ITEMID: 001-105572
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: AGENTURA HARMONY V.O.S. v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Agentúra HARMONY v.o.s., is an unlimited liability company established under the laws of Slovakia with its head office in Nitra. It was represented before the Court by Ms G. Strýčeková, a lawyer practising in Nitra.
2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant company supplied medical equipment to a hospital, which at that time was owned by and under the responsibility of the State.
4. The power of administration over the hospital and its ownership were later transferred by law (Law no. 446/2001 Coll.) to the self-governing region (samosprávny kraj) where the hospital is situated.
5. The hospital owned premises not used for its main function, which it let to third parties.
6. In about mid-2002 the hospital ceased paying the applicant, and later acknowledged its debt to the applicant in an amount equivalent to some 5,000 euros (EUR).
7. On 26 September 2003 the applicant company sued the hospital for payment of the above-mentioned amount.
8. On 21 January 2004 the Šaľa District Court (Okresný súd) allowed the action and, on 31 March 2004, the Nitra Regional Court (Krajský súd) upheld the District Court’s judgment following an appeal by the defendant. The judgment became final and binding on 29 April 2004.
9. On 7 May 2004 the applicant company applied for enforcement of the judgment under the Enforcement Code of 1995 (Law no. 233/1995 Coll., as amended).
10. In September 2004 the judicial enforcement officer (exekútor) decided that the enforcement should be carried out by means of attaching the rent collected by the hospital from the letting of the above-mentioned premises.
11. On 5 October 2004, by a decision of its council, the ownership of and power of administration over the hospital was taken over by the selfgoverning region, which also assumed the role of landlord in respect of those premises.
12. On 20 April 2005 the Constitutional Court (Ústavný súd) declared inadmissible a complaint made by the applicant company under Article 127 of the Constitution contesting the council’s decision of 5 October 2004 on the grounds that it had violated, inter alia, the applicant company’s right of access to court and to equal treatment in proceedings.
13. The Constitutional Court found that there was no indication of an interference with the applicant’s procedural rights and that the complaint was manifestly ill-founded.
14. By letter of 30 May 2005 the judicial enforcement officer informed the applicant company that the total amount of principal debt plus interest accrued for late payment and costs incurred totalled, at that time, the equivalent of some EUR 7,100, of which the equivalent of some EUR 875 had already been obtained from the defendant.
15. The judicial enforcement officer also informed the applicant company that the council’s decision of 5 October 2004 had made it impossible to continue attaching the rent pertaining to the premises in question, as these were no longer owned and let by the debtor.
16. The judicial enforcement officer further informed the applicant company that using other means of enforcement was not possible due to a temporary immunity from the enforcement of financial claims enjoyed by the hospital under Article 54a § 2 of the Health Insurance Code (Law no. 273/1994 Coll., as amended) and Section 102a of the Health Care Act (Law no. 578/2004 Coll., as amended).
17. On 26 September 2005, by a decision of its council, the selfgoverning region decided to merge hospitals under its administration into a new entity, an agency named the Obligations and Claims Administration (Správa záväzkov a pohľadávok – “the OCA”), with effect from 30 November 2005. The OCA was the legal successor to the hospital in question, and its purpose was to settle obligations and claims related to the functioning of the hospitals in the region. The OCA did not have the status of a health-care establishment and thus did not benefit from the bar to enforcement of claims against such establishments.
18. By letter of 26 January 2009 the enforcement office notified the applicant that the enforcement had been terminated as, on 22 December 2008, the applicant’s entire claim had been settled by the OCA. The applicant company’s legal costs and penalty interest for the debtor’s late payment of the principal debt had also been paid.
19. Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) provides:
“1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.”
20. The statutory bar to the enforcement of financial claims against healthcare establishments was laid down in different pieces of legislation and its duration, always intended to be temporary, was extended several times. The precise scope of the bar also varied over time.
21. The bar had its origin in Article 235 of the Enforcement Code of 1995, such Article being incorporated into the code by Law no. 280/1999 Coll. The bar was, in this implementation, intended to last until 31 December 2001.
22. Article 235 of the amended Enforcement Code of 1995 was repealed by the Constitutional Court by virtue of its judgment of 15 November 2000 (published in the Collection of Laws under no. 415/2000) with effect from 6 December 2000. The Constitutional Court found the bar unconstitutional because it created an unjustified difference between the treatment of healthcare establishments and other debtors.
23. With effect from 1 January 2003, a new statutory bar to enforcement of financial claims against health-care establishments was introduced into the Health Insurance Code by the operation of Law no. 671/2002 Coll. In particular, enforcement was not permissible against the financial assets and income of health-care establishments in so far as such monies were allocated for providing and maintaining health care and related services, nor against assets belonging to health-care establishments which were purchased out of funds deriving from the insurance premiums paid by the establishment’s users and which were indispensable for the running and maintenance of the establishment.
24. On 15 June 2004 a new bar entered into force by virtue of an amendment (Law no. 345/2004 Coll.) to the Health Insurance Code. It introduced a new section 54a to the code, stated to apply until 31 December 2004. Under sub-section 2 (d) of that provision, enforcement could not be aimed at attaching the property of health-care establishments obtained via insurance premiums or property to be used for providing health care.
25. In 2006 a new constitutional challenge to the bar, as it then stood, was brought by a group of Members of Parliament. It was accepted by the Constitutional Court to the extent that, in its ruling of 6 December 2006 (published in the Collection of Laws under no. 18/2007), it suspended the legal effect of the bar. However, the Constitutional Court has never ruled on the merits of the bar, as it expired while the constitutional challenge was pending. In its decision of 30 April 2008 the Constitutional Court nevertheless made a formal note of its 2000 ruling, considering it a part of its case-law.
26. The bar was extended for the last time until 31 December 2009 by the operation of Law no. 192/2009 Coll., which introduced a new section 102c § 2 to the Health Care Providers Act (Law no. 578/2004 Coll., as amended).
On 31 December 2009 the bar expired and has ceased to exist with effect from 1 January 2010 onwards.


ITEMID: 001-23430
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: KARAHALIOS v. GREECE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Ioannis Karahalios, is a Greek national who was born in 1942 and lives in Athens.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a civil engineer and building contractor. The present case concerns proceedings brought by the applicant for payment of the balance due for work done under a public works contract.
On 16 November 1993 the Tripolis Administrative Court of Appeal (Τριμελές Διοικητικό Εφετείο) allowed his claim and determined the amounts to be paid him by the treasury of the Arcadia prefecture (judgment no. 175/1993).
On 15 March 1994 the Arcadia prefecture appealed on points of law.
On 1 March 1999 the Supreme Administrative Court dismissed the appeal as being out of time (judgment no. 612/1999). Judgment no. 175/1993 then became final. However, despite the steps taken by the applicant the authorities have not yet paid him the sums due.
1. Section 8 of Law no. 2097/1952 regulating certain cases to which the Law on the Collection of Public Receipts relates used to contain the following provision:
“Enforcement of judicial decisions (of civil or criminal courts, the Supreme Administrative Court and the Court of Audit) whereby the State is ordered to pay a debt or legal costs shall be prohibited, as shall that of any authority to execute by which the State must pay such a debt.
