from them.
32. At the end of November and beginning of December 2002 the officers of the law-enforcement bodies of Turkmenistan visited the applicant in the detention centre and informed him that proceedings had been instituted in the Presnenskiy District Court in Moscow. He was shown a summons to attend the court and told to sign it. The applicant managed to write on it that he was in detention and could not attend. The officers became angry at this and hit the applicant.
33. On 25 January 2003 the applicant was presented with the charges and the case file. The charges ran to four or five pages in Turkmen and the case file consisted of two folders, mostly in Turkmen. The applicant submits that he does not know Turkmen well enough, and asked for an interpreter or a translation of the documents. His request was refused. By that time he had a lawyer, who told him that there were no documents in the file which could prove his guilt. It also appears that on a later date the applicant was charged with swindling committed jointly with his sister.
34. In the meantime the Russian Consulate in Ashkhabad contacted the Ministry of Foreign Affairs of Turkmenistan on several occasions in order to arrange for a consular meeting with the applicant. Requests were sent on 5 and 11 December 2002 and on 10 and 24 January 2003. On 24 December 2002 the Ministry of Foreign Affairs of Turkmenistan replied that no meeting was possible because the applicant was a citizen of Turkmenistan.
35. On 1 February 2003 the applicant was taken to Ashkhabad Airport and returned to Moscow, accompanied by an official from the Russian Consulate.
36. After the applicant was returned to Moscow, he learnt that his mother had been tried again and sentenced to 14 years' imprisonment and that similar sentences had been imposed on his sister and his uncle.
37. While the applicant was in Turkmenistan, an investigator of the PGO started criminal proceedings on 24 January 2003 against a group of persons on the basis of information received from the Prosecutor General of Turkmenistan. The background to the proceedings concerned the unauthorised transfer of 20 million US dollars from the account of the Central Bank of Turkmenistan in Deutsche Bank AG (Frankfurt-am-Main, Germany) to accounts in a private bank in Moscow. The applicant was not listed among the suspects.
38. On 29 January 2003 the applicant was charged with swindling on a large scale, committed by an organised group. The charge stated that in August 2002 the applicant, along with several private bank managers, including a certain L., had transferred 20 million US dollars from the account of the Central Bank of Turkmenistan in Deutsche Bank AG (Frankfurt-am-Main, Germany) to accounts in a private bank in Moscow. They had then misappropriated 19.3 million US dollars.
39. Also on 29 January 2003 the applicant was put on the international wanted list.
40. On 30 January 2003 the Basmanny District Court of Moscow issued an arrest warrant in respect of the applicant on request of the PGO. The warrant stated that the applicant had been charged with a serious crime but had fled from justice abroad and that his name had been placed on the international wanted list. At the hearing the applicant was represented by a court-appointed lawyer, who did not object to the applicant's arrest.
41. On 30 January 2003 the First Deputy to the Prosecutor General of the Russian Federation contacted the Prosecutor General of Turkmenistan, seeking the applicant's extradition in relation to criminal charges and an arrest warrant issued against him in Russia. The letter stated that the applicant was a Russian national and that there was information from which one could conclude that he was now in Turkmenistan. It did not refer to the applicant's previous extradition to Turkmenistan.
42. On 31 January 2003 the First Deputy to the Prosecutor General of Turkmenistan authorised the applicant's “temporary extradition” to Russia on the grounds of the criminal proceedings brought against him.
43. On 1 February 2003 the applicant was returned to Moscow. On his arrival he was arrested and placed in the Lefortovo pre-trial detention centre of the Federal Security Service (FSB). On the same day he was presented with the charges of swindling.
44. On 6 February 2003 the applicant's lawyer, Ms Stavitskaya, met with the applicant in the detention centre. During the meeting she learnt of the court decision of 30 January ordering the applicant's arrest. On 11 February she lodged an appeal with the Moscow City Court against that decision. She submitted that the applicant had not been properly represented, that he had not fled from justice but had been extradited to Turkmenistan by the PGO, that he had been detained in Turkmenistan and that the investigators could not have been unaware of this. She also referred to the decision of the Moscow City Court of 5 December 2002 according to which the applicant's extradition and detention were unlawful.
45. On 19 March 2003 the Moscow City Court dismissed the appeal. The representative of the PGO submitted that the investigator and the Deputy Prosecutor General who had authorised the proceedings had not been aware of the applicant's whereabouts and that an international search warrant had been issued against him. The district court had had regard to his personal situation, the seriousness of the charges, and the fact that the applicant could interfere with the investigation, put pressure on witnesses and hide or destroy evidence of the crimes.
46. On 19 March 2003 the applicant was again charged with large-scale swindling committed by a group of persons and with forgery of official documents.
47. On 28 March 2003 the Basmanny District Court extended the applicant's detention. The court repeated its findings that the applicant had fled from justice abroad. It had regard to the seriousness of the charges and the risk that he might interfere with the investigation. His detention was authorised until 29 May 2003. On 23 April 2003 the Moscow City Court confirmed this decision on appeal.
48. On 2 April 2003, following a letter from the applicant stating that the threat of his extradition persisted, the European Court of Human Rights requested the Russian Government, under Rule 39 of the Rules of Court, not to extradite the applicant to Turkmenistan until further notice.
49. On 24 and 27 April 2003 the charges of swindling, money-laundering and forgery of documents were again laid against the applicant.
