ITEMID: 001-97292
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF RAZA v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8 (in case of expulsion);Violation of Art. 13;Violation of Art. 5-1;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Georgieva;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. The applicants were born in 1969 and 1975 respectively and live in Sofia.
7. Mr Raza left Pakistan in 1998, allegedly to flee from religious persecution. For a short time he remained in Iran and in Turkey, and later that year arrived in Bulgaria. Initially he sought asylum. However, after he married Mrs Raza on 20 February 2000, he withdrew his asylum claim and was granted a temporary residence permit on the strength of his marriage. In 2003 he was granted a permanent residence permit. He learned Bulgarian and started a small business, distributing electronic devices. He has not travelled out of Bulgaria since he first arrived there and has never been charged with any offence.
8. On 6 December 2005 the head of the Ministry of Internal Affairs’ National Security Service made an order for Mr Raza’s expulsion. He also barred him from entering or residing in Bulgaria for a period of ten years, “in view of the reasons set out in proposal no. M2922/24.11.2005 and the fact that his presence in the country present[ed] a serious threat to national security”. The order relied on section 42 of the 1998 Aliens Act. No factual grounds were given, in accordance with section 46(3) of the Act. The order further provided that the first applicant was to be detained until it could be enforced, in line with section 44(6) of the Act. Finally, it stated that it was subject to appeal to the Minister of Internal Affairs, but not subject to judicial review, in keeping with section 46(2)(3) of the Act, and that it was immediately enforceable, in accordance with section 44(4)(3) of the Act (see paragraphs 31, 33 and 38 below).
9. Mr Raza was not served a copy of the order and learnt about it on 18 January 2006, after being placed in detention (see paragraph 10 below).
10. On 30 December 2005 the head of the Ministry of Internal Affairs’ Migration Directorate issued an order under section 44(6) and (8) of the 1998 Aliens Act (see paragraphs 38 and 39 below) to place Mr Raza in a special detention facility pending enforcement of the expulsion order. The order relied on the need to have him sent back to his country of origin. It said that it was subject to appeal before the Minister of Internal Affairs and to judicial review by the Sofia City Court. Mr Raza was arrested on the same day.
11. After it was found that Mr Raza did not have a valid passport, on 24 January 2006 the Ministry of Internal Affairs requested the consular department of the Ministry of Foreign Affairs to contact the closest embassy of Pakistan – the one in Bucharest, Romania – with a view to obtaining a passport or other travel documents. Further requests were made on 1 and 30 March 2006, 10 October 2007 and 3 June 2008, without success. It is unclear whether the consular department of the Ministry of Foreign Affairs forwarded those requests to the Pakistani embassy.
12. On 18 July 2006 the detention facility where Mr Raza was being kept was closed down and he was transferred to another facility.
13. On 11 July 2007 Mr Raza applied for release. On 28 December 2007 the head of the Migration Directorate turned down his request.
14. On 15 July 2008 the head of the Migration Directorate decided to release Mr Raza. He also stayed the enforcement of the order for his expulsion, citing technical difficulties, and placed him under an obligation to report daily to his local police station.
15. On 8 August 2008 Mr Raza asked the head of the National Security Agency to reconsider the order for his expulsion. On 4 September 2008 his request was turned down, on the ground that the order was final.
16. Mr Raza is currently awaiting expulsion, which is apparently being blocked solely by the fact that he does not have the necessary documents to reenter Pakistan.
17. On 4 January 2006 Mr Raza appealed to the Minister of Internal Affairs against the order for his expulsion (see paragraph 8 above). He argued that it was unlawful, because he resided legally in Bulgaria, lived with his wife and had never committed any offence. On 21 February 2006 the Minister rejected the appeal, saying that there existed information that Mr Raza had been involved in human trafficking. He went on to specify that in cases of expulsion on national security or public order grounds it was not open to the administrative authorities to take into account extraneous considerations; if the necessary prerequisites were in place, the authorities were bound to take the measure in question.
18. On an unspecified date in early 2006 Mr Raza sought judicial review of the expulsion order by the Sofia City Court. He additionally asked the court to stay the order’s enforcement. He asserted, inter alia, that he had been married to a Bulgarian national for a number of years and had never engaged in any unlawful activities. He also pointed out that he had never been served a copy of the order for his expulsion and was not aware of the grounds for such a measure. He asked the court to request the immigration authorities to produce the materials which had led to the order.
19. In a decision of 7 December 2006 the court found the application admissible, holding that the bar to judicial review set out in section 46(2) of the 1998 Aliens Act (see paragraph 33 below) was contrary to the Convention and was thus to be disregarded. It relied on this Court’s judgment in the case of AlNashif v. Bulgaria (no. 50963/99, 20 June 2002). It turned down the request for a stay of the order’s enforcement, observing that its immediate enforcement was mandated by statute – section 44(4)(3) of the 1998 Aliens Act (see paragraph 31 below). In those circumstances, the courts were not competent to stay the enforcement, as this would amount to a judicial revision of a statute. In any event, Mr Raza had not put forward any arguments capable of persuading the court that the order should be stayed.
20. Mr Raza did not appeal against the court’s refusal to stay the enforcement of the expulsion order.
21. The court held a nonpublic hearing on 17 May 2007. It admitted in evidence the administrative case file with the materials leading to the expulsion order, allowed Mr Raza to inspect them, and gave him leave to adduce evidence in support of his allegations.
22. In view of amendments to the 1998 Aliens Act making expulsion orders subject to review by the Supreme Administrative Court (see paragraph 35 below), on 6 July 2007 the Sofia City Court transferred the case to the Supreme Administrative Court.
23. The Supreme Administrative Court heard the case on 22 November 2007. Mr Raza, who was legally represented, did not adduce evidence. He argued that the order was unlawful, as it did not specify the grounds for expelling him, and said that he would develop his arguments in pleadings that he would file later. Counsel for the authorities argued that the order was well-founded, as could be seen from the adduced evidence. The public prosecutor, who took part in the proceedings ex officio, argued that since the law specifically provided that no reasons were to be given for expulsion orders, the court was not competent to review the substantive lawfulness of the order, but only whether the procedure had been followed.
24. In a final judgment of 17 January 2008 the Supreme Administrative Court dismissed Mr Raza’s application. According to the applicants, apart from a short declaration that Mr Raza’s expulsion would not breach Article 8 of the Convention, the court did not engage in any analysis of the proportionality of that measure. Nor did it scrutinise the facts underlying the decision to expel Mr Raza, or have before it the full text of the proposal for his expulsion, but merely a short excerpt from it, drawn up by the authorities specifically for the purposes of the judicial review proceedings.
25. The applicants were not able to provide a copy of the Supreme Administrative Court’s judgment because the case is classified and neither they nor their counsel are allowed to make copies of any of the materials in the case file, including that judgment. Despite a specific request by the Court, the Government did not provide a copy of that judgment either, or specify what materials the Supreme Administrative Court had had before it when making it (see paragraph 5 above).
26. On an unspecified date in early 2006 Mr Raza sought judicial review of the order for his placement in a detention facility (see paragraph 10 above). On 22 May 2007 the Sofia City Court allowed his application and quashed the order. It found that the order was subject to review despite the express wording of section 46(2) of the 1998 Aliens Act (see paragraph 33 below) because that provision was contrary to Article 13 of the Convention. It also found that it had been made by a competent authority and in line with the applicable legal provisions. However, it went on to say that Mr Raza’s detention for such a long period had become unjustified, the authorities having been unable to deport him for more than a year. There was no indication that the immigration authorities had taken any measures in that respect except asking for the cooperation of the Ministry of Foreign Affairs.
27. Following an appeal by the Ministry of Internal Affairs, on 6 June 2008 (реш. № 6854 от 6 юни 2008 г. по адм. д. № 9478/2007 г., ВАС, III о.) the Supreme Administrative Court annulled that judgment and discontinued the proceedings. It held that the order for Mr Raza’s placement in a detention facility was subordinate to the order for his expulsion and had been made within the framework of the expulsion proceedings, for the sole reason that the expulsion could not be carried out forthwith. It was therefore not subject to judicial review by itself.