Service of a demand for payment of such debts shall be prohibited and if it is effected nonetheless, such service shall in no way bind the State.”
The Court of Cassation had ruled that section 8 of Law no. 2097/1952 was consistent with the Greek Constitution and the Convention (judgment no. 1039/1995).
2. Subsequently, at its tenth plenary session on 14 February 1999, the Court of Audit held that, in the light of Article 6 § 1 of the Convention, it should be possible to bring enforcement proceedings against the State as well.
3. Article 95 § 4 of the Constitution, as amended following the constitutional reform of April 2001, now provides:
“... Judicial decisions shall also be enforceable against the State, local authorities and public-law entities ...”
In a recent judgment the Court of Cassation, sitting in plenary session, held that section 8 of Law no. 2097/1952 ran counter to Article 6 of the Convention and that it should be regarded as having been repealed, particularly since the constitutional reform of April 2001.


ITEMID: 001-78198
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: ROMANN v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Jerzy Romann, is a Polish national who was born in 1926 and lives in Poznan. He was represented before the Court by Mr Leonard Cyrson, a lawyer practising in Poznań.
The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 March 1999 the applicant lodged a request with the Konin District Construction Inspector for a review of the lawfulness of the construction of a sewage system on his estate. On 13 July 1999 the Konin District Construction Inspectorate discontinued the proceedings as it found that the departure from the construction permit had not been serious. The applicant appealed.
On 14 September 1999 the Konin Regional Construction Inspectorate quashed the decision as it found that the departure from the construction permit was serious enough to warrant an examination of whether the construction was lawful.
Concurrently, on 28 January 2000 the applicant lodged a request for annulment of the construction permit given to the investor - the Kazimierz Biskupi Municipality (Gmina Kazimierz Biskupi), by the Director of the Konin District Office (Kierownik Urzędu Rejonowego w Koninie). On 20 September 2000 the Konin District Municipality (Starostwo Powiatowe w Koninie) annulled the construction permit given to the investor.
On 1 February 2000 the Konin District Construction Inspectorate issued a decision by which it found the departure from the construction permit to be serious, but also found that the applicant had given his consent to this. It obliged the investor to bring the works into conformity with the law. The applicant appealed, challenging the finding that he had consented to a departure from the construction permit.
On 17 April 2000 the Regional Construction Inspectorate upheld the decision. On 12 May 2000 the applicant lodged a complaint with the Supreme Administrative Court.
On 23 November 2001 the Supreme Administrative Court gave a judgment by which it quashed the decisions of 17 April 2000 and 1 February 2000. It found the construction unlawful as being in breach of the construction permit.
On 9 April 2002 the applicant lodged a complaint about the inactivity of the District Construction Inspectorate. On 18 April 2002 the Regional Construction Inspectorate issued a decision in which it upheld the complaint.
On 10 May 2002 the District Construction Inspectorate gave a decision in which it found that the sewage system works had manifestly departed from the construction permit and ordered the investor to make the necessary changes to the construction in order to bring it into conformity with the law. The applicant appealed, seeking the demolition of the construction works.
On 10 June 2002 the Regional Construction Inspectorate quashed the decision and remitted the case to a lower authority.
On 9 July 2002 the District Construction Inspectorate issued a decision ordering the investor to demolish the sewage system built on the applicant’s estate. The applicant’s opponent appealed.
On 5 August 2002 the Regional Construction Inspector upheld the decision of 9 July 2002. On 5 September 2002 the applicant’s opponent appealed.
On 1 December 2004 the Regional Administrative Court quashed the judgment of 5 August 2002 and the decision of 9 July 2002. On 20 January 2005 the applicant appealed.
On 28 February 2005 the cassation appeal was rejected as the applicant had failed to pay court fees within the prescribed time-limit.
For a description of domestic law, see: Koss v. Poland, no. 52495/99, judgment of 28 March 2006.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłok i- “the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act.
On 18 January 2005 the Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Law produced legal effects as from the date of its entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date, but only when they had not yet been remedied.


ITEMID: 001-61213
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF SIGURTHOR ARNARSSON v. ICELAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Gaukur Jörundsson
TEXT: 8. The applicant is an Icelandic national, born in 1971 and living in Iceland.
9. According to the applicant, around 1 a.m. on 13 May 1997 he, accompanied by 4 other persons, including Mr S.T.E., entered a night-club, named Vegas, in Reykjavík. After a while the applicant had an argument with a certain Mr S.S., whereupon the latter arm-locked the applicant's throat and both fell to the floor. A fight broke out involving S.T.E. and two of S.S.'s friends. Doorkeepers tried to stop the fight but S.T.E. knocked S.S. unconscious, following which he fell on his back and hit the back of his neck on the floor. The applicant and his companions left the night-club in a hurry for S.T.E.'s home.
10. When, shortly thereafter, the police officers arrived at the scene, a man was lying unconscious on a sofa in the innermost part of the premises. According to the summary of facts found in the national courts' judgments referred to below, the police officers had been told that he had been struck on the head and that four persons, three men and one woman, had attacked him, struck him, treated him roughly and kicked him in the head. The person who was said to be mainly responsible was nicknamed Silli, a reference to the applicant. The persons in question were also said to have beaten two of S.S.'s friends, resulting in visible injuries. The former had then left the night-club. The police reports recording the witness evidence were not entirely clear. Investigators of the National Bureau of Investigation had not been called immediately and arrived at the scene after the witnesses had left.
11. While an ambulance took S.S. to the emergency ward of Reykjavík City Hospital his heart stopped beating and his breathing ceased. The heartbeat was recovered after resuscitation in the ambulance, but on arrival at the ward S.S.'s pupils were still wide and unresponsive to light. The only injury noticed on first examination was a small haematoma at the back of the neck. A tomograph examination however revealed an extensive sub-arachnoidal haemorrage. Brain surgery was performed immediately, but the attempts to save his life were unsuccessful. S.S. died the following day.
12. An autopsy carried out on 15 May 1997 concluded that an extensive cerebral haemorrhage had been the cause of death. Moreover, according to the autopsy report, from a bruise on the hairy scalp in the neck region and a haematoma under the scalp, it could be deduced that an impact (i.e. a blow, a kick or a fall) causing a sharp movement to the brain could have resulted in a tear of an artery and the resultant haemorrhage. No evidence had been found to the effect that the haemorrhage could have been caused by disease. S.S. had been heavily under the influence of alcohol at the time he received the injury to his head.
13. On becoming aware the day after the incident that S.S. had been taken to hospital and was in a poor state, the applicant reported to the National Bureau of Investigation. During questioning he admitted to having had a scuffle with the deceased but he denied having kicked him in the head. A forensic examination was carried out on the applicant's shoes a few days after the event but no evidence was found to substantiate such an allegation.
14. On 15 July 1997 S.T.E. was indicted with having attacked S.S., and for having dealt him a heavy blow to the back of the head causing him to fall unconscious to the floor. The applicant was charged with having subsequently kicked S.S. in the head once as the latter lay on the floor, causing a massive cerebral haemorrhage leading to S.S.'s death. The charges were made under Article 218 of the Penal Code (No. 19/1940), as amended by Article 11 (Act 20/1981).
