ITEMID: 001-80956
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF OAO PLODOVAYA KOMPANIYA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of P1-1;No violation of Art. 6-1;No separate issue under Art. 13 and 14
JUDGES: Christos Rozakis
TEXT: 6. In 1966 the Ministry of Foreign Trade of the USSR created a State Export and Import Agency “Soyuzplodoimport” (Всесоюзное экспортно-импортное объединение «Союзплодоимпорт»). Its assets included the trademarks to a number of brands of alcohol (such as Vodka Stolichnaya, Vodka Moskovskaya and their derivatives).
7. On 5 January 1990 the agency was reorganised into the State Foreign Trade Agency “Soyuzplodoimport” (Всесоюзное внешнеэкономическое объединение «Союзплодоимпорт»).
8. On 20 January 1992 the applicant company was set up in the form of a closed joint-stock company. It was called the “Foreign Trade Stock Company 'Soyuzplodoimport'” (Внешнеэкономическое акционерное общество закрытого типа «Союзплодоимпорт», VAO “Soyuzplodoimport”), and was registered with the relevant state agency, namely the Moscow Registration Chamber. According to its memorandum of association, it was set up by several founders, including the State Foreign Trade Agency “Soyuzplodoimport”, which held 3,880 of its 17,000 shares. The memorandum of association provided that the applicant company was a “successor” to the State Foreign Trade Agency “Soyuzplodoimport”.
9. In 1998 the applicant company converted into an open joint-stock company.
10. On 24 December 1999 the general shareholders' meeting of the applicant company adopted a new memorandum of association. The company name was changed to OAO “Plodovaya Kompaniya” (ОАО «Плодовая компания»). The new memorandum of association contained a declaration that the applicant company was the successor of the State Foreign Trade Agency “Soyuzplodoimport”.
11. In the above period the applicant company notified the trademark registration authority that the trademarks of the State Foreign Trade Agency “Soyuzplodoimport” had changed ownership through succession and consequently obtained trademark certificates in its own name. It subsequently used the trademarks as collateral in a number of commercial transactions with third parties.
12. On 31 October 2000 the Deputy Prosecutor General challenged the applicant company's new memorandum of association, particularly the declaration of succession, before the Commercial Court of Moscow.
13. On 21 December 2000 the Commercial Court of Moscow declared the provision on succession null and void. It held that the applicant company had had no legal grounds to claim succession to the State Foreign Trade Agency “Soyuzplodoimport”. The applicant company had been set up as a new company and not converted from an existing one. It held that a mere declaration by the applicant company in its founding memorandum of association was insufficient to enable it to become the successor of another company. Likewise, it found that, although the applicant company had de facto acted as a successor before the trademark registration authorities and courts of arbitration, this was irrelevant to the establishment of corporate succession.
14. On 19 February 2001 the Appellate Board of the Commercial Court of Moscow examined the applicant company's appeal. Without entering into the merits it quashed the first-instance judgment and terminated the proceedings on the ground that the prosecutor's office did not have standing to bring proceedings. This decision entered into force on the same day. It was not appealed against either by a cassation appeal or by a separate appeal.
15. On 18 April 2001 the Moscow Registration Chamber registered the change of name of the State Foreign Trade Agency “Soyuzplodoimport”. Its new name was the Federal State Unitary Enterprise “Soyuzplodoimport” (Федеральное государственное унитарное предприятие «Внешнеэкономическое объединение Союзплодоимпорт»).
16. On 13 June 2001 the Deputy Prosecutor General submitted a request for supervisory review of the decision of 19 February 2001.
17. The applicant company was summoned to the hearing before the supervisory instance, but those summons were not served on it because it could not be found at its official address. The representatives of the applicant company learned about the hearing, however, submitted written comments on the merits of the case and attended the hearing.
18. On 16 October 2001 the Presidium of the Supreme Commercial Court of Russia examined the case in supervisory review proceedings. The applicant company was represented by the company's president, who made oral submissions before the Presidium.
19. The Presidium quashed the decision of 19 February 2001 and reinstated the first-instance judgment of 21 December 2000. On the procedural point, it held that the prosecutor's office was entitled by law to represent the State in proceedings before commercial courts where public or State interests were involved. It found that the proceedings at issue concerned State property, and that this provided sufficient grounds for the prosecutor to intervene. As to the merits of the case, the Presidium upheld the finding that the applicant company was not entitled to claim succession to the State Foreign Trade Agency “Soyuzplodoimport” because there had been no decision on the latter's conversion, and the applicant company itself had been created as a new entity and not as a result of any reorganisation of an existing legal person. Accordingly, the provisions on succession made in its memorandums of association were null and void. This decision entered into force on the same day and was not subject to further appeal.
20. The Civil Code of the Russian Federation provides that a legal person may be reorganised or liquidated upon a decision of its founders or its management body as authorised in its constitutional documents, or by a competent court in the circumstances provided for by law (Articles 57 and 61). In the event of reorganisation in a form of merger, conversion or accession, the assets of the legal person that ceases to exist are transferred pursuant to an act of transfer to a newly created legal person and, in the latter case – to an existing legal person. In the event of reorganisation in a form of division or separation, the assets of the reorganised legal person are divided and transferred pursuant to a separation balance sheet (Article 58). In the event of liquidation the legal person ceases to exist without succession (Article 61).
21. The Code of Commercial Procedure (no. 70-FZ of 5 May 1995, in force at the material time) established that final judgments and decisions of all commercial courts of the Russian Federation were amenable to supervisory review initiated on an application by the President of the Supreme Commercial Court or his deputy or by the Prosecutor General of the Russian Federation or his deputy (Articles 180 and 181). The Code did not list the grounds for lodging an application for supervisory review: it merely specified that it could be lodged “also in connection with a request by a party to the proceedings” (Article 185 § 1). The summoning of parties to the hearing before the Presidium of the Supreme Commercial Court was to be at the discretion of the Presidium (Article 186 § 2). There was no time-limit for lodging an application for supervisory review, and, in principle, such applications could be lodged at any time after a judgment had become final.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57871
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF RAVNSBORG v. SWEDEN
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6
JUDGES: Gaukur Jörundsson;John Freeland
TEXT: 6. Mr Göran Ravnsborg, a university lecturer in law, is a Swedish citizen and lives in Lund in Sweden.
7. From late 1981 the applicant held a power of attorney from his adoptive mother, Mrs Karin Schieck, and, on 19 November 1982, he was appointed administrator (god man) for her friend, Mrs Marie Åkerblom. As both Mrs Schieck and Mrs Åkerblom became unable to care for themselves because of their advanced age, they were placed in a nursing home by the Municipality of Göteborg. The nursing home charged them for medical care and the applicant effected the relevant payments.