28. On 16 January 2008 the applicants sought judicial review of the decision of 28 December 2007 turning down Mr Raza’s application for release (see paragraph 13 above). On 7 May 2008 the Sofia Administrative Court declared Mrs Raza’s application inadmissible, because she was not directly affected by the order, but found Mr Raza’s application admissible and wellfounded. It noted that the immigration authorities had sent three letters to the consular department of the Ministry of Foreign Affairs with requests for assistance in the process of securing a travel document for Mr Raza, but that no reply had been received. It went on to say that, in view of the difficulties in carrying out the expulsion, the authorities should have reconsidered whether or not Mr Raza’s detention continued to be justified. In situations where they had discretion, the authorities had to assess whether or not the impugned measures interfered disproportionately with the individual’s rights and, whenever possible, opt for the option that was less onerous for the individual, in line with the principle of proportionality. The exercise of such discretion was subject to judicial review. Instead of keeping Mr Raza in custody, the authorities could have placed him under an obligation to report daily to his local police station. In choosing between those alternatives, they had to take account of the length of the detention. If it exceeded six months, it became an arbitrary deprivation of liberty, contrary to Article 5 § 1 (f) of the Convention. The inordinate amount of time spent by Mr Raza in custody, owing to the lack of effective measures for his expulsion, had negated the lawfulness of his deprivation of liberty. As the authorities had not taken those matters into account, they had made an unlawful decision. The court therefore quashed the refusal to release Mr Raza and instructed the authorities to reconsider the matter in line with its reasoning.
29. The Director of the National Police Service appealed. On 26 May 2009 the Supreme Administrative Court declared the appeal inadmissible (опр. № 6873 от 26 май 2009 г. по адм. д. № 10138/ 2008 г., ВАС, III о.). It held that the Director did not have standing to appeal, as the proceedings before the lower court had unfolded between the applicants and the immigration authorities. Moreover, since Mr Raza had meanwhile been released (see paragraph 14 above), the issues raised in the appeal were no longer relevant.
30. Article 27 § 1 of the 1991 Constitution provides that aliens who are lawfully resident in the country cannot be expelled from it except under conditions and in a manner prescribed by law.
31. Section 42(1) of the 1998 Aliens Act provides that an alien must be expelled when his or her presence in the country creates a serious threat to national security or public order. Under section 42(2), expulsion must be accompanied by withdrawal of the alien’s residence permit and the imposition of a ban on entering the country. Expulsion orders are immediately enforceable (section 44(4)(1) and (3)).
32. If deportation cannot be effected immediately or needs to be postponed for legal or technical reasons, the enforcement of the expulsion order may be stayed until the relevant obstacles have been overcome (section 44b(1)).
33. Section 46(2), as in force until March 2007, provided that orders for the expulsion of aliens on national security grounds were not subject to judicial review. Under section 46(3), those orders do not indicate the factual grounds for imposing the measure.
34. Following this Court’s judgment in the case of AlNashif v. Bulgaria (no. 50963/99, 20 June 2002), in which it found the above provisions contrary to Article 8 and Article 13 of the Convention, the Supreme Administrative Court changed its caselaw. In a number of judgments and decisions delivered in 200306 it held, by reference to AlNashif, that the ban on judicial review in section 46(2) was to be disregarded as it contravened the Convention, and that expulsion orders relying on national security considerations were amenable to judicial review (реш. № 4332 от 8 май 2003 по адм. д. № 11004/2002 г.; реш. № 4473 от 12 май 2003 г. по адм. д. № 3408/2003 г.; опр. № 706 от 29 януари 2004 г. по адм. д. № 11313/2003 г.; опр. № 4883 от 28 май 2004 г. по адм. д. № 3572/ 2004 г.; опр. № 8910 от 1 ноември 2004 г. по адм. д. № 7722/2004 г.; опр. № 3146 от 11 април 2005 по адм. д. № 10378/2004 г.; опр. № 3148 от 11 април 2005 по адм. д. № 10379/2004 г.; опр. № 4675 от 25 май 2005 г. по адм. д. № 1560/2005 г.; опр. № 8131 от 18 юли 2006 г. по адм. д. № 6837/2006 г.).
35. In April 2007 section 46(2) was amended and at present provides that expulsion orders may be challenged before the Supreme Administrative Court, whose judgment is final.
36. In May 2009 the Act underwent a reshuffle intended to bring it into line with the requirements of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying thirdcountry nationals. The new version of section 44(2) provides that when ordering expulsion or similar measures the authorities must take into account the length of time an alien has remained in Bulgaria, his or her family status, and the existence of any family, cultural and social ties with the country of origin. It is not yet clear whether those factors should also be considered upon the expulsion of an individual on national security grounds.
37. Section 44(5) of the 1998 Act provides that if there are impediments to a deportee’s leaving Bulgaria or entering the destination country, he or she is placed under an obligation to report daily to his or her local police station.
38. Under section 44(6), as in force until May 2009, aliens could, if necessary, be placed in special detention facilities pending the removal of the obstacles to their deportation. In the reform of May 2009 (see paragraph 36 above) that provision was amended to provide that detention was possible if an alien’s identity was unknown, if he or she hindered the enforcement of the expulsion order, or if he or she presented a risk of absconding.
39. Under section 44(8) (after May 2009 section 44(10)), deportees are placed in detention facilities pursuant to special orders, which have to specify the need for such placement and its legal grounds and be accompanied by copies of the orders under section 44(6).
40. Under the new section 44(8), also added in May 2009, detention may be maintained as long as the conditions laid down in subsection 6 are in place, but not longer than six months. Exceptionally, if a deportee refuses to cooperate with the authorities, or there are delays in the obtaining of the necessary travel documents, or the deportee presents a national security or public order risk, detention may be prolonged for a further twelve months.
41. Under section 46(1), as in force at the material time, as a rule, orders under the Act were subject to appeal before the higher administrative authority and to judicial review. While in its earlier caselaw the Supreme Administrative Court consistently found that placement orders under section 44(6) and (8) were amenable to judicial review (реш. № 2048 от 8 март 2005 г. по адм. д. № 7396/2004 г., ВАС, V о.; реш. № 8364 от 27 септември 2005 г. по адм. д. № 4302/2005 г., ВАС, V о.; реш. № 1181 от 1 февруари 2006 г. по адм. д. № 1612/2005 г., ВАС, V о.; реш. № 5262 от 17 май 2006 г. по адм. д. № 9590/2005 г., ВАС, V о.; реш. № 13108 от 27 декември 2006 г. по адм. д. № 7687/2006 г., ВАС, V о.; реш. № 199 от 8 януари 2007 г. по адм. д. № 6122/2006 г., ВАС, V о.; реш. № 9742 от 16 октомври 2007 г. на ВАС по адм. д. № 2996/2007 г., III о.; реш. № 12844 от 17 декември 2007 г. по адм. д. № 4761/2007 г., ВАС, III о.; реш. № 10833 от 6 ноември 2007 г. по адм. д. № 3154/ 2007 г., ВАС, III о.; реш. № 6876 от 9 юни 2008 г. по адм. д. № 10226/2007 г., ВАС, III о.), in a couple of judgments given at about the same time as that in Mr Raza’s case it ruled that such orders were not subject to judicial review because they were subordinate to the expulsion orders (реш. № 8117 от 2 юли 2008 г. по адм. д. № 4959/2007 г., ВАС, III о., реш. № 8750 от 15 юли 2008 г. по адм. д. № 1599/2008 г., ВАС, III о.). In view of those discrepancies, the Chief Prosecutor asked the Plenary Meeting of that court to issue an interpretative decision on the question. However, in view of intervening legislative changes which settled the matter (see paragraph 42 below), on 16 July 2009 the Plenary Meeting decided not to issue such a decision (опр. № 3 от 16 юли 2009 г. по т. д. № 5/2008).
42. In the reform of May 2009 (see paragraph 36 above) a new section 46a was added, making special provision for judicial review of orders for the detention of deportees. Deportees may now seek judicial review of such orders by the competent administrative court within three days of them being issued (subsection 1). The application for judicial review does not stay their enforcement (ibid.). The court must examine the application at a public hearing and rule, by means of a final judgment, not later than one month after the proceedings were instituted (subsection 2). In addition, every six months the head of any facility where deportees are being detained must present to the court a list of all individuals who have remained there for more than six months due to problems with their removal from the country (subsection 3). The court must then rule, on its own motion and by means of a final decision, on their continued detention or release (subsection 4). When the court sets aside the detention order, or orders a deportee’s release, he or she must be set free immediately (subsection 5). The Supreme Administrative Court is already applying those provisions (опр. № 7964 от 16 юни 2009 г. по адм. д. № 7823/2009 г., ВАС, VII о., опр. № 10801 от 18 септември 2009 г. по адм. д. № 9652/2009 г., ВАС, VII о.)