15. In the proceedings before it, the District Court of Reykjavík heard both defendants and 20 witnesses. The witness accounts relating to the incident diverged greatly and some of the witnesses changed the version they had previously given to the police.
16. By judgment of 19 September 1997, the District Court convicted and sentenced S.T.E. to 2 years' imprisonment and acquitted the applicant on the ground of lack of evidence. Its reasoning included the following observations:
“The accounts of the fight at the Vegas club diverge greatly but it has been established that it was of short duration and that it involved not only the defendants and the late S.S. but also others ... . The premises were rather badly lit with coloured and blinking lights. It is also to be borne in mind that many of the witnesses who have testified in this case were under the influence of alcohol, some of them heavily. It is also established that the deceased was heavily intoxicated.
The applicant has firmly denied having kicked S.S. in the head. S.T.E. has stated that, as S.S. was on all fours trying to stand up, the [applicant] had kicked him distinctly in the neck with the tip of his shoe. [S.T.E.'s] account is not consistent with any other statement and must be rejected. A witness has testified that [the applicant] kicked with the tip of his shoe on the back of the deceased's head as he lay on his side. Others have not ascribed such conduct to the [applicant] and the examination of his shoes fails to provide support for this testimony. Nor is [S.T.E.'s] statement ... supported by the nature of the injury on the deceased's neck and what has been found as regards the type of shoes the [applicant] was wearing. Bearing this in mind, and having regard to the [applicant's] firm denial, it has not been established that he kicked the deceased's head. He is therefore to be acquitted.
The defendant S.T.E. has also firmly denied having struck the late S.S. On the other hand V.R.T. has stated that a big, thickset man in his thirties, wearing a ... striped or brightly patterned ... garment, dealt a man in a blue shirt a blow behind his right ear, so that he fell forward. S.L. has stated that he saw S.T.E. strike S.S. high on his head. O.R.J. has stated that he saw a man ... strike the deceased on the head, at the rear or on the side. B.P. has described how a man in a light coloured shirt and jeans struck another man to the side of his eye with an audible impact and has stated that the man fell on the floor, again with an audible impact. Despite the fact that their testimonies are inconsistent, they all agree that the man stricken did not stand up again. The District Court finds it established that ...the defendant S.T.E. dealt the late S.S. one blow to his head in the course of the fight, so that he fell on the floor and lay there unconscious. Nothing can be determined as to whether the cerebral haemorrhage was a result of the blow or the fall or both, but the defendant is criminally liable for these tragic consequences. He is therefore guilty of a violation of Article 218 (2) of the Penal Code.”
17. On 23 September 1997 the Public Prosecutor appealed against the applicant's acquittal to the Supreme Court and requested his conviction of the charges in the indictment and a sentence, as well as a heavier sentence for S.T.E. The Prosecutor further stated: “[The defendants were] therefore summoned to appear before the Supreme Court when the case will be tried there, to hear the charges, to respond on their behalf and to accept judgment. They may not expect to be served any further notification or summons.”
In his supplementary observations of 30 April 1998, the Prosecutor reiterated the District Court's finding that the co-defendant S.T.E. had dealt the victim S.S. one blow in his head in the course of the fight so that he fell on to the floor and lay there unconscious, and that nothing could be determined as to whether the cerebral haemorrhage was the result of the blow or the fall or both. He pointed out that defendant S.T.E had stated that the applicant had kicked S.S. in the head when he was trying to stand up and that witness E.P. had definitely stated that the applicant had kicked the back of S.S.' head as he lay on the floor. Their statements related to the same kicking of S.S.'s head. The discrepancy in their statements could not justify rejecting S.T.E's statement on this point. The grave and sustained physical assault by both defendants led to the haemorrhage and the victim's sudden death.
18. In a writ of 5 May 1998, the applicant's defence counsel replied that it could not be seen from the Prosecutor General's submissions that he considered that the District Court had incorrectly assessed the evidence, as he did not request the Supreme Court to quash the lower court's judgment and remit the case to the latter. Counsel for the defence further made detailed arguments against those made by the Prosecutor General on the witness evidence, stressing that the evidence of the co-defendant S.T.E. was unreliable as he obviously had a personal interest in the applicant being found guilty of the charges.
19. After having heard the prosecution and counsel for the applicant, but not the applicant himself or any witnesses, the Supreme Court, by judgment of 22 May 1998, convicted the applicant of the initial charge and sentenced him to 2 years and 3 months' imprisonment. Moreover, it upheld the District Court's sentence of S.T.E. The Supreme Court's case-file included transcripts of the oral evidence before the District Court and all documents submitted in the proceedings before the latter, such as police reports concerning the incident at the Vegas club, statements of witnesses provided to the police at the investigation stage, autopsy reports and other results from the medical examination of the deceased, as well as a medical report on the applicant, and photographs of the applicant, his co-defendant and the other five persons who were involved in the fight and who later became witnesses in the case. It also included photographs of the shoes which the applicant was wearing that night and photographs and drawings of the premises where the fight took place at the Vegas club. There were, moreover, several other documents, such as the applicant's criminal record.
20. The Supreme Court held:
“... the District Court's finding that the deceased died from a sub-arachnoidal haemorrhage resulting from an impact or impacts on the head is upheld. The only external injuries observed on his head were a bruise on the hairy scalp on the neck and a haematoma under the scalp. The injury was not shown to have been caused by a heavy impact or impacts on the neck and it has been sufficiently determined that a relatively light impact could cause such injury. The fact that the deceased was heavily intoxicated is also of significance.
Despite the fact that the [witness] statements ... are somewhat lacking in clarity, the Supreme Court does not find it imprudent to conclude that both defendants, together with S.L., assaulted the deceased. The latter witness stated to the police, and in fact confirmed in court, that defendant S.T.E. struck the man on his head. This is supported by the statements of witnesses U.R.T. and O.R.J. and also by S.T.E.'s own statement that he struck one fellow. However, it must be borne in mind that E. traces an injury to the applicant, and E.P. traces an injury to S.L. Accordingly, the Supreme Court finds it proven that S.T.E. dealt S.S. a blow on his head, with the result that he fell onto the floor. In witness E.P.'s statement, which to a certain extent is supported by doorkeeper G.Ó's statement and the initial statements of those who were present at the scene to the effect that the deceased was kicked in the head, it has also been sufficiently established that the applicant subsequently kicked S.S. in the head while he was lying on the floor.
In view of all the above evidence it has been proven that both defendants attacked the deceased, who was so much under the influence of alcohol that he was unable to fight or to protect himself from falling. No other person can be considered to have inflicted on S.S. the injury that led to his death. The defendants ought to have been aware that their assault could result in serious injury. Considering the act and its consequences which are to be regarded as unintentional, both defendant's conduct is deemed to violate Article 218 (2) of the Penal Code ... . According to the autopsy report and the statement of the doctor performing the autopsy ... the consequences of the assault were more serious than what was to be expected. This must be taken into account in sentencing.”