When he subsequently realised that the nursing home was a charitable association, he stopped paying the fees on the ground that the institution in question was not entitled to charge them. A dispute arose between the applicant and the nursing home and the latter brought a court action.
8. On 6 April 1987, while the above-mentioned proceedings were pending, the Board of the Principal Guardian (Överförmyndarnämnden - "the Board") in Göteborg asked the District Court (tingsrätten) in the same town to appoint an administrator for Mrs Schieck. The applicant, on his own and Mrs Schieck’s behalf, filed a counter-claim and sought the immediate dismissal of the members of the Board. Referring to Article 6 para. 1 (art. 6-1) of the Convention, he asked for a public hearing.
9. On three occasions in the course of the ensuing proceedings the applicant was ordered by the relevant courts, under Chapter 9, Article 5, of the Code of Judicial Procedure (rättegångsbalken; see paragraphs 19-20 below), to pay fines for improper (otillbörliga) statements made in his written observations. The orders were made in the form of decisions (beslut). He appears to have paid the fines.
10. In his written observations of 4 May 1987 to the District Court he stated, inter alia, that the Board could be described as "a basket of municipal rotten eggs of different colours with a common denominator and overriding ideology, namely fascism". Accordingly, the rights and legitimate interests of individuals within the municipality - if these were taken into account at all, so intoxicated were the authorities with power - were never given proper consideration amounting to an effective examination of the needs of the community. As a result, such needs were defined by so-called democratically elected "peoples’ courts" - officially named "boards" and "councils" of the municipality of Göteborg - the members of which "consist[ed] to a surprising degree of the local public mob" or "pure rotten eggs".
11. The District Court, considering the applicant’s statements "improper" within the meaning of Chapter 9, Article 5, of the Code of Judicial Procedure, ordered him, at a sitting on 18 May 1987, to pay a fine of 1,000 Swedish kronor. It did not hold a hearing and adjourned its examination of the merits of the case (see paragraph 15 below).
12. On 1 June 1987 the applicant appealed from the above decision to the Court of Appeal for Western Sweden (Hovrätten för Västra Sverige). He asked for an oral hearing and complained of not having had the possibility to defend himself orally before the District Court.
In his written observations, the applicant informed the Court of Appeal that, should it refuse his demands, he intended to lodge a further appeal (presumably to the Supreme Court) in order to bring his case to the Commission in Strasbourg or to the Human Rights Committee in Geneva. He expressed the opinion that the likelihood of his being granted leave to appeal was very small in view of the "generally lethargic[,]... lax and allergic attitude of the final instance", which resulted from the "anti-human rights indoctrination received by its members during their many years’ service in public administration".
13. On 4 November 1987, without holding an oral hearing, the Court of Appeal confirmed the District Court’s decision and ordered the applicant to pay a further fine of 1,000 kronor, finding that his written observations of 1 June 1987 also contained improper remarks prejudicing the good order of court proceedings.
14. The applicant then applied to the Supreme Court for leave to appeal, alleging that the lower and appellate courts had not only denied him a fair trial but had also violated his right to freedom of expression. Such leave was refused on 5 January 1988.
15. In the meantime, on 17 June 1987, the District Court, without holding a hearing, accepted the applicant’s and Mrs Schieck’s objection against the Board’s request for the appointment of an administrator, but rejected their demand for the dismissal of the members of the Board (see paragraph 8 above).
16. On 2 July 1987 the applicant, on his own and Mrs Schieck’s behalf, lodged an appeal with the Court of Appeal, seeking to have the case referred back to the District Court for reconsideration, as well as an oral hearing before the lower court.
On this occasion, he asked that his case be heard by a specially composed District Court as he wished to have certain members disqualified from sitting. He alleged that one of its members, whom he named, had a "far-reaching tendentiously fascist way of presiding" over the court and was "grossly partial in favour of municipal interests, collegiate corruption and abuse of public power through high-handedness, terror and reactionary principles". When composed of the said judge and certain other members, who were also mentioned by name, the District Court had been generally autocratic and had applied the law in a manner which had been heavily in favour of the municipal authorities.
On 4 November 1987, in a separate decision from the one mentioned in paragraph 13 above, the Court of Appeal rejected the appeal. In addition, it again ordered the applicant to pay 1,000 kronor for improper remarks in his appeal. It did not hold a hearing.
17. The applicant, on his own behalf and on that of Mrs Schieck’s estate (the latter had died on 7 July 1987), applied to the Supreme Court for leave to appeal, which was refused on 5 January 1988 (in a different decision from that referred to in paragraph 14 above).
18. Pursuant to Article 1 in Chapter 1 of the Penal Code (brottsbalken):
"A crime (brott) is constituted by any act for which the present code or other Law or Statute provides punishment (straff) as stated below."
According to Article 3, a reaction to crime (påföljd för brott) is understood in the code to mean the ordinary forms of punishment, notably fines and imprisonment.
19. Chapter 9, Article 5, of the Code of Judicial Procedure, as applicable at the material time, read:
"A person who, at a court sitting, disturbs the proceedings or takes photographs in the courtroom, or fails to comply with directions or prohibitions imposed under Chapter 5, Article 9, shall be ordered to pay a fine. The same punishment (straff) may be imposed on a person who, in his oral or written observations to the court, expresses himself in an improper manner."
Chapter 5, Article 9, provides inter alia that the presiding judge may order a person who disturbs the proceedings or behaves in an improper manner to leave the courtroom.
20. Fines imposed under Article 5 could not exceed 1,000 Swedish kronor (Article 9 in Chapter 9, as applicable at the relevant time), unlike ordinary criminal-law fines which were income-based.
21. The question as to which court has jurisdiction in cases concerning offences against the good order of court proceedings (rättegångsförseelser) is governed by Article 5 in Chapter 19 - "Part II. On the procedure in criminal cases" ("II. Om rättegangen i brottmål") - of the Code of Judicial Procedure. Under this Article it is for the court sitting in the proceedings - whether civil, criminal or other - in which the improper conduct has occurred to examine of its own motion whether it constitutes such an offence.
Article 1 in Chapter 20 (Part II of the code) reads:
"The court may not examine a question of criminal liability in the absence of a criminal charge. However, it may deal with issues of offences against the good order of court proceedings without a charge being brought."
In the proceedings under consideration, the courts followed the procedure laid down in the 1946 Act on the Handling of Court Matters (lagen om handläggning av domstolsärenden 1946:807 - "the 1946 Act"). Section 1 provides:
"The present Act shall apply to matters relating to the administration of justice with which the ordinary lower courts must deal of their own motion or on application and which, according to statute or other regulation, do not fall to be examined under the procedure provided for in civil or criminal cases; however, it shall not apply to questions of punishment or other consequences of a criminal offence."