VIOLATED_ARTICLES: 13
5
8
VIOLATED_PARAGRAPHS: 5-1
5-4


ITEMID: 001-22989
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: SALONEN and STAHL v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Elina Salonen and Jirka Ståhl, are Finnish nationals, born in 1978 and 1976 respectively and living in Helsinki. They are represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki. The respondent Government are represented by Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 December 1997 the applicants and four other animal rights activists attempted to colour the fur of foxes kept at a farm in Orimattila, when its owner fired at them with a shot gun, injuring three of them, including the first applicant. They were apprehended by the police on 6 December 1997 at 3.30 a.m. on their way to hospital. One of them was later admitted for hospital care.
On 9 December 1997 at 11.40 a.m. Senior Police Officer T.H. of the Central Criminal Police in Vantaa telephoned judge R. at the Lahti District Court (käräjäoikeus, tingsrätt) to convey a detention request concerning “four suspects”, including the applicants.
The respective written requests received at the District Court in the afternoon of the same day stated the applicants’ name, address and identity number and indicated that they were under suspicion for having committed the following offences: one count of aggravated violation of domestic peace in Orimattila on 6 December 1997 at 2.40 p.m.; three counts of aggravated damage to property in the region of Pohjanmaa (Ostrobothnia) on 2-3 September 1997; and six counts of damage to property in Helsinki on 7-8 November 1997. The requests were accompanied by a memorandum by T.H. setting out the facts in more detail.
The second applicant’s continued detention was considered by the District Court on 9 December 1997 from 7 to 8 p.m. and the first applicant’s detention was examined from 9 to 10 p.m. They received copies of the detention request immediately prior to the respective hearings.
Before the District Court, defence counsel argued that the detention request concerning the second applicant was inadmissible as it had not been submitted in proper and lawful form before noon. According to the minutes from the hearing, T.H. contested counsel’s argument as he had informed the court before noon that the request concerned four arrested persons held in Lahti and connected to the events at the fox farm in Orimattila. In addition, T.H. had informed the court that their detention was being sought in respect of the acts committed in Ostrobothnia and Helsinki as well.
In dismissing counsel’s objection the District Court found as follows:
“Since the head of the investigation [T.H.] informed the court orally, on the third day before noon as prescribed by law, that he was going to request (ilmoittanut tulevansa vaatimaan) the detention of four persons in respect of one count of aggravated violation of domestic peace committed in Orimattila, three counts of aggravated damage to property and six counts of damage to property, and even though he did not at that stage indicate the names of those whose detention was being sought, [his] request was nevertheless confirmed in writing without delay. As there was no risk of any error occurring in respect of the persons and the offences in question, [the court] finds that the detention request was made in accordance with the law.”
The District Court went on to dismiss the detention request in respect of all but the first applicant, who was ordered to remain in detention until 16 December 1997 on suspicion of having committed the three counts of aggravated damage to property and the six counts of damage to property, as indicated in the request.
The District Court further ordered that the case-file, with the exception of the detention order and the legal provisions applied, be kept secret until the first hearing of the charges against the suspects or until the pre-trial investigation against them had been closed. The District Court applied section 9, subsection 3, of the 1984 Act on Publicity of Court Proceedings (laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång 945/1984).
On 10 December 1997 the first applicant filed a procedural appeal (kantelu) with the Kouvola Court of Appeal (hovioikeus, hovrätt), contending that the detention request had not been made in accordance with the law as it had not been filed in writing without delay. The written request had been faxed to her counsel’s office only at 2.20 p.m. and counsel himself had received it around 4.00 p.m. In any case, the offences specified in support of the request did not correspond to those which T.H. had apparently communicated to judge R. over the telephone.
In a written statement to the Court of Appeal judge R. explained that in his telephone call to the District Court which T.H. had placed on 9 December before noon he had first informed a court secretary that he was seeking the detention of four arrested persons connected with the events that had occurred at a fox farm in Orimattila. Immediately thereafter T.H. had informed judge R. that their detention was also being requested for the acts committed in Ostrobothnia and Helsinki. Although T.H. had not at that time specified the names of the four suspects in question, judge R. found that there was no uncertainty as to their identities and the offences of which they were suspected. She had therefore concluded that the detention request had been submitted in accordance with law.
In its decision of 12 December 1997 the Kouvola Court of Appeal agreed with the District Court, finding that at the time when the detention request had been presented over the telephone there had been no uncertainty as to the fact that the request concerned, among others, the second applicant or as to the offences of which she was being suspected.
The Court of Appeal maintained the District Court’s secrecy order and further ordered that its own decision, again with the exception of the operative part and the legal provisions applied, also be kept secret until the first hearing of the charges against the suspects or until the pre-trial investigation against them had been closed.
The Supreme Court (korkein oikeus, högsta domstolen) refused the first applicant leave to appeal on 25 February 1998. The decision bore a stamp indicating that it was “secret”. It contained the standard reasoning which the Supreme Court relies on when refusing leave to appeal, without referring to the applicable legal provision (see “Relevant domestic law”):
“Leave to appeal is refused. The Court of Appeal’s decision therefore stands.”
In the meantime, the first applicant’s detention had been prolonged. On 7 January 1998 the Vaasa Court of Appeal had ordered her release, having accepted her further procedural appeal of 2 January 1998. This appellate court, noting the progress in the pre-trial investigation, found that her continued detention was no longer necessary in order to secure an effective investigation and trial.
According to Chapter 1 of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslag 450/1987, as amended by Acts nos. 361/1990 and 693/1997), an arrested person and his or her legal counsel shall be notified without delay of a request for detention on remand (section 11). Such a request shall be made to the court without delay and not later than 12.00 hrs on the third day from the day of the apprehension of the suspect (section 13). The request shall be made in writing. It may also be submitted orally or by telephone but shall then be confirmed in writing without delay (section 12).
According to an expert opinion relied on by the applicants, an oral or telephone request must identify the person, the offence of which he or she is being suspected as well as the ground for the detention (Helminen, Lehtola and Virolainen: Uusi esitutkintalainsäädäntö. Helsinki 1990).
A request for detention on remand shall be considered by the court without delay and not later than four days from the moment the suspect was placed in custody (section 14).
An arrested person shall be released immediately when the conditions for his or her arrest no longer exist. If his or her detention on remand is not requested, the release shall take place no later than at the expiry of the aforementioned period for submitting such a request (section 4).
Chapter 1, section 27 of the Coercive Measures Act stipulates that a procedural appeal against detention on remand may be submitted at any time and shall be dealt with expeditiously. In its precedent no. 1995:180 the Supreme Court (by 11 votes 10) held that it was not prevented from introducing a leave requirement for such appeals.
Under the 1951 Act on Publicity of Official Documents (laki yleisten asiakirjain julkisuudesta, lag om allmänna handlingars offentlighet 83/1951, as in force until repealed by Act no. 621/1999), official documents were in principle public (section 1). They included not only documents drawn up and issued by an authority but also documents submitted to an authority and which remained in its possession (section 2, subsection 1). A pre-trial investigation record, however, was not public until the matter had been brought before a court or the police investigation had been closed without charges being brought (section 4).
The 1984 Act on Publicity of Court Proceedings (laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång 945/1984, as amended by Act no. 1254/1988) affords the court the option of holding a hearing in camera, inter alia when examining a request for detention on remand to be dealt with prior to the actual trial, provided such a request has been made by the head of the pre-trial investigation or the suspect himself or if the court deems it necessary to exclude the public from the hearing (section 5a). If the suspects requests a detention hearing in camera, the public shall be allowed to attend only for a particularly weighty reason.
If a detention hearing has been held in camera in whole or in part or if, during such a hearing, any confidential document or information has been submitted, the court may decide that all or part of the case material shall be kept confidential until the beginning of the trial or the discontinuation of the investigation. The operative part of the reasoning and the legal provisions relied on shall always be made public (section 9, as amended by Act no. 1254/1988).