The minority (of one judge) stated:
“The witnesses' statements relating to the events at the Vegas club on 13 May 1997 ... are described in the majority opinion and in the District Court's judgment. The description includes the part played by the defendant S.T.E., who denied the charges. In spite of his denial, I find it established that, with his fist, he dealt [S.S.] ... a blow on the back of the latter's head causing him to fall onto the floor where he subsequently lay motionless. An injury was found on the upper part of the neck. I consider that a judgement shall be rendered on the basis that this act perpetrated by defendant S.T.E. led to [S.S.'s] death. ... I concur with the other judges that the penalty of this defendant shall be 2 years' imprisonment.
The [applicant] also denied the charges. One witness firmly stated that he saw this defendant kick the deceased in the head as he lay in the floor. Another witness, a doorkeeper at the Vegas club, testified that he had seen someone kick the man as he lay on the floor. To him this seemed a kick, but he could not state who kicked, nor where the kick hit the body. The witness did not mention this when making his statement to the police on 14 May 1997. When questioned again by the police 2 days later, the witness was quoted as saying: 'This was a fight where he saw hands beating and feet kicking, but he could not determine who beat whom or whether somebody kicked somebody'. Considering the case as a whole, the charges are not borne out by this witness statement. I find that the prosecution has failed to establish the [applicant's] guilt and that his acquittal by the District Court is therefore to be upheld.”
21. Article 157 (1) and (3) of the 1991 Code of Criminal Procedure (as amended by Act No. 37/1994) reads as follows:
“1. Supreme Court cases shall generally be presented orally during the final hearing. The Court may however decide that the final presentation of a case shall take place in writing, if there are particular reasons making this commendable. The Supreme Court may also receive a case for adjudication without a final presentation if both parties request this or if the appeal only concerns a revision of the sanctions ordered. ...
3. The Supreme Court may decide, to the extent necessary, to receive in court statements given orally in evidence, if the Court deems, in the light of the facts, that the evidence in question may affect the outcome of the case.”
22. Article 159 provides:
“1. The Supreme Court cannot order a heavier penalty or other sanctions unless the prosecution authority has, for that purpose, appealed against a judgment.
2. If an appeal has been lodged against a judgment by the prosecution authority but not by the defendant, the Supreme Court may nevertheless change the judgment for the benefit of the defendant.
3. In the case of an appeal on the merits of a judgment, the Supreme Court shall not change the sanctions ordered except if they exceed the limits provided for in the relevant criminal provisions or if they are disproportionate to the offence committed by the defendant.
4. The Supreme Court cannot revise a district court's conclusion concerning the evidential value of oral statements, except if the witness in question, or the defendant, has made a statement before the Supreme Court.
5. If the Supreme Court considers it likely that the conclusion of a district court concerning the evidential value of oral statements in court may be incorrect so as to materially affect the outcome of the case, and the witnesses in question or the defendant have not provided oral statements before the Supreme Court, the Supreme Court may invalidate the judgment of the district court and the district court procedure to the extent necessary to enable oral evidence to be received by the district court as needed, and a new judgment to be rendered.”
The Government submitted that, according to legal practice, the meaning of the expression “evidential value of oral statements” in Article 159 (4) is twofold. Firstly, it refers to the assessment of the credibility of a witness and his or her statements considered on its own. For this purpose it is necessary that the witness appear in court and be questioned by the judge directly. Secondly, the provision in Article 159 (4) refers to the weight of his or her testimony as compared with that of other evidence in the case, where the Supreme Court has accepted the District Court's assessment of the witness' credibility. The main purpose of the provision is to guarantee that the Supreme Court will not reassess the credibility of a witness who has given oral evidence to the District Court. According to the Government, this interpretation finds support in the explanatory report accompanying the bill for the Act No. 37/1994 amending the provisions regarding proceedings before the Supreme Court. If the latter considers that the District Court has assessed the credibility of the witness statements wrongly, it would quash the first instance judgment and, in so far as necessary, order the District Court to take new oral evidence and give a new judgment. An example of the Supreme Court having taken evidence under Article 159 (4) could be found in Supreme Court case no. 11/2001, adjudicated on 21 February 2002, where the Supreme Court, after having already once quashed the District Court's assessment of the matter, found it necessary in a second round to appraise itself of the credibility of the accused's defence.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108710
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF POPOV v. FRANCE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1-f - Prevent unauthorised entry into country);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicants are Mr Vladimir Popov and Mrs Yekaterina Popov née Yakovenko, nationals of Kazakhstan, born in 1983 and 1982 respectively, and their two minor children, who were born in France on 7 April 2004 and 17 March 2007.
6. The applicants were born in Kazakhstan. They were married on 18 June 2002. In the applicants’ submission they were repeatedly persecuted in their country on account of their Russian origin and their affiliation to the Russian Orthodox Church. On 9 May 2002 the applicant’s father was beaten up in the street and required treatment in hospital. The family filed a complaint and on 5 June 2002 the applicants received, at their house, a visit from unknown individuals of Kazakh origin who asked them to withdraw their complaint and threatened them with reprisals. On 15 July 2002 an incendiary device was thrown into their home through the window, starting a fire, and they were rescued by a neighbour. Following that incident, the applicant’s father left Kazakhstan on 16 August 2002.
7. On 29 September 2002, when the second applicant was returning home, Kazakh police officers stopped her in the street and questioned her about her father. They took her away and she was beaten up. They tried to shut her in a vehicle and threatened to rape and kill her. She managed to escape. The next day, she went to the casualty department in the town of Taraz to have her injuries recorded and treated. On 2 October 2002 her mother came home having also been beaten up by Kazakh policemen who were looking for her husband. After that incident they moved to the country.
8. On 28 November 2002 the second applicant was again assaulted. She had gone shopping and did not return until the next day, covered in bruises and blood. Several days later she lost the child she was carrying. She then decided to leave the country and entered France on 15 December 2002 on a two-week visa. After her departure, the applicant, who had filed a complaint, was assaulted by policemen on 10 March 2003. He spent several months in hiding but the authorities found him, confiscated his papers, and threatened to kill him if he did not withdraw his complaint. He too decided to leave the country and joined his wife in France on 19 June 2003.
9. The applicants each filed an asylum application with the French Office for the Protection of Refugees and Stateless Persons (OFPRA) and obtained residence permits. Their asylum applications were rejected on 20 January 2004 on the ground that their statements were “riddled with inconsistencies”, followed “a stereotyped pattern” and were “unconvincing”. On 31 May 2005 the Refugee Appeals Board dismissed their appeals.
10. On 12 January 2006, having learnt of the murder of the second applicant’s father, after his return to Kazakhstan, the applicants requested a fresh examination of their case by the OFPRA. On 19 January 2006 the OFPRA refused to re-examine the case. On 13 September 2006 the Appeals Board rejected their appeal on the ground that the new fact could not be regarded as established.
11. They subsequently applied for recognition as stateless persons, but the OFPRA rejected their request on 5 April 2007, on the ground, first, that they had not provided evidence that the Kazakh authorities had withdrawn their nationality and they could not lose that nationality purely of their own volition, and, secondly, that they held passports issued by their national authorities that were valid until 2012. On 25 April 2007 the applicants appealed against that rejection before the Nantes Administrative Court. They subsequently dropped their appeal, however, having obtained refugee status in the meantime (see paragraph 27 below).
12. On 21 June 2005 the Ardennes prefecture notified the applicants of its refusal to issue them with residence permits and directed them to leave the country within one month.