22. If the court in question finds that a person has contravened Chapter 9, Article 5, it may immediately order him to pay a fine. Such a measure is not entered in the police register.
23. Pursuant to paragraph 2 of section 4 of the 1946 Act, a hearing may be held if the court in question considers that the person concerned should be heard orally. Should the court decide to hold one, it is, pursuant to section 5 of the 1946 Act, governed by the same provisions as apply to hearings in civil cases.
24. A fine imposed under Chapter 9, Article 5, of the Code of Judicial Procedure may, subject to the conditions laid down in the 1979 Act on the Enforcement of Fines (bötesverkställighetslagen 1979:189 - "the 1979 Act"), as amended in 1983 (Lag 1983: 352), be converted into a prison sentence.
According to sections 15 and 16 of the 1979 Act, the District Court must, upon the request of the public prosecutor, convert - by way of a decision (beslut) - uncollected fines into a term of imprisonment if it is obvious that the person concerned has intentionally failed to pay them or if there are other special reasons in the public interest for so converting them. A term of imprisonment imposed on this ground should be not less than fourteen days and not more than three months.
In proceedings concerning a request for the conversion of a fine into a prison sentence, the District Court must summon the prosecution and the defendant to appear at a hearing (section 17).
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-61410
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF STEUR v. NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10
TEXT: 9. The applicant is a Netherlands national who was born in 1951 and lives in Oegstgeest. He is a practising lawyer (advocaat en procureur). He was not represented before the Court.
10. On 26 November 1992 the social security investigating officer (sociaal rechercheur) Mr W. took and recorded a statement from one Mr B., a person of Surinamese origin who was suspected of having unjustly received social security benefits and, in this context, of having committed forgery. Mr B. was alone with Mr W. at the time and did not have the assistance of either a lawyer or an interpreter.
11. Subsequently, Mr B. was prosecuted for social security fraud. In addition, civil proceedings were instituted against him by the social security authorities for the recovery of the excess benefits paid to him. The applicant acted as Mr B.'s counsel in both sets of proceedings.
12. In the civil proceedings, the applicant declared, inter alia:
“The statement recorded in writing by Mr W. cannot have been obtained in any other way than by the application of pressure in an unacceptable manner in order to procure incriminating statements, the significance of which was not or not sufficiently understood by Mr B. given the absence of an interpreter.”
This passage appears in pleading notes submitted to the Hague Regional Court (arrondissementsrechtbank) at a hearing held on 27 June 1994.
13. Having learned of this statement in May 1995, Mr W. filed a disciplinary complaint within the meaning of section 46c of the Legal Profession Act (Advocatenwet) against the applicant to the Dean (deken) of the local Bar Association (Orde van Advocaten). He complained that the applicant's unfounded insinuations had tarnished his professional honour and good reputation, that the applicant had transgressed the limits of decency, and that the applicant had accused him obliquely of having committed perjury in drawing up the record in question.
14. Following an exchange of correspondence, the Dean forwarded Mr W.'s complaint to the Disciplinary Council (Raad van Discipline) of The Hague.
15. In its decision of 1 July 1996, following adversarial proceedings, the Disciplinary Council rejected as unfounded the complaint that the applicant had, in veiled terms, accused Mr W. of perjury. It did, however, consider that the applicant, by contending that Mr W. had exerted unacceptable pressure on Mr B., had made an assertion that was not supported by any facts. It concluded that the applicant had thus transgressed the limits of acceptable behaviour and failed to observe the standards expected from a lawyer (“... de grenzen van het toelaatbare overschreden en heeft hij in strijd gehandeld met hetgeen een behoorlijk advocaat betaamt”). Noting the nature and the limited degree of seriousness of the applicant's conduct, the Disciplinary Council considered it sufficient to declare the complaint of Mr W. partially well-founded without imposing any sanction.
16. The applicant lodged an appeal with the Disciplinary Appeals Tribunal (Hof van Discipline). He submitted that Mr B. had not had the assistance of a lawyer before he signed his written statement, despite having asked for a lawyer to be present, that no interpreter had been present at the interrogation, that Mr B. was a drug addict and that he had told him that pressure had been brought to bear. The applicant also referred to a statement taken by the investigating judge (rechter-commissaris) from Mr B. on 5 December 1994, which reads as follows:
“In reply to the question why I stated to the police that I had lived together with my ex-wife during the relevant period ... I say that I was pressured during that interrogation.
This pressure consisted of kicking against the table and kicking motions in my direction. I was also verbally abused.
When it came to signing the statement, I asked for the chief, but he was said to have already gone home. I then asked for a lawyer because I wanted an interpreter to come and read my statement to me. The police said, however, that no lawyer could come. So in the end I just signed the statement.”
17. The applicant argued that in defending his client he should have been free to conclude, as he had, that his client's confession could only have resulted from unacceptable pressure being brought to bear by the investigating officer. It would then have been for the court to which this conclusion was presented to decide whether or not it hat been established that such unacceptable pressure was in fact exerted. But it was not for a disciplinary tribunal to find that a statement made at a trial in defence of his client was unacceptable because it had not been sufficiently verified.
18. In its decision of 26 May 1997, following adversarial proceedings, the Disciplinary Appeals Tribunal dismissed the applicant's appeal and upheld the decision of 1 July 1996 in its entirety.
19. It noted that, in the civil proceedings involving Mr B., the allegation in issue had been made in the applicant's submissions during the first-instance proceedings as well as in the proceedings on appeal before the Hague Regional Court (in the latter proceedings in the course of a hearing held on 27 June 1994). It did not find it established that, at the material time, the applicant had in fact been informed by Mr B. that he considered that unacceptable pressure had been exerted on him when Mr W. took his statement. It further noted that the applicant's contention had remained wholly unsubstantiated at the material time.
20. The Disciplinary Appeals Tribunal agreed with the Disciplinary Council that a lawyer was not entitled to express reproaches of the kind in issue without any factual support, which implied that a lawyer, prior to raising such allegations, should seek information from his client as to the circumstances constituting the unacceptable pressure allegedly exerted.
21. Section 46 of the Legal Profession Act provides as follows:
“Advocates shall be subject to disciplinary proceedings regarding any act or omission which is in breach of the due care they ought to exercise as advocates visàvis those whose interests they look after, or ought to look after, any breach of the Regulations of the National Bar, and any act or omission not befitting a respectable advocate. This disciplinary justice is dispensed in the first instance by the Disciplinary Councils, and, on appeal, by the Disciplinary Appeals Tribunal, which is also the highest instance.”
22. A complaint against an advocate is submitted to the Dean of the local Bar Association (section 46c(1)), who shall investigate it (section 46c(2)). He may forward it to the Supervisory Board (Raad van Toezicht) for further action (section 46c(3)).