Under chapter 30, sections 2 and 3 of the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk) the Supreme Court may only on certain circumscribed grounds grant leave to appeal against a decision or judgment rendered by a court of appeal in appeal proceedings.


ITEMID: 001-86179
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HAYES v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Norman John Hayes, is a British national who was born in 1957 and lives in Wirral. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant received a notice of intended prosecution requiring him to name the driver of his car on 10 December 2001. The applicant replied that either he or his wife had been driving but neither could actually remember which one of them had been driving through the location of the speed trap on that date.
On 17 October 2002 the Magistrates’ Court convicted the applicant of an offence under section 172 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988 for failing to give information which might have led to the identification of the driver of his car. He was fined GBP 150 and ordered to pay GBP 100 costs, with his licence to be endorsed with three penalty points.
On 27 November 2002 the Crown Court rejected the applicant’s appeal, amending the sentence such that he would have to pay GBP 212 costs.
The applicant appealed to the High Court by way of case stated claiming a breach of his rights under Article 6 of the Convention.
In the case stated, the Crown Court trial judge, having set out the facts of the case, stated that the court had been of the opinion that the applicant was trying to evade responsibility for the disregard of the speed limit, that the right against self-incrimination did not apply and accordingly dismissed the appeal.
On 4 February 2004 the High Court rejected the applicant’s appeal, referring to established domestic case-law on the point in Brown v. Stott [2001] 2 WLR 817.
The relevant domestic law and practice is set out in O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, §§ 2531, ECHR 2007...


ITEMID: 001-84144
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: I.T.C. LTD v. MALTA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The case originated in an application (no. 2629/06) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese company, International Trading Corporation Limited (“the applicant company”), on 31 October 2006. The applicant company was represented by Mr I. Refalo and Mr M. Refalo, lawyers practising in Valletta, Malta. The Maltese Government (“the Government”) were represented by their Agent, Mr S. Camilleri, Attorney General.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 December 2003 the Ministry for Youth and the Arts issued a call for tenders for the design, organisation and management of a quality national event, on the occasion of the celebration of Malta’s accession to the European Union.
The deadline for submitting bids was January 2004.
Three participants (the applicant company, Welcomeurope Consortium and Synergix Limited) paid the relevant fees and guarantees and submitted their bids.
On 3 February 2004 the tender was awarded by the Adjudication Board to Welcomeurope Consortium.
On 5 February 2004 the applicant company objected to this decision. On 19 February 2004 a hearing took place before the Public Contracts Appeals Board (the “PCAB”).
The applicant company alleged that the bid made by Welcomeurope had not met the formal requirements of the tender. In particular, its components had been presented collectively and not individually and it had not been submitted in an itemised format. Moreover, the bid in question had been based on incorrect and misleading information. It had made reference to “laser cannons” which, according to the applicant, did not exist, and to a TV transmission deal with the European Broadcasting Union (the “EBU”), which was not dependent on the involvement of Welcomeurope. In the applicant’s view, as the EBU would have broadcast all the major shows from the ten acceding countries, this matter should not have been taken into consideration during adjudication. The applicant company further stated that its bid was better value for money.
Welcomeurope challenged the applicant company’s arguments. It contended that “cannon lights” would be used in the show. Furthermore, the EBU had informed them that, due to the presence of an artist who had signed a contract with Welcomeurope for the exclusive right to use his services, Malta would have been allotted a longer transmission period.
Representatives from the Adjudication Board gave oral evidence, stating that both bids had satisfied the formal requirements of the tender and that the final choice in favour of Welcomeurope had been based on the price and on the satisfactory standard reached.
The applicant company requested the production of a number of documents, namely the Adjudication Board’s report, minutes of meetings regarding the bids, letters from Welcomeurope relating to TV coverage, Welcomeurope’s detailed list of equipment and its certificate of insurance cover. It alleged that these documents were indispensable for allowing it to substantiate its objections.
Welcomeurope objected to this request, noting that some of the documents contained commercial information of a highly confidential nature.
The PCAB observed that it could authorise the production of documents only in so far as they were relevant to the objections raised and strictly necessary for giving a ruling on their merits. As a consequence, only a small extract from the Adjudication Board’s report was produced. The chairman of the Adjudication Board had in fact noted that other parts of the report might have contained commercial and other information of a confidential nature.
In a decision of 27 February 2004, the PCAB rejected the applicant company’s claim. It held that the invalidity of Welcomeurope’s bid had not been proved and that there had been no reason to doubt the method used by the Adjudication Board to assess the bids, which had been based on an overall assessment and had not been dependent on the amount or type of lasers used.
On 24 February 2004 the applicant company lodged an application with the Civil Court (First Hall) in its constitutional jurisdiction. It alleged that the rejection of its request for the production of documents had infringed its right to a fair hearing.
By a judgment of 16 December 2004, the Civil Court dismissed the applicant company’s claim on the ground that Article 6 of the Convention was not applicable to the proceedings before the PCAB.
It recalled that this provision only applied to disputes concerning civil rights and obligations. These rights belonged to private and not to public law and existed only if they arose from a “clearly defined statutory right”. Thus, although a company was entitled not to be discriminated against in the adjudication procedure, it did not have a civil right to be awarded the tender. The fact that it carried out commercial activities aimed at earning profit was not in itself sufficient to bring Article 6 into play.
Moreover, it could not be said that the PCAB was a “tribunal” within the meaning of this provision. It was not independent since essential features of its constitution and of the exercise of its functions depended on the Prime Minister. Furthermore, its decisions took the form of specific recommendations, which were final as regards the award of the contract. They were binding on the Director of Contracts who could not be considered a body having judicial powers. According to domestic case-law, a recommendation did not have the same authority as a judgment of a competent court determining the existence of civil rights and obligations.
On 28 December 2004 the applicant company appealed to the Constitutional Court.
It claimed that according to the case-law of the European Court of Human Rights, the word “tribunal” in Article 6 of the Convention had to be given a wider interpretation, not based on the distinction between quasi-judicial and purely administrative bodies. All judicial authorities that determined a person’s complaints affecting his or her rights should be considered a “tribunal”. In particular, the dispute submitted to the PCAB concerned civil rights and obligations. Indeed, the participation in the tender involved substantial financial and logistical efforts and the award of the contract would have entailed significant financial benefits for the applicant. By its very nature, the whole process gave rise to rights and obligations in respect of any person entering into negotiations to obtain such an award.
The applicant further argued that, having regard to the manner of appointment of its members and to its procedures, the PCAB resembled more a court or judicial tribunal than an administrative body.
By a judgment of 12 July 2005, the Constitutional Court rejected the applicant company’s appeal.
It held that Maltese law applicable at the time (the Public Service (Procurement) Regulations 1996) did not grant any rights in the context of a public call for tenders. The mere act of submitting a tender did not give the applicant company the right to have its tender accepted. It was true that the amount of work involved in submitting a tender and the financial expenses attached to it carried with it an obligation to act in good faith and with the diligence of a bonus pater familias throughout the negotiations. However, these obligations only had a pre-contractual nature; they could give rise to a claim for damages, but not to any right to demand specific performance.
In the present case, the applicant did not request damages but a reconsideration of the decision. The fact that the result of the proceedings before the PCAB had economic consequences for the applicant was not sufficient to conclude that the dispute concerned the determination of a civil right. The Constitutional Court distinguished the applicant company’s case from the case of Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (see judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV). Although that case had dealt with tenders, the right at issue was the right not to be discriminated against in the job market.
In view of the above, the Constitutional Court concluded that the proceedings before the PCAB did not involve a determination of civil rights and obligations. It was therefore irrelevant to establish whether the PCAB was a “tribunal” within the meaning of Article 6 of the Convention.
Article 469 A (1) of the Code of Organisation and Civil Procedure (the “COCP”), reads as follows:
“Save as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases:
(a) where the administrative act is in violation of the Constitution;
(b) when the administrative act is ultra vires on any of the following grounds:
(i) when such act emanates from a public authority that is not authorised to perform it; or
(ii) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or
iii) when the administrative act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations; or
iv) when the administrative act is otherwise contrary to law.”