13. On 22 November 2005 Mr Popov was arrested during a vehicle check when he was found to be in the country illegally. On the next day he was issued with a removal order and placed in administrative detention in Charleville-Mézières. On 25 November 2005 the liberties and detention judge of the Charleville-Mézières tribunal de grande instance ordered the extension of his detention for fifteen days. On 9 December 2005 the detention was extended for a further fifteen days in order to “enable the enforcement of the removal measure”.
14. On 28 November 2005 the Châlons-en-Champagne Administrative Court rejected Mr Popov’s application for the annulment of the order for his removal to Kazakhstan. On 23 November 2006 the Nancy Administrative Court of Appeal upheld that judgment, finding that he had not adduced any conclusive evidence in support of his allegations that he had been persecuted in his country of origin.
15. The removal order against the first applicant was not enforced, however, and he was released from the detention centre, as no laissez-passer had been issued.
16. On 11 October 2006 it was decided to place the applicants in administrative detention but the prefect of the Ardennes ordered them to reside at a specific address, pursuant to Article L. 513-4 of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA). Two attempts to remove the applicants failed as a result of the mobilisation of a support group. The family was thus released.
17. On 29 January 2007 the Ardennes prefecture rejected a new request for the issuance of a residence permit to the applicants. On the same day, a further decision was delivered imposing on them an obligation to leave the country. On 31 May 2007 the Châlons-en-Champagne Administrative Court dismissed their appeal against that decision.
18. On 25 June 2008 they again applied for residence permits. As the prefecture failed to respond, the applicants challenged the implicit rejection decision before the Nantes Administrative Court. However, having subsequently obtained refugee status, the applicants withdrew their complaint.
19. On 27 August 2007 the applicants and their children, who were then under six months and three years, respectively, were apprehended at the home of the applicant’s mother, who was accommodating them, and taken into police custody. After a long wait, the Maine-et-Loire prefecture ordered their administrative detention in a hotel in Angers. On 28 August 2007 the applicants and their children were transferred to Charles-de-Gaulle airport pending their removal to Kazakhstan. However, the flight scheduled for the early afternoon was cancelled, without the prefecture having been informed, and the removal could not therefore be carried out. It was only in the evening that the applicants and their children were transferred, in a police van, to the administrative detention centre of RouenOissel.
20. That centre, even though it is mentioned on the list of centres that cater for families, does not have any real leisure or learning area. Whilst one wing is reserved for families and single women, the atmosphere there is distressing and stressful, with a lack of privacy and a high level of tension. Announcements via loud-speakers reverberate throughout the centre and exacerbate the feeling of stress. The Oissel centre, at the time of the applicants’ detention, was not equipped with the basic facilities for the detention of young children (it had metal beds with pointed corners, no cots, just a few toys in the corner of a room, etc.). The only outdoor area is a courtyard, concreted over and with wire netting over the top, and the bedroom windows are covered with a tight grill obscuring the view to the outside ...
The eldest child refused to eat in the centre and showed signs of anxiety and stress. The parents had to negotiate with the police to recover their personal belongings, including the milk they had brought for the infant. They were only able to receive one short visit during their detention, as it was not easy to gain access to the centre.
21. On 29 August 2007 the liberties and detention judge of the Rouen tribunal de grande instance ordered the extension of the detention measure for fifteen days, after observing that the maintaining of a family in detention was not in breach of the decree of 30 May 2005 on administrative detention and holding areas and that their transfer to RouenOissel was not vitiated by any defect. The decision also mentioned the loss of the second applicant’s Kazakh nationality but it was found that this could not justify release, as the Administrative Court alone had jurisdiction to decide if that situation would have any consequences. On 30 August 2007 the Rouen Court of Appeal upheld the extension decision.
22. Having been held in the detention centre since 28 August 2007, the applicants were again transferred to Roissy Charles-de-Gaulle airport pending their removal on 11 September 2007, the flight being scheduled for the early afternoon. It did not go ahead, however. The applicants were not taken back to the Rouen-Oissel centre until the evening, without any measure of placement in a detention facility being decided at Roissy during that period. The prefect then applied to the Rouen liberties and detention judge to have the applicants’ detention extended for a further fifteen days, relying solely on the argument that the non-enforcement of the removal order could be attributed to the applicants themselves (CESEDA, Article L. 552-7). The applicants complained about the conditions of their detention and its length, arguing that the authorities had failed to prove that the length of the measure was strictly necessary.
23. On the same day the applicants submitted to the Court, under Rule 39 of the Rules of Court, a request for the suspension of the removal measure. The Court declined to indicate an interim measure in response to that request.
24. On 12 September 2007 the liberties and detention judge found that there was no evidence to show that the applicants had deliberately impeded their removal, because the documents concerning the circumstances of the attempt expressly stated that “no refusal to board the plane was recorded on 11 September 2007”, and he ordered their release, with the obligation to leave France being maintained. The prefect appealed against that decision but without seeking suspensive effect. The applicants were thus released from the detention centre.
25. On 14 September 2007 the Rouen Court of Appeal set aside the liberties and detention judge’s decision and extended the administrative detention measure for fifteen days, finding that it could be seen from certain documents in the file that the applicants had indeed prevented their removal (an e-mail from one of the border police officers mentioning the need for an escort to carry out the removal the next time, in view of Mrs Popov’s reaction). It had been found that the next flight with an escort for the applicants’ removal would not be available before 18 September 2007, and the prefect had not therefore shown a lack of diligence in organising the departure and limiting the length of the detention. He had thus been justified in seeking an extension of the administrative detention pending the organisation of a fresh removal. That decision was not enforced.
26. Before their arrest the applicants had filed a fresh request to be granted refugee status. In a decision of 6 September 2007 the OFPRA rejected the request on account of the very general nature of the alleged facts, finding that this, together with the unlikely claim of blackmail on the part of the Kazakh authorities, precluded the establishment of their veracity. The OFPRA further stated that as the allegation that the applicants had lost their nationality had not been corroborated, the request for re-examination had to be rejected. The applicants appealed against that decision.
27. On 16 July 2009 the National Asylum Tribunal granted the applicants refugee status, finding that the enquiries made by the Ardennes prefecture vis-à-vis the Kazakh authorities, in breach of the confidentiality of asylum applications, had exposed the applicants to danger in the event of their return to Kazakhstan, and that their loss of Kazakh nationality, in August 2007 and April 2008 respectively, whilst not per se constituting persecution, did not, however, preclude the granting of refugee status.
28. The detention of aliens pending their removal is mainly governed, in French domestic law, by the provisions of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA).