23. If a friendly settlement cannot be reached, the matter is referred to the Disciplinary Council by the Dean of the Bar Association (or the Supervisory Board as the case may be), either at the request of the complainant or ex officio (section 46c(3) and section 46d).
24. The sanctions available to the Disciplinary Councils and the Disciplinary Appeals Tribunal are: mere admonition; reprimand; suspension from practising for a period not exceeding one year; and disbarment (section 48).
25. Guidance on the nature of an “act or omission not befitting a respectable advocate” is found in the Rules of Conduct for Advocates (Gedragsregels voor advocaten), the most recent version of which dates from 1992. Rule 1 reads as follows:
“Advocates should behave in such a way that confidence in the profession or in their own exercise of the profession is not harmed.”
VIOLATED_ARTICLES: 10


ITEMID: 001-22971
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: PEJIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Ivica Pejić, is a Croatian citizen, who was born in 1967 and lives in Kundl, Austria. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 March 1995 the applicant drove a vehicle from Slovenia to Croatia, without passing through any customs checkpoint at the border. On the same day the Varaždin Police Department (Policijska uprava varaždinska) seized the applicant’s vehicle.
Subsequently the applicant was charged with an attempt to smuggle the vehicle into Croatia contrary to Section 355 (1) of the Customs Act (Carinski Zakon). On 29 March 1995 the Koprivnica Customs Offences Commission (Komisija za carinske prekršaje Carinarnice Koprivnica) found the applicant guilty of a customs offence and fined him 8,000 Croatian kunas (HRK). The fine was to be replaced by a prison term if the applicant did not pay it. Moreover, the applicant’s vehicle was confiscated.
The applicant appealed against the decision stating that he had not had any intention to smuggle the vehicle to Croatia, but that he had been lost and therefore missed the border checkpoint.
On 13 November 1995 the Custom Administration’s Customs Offences Appellate Commission (Komisija za carinske prekršaje u drugom stupnju carinske uprave Republike Hrvatske) upheld the first instance decision.
On 22 December 1995 the applicant, represented by a counsel, instituted proceedings in the Administrative Court (Upravni sud Republike Hrvatske) claiming that the lower administrative bodies had wrongly assessed the facts.
The facts related to the subsequent proceedings are in dispute. According to the Government, on 28 August 1997 the applicant’s claim was rejected by the Administrative Court. The judgment was served on the applicant’s counsel on 26 February 1998. In support of this the Government have submitted a copy of the Administrative Court’s judgment of 28 August 1997 and a copy of a receipt slip of an envelope addressed to the applicant’s counsel indicating that it contained a copy of the said judgment. The receipt slip was signed by an illegible name on 26 February 1998. It was also stamped by the Administrative Court on 2 March 1998 thus indicating that the signed receipt slip was returned to the court on that date.
According to the applicant, on 25 February, 28 April, 15 June, 28 October and 19 November 1998 he asked the Administrative Court to speed up the proceedings. He maintains that no judgment upon his claim before the Administrative Court has ever been served either on him or his counsel. As to the receipt slip submitted by the Government the applicant alleges that it was signed by an unknown person.


ITEMID: 001-4784
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: ARSLAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Marc Fischbach
TEXT: The applicant, born in 1974 in Samsun, is a citizen of Turkey. He is resident in Bursa. The applicant is represented before the Court by Abdurrahman Şahin, a lawyer practising in Ankara.
A.
On 23 June 1995 the applicant, who was serving in the army at the time, was shot and wounded in a clash with members of the PKK. A bullet entered his neck, causing permanent damage to his spine and leaving him 90 % paralysed below the waist.
The applicant received a retirement pension. His medical expenses were covered by the State. Under Law No. 2330 he was granted compensation for non-pecuniary damage and to cover the costs of hiring a lay helper (bakıcı) to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient.
On 8 March 1996 he requested the Ministry of Interior to pay him additional compensation. The Ministry rejected his request. On 9 May 1996 the applicant challenged the Ministry’s rejection before the 2nd Chamber of the Supreme Military Administrative Court.
The Chamber was composed of five military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation awarded under Law No. 2330 already paid to him. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances. According to the assessment of the legal expert, the applicant had already been adequately compensated.
The applicant’s lawyer objected to the expert’s calculations on the ground inter alia that the full amount of the fees paid to the helper had to be disregarded from the final calculation. On 26 February 1997 the 2nd Chamber of the Supreme Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards.
Under domestic law the judgments of the Supreme Military Administrative Courts are final and cannot be appealed. The applicant requested rectification of the judgment (kararın düzeltilmesi). In accordance with domestic law, the file was re-examined by the same five-judges of the 2nd Chamber of the Supreme Military Administrative Court which had given the judgment of 26 February 1997. On 30 April 1997 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification.
B. Relevant domestic law
Article 66 of the Law No. 1602 on the Supreme Military Administrative Court provides:
“Rectification of a judgment rendered by the Chamber or the Grand Chamber may be requested on one of the following grounds, only once within 15 days after it is served on the parties:
a) The judgment does not refer to the allegations and the objections which affect its merits;
b) The judgment contains provisions which contradict each other;
c) The judgment is contrary (“aykırı”) to procedural and substantive law (“usul ve kanuna aykırı”)”.


ITEMID: 001-95257
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: ALLEN AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 1. The applicants, Mr Trevor Allen, Mr John Lewis and Mr David Venable, are British nationals. Mr Allen and Mr Venable live in Takeley and Mr Lewis lives in Dunmow. The applicants were represented before the Court by Mr R. Buxton, a lawyer practising in Cambridge.
2.
3. The applicants are the owners of residential properties situated near Stansted Airport, in the south-east of England. Stansted Airport is owned and operated by Stansted Airport Limited (“BAA Stansted”), a private company which was at the relevant time a wholly-owned subsidiary of BAA Plc, a company then listed on the London stock exchange.
4. In December 2003, the Government published a White Paper, The Future of Air Transport (a White Paper outlines details of future policy on a particular subject and often leads to legislative proposals following responses to the paper). The White Paper set out a strategic framework for the development of airport capacity in the United Kingdom over the next 30 years and in that context, the Government expressed support for the construction of a new runway at Stansted Airport. The executive summary to the White Paper identified the Government’s objectives as limiting and, where possible, reducing noise impact over time, as well as minimising other local environmental impacts. It noted:
“Where noise impacts cannot practically be limited, the White Paper sets out new measures which it expects airport operators to take to help those affected, by offering to insulate or, in more severe cases, purchase properties.”
5. The executive summary also invited airport operators to bring forward plans to increase capacity, including, where appropriate, measures to address blight.