Regulation 4.2 of the Public Service (Procurement) Regulations 1996 read as follows:
“These regulations do not confer any right on any tenderer, supplier or contractor beyond those pertaining under civil law.”
Regulation 2 of the sixth schedule to the 1996 Regulations required Contract Committees to:
“evaluate tenders submitted as well as reports and recommendations made thereon by the respective departments and public organisations and make definite recommendations for the award of tenders ensuring that the best value for money at the lowest possible cost is attained. In this regard, due consideration shall be given to
i. the final cost including financing costs to Government or to the public organisation, and
ii. the impact of each offer on the recurrent expenditure of Government or the public organisation;”
The 1996 Regulations were amended by Legal Notice 387 of 2003, (the “2003 Regulations”). In so far as relevant the 2003 Regulations read as follows:
Regulation 4
“(1) Contracting authorities shall ensure that there is no discrimination between undertakings, and that all undertakings are treated equally in all calls for tenders whatever their estimated value.
...
(4) Contracting authorities shall respect fully the confidential nature of any information furnished by candidates and tenderers.
(5) In the context of provision of technical specifications to interested candidates and tenderers, the qualifications of candidates and selection of tenderers and the award of contracts, contracting authorities may impose requirements with a view to protecting the confidential nature of information which they may wish to make available.”
Regulation 103
“(1) Any tenderer who feels aggrieved by a proposed award of a contract and any person having or having had an interest in obtaining a particular ... contract and who has been or risks being harmed by an alleged infringement may ... file a notice of objection with the Department of Contracts or the contracting authority involved as the case may be.”
The functions of the PCAB have not been subject to any relevant changes in the past amendments and the Ninth Schedule to the 1996 Regulations in so far as relevant read as follows:
“(l0) The sessions of the Board during which the complaint is heard shall be held in public and both the complainant and the interested party shall have the right to attend and to be accompanied by any person, professional or otherwise, whom they consider suitable to defend their interests.
(11) The Chairman shall ensure that during the public hearing all interested parties are given the opportunity to state their cases.
...
(17) All decisions taken by the Board shall be submitted in writing and shall contain the full facts and reasons on which the Board’s final decision is taken. All decisions shall be concluded with definite recommendations which shall be binding on the Director of Contracts.
(18) Any bidder submitting a complaint who is not satisfied with the final decision taken by the Board shall have final legal rights to refer the matter to a Court of Law and to seek any redress or compensation which he considers due to him as a result of the decision with which he may disagree. Such recourse by any bidder to a Court of Law shall not deter the Director of Contracts from implementing the Board’s final decision.”


ITEMID: 001-79488
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SOYLU v. TURKEY
IMPORTANCE: 4
CONCLUSION: No violation of Art. 3;No violation of Art. 8;No violation of P1-1;No violation of Art. 13;No violation of Art. 14+3;No violation of Art. 14+8;No violation of Art. 14+13;No violation of Art. 14+P1-1
JUDGES: David Thór Björgvinsson
TEXT: 9. The applicant was born in 1954 and lives in Istanbul. He was living in Nurettin village at the time of the alleged events giving rise to this application. The facts of the case are in dispute between the parties and may be summarised as follows.
10. Until April 1994 the applicant lived in Nurettin, a village of Malazgirt district in Mardin province, at that time a state-of-emergency region of Turkey. In 1994, terrorist activity was a major concern in this area. Since the 1980s a violent conflict had been going on in the region between the security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Workers' Party of Kurdistan). The inhabitants of the applicant's village were under pressure by State security forces to agree to become village guards.
11. On 27 November 1993 soldiers, accompanied by persons wearing masks, raided Nurettin village. They assembled the inhabitants in the village square and threatened them with the burning of their houses if they did not agree to serve the State as village guards. They beat up fifteen young men. The soldiers then chose twenty houses and set them on fire after throwing a white powder on them. The houses of the applicant's brother and cousin completely burned down.
12. Following this event, the villagers lived in fear for their security. Some of them left the village, and the rest, including the applicant, preferred to stay. The security forces visited the village two or three times a week in order to force the inhabitants to agree to become village guards.
13. In April 1994 the heads of approximately thirty families agreed under pressure to become village guards. However, these newly recruited village guards, protected by the State, also burned down eight or nine houses per day. The applicant's house was also burned down, which forced the applicant and his family to leave the village and settle in Malazgirt district. In the meantime, the village guards cultivated the applicant's lands, used the remainder of the materials left from his house and chopped and sold his poplar trees. Since the applicant could not overcome the economic difficulties to sustain his living he moved to Istanbul to find a job.
14. On 17 April 1998, the applicant lodged a petition with the Malazgirt District Governor's office and asked for permission to return to his village. He explained that he was unable to sustain the living of his family in the city and that he wanted to cultivate his lands in the village. The District Governor transmitted the applicant's request to the District gendarmerie Command and also advised him to apply to the Konakkuran Gendarmerie Station. The applicant went to see the commander of the aforementioned station and told him that he had been advised to address him by the District Commander. The latter refused the applicant's request to re-settle in the village and ordered a gendarme to remove the applicant from the premises.
15. The applicant left Nurettin village of his own free will and not under any pressure by the State security forces or village guards.
16. On 19 June 1997 the applicant petitioned the Malazgirt Chief Public Prosecutor's office complaining that the village guards from Nurettin village had been using his property without his consent. The applicant alleged that he had moved out of his village on account of terrorism in 1994. Subsequent to his departure the village guards had demolished his house and had removed its wooden parts and the stones. They had also cut down three thousand poplar trees in his field. The applicant therefore asked the Prosecutor to initiate criminal proceedings against the village guards and to ensure that the damage resulting from the alleged events be compensated.
17. On 9 December 1997 the Malazgirt Public Prosecutor took statements from A.K., who transported the applicant's household property in his vehicle. He stated that in 1994 he transported the applicant's belongings from Nurettin village to Malazgirt district and that the applicant's house was intact.
18. On 10 May 1998 the applicant filed another petition with the Malazgirt Chief Public Prosecutor's office complaining that Z.P., who was one of the village guards in Nurettin village, had been illegally cultivating his father's land.
19. On 20 August 1998 the Chief Public Prosecutor issued a decision of non-jurisdiction and referred the case-file to the Malazgirt District Administrative Council in accordance with the Law on Prosecution of Civil Servants. An investigation was carried out by an inspector, appointed by the Administrative Council, into the applicant's allegations. In this regard, six village guards, including Z.P., were questioned by the inspector.
20. On 30 June 1999, the Malazgirt Administrative Council dismissed a request for leave to initiate criminal proceedings against the six village guards from Nurettin.
21. By a decision of 8 November 1999 the Van Regional Administrative Court set aside the Administrative Council's decision and authorised the institution of criminal proceedings against the village guards for alleged destruction of the applicant's property, which offence was prescribed in Article 516 of the Criminal Code.
22. On 1 March 2000 the Malatya Assize Court heard evidence from the accused village guards. The latter denied the charges and claimed that the applicant had slandered them. They alleged that the applicant was a member of the mountain squad of the PKK and that therefore he was hostile to them because they were village guards. They also noted that the applicant did not own three thousand trees and six hundred dönüm land in the village. The trees belonged to the applicant's brother who had cut and sold them and then moved to Istanbul.
23. On 24 March 2000 two gendarme officers took statements from three persons, namely R.G., C.Ç and İ.Ö., from Nurettin village. The villagers stated that they had seen the applicant when he moved from Nurettin to Malazgirt and that the village guards had not forced him to move out of the village. They also submitted that the applicant's house had not been burned down by the village guards but had been demolished as a result of bad weather conditions and lack of care. They also noted that the applicant possessed four or five hectares of land which could not contain thirty thousand poplar trees.
24. On the same day, the gendarme officers carried out an on-site inspection on the premises of the applicant's house in Nurettin village. They drew up a report in which they observed that there was no evidence that the house had been burned down. It appeared that the house had been demolished as a result of natural forces and lack of care. It was also noted that the applicant owned land measuring 10,200 square metres which could not contain the number of trees allegedly owned by the applicant. They further observed that the applicant had already cut six of his trees before moving to Malazgirt. The gendarme officers also drew up a sketch-map of the village.