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31. The practice of detaining children accompanying their parents is governed by decree no. 2005617 of 30 May 2005 concerning administrative detention and holding areas, which amended the CESEDA provision as follows:
“Administrative detention centres, which are not entitled to accommodate over 140 residents, shall provide detained aliens with hotel-type facilities and collective catering services. They shall comply with the following standards:
1. A minimum usable surface area of 10 square metres per detainee consisting of a bedroom and areas freely accessible during opening hours;
2. Non-mixed shared rooms, housing a maximum of six;
3. Personal hygiene facilities, consisting of washbasins, showers and toilets, freely accessible and in sufficient numbers, representing one washroom for every ten detainees;
4. A telephone freely accessible for every fifty detainees;
5. Premises and facilities necessary for catering, in compliance with standards laid down in a joint decision of the Agriculture Minister, the Defence Minister, the Health Minister and the Minister for SMEs, trade and crafts;
6. For more than forty detainees, a leisure room separate from the canteen, with a surface area of at least 50 square metres, plus 10 square metres for every fifteen additional detainees;
7. One or more rooms containing medical equipment, reserved for medical personnel;
8. A room for visits by family members and consular staff;
9. The room mentioned in Article R. 553-7, reserved for lawyers;
10. A room assigned to the organisation mentioned in Article R. 553-13;
11. A room, containing furniture and a telephone, assigned to the association mentioned in the first paragraph of Article R. 553-14;
12. An area for open-air exercise;
13. A luggage room.
Administrative detention centres catering for families shall also contain bedrooms that are specially adapted, in particular for childcare.”
“By way of exception, the court may order aliens to reside at a specific address when they can provide effective guarantees that they will not abscond, after surrendering to the police or gendarmerie their original passport and any identity document, in exchange for an acknowledgment of receipt constituting proof of the person’s identity and indicating the removal measure that is pending. Where an order to reside at a specific address is made in respect of an alien who has previously absconded from the execution of an applicable removal or deportation measure, or has breached a ban on re-entry that has not been lifted, the order shall give specific reasoning.”
32. The Court notes that French law precludes the placement of minors in administrative detention:
“An obligation to leave French territory or a removal measure, pursuant to the present chapter, cannot be decided in respect of:
1o An alien who is under eighteen years of age; ...”
“Deportation cannot be ordered in respect of an alien under eighteen years of age.”
33. The Cimade, an ecumenical non-governmental organisation providing assistance to immigrants, in its report “Administrative detention centres and facilities” (“Centres et locaux de rétention administrative”), published in 2010, pointed out that even though the law did not permit the detention of minors, 318 children “accompanying” their parents had been deprived of their liberty in 2009. Their average age was eight. The Cimade emphasised that administrative measures of placement in detention could not be taken against children, so their detention was devoid of legal basis.
34. As a result, the administrative detention centres of Lille-Lesquin 2, Coquelles, Lyon, Rouen-Oissel, Marseille, Metz-Queuleu, Nîmes, Saint-Jacques de la Lande (Rennes), Perpignan, Hendaye, Le Mesnil-Amelot 2 and Toulouse-Cornebarrieu were thus “authorised to receive families”. The Cimade observed that there were flagrant discrepancies between the various administrative detention centres in terms of how families were actually catered for. The total lack of guidelines as to what was indispensable for a child precluded any harmonisation of the conditions of detention for families in the centres. The task was left to each centre’s director, whose responsibility it was to adapt the day-to-day management of the centre to the particular needs of a family with children, without having the support of staff specifically trained in education.
...
42. The domestic courts have given a number of rulings on the practice of placing children accompanying their parents in administrative detention pending removal.
43. In an order of 23 October 2007 (no. 87/2007) the President of the Rennes Court of Appeal ruled on an appeal by the public prosecutor with a view to the annulment of an order by the liberties and detention judge concerning the release of a family with an infant. The public prosecutor had argued that the fact of holding them “on premises that were specially adapted to receive families did not constitute inhuman treatment”. The Court of Appeal upheld the first-instance order with the following reasoning:
“even though it provides an area reserved for the ‘reception’ of families, the detention centre remains a place where aliens are detained pending their removal from France, for a maximum period of thirty-two days; in the present case, the fact of holding in such a place a young mother, her husband and their three-week-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights on account, firstly, of the abnormal living conditions imposed on this very young child, virtually since birth, and secondly, of the great emotional and mental distress inflicted on the mother and father by detaining them with the infant, a distress which, by its nature and duration ..., exceeds the threshold of seriousness required for the above-mentioned provision to be engaged, and which, moreover, is manifestly disproportionate to the aim pursued, namely the couple’s removal ...”
44. In another order, this time of 29 September 2008 (no. 271/2008), the same Court of Appeal took the view that “even though it provides an area reserved for the reception of families, the detention centre remains a place of seclusion [and] the fact of holding in such a place a very young mother, her husband and their one-year-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights”. That court further noted in particular that, for a family, such seclusion caused “great emotional and mental suffering” which “exceeded the threshold of seriousness for the purposes of the Convention”.
In a decision of 10 December 2009 (Bulletin 2009, I, no. 250), the Court of Cassation quashed that order. .
45. In an order of 21 February 2008, the Toulouse Court of Appeal (no. 08/00088) ordered the immediate release of the appellants on the following grounds:
“the fact of holding in such a place a young mother, her husband and their two-month-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights on account, firstly, of the abnormal living conditions imposed on this very young child, virtually since birth, having been held in police custody with its mother, and secondly, of the great emotional and mental distress inflicted on the mother and father by the detention measure, a distress that is manifestly disproportionate to the aim pursued, namely the execution of the removal order ...”
That decision was quashed by the Court of Cassation, which decided in a judgment of 10 December 2009 (Bulletin 2009, I, no. 249) as follows:
“inhuman or degrading treatment is not constituted by the provisional holding in administrative detention of a family, made up of a man, a woman and their child of a few months’ old, pending the execution of an enforceable removal measure, where such deprivation of liberty has been lawfully ordered by a judicial authority, under its supervision, and is carried out in an area of the detention centre specially reserved for families, unless it is shown that the area is not adapted to the needs of family life or of human dignity.”
46. The GISTI and the Cimade applied to the Conseil d’Etat seeking the annulment of the decree of 30 May 2005 “in so far as it organised the placement in administrative detention of families, including minors, but their applications were rejected in a judgment of 12 June 2006 (no. 282275). Concerning the detention of families, it took the view that Article 14 of the decree in question did not have the purpose or effect of permitting the administrative authorities to decide on the deprivation of liberty of the families of individuals placed in detention, but that it sought only to provide for the reception of such families. The Conseil d’Etat thus concluded that the administrative authority was competent to make such arrangements, which were not in breach either of the CESEDA or of the New York Convention on the Rights of the Child.
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56. Following his visit from 5 to 21 September 2005, the Commissioner for Human Rights published, on 15 February 2006, a report on “the effective respect for human rights in France” (CommDH(2006)2). He observed, concerning the detention of minors, that children should not be kept in an enclosed facility, offering little in the way of activities and few, if any, outings, and where conditions were precarious and their safety could not be guaranteed. He recommended that an alternative solution be proposed to families with children (§ 196). He noted in this connection that compulsory residence orders, which were provided for by law, were “little used” (§ 257).
The Commissioner further observed that the placement of children in a detention centre was incompatible with the New York Convention and French law, which precluded the use of removal orders against minors. He found, however, that a legal vacuum made it possible to place children in detention centres and remove them, on the grounds of concern not to separate them from their families. In his view, the French authorities appeared to completely underestimate the legal and humanitarian problems posed by the presence of children in such centres (§ 255). He added, lastly, that in any event, no children should be detained on the grounds that their parents did not have the necessary papers to remain in France, especially “in places marked by overcrowding, dilapidation, promiscuity (sic) and very strong tensions” (§ 257).