6. The White Paper explained generalised blight as follows:
“The prospect of airport development will in many cases have a wider impact on property values in the period before statutory protection is available. This is often referred to as ‘generalised blight’.”
7. The statutory protection available was set out briefly in the White Paper:
“Under existing planning law, residential and agricultural owner occupiers directly affected by airport development plans will have access in due course to statutory blight provisions, either when planning permission is granted for the airport development, or when the local development plan has been revised to reflect development proposals.
In addition, the law provides for compensation in respect of loss of value arising from certain indirect effects of future airport development during construction such as noise or dust (under the Compulsory Purchase Act 1965) and for loss of value one year on from the opening of a new development and arising from its operation (under Part 1 of the Land Compensation Act 1973).”
8. The White Paper acknowledged that there would be no statutory remedy for generalised blight but accepted the need for some form of redress for property owners affected. It indicated that non-statutory schemes to deal with generalised blight were being developed by airport operators in respect of runways supported by the White Paper. Specifically, the White Paper stated that the Government expected such non-statutory schemes to minimise the impacts on local people. With regard to the Stansted expansion plans, the White Paper emphasised that:
“the airport operator will need to put in place a scheme to address the problem of generalised blight resulting from the runway proposal.”
9. The White Paper also addressed separately the issue of noise mitigation. Based on research, the Government used 57dBALeq16 hour (equivalent continuous noise level) as the level of daytime noise marking the approximate onset of significant community annoyance. The White Paper set out the Government’s expectation that relevant airport operators would, with immediate effect, offer households subject to levels of noise at 69 dBALeq16 hour or more assistance with the costs of relocating. As regards households subject to noise levels of 63 dBALeq16 hour or more, the Government expected relevant airport operators to offer acoustic insulation. In respect of future airport growth, the Government indicated their expectation that relevant airport operators would offer to purchase those properties suffering from noise levels of 69 dBALeq16 hour or more and which saw an increase in noise levels of 3dBALeq or more; and to offer acoustic insulation to those with noise levels of 63 dBALeq16 hour or more and which saw an increase in noise levels of 3dBALeq16 hour or more.
10. The Government undertook to monitor and evaluate the impact and effectiveness of the policies set out in the White Paper.
11. BAA Stansted subsequently announced its intention to seek approval for the construction of a second runway at Stansted Airport. In February 2004, it outlined, in a consultation document, various proposals to address the problem of generalised blight.
12. On 30 April 2004, in response to a letter from “Stop Stansted Expansion” (an interest group opposed to the expansion of Stansted Airport), the then Parliamentary Under Secretary of State for Transport indicated that:
“in introducing this voluntary scheme, BAA are taking forward policies set out in ... the White Paper ... BAA will wish to ... try to minimise the impacts on the local community. We will monitor progress by airports in bringing forward blight and noise mitigation schemes ...”
13. In September 2004, BAA Stansted published details of the scheme selected to assist home owners suffering from generalised blight: the Home Owner Support Scheme (“HOSS”). Under the terms of the scheme, only properties falling within a contour line based on noise levels of 66 dBALeq16 hour (“66 Leq”) and above fell within the ambit of the HOSS. There was no flexibility as regards the contour line and properties outside the contour line were ineligible for the scheme. BAA Stansted accepted that in defining this boundary, a line was drawn between those who would qualify and those who would not and that the line might appear arbitrary in some places. However, it emphasised that the selection of the line contour was based on detailed research, adding:
“In confirming our intention to work on the basis of the 66 Leq contour, it is important to emphasise that this scheme is about addressing generalised blight and not noise mitigation. However, we intend to introduce specific noise compensation and mitigation packages in the future, including noise insulation programmes.”
14. An applicant qualifying under the HOSS could either require BAA Stansted to enter into a legally binding and transferable option to purchase his property, allowing him to sell his property, together with the option to purchase, to a third party; or he could require BAA Stansted to buy his property once it had announced its intention to construct the runway (which was subject to the grant of planning permission). In addition, where an owner eligible for the HOSS was only able to sell his property for 15 per cent or more below the index-linked market price, an assisted relocation scheme would require BAA Stansted to purchase the property subject to terms and conditions. An early moving contribution was available for home owners who did not qualify for the assisted relocation scheme because they could sell their properties for within 15 per cent of the index-linked price.
15. In addition to the HOSS, BAA Stansted promulgated a Special Cases Scheme (“SCS”) aimed at individuals who could demonstrate that a severe medical condition, such as a chronic or degenerative disease, made it necessary for them to move at the earliest opportunity but who were having difficulty selling their homes. One criterion of the SCS was that the individual had been unable to sell his home within 15 per cent of the market price. The 66 Leq contour line did not apply to the SCS.
16. The applicants’ properties lie outside the 66 Leq contour line. Accordingly, they are not eligible to benefit from the HOSS. Nor are they eligible under the SCS. They nonetheless consider that their properties have been affected by generalised blight. They rely on statistics from the Land Registry Office which show that while house prices in the county of Essex increased by 25.5 per cent on average between April-June 2002 and the final quarter of 2003, house prices in Uttlesford, the district within Essex in which Stansted Airport and their properties are situated, only increased by an average of 12.7 per cent.
17. By letter dated 5 November 2004, the then Parliamentary Under Secretary of State for Transport, responding to a letter from “Stop Stansted Expansion”, stated that:
“We recognise that the prospect of airport development can have an impact on property values during the period before statutory protection becomes available. We also accept that people should have access to some form of redress, which is why we made our view clear in The Future of Air Transport White Paper that non-statutory schemes should be brought forward locally, by airport operators, where new runways are supported in the White Paper or where land is safeguarded for future development. However, there is no obligation on BAA to do so as you suggest in your letter.
In the case of the proposed development of Stansted, BAA’s Home Owners Support Scheme (HOSS) is intended to provide financial support to homeowners close to the site of the proposed new runway, whose property values may be worst affected by the prospect of increased airport noise. I would emphasise that the HOSS is a BAA scheme, voluntarily entered into by them. The Government is not a party to it and cannot in any way guarantee it. That said we do consider BAA’s scheme to be consistent with the objectives we set out in ... the White Paper ...
Your letter also explains your organisation’s view that the BAA scheme does not adequately address all aspects of the generalised blight around Stansted. The noise level contours being used by BAA for its HOSS are not arbitrary values, but are research-based and have also formed the basis for past sound insulation schemes at Stansted and other airports. It is, however, an unavoidable feature of any amelioration scheme based on environmental noise impacts, whether forecast noise or actual and whatever the noise values used, that it will give rise to a boundary with people living just outside it.