50. On 12 May 2003 a judge of the Moscow City Court, on a complaint by the applicant, submitted an application for supervisory review to the Presidium of the Moscow City Court, seeking a review of the decisions of 30 January 2003 and 19 March 2003. The application stated that the applicant had been extradited to Turkmenistan pursuant to a decision of the Prosecutor General and that the reasons given for issuing an international search warrant and authorising his detention in absentia had therefore been invalid.
51. On 16 May 2003 the Basmanny District Court again extended the applicant's detention.
52. At some point in the summer of 2003 the investigation was completed and the Zamoskvoretskiy District Court set the case down for hearing on 4 September, and then on 3 October 2003.
53. On 9 March 2004 the Zamoskvoretskiy District Court of Moscow found the applicant guilty of using a forged document and sentenced him to a fine of 5,000 roubles (RUR). The court acquitted the applicant of the charges of embezzlement, while the prosecutor withdrew the charges of money-laundering. The applicant was released from detention on the same day. By the same decision the applicant's only co-accused, L., the manager of a private bank in Moscow, was convicted of money-laundering committed by a group and sentenced to four years' imprisonment.
54. On 19 March 2004, following a letter from the Russian Government giving assurances that the applicant would not be extradited to Turkmenistan in view of his now undisputed Russian nationality, the European Court discontinued the preliminary measure indicated under Rule 39 § 1 of the Rules of Court.
55. On 9 June 2004 the Moscow City Court reviewed and upheld the sentence of 9 March 2004.
56. Articles 108 and 109 of the Code of Criminal Procedure (CCP) of 2002 contain provisions relating to pre-trial detention. They provide that detention can be imposed by a judge, on a reasoned request by the prosecutor, or an investigator upon the prosecutor's sanction, if no other measure of restraint can be applied. The presence of the accused person in the court room is obligatory, unless he has been put on the international wanted list. The decision of the court to order detention can be appealed to a higher court within three days. The appeal must be considered within three days of the date of receipt. Article 109 sets out the following terms of pre-trial detention: the term of detention cannot exceed two months. If the investigation continues, it can be extended to six months by the court on an application by the prosecutor. After that it can be extended to 12 months on an application by the prosecutor of the region. In exceptional circumstances, on an application by the Prosecutor General or his deputy, pre-trial detention can be extended to a maximum of 18 months.
57. Article 125 of the CCP provides for judicial review of decisions of investigators that might infringe the constitutional rights of participants in the proceedings or prevent a person's access to court.
58. Chapter 54 of the CCP regulates extradition on criminal charges. Articles 462-463 state that a decision to extradite a person upon a request from another country is taken by the Prosecutor General or his deputy. Such a decision is subject to appeal to a regional court within 10 days from the date of notification of the decision to the person concerned. The complaint is reviewed at a public hearing in the presence of the person in question, his representative and the prosecutor. The decision of the regional court can be appealed to the Supreme Court.
59. Article 464 provides that extradition cannot take place if the person whose extradition is sought is a Russian national or if he has refugee status.
60. Article 466 contains provisions relating to detention of a person whose extradition is sought. Detention can be authorised by the Prosecutor General or his deputy on receipt of an extradition request. If a foreign court has authorised the person's arrest, the decision of the prosecutor does not need to be confirmed by a Russian court. The period of detention cannot exceed the normal periods of detention pending investigation laid down by the Code of Criminal Procedure for similar crimes.
61. Article 57 of the CIS Convention on legal assistance and legal relations in civil, family and criminal cases (the 1993 Minsk Convention), to which both Russia and Turkmenistan are parties, provides that extradition shall not take place if the person whose extradition is sought has the nationality of the requested Contracting Party.
62. Its other relevant provisions are as follows:
“1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. A petition for arrest ... may be sent by post, wire, telex or fax.
2. The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition.
3. In case of [the person's] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.”
“1. The Contracting Parties shall ... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested Contracting Party ....
2. A request for the search ... shall contain ... a request for the person's arrest and a promise to submit a request for his extradition.
3. A request for the search shall be accompanied by a certiﬁed copy of ... the detention order ....
4. The requesting Contracting Party shall be immediately informed about the person's arrest or about other results of the search.”
“1. A person arrested pursuant to Article 61 § 1 and Article 61-1 shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest.
2. A person arrested pursuant to Article 61 § 2 shall be released if no petition issued pursuant to Article 61 § 1 arrives within the time established by the law concerning arrest.”
63. Article 61 of the Constitution states that a citizen of the Russian Federation may not be deported from Russia or extradited to another State.
64. Article 62 §§ 1 and 2 of the Constitution permit a citizen of the Russian Federation to have the citizenship of a foreign State (dual citizenship) in accordance with the federal law or an international agreement of the Russian Federation. The possession of foreign citizenship by a citizen of the Russian Federation shall not derogate from his rights and freedoms and shall not relieve him of the obligations stipulated by Russian citizenship, unless otherwise provided for by federal law or an international agreement of the Russian Federation.
65. Section 4(4) of the Citizenship Act provides that a citizen of the Russian Federation shall not be exiled from the Russian Federation or handed over to a foreign State.
66. Article 5 of the 1993 Agreement between Russia and Turkmenistan on Regulation of Double Citizenship provides that a person having double citizenship of the Contracting Parties enjoys all rights and freedoms and bears all responsibilities of a citizen of the State where he or she resides.
VIOLATED_ARTICLES: 13
3
5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
VIOLATED_BULLETPOINTS: 5-1-f