57. In his report of 20 November 2008 (CommDH2008(34)) the Commissioner noted that “[n]otwithstanding the recommendation made in the 2006 report, an increasing number of children [were] placed in administrative holding centres with their parents”. He added that it was regrettable that such holding centres and waiting zones at the border were the only places in France where minors under the age of 13 were deprived of their liberty. He found, lastly, that the French authorities continued to underestimate the problems posed by the presence of children in holding centres and invited the authorities to place families in administrative detention only in cases of extreme necessity, so as to avoid causing children irreparable trauma.
58. Following its visit to numerous administrative detention centres in France (Palaiseau, Vincennes 1 and 2, Marseille, Toulouse-Blagnac 2 and Cornebarrieu), in 2006, the CPT raised with the Government the question of detaining families, and in particular any “accompanying” children, in such centres. It noted that this type of situation was not exceptional.
In response to concerns about the conditions of accommodation, the French authorities acknowledged that “the current furnishings in the bedrooms [were] not always fully adapted to small children ...”.
59. On 16 December 2008 the Parliament and the Council of the European Union adopted Directive 2008/115/EC, known as the “Return Directive”, on common standards and procedures in Member States for returning illegally staying third-country nationals (Official Journal L. 348, 24 December 2008, pp. 00980107).
The relevant provision reads as follows:
“(13) The use of coercive measures should be expressly subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued ...”
60. In Council Directive 2003/9/EC, the “Reception Directive”, adopted on 27 January 2003, the European Union gave the following definition of vulnerable persons particularly requiring the authorities’ attention:
“General principle
1. ... minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence ...”
“Minors
1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. ...”
61. The European Union Charter of Fundamental Rights became binding with the entry into force of the Lisbon Treaty on 1 December 2009. Article 24 reads as follows:
“... 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. ...”
62. In December 2007 the LIBE Committee published a study entitled: “The conditions in centres for third country national (detention camps, open centres as well as transit centres and transit zones) with a particular focus on provisions and facilities for persons with special needs in the 25 EU member states” (PE 393.275) analysing the implementation of the “reception” directive.
The report’s authors found that minors were detained in the vast majority of EU States (France, Germany, Belgium, the United Kingdom, the Czech Republic, Slovakia, Portugal, Luxembourg, Spain, Latvia, Estonia, Ireland, Greece, Malta and Cyprus). The report presents an exhaustive study of the conditions of reception of vulnerable persons in EU member States. Austria appears to be the only State that never has recourse to detention for minors and Sweden limits it to seventy-two hours. Countries such as Belgium, France and the United Kingdom, however, have recourse to detention almost systematically for accompanied children.
The report further shows that in spite of the existence of separate sections reserved for families with children and improved conditions (game rooms, toys, etc.), the fact remains that the lack of privacy, stressful living conditions, food, daily routine, negation of intimacy and the human and material environment are not adapted to children. The detention centre staff interviewed all felt that children should not be imprisoned in detention centres for the short or long term, because of the negative impact this traumatic experience could have on the children’s psychological balance, on their relations with their parents and on the image the children had of their parents whilst in detention.
63. In the part concerning France, the report noted a deterioration in the atmosphere in these secure centres and in particular a rise in the number of desperate acts committed, including physical assaults. It was also suggested that the improvement in physical conditions for families had the perverse effect of making this type of detention seem banal when the very principle of detaining them in this position could be questioned. The report’s authors added: “The presence of children in these places where they are deprived of their freedom, even if these are ‘family zones’ and they are kept here in order to keep families together, was particularly shocking for the study team”.
64. According to the non-governmental organisation “International Detention Coalition”, the alternative of compulsory residence orders is used in France in only 5% of cases (see the report: “Survey on Alternatives to Detention of Asylum Seekers in EU Member States”). Many organisations, both governmental and non-governmental, advocate alternatives to detention.
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VIOLATED_ARTICLES: 3
5
8
VIOLATED_PARAGRAPHS: 5-1
5-4
8-1
VIOLATED_BULLETPOINTS: 5-1-f
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-115821
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: TOPOLOVČAN v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 1. The applicant, Ms Branka Topolovčan, is a Croatian national, who was born in 1962 and lives in Koprivnica. She was represented before the Court by Mr D. Ostović, a lawyer practising in Vinkovci.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 1 October 2008 the Koprivnica Municipal Court (Općinski sud u Koprivnici) found the applicant guilty of causing the death of her son through negligence, but it did not impose a sentence on the grounds that the applicant had suffered enough as a result of the events in question.
5. In the same decision it was ordered that the costs of the proceedings were to be borne by the Koprivnica Municipal Court under Article 123 § 1 of the Code of Criminal Procedure.
6. The applicant lodged an appeal against the judgment before the Koprivnica County Court (Županijski sud u Koprivnici) on 12 November 2008.
7. However, on 24 December 2008 the Koprivnica County Court dismissed the applicant’s appeal and upheld the judgment of the Koprivnica Municipal Court.
8. On 27 February 2009 the applicant submitted a claim for costs and expenses incurred in the criminal proceedings against her to the Koprivnica Municipal Court. These costs and expenses concerned the costs of her legal representation by a privately hired lawyer.
9. On 20 March 2009 the Koprivnica Municipal Court declared the applicant’s claim for costs and expenses inadmissible as being lodged out of time. The relevant part of the decision reads:
“This court holds that the defence lawyer was not entitled to submit his claim for costs and expenses after he had received the appellate judgment, but rather had to do so before the adoption of the first-instance judgment because Article 120 § 2 of the Code of Criminal Procedure only allows the authorised person to submit an itemised list of costs up to three months after the final judgment has been served on him or her, but not a claim for costs and expenses.”
10. In her appeal of 27 March 2009 the applicant argued that the decision of the Koprivnica Municipal Court was contrary to the relevant provisions of the Code of Criminal Procedure and the wellestablished practice of the domestic courts by which a claim for costs and expenses could be lodged within three months after the final judgment.
11. On 11 May 2010 a three-judge panel of the Koprivnica Municipal Court dismissed the applicant’s appeal, holding that the costs and expenses arising from the applicant’s representation by a privately hired lawyer had to be borne by the applicant herself as she had been found guilty on the charges against her. The relevant part of the decision reads:
“... it is to be noted that by the [first-instance] judgment ... Article 123 § 1 of the Code of Criminal Procedure was wrongly applied when it was decided that the costs of the proceedings were to be borne by the court. This is because the accused was found guilty, so the costs [of the proceedings] are to be considered under Article 122 of the Code of Criminal Procedure and not Article 123 of [that Code]. In case of the application of Article 122 § 4 of the Code of Criminal Procedure, the accused can be excused from the obligation to pay, in total or partially, the costs and expenses of the criminal proceedings ... as well as costs of the officially assigned lawyer. [The applicant’s lawyer] D.O. was not her officially assigned lawyer but a lawyer of her own choosing. Therefore his costs and expenses, as the accused was found guilty, cannot be borne by the court.”
12. The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku – Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003, 178/2004 and 115/2006) reads:
“(1) The costs of criminal proceedings are expenses incurred by reason of criminal proceedings from their institution to their termination, including the costs of undertaking investigatory actions before an investigation.