... We consider that the only fair and practical basis for a voluntary blight compensation scheme is one referenced to a recognised level of environmental impact. There may be debate about what the boundary should be and what impacts should be taken into account, but a scheme that is not based on objective and measurable environmental criteria would be very difficult to administer in practice.
As we said in ... the White Paper, we will be monitoring the effectiveness of the policies we have set out, including voluntary blight schemes brought forward by airport operators, and will review progress along with other White Paper policies in 2006.”
18. Planning permission for the new runway has not yet been granted.
19. The first applicant, together with Takeley Parish Council (“Takeley”), sought leave to apply for judicial review of the HOSS complaining that it compensated some home owners affected by generalised blight but not all; and that it was applied inflexibly. The defendants were BAA Stansted and BAA plc. In their summary grounds of defence the defendants sought GBP 23,585 by way of the costs of defending the application for leave to apply for judicial review. Permission to bring judicial review proceedings was refused on the papers on 4 March 2005, with the judge commenting that the level of costs claimed by the defendants appeared disproportionate and that detailed assessment was therefore likely to be required.
20. The claim for permission to apply for judicial review was renewed at an oral hearing, with a substantially amended statement of facts and grounds which sought to introduce the Secretary of State for Transport as a third defendant. The argument developed at the oral hearing before the High Court was that the Secretary of State had acted unlawfully in positively supporting and continuing to support and endorse the HOSS scheme in circumstances in which the requirements of the policy set out in the White Paper were not met and/or in continuing to express policy support for the development of Stansted in circumstances where insufficient provision had been made to address generalised blight. Accordingly, it was argued, the Secretary of State had failed to comply with his duties under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1.
21. Takeley and Mr Allen also made a separate application for a protective costs order (“PCO”). Although Mr Allen was indemnified by Takeley in respect of costs, Takeley itself had limited financial resources. Accordingly, the terms of the PCO sought was that each party pay its own costs in relation to the judicial review proceedings, on the grounds that the case was one of general interest and that the prohibitive level of costs which could potentially be awarded against the claimants if unsuccessful would inevitably oblige them to discontinue the application for judicial review.
22. By order dated 13 July 2005, Sir Andrew Collins declined to make an advance order on costs on the basis that the issue of costs should be dealt with on the relevant application for permission. He observed that the condition in R (on the application of Corner House Research) v Secretary of State for Trade and Industry (see relevant domestic law and practice below) that the claimant should have no private interest in the case in order for a PCO to be awarded “may be too restrictive but there are substantial arguments against a PCO, although some sort of capping may be appropriate”.
23. On 14 December 2005, Mr Justice Lloyd Jones refused the renewed application for leave to apply for judicial review. He noted at the outset (at paragraph 24) that:
“The generalised blight is caused by the White Paper, or its implementation, not by the bringing forward of a voluntary scheme to mitigate its effects. The challenge to the vehicle intended to bring relief [i.e. the HOSS], whatever may be claimed to be its inadequacies, was aiming at the wrong target. Furthermore, it should be noted that the scheme does not affect statutory rights, it simply supplements those rights in the cases where it applies.”
24. In respect of the argument that the balance struck between competing rights by the White Paper was not reflected in the HOSS, the judge disagreed. He considered that the White Paper did not contemplate a voluntary scheme which would relieve all cases of generalised blight and that, accordingly, the HOSS scheme was not incompatible with the policy set out in the White Paper.
25. As regards the argument that in endorsing the scheme, the Secretary of State had infringed Convention rights, Lloyd Jones J considered in turn the various articles relied upon. In respect of Article 8, he concluded that the case involved the possible diminution in value of property and that, as a consequence, Article 8 was not engaged. In any case, the balance struck by the scheme did not raise an arguable claim under Article 8. As regards Article 1 of Protocol No. 1, he noted that it was common ground among the parties that the article was engaged and he considered that the case involved a control of the use of the property, rather than deprivation of ownership. He referred to the approach of the Court of Appeal in R (Trailer and Marina (Leven) Ltd) v Secretary of the State for the Environment, Food and Rural Affairs and another [2005] 1 WLR 1267 in which Neuberger LJ, citing Allan Jacobsson v. Sweden (no. 1), 25 October 1989, § 55, Series A no. 163, explained that in such cases there had to be a reasonable relationship of proportionality between the means employed and the aim sought to be realised; and that in striking the fair balance between the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the authorities enjoyed a wide margin of appreciation. Lloyd Jones J concluded (at paragraph 30) that:
“[Counsel for Mr Allen] has to put his case very high. He has to say that a fair balance requires his mandatory scheme; that is one which requires compensation to be available regardless of the noise contour, taking account of and providing compensation for any diminution in value and doing so for all of those who are affected by the generalised blight. To my mind, it is not arguable that approving a voluntary scheme which does not go this far is disproportionate.”
26. As for the alternative argument that it would be disproportionate to base the scheme on the noise contour without incorporating some element of flexibility, Lloyd Jones J held (at paragraph 31):
“However, here again it does not appear to me that the use of the noise contour is a disproportionate response. Once it is accepted that it is justifiable to compensate only the severely disadvantaged, a line has to be drawn. It seems to me that this is an efficient and fair way of identifying those most severely affected by the generalised blight.”
27. Lloyd Jones J noted that the documents setting out the HOSS explained clearly why it was considered desirable to have a contour line and why the 66 Leq noise boundary had been adopted. The deliberate exclusion of discretion did not make drawing a line disproportionate. He concluded that there was an objective justification for the approach adopted, which was the need for legal certainty and a workable rule.
28. Finally, as regards Article 14, Lloyd Jones J held (at paragraph 34):
“I doubt that Article 14 is engaged in the circumstances of this case. This scheme does not discriminate between individuals and groups on the basis of personal characteristics. If it did, then that would be the case whenever a distinction is drawn between different categories of property owners. But, in any event, it seems to me that any discrimination will be justified for the reasons that have already been given.”
29. In the circumstances, Lloyd Jones J found that the issue of the protective costs order did not arise. However, having heard argument from the parties, he limited the extent of the costs order made in respect of the proceedings. No costs order was made against Mr Allen. Takeley was ordered to pay the first and second defendants’ assessed costs of acknowledging service and resisting the PCO, the latter costs to be limited to GBP 1,000, and the third defendant’s costs of lodging written submissions, limited to GBP 1,000. No costs were awarded in respect of the oral hearing.
30. Mr Allen and Takeley subsequently sought permission to appeal to the Court of Appeal against the refusal of leave on the ground that, inter alia, the judge had erred in law in concluding that there was no arguable case that the Secretary of State had acted, and continued to act, in breach of his obligations under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1.