25. On 16 May 2001 the Malazgirt Assize Court decided to defer the criminal proceedings against the village guards for five years in accordance with Article 1 § 4 of Law No. 4616 on Conditional Release, Deferral of Criminal Proceedings and Sentences. In the absence of any appeal, this judgment became final. However, this judgment did not grant amnesty to the accused because the criminal proceedings will be reopened if they commit a new offence within five years' time.
26. On 9 November 2005 gendarme officers took statements from the applicant and three inhabitants of Nurettin village in relation to the allegations made by the applicant in his application lodged with the European Court of Human Rights.
27. The applicant stated that in 1994 he had moved out of Nurettin village due to the intimidation by the village guards and that, fifteen days or a month after his departure, his house had been burned down by some of the villagers whose identity he did not know nor why they did so. In response to a question whether the State authorities forced him to agree to become a village guard, the applicant stated that no one had exerted pressure on him or his family. The applicant further stated that the allegation that the houses of those who did not agree to become village guards were burned down was untrue. When asked about the number of trees he owned, the applicant claimed that he owned - together with his brother and cousin - three thousand poplar trees, and not thirty thousand. The applicant also stated that he possessed land measuring 600 dönüm together with his brother and cousin and that he had not cultivated this land since 1994. In reply to a question whether he and his family had been affected by the terrorism in the region, the applicant stated that his son F.S. had been an active member of the PKK, that he had served a twelve years' prison sentence following his arrest and conviction and that therefore the PKK had not intimidated his family. Given that his wife's father had worked at the same time as a village guard, the State security forces had not intimidated his family either. The applicant finally noted that he had lived in Istanbul between 1994 and 2002 and that, since the latter date, he had been living in Taşlıçeşme hamlet, cultivating his lands.
28. The applicant's fellow villagers, Z.T., N.B. and H.Ç. stated that the authorities had not forced the villagers to agree to become village guards but, on the contrary, the villagers themselves had wished to become village guards since they would receive salaries from the State. However, some of the villagers, including the applicant and his family, had left the village on account of economic difficulties. In their opinion, the applicant had left the village because his son had joined the PKK and his brother had also moved out of the village earlier. The allegation that the applicant's house had been burned down by the village guards was untrue since the applicant's father-in-law was one of the village guards and he would not set his daughter's house on fire. The applicant's house had been demolished as a result of bad weather conditions and lack of care. The applicant could not own thirty thousand poplar trees given that the total number of trees in the village did not equal this number. The applicant possessed 60-70 dönüm of land together with his brothers. In 2002 he had settled in Taşlıçeşme hamlet and since then he had been cultivating his lands. Nobody had forced the applicant to leave the village. In the opinion of these witnesses, the applicant and a few other villagers had made such allegations in the hope that they would obtain some money.
29. Finally the Government pointed out that on 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
30. In that connection, Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
31. The number of persons applying to these commissions had already reached approximately 204,000. Many villagers had already been awarded compensation for the damage they had sustained.
32. A full description of the relevant domestic law may be found in Yöyler v. Turkey (no. 26973/95, §§ 37-49, 24 July 2003), Matyar v. Turkey (no. 23423/94, §§ 93-106, 21 February 2002) and Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-...).
NON_VIOLATED_ARTICLES: 13
14
3
8
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-104598
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: GOLOTA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre
TEXT: The applicant, Mr Gennadiy Grigoryevich Golota, is a Ukrainian national who was born in 1961 and is currently serving a sentence in Kirovograd no. 6 Correctional Colony, Ukraine.
According to the applicant, in December 2002 he was held for one and a half hours in an unheated van, beaten in detention, forced to participate in court hearings while sick, and kept handcuffed during court hearings.
On 16 December 2002 the Pervomayskiy Town Court, in the presence of two advocates, Sh. and K., sentenced the applicant and three others to various terms of imprisonment for drug trafficking. In his appeal the applicant indicated that he had been “prevented from hiring a lawyer, who would have defended him properly, and had no opportunity to consult a lawyer during the breaks in the hearing”.
On 24 June 2003 the Mykolayiv Regional Court of Appeal, in the presence of advocate Sh. and in the applicant’s presence, upheld this decision. The applicant appealed in cassation.
On 28 April 2004 the Supreme Court of Ukraine, following the applicant’s complaints, returned the applicant’s case file to the first-instance court because the applicant wanted to study the case file materials.
In additional cassation appeals lodged on 20 June 2004 and 10 August 2004 the applicant submitted that the first-instance court had ignored his requests lodged between 1 and 13 June 2004 to have the opportunity to consult a lawyer. He further submitted that the first instance court ignored his complaints about pages missing from his appeal case-file.
Before this Court the applicant explained that while studying case-file materials he had discovered that, according to him, the first-instance court judge had removed two pages from his appeal and that was the reason why he had wanted to meet with the lawyer. According to the applicant, the removed pages contained six requests addressed to the court of appeal and the applicant’s complaint to a prosecutor. The applicant did not specify either before the Supreme Court of Ukraine, or before this Court what were the subjects of his requests and complaints.
On 5 October 2004 the Supreme Court examined his appeal and found it unsubstantiated.


ITEMID: 001-57470
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1983
DOCNAME: CASE OF VAN DROOGENBROECK v. BELGIUM (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses - claim dismissed
JUDGES: C. Russo
TEXT: 1. The present case was referred to the Court in December 198O by the European Commission of Human Rights ("the Commission") and in January 1981 by the Government of the Kingdom of Belgium ("the Government"). The case originated in an application (no. 7906/77) against that State lodged with the Commission on 16 April 1977 by Mr. Valery Van Droogenbroeck, a Belgian national.
2. On 23 November 1981, the Chamber constituted to examine the case relinquished jurisdiction in favour of the plenary Court (Rule 48 of the Rules of Court). By a judgment of 24 June 1982, the latter held that when Mr. Van Droogenbroeck was detained pursuant to section 25 of the Social Protection Act of 1 July 1964, he had not been able to take any proceedings satisfying the requirements of paragraph 4 of Article 5 (art. 5-4) of the Convention; on the other hand, the Court concluded that there had been no violation of paragraph 1 of Article 5 (art. 5-1) or of Article 4 (art. 4) (Series A no. 50, points 1 to 3 of the operative provisions and paragraphs 33-60 of the reasons, pp. 18-33).
The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 9 to 29 of the above-mentioned judgment (ibid., pp. 9-17).
3. At the hearings of 20 October 1981, Mr. J. Van Damme who, as the applicant’s lawyer and together with Mr. S. Beuselinck, was assisting the Commission’s Delegate had requested the Court, should it find a violation, to afford his client just satisfaction under Article 50 (art. 50). He had declared that he would leave the item of "pecuniary and non-pecuniary damage" to the Court’s discretion; as regards "fees and expenses", he had listed these shortly afterwards in a note dated 11 November 1981, which the Secretary to the Commission transmitted to the Registrar on 14 December. The Government had not taken a stand on the matter.
In its judgment of 24 June 1982, the Court reserved the whole of this question and referred it back to the Chamber under Rule 50 § 4 of the Rules of Court (ibid., §§ 61-62 of the reasons and point 4 of the operative provisions, pp. 33-34). On the same day, the Chamber invited the Commission to submit, within the coming two months, its written observations, including notification of any friendly settlement at which the Government and the applicant might have arrived (Series A no. 50, p. 35).
4. After two extensions of the above-mentioned time-limit by the President of the Chamber, and in accordance with his Orders and directions, the Registrar received:
- on 25 October 1982, the observations of the Commission’s Delegate, accompanied by a memorial dated 19 August in which Mr. Van Droogenbroeck himself set out his claims;
- on 3 December 1982 and 10 February 1983, the comments of the Government.
These documents revealed that no friendly settlement had been arrived at.
5. In addition, the applicant sent directly to the Registrar numerous letters asking to be supplied with a series of documents and items of information. In several of those letters he stated that he had denied Mr. Van Damme and Mr. Beuselinck the right to act for him; in the last, which was dated 16 March 1983, he asked to be allowed time to enable him to reply to certain of those documents and to instruct a new legal adviser.
6. Mr. J. Pinheiro Farinha and Mr. C. Russo, substitute judges, took the place of Mrs. D. Bindschedler-Robert and Mr. D. Evrigenis, whom the President had exempted from sitting on the case (Rule 24 § 4 of the Rules of Court).