(2) The costs of criminal proceedings shall consist of:
(1) expenses of witnesses, expert witnesses, interpreters and experts, the expense [of obtaining] stenographic notes or a technical recording, and expenses of judicial review;
(2) expenses of transportation of the defendant;
(3) expenses of bringing the defendant or arrested person before the court;
(4) expenses of the transportation of officials and their travelling expenses;
(5) expenses of medical treatment of a defendant who is not entitled to health insurance while he is in detention or in a medical institution by virtue of a judicial decision, and expenses of child delivery;
(6) a lump sum;
(7) fees and necessary expenses of the defence counsel, necessary expenses of a private prosecutor or subsidiary prosecutor and their legal guardians, and fees and necessary expenses of their legal representatives; and
(8) necessary expenses of the injured party and his legal guardian and fees and necessary expenses of his legal representative.”
“(1) Each judgment shall contain, in addition to a decision terminating the criminal proceedings, a decision on the costs and expenses of the proceedings and their amount.
(2) Where the information concerning the amount of expenses is missing, a separate decision concerning costs and expenses shall be adopted by an investigating judge, a single judge or the president of a panel when such information has been submitted. A claim containing information on the amount of costs and expenses may be lodged up to three months after a final judgment or decision has been served on a person who has the right to lodge such a claim.”
“(1) When the court finds the defendant guilty, it shall state in the judgment that he must pay the costs of the criminal proceedings.
...
(4) The court may, in a decision on costs, decide that the defendant shall not pay the entire or partial sum of the costs of the criminal proceedings referred to in Article 119 paragraph 2 subparagraphs 1 to 6 of this Code and the fee and necessary expenses of any officially appointed defence counsel if payment of these costs could imperil the maintenance of the defendant or persons he is bound to maintain. If these circumstances are determined after the decision on costs was adopted, the president of the panel may, by a separate decision, dispense the defendant from the duty to bear the costs of the criminal proceedings.”
“(1) When criminal proceedings are discontinued or when a judgment of acquittal or a judgment dismissing the charge(s) is adopted, the court shall order that the costs of the criminal proceedings referred to in Article 119 paragraph 2 subparagraphs 1 to 5 of this Code, as well as the necessary expenses of the defendant and the necessary expenses and fees of the defence counsel, shall be paid from budget funds ...”
13. In decisions nos. Kzz-14/1998-2 of 16 September 1999, concerning costs and expenses of representation by a legal aid lawyer, and I Kž 982/05−6 of 6 June 2007, concerning costs and expenses of representation by a privately hired lawyer, where the criminal proceedings had been discontinued because of the death of the accused, the Supreme Court held that a defence lawyer was not required to submit a claim for costs and expenses before the first-instance judgment was adopted, but was required to do so within three months of a final judgment being served on him or her.


ITEMID: 001-83580
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BALÇIK AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicants were born in 1967, 1979, 1971, 1963, 1979, 1973 and 1972 respectively and live in Istanbul.
5. Upon receipt of intelligence reports that on 5 August 2000 a group of demonstrators would gather in the İstiklal Street in Istanbul to read a press declaration and block the tram line to protest against F-type prisons, police officers and members of the “Rapid Intervention Force” (çevik kuvvet) were deployed in the area. At noon, the applicants, together with thirty-nine others, gathered in İstiklal Street to make a press declaration to protest against F-type prisons. The police asked the group to disperse and to end the gathering and informed them that the demonstration was unlawful since no advance notice had been submitted to the authorities. The demonstrators refused to obey and attempted to march along İstiklal Street, chanting slogans and reading out a press declaration. Subsequently, at about 12.30 p.m. the police dispersed the group, allegedly by using truncheons and tear-gas. The applicants were arrested along with thirty-nine other persons. The applicants Sema Gül and Semiha Kırkoç were subsequently taken to the Taksim Hospital.
6. The doctor who examined Sema Gül noted the following:
“There are bruises on both arms and a swelling on the left foot.”
As regards Semiha Kırkoç, the doctor noted the following:
“There is a 4 cm long laceration on the left parietal region...”
7. There were no medical reports in respect of the remaining applicants.
8. The incident report dated 5 August 2000 stated that the security forces had to use force to disperse the group as they refused to obey the warnings. It was further indicated that one police officer was wounded during the incident.
9. The applicants were subsequently taken to Beyoğlu central police directorate and Karaköy police station, where they were kept for one day.
10. The next day, they were released upon the order of the Beyoğlu public prosecutor.
11. On an unspecified date, the applicants filed a petition with the Beyoğlu public prosecutor against the police officers who had carried out the arrest. In their petition, they complained, inter alia, of the unlawfulness of their arrest and the excessive use of force by the police officers during and after the arrest.
12. On 5 January 2001 the Beyoğlu public prosecutor issued a decision of non-prosecution in respect of the police officers who had been on duty at the relevant time. In his decision, the public prosecutor considered that the force used by the security forces was in line with Article 16 of the Law No. 2559 on the Duties and Powers of the Police and had not been excessive. In the public prosecutor's opinion, the injuries sustained by the complainants had been caused by the use of force which was proportionate.
13. The applicants filed an objection against the public prosecutor's decision.
14. On 25 June 2001 the Istanbul Assize Court dismissed the applicants' objection.
15. Meanwhile, on 14 August 2000, the Beyoğlu public prosecutor filed a bill of indictment with the Beyoğlu Criminal Court. The public prosecutor accused the applicants under Article 28 § 1 of Law no. 2911 of taking part in an illegal demonstration without prior authorisation and not dispersing despite the police officers' warning.
16. On 19 September 2005 the Beyoğlu Criminal Court acquitted the applicants. The court held that making a press statement was a constitutional right and that prior authorisation was not needed to use this right. The court further observed that it was not certain that the warning given to the accused to disperse could be heard by all the demonstrators. It concluded that the accused had used their constitutional rights and, consequently, had not committed any offence.
17. Article 34 of the Constitution provides:
“Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission.
...
The formalities, conditions, and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law.”
18. At the material time section 10 of the Assemblies and Marches Act (Law no. 2911) was worded as follows:
“In order for a meeting to take place, the governor's office or authorities of the district in which the demonstration is planned must be informed, during opening hours and at least seventy-two hours prior to the meeting, by a notice containing the signature of all the members of the organising board...”
19. Section 22 of the same Act prohibited demonstrations and processions on public streets, in parks, places of worship and buildings in which public services were based. Demonstrations organised in public squares had to comply with security instructions and not disrupt individuals' movement or public transport. Finally, section 24 provided that demonstrations and processions which did not comply with the provisions of this law would be dispersed by force on the order of the governor's office and after the demonstrators had been warned.
“The police may use firearms in the event of:
(a) Self defence, ...
(h) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police.”
“In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of their threatening to attack or carrying out an attack, the police may use violence to subdue these actions.
Use of violence refers to the use of bodily force, physical force and all types of weapons specified in the law and it gradually increases according to the nature and level of resistance and attack in such a way as to restore calm.
In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used are determined by the commander of the intervening force.”
VIOLATED_ARTICLES: 11
3
VIOLATED_PARAGRAPHS: 11-1