31. By order dated 21 July 2006, Lord Justice Waller adjourned the application to be heard by the full court, with the appeal to follow if permission was granted. He commented that:
“I have doubts about the prospects of success but a refusal on paper will almost certainly lead to an oral hearing and this is one of those cases where arguing about prospects could take longer than tackling the points sought to be taken”.
32. Following a request for clarification from solicitors acting for Takeley and Mr Allen, Waller LJ confirmed on 12 October 2006 that he would not make a protective costs order.
33. Takeley and Mr Allen subsequently sought the advice of leading and junior counsel. Counsel advised that although the case was arguable, the prospects of success on appeal were low and the prospects of success in the substantive judicial review application were even lower. In this respect, Waller LJ’s comments in his 21 July order that he had doubts about the prospects of success were significant. In view of Takeley’s limited financial resources and the likely considerable level of costs which would be awarded against them if their appeal was unsuccessful, counsel advised the withdrawal of the appeal.
34. The appeal was subsequently dismissed by consent.
35. Under statutory planning law, residential occupiers directly affected by airport development plans have access to statutory blight provisions either when planning permission has been granted for airport development or when the local development plan has been revised to reflect the development proposals.
36. Under Part I of the Land Compensation Act 1973, those affected by airport development can claim compensation for the loss in the value of their property directly attributable to the operation of the new development. However, eligibility for compensation arises only after 12 months have passed since the new runway has entered in operation.
37. The normal rule in civil proceedings in England and Wales, including judicial review proceedings, is that the unsuccessful party pays the reasonable costs of the successful party.
38. The court may, in certain circumstances, make a protective costs order. The relevant principles governing the making of PCOs in public law cases raising issues of general public importance were set out in R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 260. In that case, the Court of Appeal held (at paragraph 74):
“We would therefore restate the governing principles in these terms: (1) a PCO may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: (i) the issues raised are of general public importance; (ii) the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order; and (v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in doing so. (2) If those acting for the appellant are doing so pro bono this will be likely to enhance the merits of the application for PCO. (3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in light of the considerations set out above.”


ITEMID: 001-97790
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MAKSIMOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 13;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1963 and lives in Krasnoyarsk.
7. On 2 March 2000 two police officers came to the applicant's country house, intending to search it. The applicant objected and the police officers left. According to the applicant they returned later that day, climbed over the fence and broke it.
8. On 23 December 2001 the applicant, having been unsuccessful in his attempts to initiate criminal proceedings against the police officers, lodged an action against the local prosecution authorities seeking compensation for damage resulting from their refusal to open a criminal case.
9. On 10 September 2002 the Krasnoyarsk Regional Court, at final instance, dismissed the action, finding that the prosecution authorities had no cause to institute criminal proceedings as the police officers had not searched the applicant's house.
10. On 24 April 2000, at 2.30 a.m., two police officers, Mr N. and Mr Ne., and officer N.'s relative, Mr V., acting on information that the applicant owned an unregistered weapon, broke into his country house. The applicant and his fifteen-year-old daughter were in the house. The officers told the applicant that a man had been killed in a nearby house and demanded that the applicant hand over his hunting rifle and cartridges.
11. In response to the applicant's assertion that he did not own a weapon, officer N. twice hit him in the head with the hilt of his gun. Threatening to use a gun, he then ordered the applicant to stand with his face to the wall, his hands against the wall and his legs spread. Having learnt that the applicant's daughter was also in the house, officer N. ordered her to come downstairs. When she refused, officer N. shot into the air. As the applicant's daughter still refused to comply, officer N. approached and hit her at least four times in the head with the hilt of his gun. According to the applicant, having dragged the girl downstairs, officer N. continued beating him and his daughter, threatening them with murder.
12. The police officers and Mr V. searched the house. Having found no weapons, officer N. again beat the applicant up. The applicant alleged that officer N. had pressed the gun against his head and had pulled the trigger. No shot was fired because the gun was not loaded. More murder threats followed.
13. The police officers tied the applicant's hands behind his back and took him to another house where the beating and threats continued. The applicant was released several hours later after having promised to come to a police station on the following day.
14. On 25 April 2000 the applicant lodged a complaint with the Yemelyanovskiy district prosecutor, describing the events of the previous night. Criminal proceedings were instituted.
15. On 24 July 2000 an investigator discontinued the criminal proceedings, finding that the applicant's complaints were manifestly ill-founded. The investigator observed that medical experts had examined the applicant and his daughter and had diagnosed both of them with closed craniocerebral injuries and concussion. The experts also recorded compound wounds in the parietal region of the applicant's head and four tear-contused wounds on his daughter's head. However, the investigator concluded that there was no evidence in support of the applicant's allegations that the injuries had been caused by officer N.
16. Four days later the Yemelyanovskiy district prosecutor quashed the decision and reopened the investigation.
17. On an unspecified date officer N. was served with the bill of indictment and committed to stand trial before the Yemelyanovskiy District Court of the Krasnoyarsk Region.
18. The applicant and his representative attended the trial hearings. On 4 June 2002 the District Court found the applicant's representative in contempt for having offended the presiding judge and excluded the representative from the courtroom.
19. On 6 June 2002 the Yemelyanovskiy District Court, having established that on 24 April 2000 Mr N. had broken into the applicant's country house, had severely beaten the applicant and his daughter and had searched the house, found him guilty of unlawful breaking and entering into a dwelling and gross abuse of position, and sentenced him to three years and six months' imprisonment. The District Court, without supporting its decision by any reasoning, also awarded 25,000 Russian roubles (RUB, approximately 840 euros) in compensation for non-pecuniary damage to be paid to the applicant and his daughter by Mr N. At the same time the District Court instructed the applicant to bring a separate action for compensation for damage caused to his and his daughter's health by Mr N.'s unlawful actions.
20. The applicant appealed, complaining, inter alia, about the unfavourable outcome of the proceedings.
21. On 27 August 2002 the Krasnoyarsk Regional Court, noting that the District Court had not committed any gross violations of the law, upheld the judgment of 6 June 2002. The applicant was present at the appeal hearing.
22. The judgment of 6 June 2002, as upheld on appeal on 27 August 2002, was not enforced in the part concerning compensation for damage, because Mr N. did not have any assets.
23. On 4 November 2002 the applicant and his daughter lodged an action against the Russian Ministry of Finance, the Krasnoyarsk regional treasury and the Krasnoyarsk regional and Yemelyanovskiy district police departments, seeking compensation for non-pecuniary damage. The applicant argued that the State should bear responsibility for the unlawful actions of its agents, in this case police officer N., who had broken into his house and beaten him and his daughter. He also contended that the compensation awarded to him by the judgment of 6 June 2002 was insufficient and had not even been paid to him.
24. On 3 April 2003 the Sverdlovskiy District Court of Krasnoyarsk dismissed the action, reasoning as follows:
“Having heard the parties and having studied the case materials, the court makes the following findings.