7. After consulting, through the Registrar, the Agent of the Government and the Delegate of the Commission, the Chamber decided on 25 March 1983 that there was no call to hold hearings. It also resolved, since the case was ready for decision, not to defer adoption of its judgment.


ITEMID: 001-60703
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF YILDIZ v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: Georg Ress
TEXT: 9. The applicants were born in 1975, 1976 and 1995 respectively. When they introduced the application, they were all living in Austria.
10. The first applicant went to Austria in 1989 to live with his parents and siblings. As from 1994 he cohabited with the second applicant, who was born in Austria and has lived there all her life. They married under muslim law in April 1994 and under Austrian civil law in March 1997. Their daughter, the third applicant, was born on 14 August 1995.
11. On 5 January 1993 the first applicant was sentenced to three days’ imprisonment on probation for shoplifting by a Swiss Court.
12. On 19 May 1993 the Dornbirn District Court (Bezirksgericht) convicted him of theft without pronouncing a sentence. The court established that in 1992 the first applicant had stolen moped-accessories, cutlery and other commodities, two gold rings and a gold bracelet, worth altogether less than 25,000 Austrian schillings (ATS), equivalent to 1,817 euros (EUR). A probation period of three years was fixed.
13. In 1992 and 1993 the first applicant was convicted of three minor breaches of traffic rules and sentenced to pay fines of ATS 300, 500 and 1,000 respectively. Between February and April 1994 he was convicted three times of driving a car without a driving licence and sentenced to pay fines of ATS 3,000, 4,000 and 5,000, respectively (equivalent to EUR 218, 290 and 363).
14. On 28 February 1994, still without a driving licence, he overran a red traffic light and exceeded the speed limit of 60 km/h, driving at 170 km/h. On 6 April 1994 the Dornbirn District Authority (Bezirkshaupt-mannschaft) convicted him of these offences and sentenced him to a fine of ATS 14,500.
15. On 21 September 1994 the Dornbirn District Authority imposed a five year residence ban on the first applicant.
16. On 24 January 1995 the Vorarlberg Public Security Authority (Sicherheitsdirektion) dismissed the first applicant’s appeal.
17. The authority referred to section 18 §§ 1 and 2 of the 1992 Aliens Act, which paragraphs provide that a residence ban has to be issued against an alien, inter alia, if he has been convicted more than once for similar offences by a domestic or foreign court, or if a fine has been imposed on him more than once for a grave administrative offence by an administrative authority. The Authority found that both conditions had been met in this case.
18. Further, the Vorarlberg Public Security Authority, referring to the first applicant’s stay in Austria since 1989, the fact that his close family was living in Austria, his co-habitation with a Turkish national who was born in Austria, and his employment, found that the residence ban constituted an interference with the applicant’s right to respect for his private and family life. However, it was necessary for the aims set out in Article 8 § 2 of the Convention, namely for the prevention of crime and the protection of the rights of others. Given the first applicant’s continuous disregard of Austrian law, the authority assumed that it was probable that he would commit similar offences in the future. Thus, despite the first applicant’s high degree of integration in Austria, the public interest in issuing a residence ban outweighed the first applicant’s interest in staying. This decision was served on the first applicant on 8 February 1995.
19. On 11 May 1995 the applicant was taken into detention with a view to his expulsion.
20. On 13 June 1995 the Constitutional Court refused to deal with the first applicant’s complaint as it lacked sufficient prospects of success.
21. Subsequently, the first applicant lodged a complaint with the Administrative Court. He requested that the decisions relating to the residence ban against him be quashed for errors of law. He submitted that the contested decisions violated his right to respect for his private and family life. In particular, he complained that the competent authorities had failed duly to weigh his interests in staying in Austria against the public interest of issuing a residence ban against him. Although he had been convicted of theft, no punishment had been imposed on him. The other convictions only concerned administrative offences. Neither his fiancée, the second applicant, who was born in Austria and worked there, nor their daughter, the third applicant, could be expected to follow him to Turkey.
22. Furthermore, the first applicant submitted that Austria had become a member of the European Union on 1 January 1995 and was therefore bound by the Association Agreement between the European Union and Turkey. According to this Agreement, and the decisions on its implementation, Turkish workers who had been legally employed in a member State for a certain period had a right of free access to the employment market and also to a residence permit. In this context the first applicant requested the Administrative Court to refer the case to the Court of Justice of the European Communities for a preliminary ruling under Article 177 § 3 of the EEC Treaty. Moreover, measures of public security against such workers were only possible if the public interest was massively and actually endangered. Therefore, it would contradict EU-law to issue a residence ban against the child of a migrant worker’s family who has never committed anything else than petty crimes.
23. On 10 August 1995 the Administrative Court granted the first applicant’s complaint suspensive effect. Thereupon, on 11 August 1995, the applicant was released from detention with a view to his expulsion.
24. On 4 December 1996 the Administrative Court dismissed the first applicant’s complaint. It found that the contested residence ban served aims set out in Article 8 § 2 of the Convention, namely the prevention of crime and the protection of the rights of others. Furthermore, the Public Security Authority had duly weighed the interests involved. Given the fact that the first applicant had committed several criminal and administrative offences during a protracted period, the public interest weighed more heavily than the private interest, even in cases where an alien was integrated as the first applicant.
25. As to the Association Agreement between the European Union and Turkey, and in particular decree no. 1/80 of the Association Council, the Administrative Court noted that the rights contained therein only applied after a certain number of years of lawful employment. The first applicant had failed to submit the relevant facts to the administrative authorities, in particular whether he had been working in Austria for the requisite period. Thus, the Vorarlberg Public Security Authority could not be reproached for not having taken into account that Agreement and the above decree. The decision was served on the first applicant on 20 January 1997.
26. On 16 June 1997 an order to leave Austrian territory was served on the first applicant, with which he complied on 1 July 1997.
27. The first applicant is currently living in Turkey. The validity of his residence ban expired in September 1999. However, according to his submissions, which were not contested by the Government, the possibilities of legally returning to Austria are very limited and involve long waiting periods.
28. It appears that the second and third applicants visited the first applicant on a number of occasions in Turkey and spent a longer period of time there at the end of the year 2000 and in the beginning of 2001. In March 2001 the first and second applicants divorced. According to the divorce decree issued by a Turkish court, the second applicant has sole custody over the third applicant while the first applicant has a right of access. In September 2001 the second applicant returned to Austria. She has a settlement permit and a work permit. She has left the third applicant temporarily in Turkey where the latter is being cared for by relatives but intends to bring her back to Austria.

VIOLATED_ARTICLES: 8


ITEMID: 001-96179
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GAVRILOVICI v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 10;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The applicant was born in 1954 and lives in Palanca.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. The applicant's wife and son have been suffering from chronic renal failure (a gradual and progressive loss of the ability of the kidneys to excrete waste, concentrate urine, and conserve electrolytes) since 1998 and 2002 respectively. Consequently they need haemodialysis (a medical procedure that uses a machine to filter waste products from the bloodstream and to restore the blood's normal constituents). They are both disabled on account of their disease (first degree disability, 100% unfit for work).
8. While they live in Palanca village in Ştefan-Vodă county, they have to travel to Chişinău to receive their haemodialysis treatment. Initially, their transportation costs were covered by the regional hospital. However, starting from early 2004, the hospital no longer covered these expenses. In order to continue to benefit from financial help, the applicant's wife and son had to apply to the regional council, which could include the relevant expenses in the regional budget. The hospital informed the regional council about the situation. It also requested a confirmation that the applicant's wife and son actually lived in Palanca. Such a confirmation from the competent State authority was provided on 12 May 2004.
9. On 15 July 2004 the regional council discussed amendments to the regional budget in order to include additional expenses to cover transportation costs for five persons requiring haemodialysis in the county. All those in need of such support were granted it, except for the applicant's wife and son. The reason for the refusal was certain information about the fact that they lived in Chişinău and not in Palanca and therefore did not need transportation to obtain haemodialysis treatment. The decision regarding the applicant's wife and son was postponed.
10. On 5 August 2004 the regional council did not include on its agenda the issue of financial aid to the applicant's wife and son.
11. On 4 November 2004 the regional council met again, and a declaration from the applicant's wife was distributed to all the councillors. The issue concerning financial aid to the applicant's wife and son was put on the agenda. When it was examined, several councillors spoke against introducing the amendments. The county President I.M. stated that he had only seen the applicant twice (implying that the latter did not live in Palanca) and that he was against misappropriation of public funds. Some councillors spoke of the applicant's wife and son living at specific addresses in Chişinău and not needing financial support. Others mentioned the applicant's complaints to various authorities, including courts, against I. M., and the need to protect him from unwarranted attacks.
12. Then the applicant took the floor. According to the minutes of the meeting, he stated: “... what is most insulting is that my son was indeed a student until 2002, when his health worsened and he had to abandon his studies. My wife asked for help in 2004, but that was refused. They told her that she was good to go cultivate the land. My boy is not [in Chişinău]. I do not take back my words that [I. M.] is a fascist...”.
13. According to the applicant, he did not insult anyone during the meeting and did not use the word fascist.
14. After the applicant's statement, he was invited to leave the room and he eventually did so.
15. I. M., the president of Ştefan-Vodă county, used to be the head of the regional police station in the same county. In April 2001 he initiated criminal proceedings against the applicant for failure to pay taxes, following which the applicant was convicted on 12 December 2001. At the meeting on 4 November 2004 one councillor noted that the applicant had made 37 complaints against I.M. to various authorities, including courts.
16. On 27 December 2004 I. M. asked the regional police station to initiate proceedings against the applicant for insulting members of the regional council “during a meeting on 3 December 2004”. He lodged an identical request with the prosecutor's office.
17. The applicant unsuccessfully asked the police to discontinue the proceedings, in the absence of a proper written or audio record of the statements made during the meeting on 4 November 2004. According to the applicant, at the beginning of the meeting it was declared that an audio recording was being made. The applicant asked for a copy of the audio record of the meeting, which was refused. He later initiated court proceedings in order to obtain that record, but the courts rejected his claims.
18. On 26 January 2005 a police officer charged the applicant with having insulted I. M. on 4 November 2004. The case file was sent to the local court, together with the minutes of the meeting on 4 November 2004 and statements by three witnesses. One of the witnesses stated that the applicant had called I. M. a fascist for leaving his family without any help, while another said that the applicant had used a number of insulting words, without specifying which. The third (V. B.) explained that the applicant had not insulted anybody and even if some of his words could be considered vulgar, nobody was affected.
19. Again on 26 January 2005 the applicant was brought before the court. According to the applicant, he asked for witnesses to be heard in order to confirm that he had not insulted anyone. Without reacting to his request, and after a five-minute hearing, the judge convicted and sentenced him to five days' detention. The court found that the applicant had called I.M. a “fascist” and “other insulting words”. The applicant was immediately placed in detention and served all five days.
20. On the same day the applicant appealed, referring to the absence of an audio record of the meeting and the statement by one of the three witnesses regarding the absence of any insulting meaning in his words during the meeting.
21. The Bender Court of Appeal scheduled the hearing of the applicant's appeal for 16 February 2005. On the morning of that day he registered a request with that court's registry to postpone the hearing due to the fact that he already had another hearing scheduled before the Supreme Court of Justice on the same day. The court held the hearing on 16 February 2005 and did not refer to the applicant's request. It rejected the applicant's appeal as unfounded, finding that the lower court had properly examined the case and established that the applicant had insulted I. M.
22. On 25 March 2005 the newspaper Flux published an article describing the applicant's case. In reaction to that article, on 26 April 2005 V.B. and another regional councillor present at the meeting of 4 November 2004 wrote to the applicant's wife, explaining the reasons for the decision taken earlier rejecting help for her and her son due to the lack of information. They added that the applicant had not insulted anyone during that meeting.
23. The applicant asked for the reopening of the proceedings in view of his absence from the hearing of 16 February 2005, but the request was refused on 25 May 2005. A further request to the Prosecutor General's office to initiate the reopening of the proceedings was also refused on 30 May 2005.
24. In parallel to the above events, on 28 December 2004 I. M. asked the police to initiate criminal proceedings against the applicant for forging documents confirming his family's residence in Palanca. The investigation was discontinued on 8 April 2005 because the applicant and his family had their true residence in Palanca. On 22 April 2005 the prosecutor's office initiated court proceedings aimed at deleting the applicant's family's registration as residents of Palanca. On 9 June 2005 the Prosecutor General's office withdrew that court action.
25. The applicant contends that he was detained for five days, together with three other persons, in a cell measuring approximately 12 square metres. The cell was in the basement of the police station and was damp and dark, the window being covered by a metal sheet with holes in it. There was a wooden platform in the cell, approximately 1.8 metres wide, which was used as a bed by all four detainees. No bed linen was provided and all the detainees had to sleep in their clothes. Heating was very limited and it was cold in the cell. All the other detainees smoked, exposing the applicant to passive smoking. Food was served three times a day and two of the meals were limited to a pot of tea and a slice of bread. There was no toilet or running water in the cell. Detainees were escorted to the toilet twice a day for 3-5 minutes each, which was insufficient for their needs. They therefore had to urinate into plastic bottles in between their visits to the toilet, in plain view of the other detainees. There was no hot water and the applicant could not take a bath during his detention.
26. On 27 January 2005 the applicant's wife and daughter wanted to visit him, but this was refused because of the short term of the applicant's detention. His request to meet his family was also rejected because he was “without exit”, as noted also on the minutes of the personal search to which he was subjected upon being placed in detention.
27. On 29 January 2005 the applicant asked permission to visit a church in order to attend religious services after his mother's death on 24 January 2005. This request was refused since he had not yet served all five days of detention. The applicant did not leave the cell during the whole five days, except for the short visits to the toilet. Since his glasses were taken away upon placement in the detention cell, he could not read newspapers and there was no radio or TV in the cell.
28. The relevant provisions of the Code of Administrative Offences read as follows:
Administrative detention shall be applied only in exceptional cases for certain categories of administrative offences for a period of up to thirty days. Administrative detention shall be applied by the court...”
Insult, i.e. an intentional attack on a person's honour and dignity by act, orally or in writing, shall be punished by 7-15 times the conventional unit or by administrative detention of up to fifteen days...”
29. The Government submitted examples of domestic courts' case-law awarding compensation to persons who had been detained in inhuman conditions of detention. The courts relied on Article 1422 of the Civil Code. The cases included the case of T. Ciorap v. The Ministry of Finances, Ministry of Internal Affairs and Prosecutor General's Office (nr. 2a-1529/07) and the case of V. Drugalev (cited in Holomiov v. Moldova, no. 30649/05, § 88, 7 November 2006).
30. In its report concerning its visit to Moldova on 1424 September 2007 the CPT found, inter alia, the following (unofficial translation from original French):
“4. Conditions of detention
...
b. cells at local police stations
40. The cells seen by the delegation at the local police stations visited were not suitable for holding persons for more than a few hours. They were dark, unventilated, unheated, dilapidated and dirty, and were equipped at best with a bench. In addition to cells, local police stations had a barred enclosure, referred to as a “waiting room”, which usually measured some 5 to 6 sq.m and was devoid of any equipment.
According to police staff, the cells were being used for periods of detention not exceeding 3 hours. However, the delegation received many allegations – and found documentary evidence in the custody records – that persons had in fact frequently been held overnight, on occasion for up to 5 days .... Further, it became apparent that administrative detainees had spent up to 10 days in cells at local police stations. The persons concerned had not been provided with mattresses or blankets, and had not been offered anything to eat (the only food available was that brought by detainees' families).
The current situation is totally unacceptable. The CPT calls upon the Moldovan authorities to take effective steps to ensure that nobody is kept overnight at local police stations. Immediate steps should also be taken to equip all cells and “waiting rooms” with a means of rest (e.g. a bench). Furthermore, all persons detained in local police stations, irrespective of their legal status, should be offered food at normal mealtimes.”
31. The Government's response to paragraph 40 of the CPT report 2007 included the following statement (unofficial translation from original French):
“Despite the measures taken in the field of creating decent conditions of detention, in view of the insufficient funding, in certain IDPs the situation remains complicated. Following verifications made during the first eight months of 2008, the Ministry of Internal Affairs ordered, due to derogations from the legislation in force, the closing down of the IDPs in police stations of ..., Ştefan-Vodă, ...”.
VIOLATED_ARTICLES: 10
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