On 6 June 2002 the Yemelyanovskiy District Court of the Krasnoyarsk Region found Mr N. guilty [of the criminal offences] proscribed by Article 139 § 3 and Article 286 § 3 (a) and (b) of the Russian Criminal Code and sentenced him to three years and six months' imprisonment. [The court] awarded 25,000 roubles in compensation for non-pecuniary damage to [the applicant] (10,000 roubles in his favour and 15,000 roubles to be paid to [his daughter]).
It was established in the court's judgment that on 24 April 2000 Mr N., acting against [the applicant's] will, had entered his dwelling (a country house), where he had fired his gun a number of times. Mr N. had twice hit [the applicant] in the head with the hilt of his gun, causing an abrasion to the applicant's scalp... Mr N. had hit [the applicant's daughter] at least four times in the head with the hilt of his gun, causing a closed craniocerebral injury accompanied by concussion, and four tear-contused wounds...
By virtue of Article 254 of the Russian Code of Civil Procedure an individual has a right to appeal to a court against the actions (inactions) of a State body, a municipal authority or their officials.
According to Article 1069 of the Russian Civil Code damage caused to an individual or a legal entity by the unlawful actions (inactions) of State [and] municipal bodies or their officials... must be compensated. The compensation is to be paid out of the funds of the Treasury of the Russian Federation, the treasury of the constituent element of the Russian Federation or the treasury of the municipal entity respectively.
Article 1069 does not cover the unlawful actions of all employees of a State or municipal body but only those of the officials defined in the annotation to Article 285 of the Russian Criminal Code. Officials are persons who permanently, temporarily or on the basis of a specific authorisation perform functions of public agents or perform managerial, regulatory, administrative or economic functions in State and municipal bodies or State and municipal entities. For liability under Article 1069 of the Russian Civil Code to be invoked the official must have caused the damage in the performance of his duties.
By virtue of Article 49 of the Russian Constitution any person accused of having committed a criminal offence is considered innocent until his guilt is proven according to a federal law and established by a final court judgment.
It was established in the court hearing that after the judgment [of 6 June 2002] had become final, Mr N. was dismissed from [the police service].
By virtue of Article 1070 of the Russian Civil Code damage caused to an individual as a result of his unlawful conviction, the unlawful institution of criminal proceedings against him, his unlawful detention on remand, the unlawful application of a written undertaking not to leave his place of residence or the unlawful imposition of an administrative sanction such as arrest or correctional works should be compensated in full, irrespective of the guilt of the officials of the [police], investigating, prosecuting or judicial authorities, in a procedure established by law and out of the funds of the Treasury of the Russian Federation or, if prescribed by law, the funds of the treasury of the constituent element of the Russian Federation or the municipal entity.
Compensation for damage caused to an individual or a legal entity as a result of the unlawful actions of the [police], investigating or prosecution authorities which did not produce any of the consequences described in paragraph 1 of [Article 1070] should be awarded on the basis of and in line with the procedure established by Article 1069 of [the Russian Civil Code]...
The legal relations between claimants and defendants do not fall within the ambit of Article 1070.
Therefore, [the court] dismisses [the claimant's] claims that the actions (inactions) of the authorities of the Yemelyanovskiy district and Krasnoyarsk regional police departments and the Ministry of the Interior of the Russian Federation were unlawful.
By virtue of Article 151 of the Russian Civil Code a court may order perpetrators to pay monetary compensation for non-pecuniary damage (psychological and physical suffering) to individuals who sustained such damage through actions which violated their personal non-pecuniary rights or otherwise encroached on their non-pecuniary interests, as well as in other cases envisaged by a federal law.
Article 150 of the Russian Civil Code lists life, health, human dignity, personal safety ... among those non-pecuniary interests.
No compensation should be awarded for non-pecuniary damage because, by virtue of the judgment of the Yemelyanovskiy District Court of the Krasnoyarsk Region, the applicant was awarded compensation for non-pecuniary damage to be paid by Mr N., the direct tortfeasor.
The present judgment has not established responsibility on the part of any officials in causing damage to [the applicant].
In such circumstances the court considers [the claimant's] claims manifestly ill-founded and dismisses them in full.”
25. On 16 July 2003 the Krasnoyarsk Regional Court upheld the District Court's judgment, finding that:
“... in view of the fact that [the applicant] and [his daughter] made use of their right and lodged a claim for compensation for non-pecuniary damage by the direct tortfeasor and that their claims were allowed by the court in the course of the examination of the criminal case; that compensation for non-pecuniary damage constitutes one-off redress; and that dual compensation for non-pecuniary damage caused by the same actions of the person concerned is impossible, the [District] court lawfully dismissed the plaintiffs' claims for compensation for non-pecuniary damage in connection with the unlawful actions of Mr N.”
26. On 2 August 2001 the applicant's car was stolen. On the same day two individuals were arrested and charged with theft. The car was returned to the applicant. On 28 May 2002 the Krasnoyarsk Regional Court, at final instance, found the individuals guilty of the unlawful removal of a car without intent to steal it, acquitted them of a charge of theft and sentenced them to two years' probation.
27. According to the applicant, on 19 December 2001 two police officers, M. and D., stopped him in the street and attempted to carry out a search on his person. The applicant objected and the officers took him to the local police station, where he was beaten up and placed in a temporary detention unit. He was released two hours later without being given any reasons for his arrest.
28. The Government provided a different version of events, insisting that officers M. and D. had taken the applicant to Sverdlovsk district police station in Krasnoyarsk as he had committed an administrative offence proscribed by Article 162 of the RSFSR Code of Administrative Offences. In the station the officer on duty drew up report no. 29384 recording the details of the administrative offence. The report, which was provided to the Court by the Government, consisted of a two-page printed template in which the date, the officer's and applicant's names, the applicant's personal data and a description of the administrative offence had been filled in by hand. The relevant part reads as follows (the pre-printed part in Roman script and the part written by hand in italics):
“on 19 December 2001, at approximately 10.20 a.m., at a public transport stop ... [the applicant] was in an intoxicated state, walked staggering from one side to another and looked untidy, thereby committing an administrative offence proscribed by Article 162 of the Code of Administrative Offences, namely 'appearance in a public place in an intoxicated state'.
Witnesses, victims____________________________________________________
[The applicant] was explained to him his rights and duties laid down in Article 247 of the Code of Administrative Offences.
PERPETRATOR'S EXPLANATIONS.
[I] drank 100 grams of vodka.
...
I, [the applicant], have been informed that my case will be examined by the Sverdlovskiy district police department.
Decision taken in the case: in compliance with Article 162 § 1 of the RSFSR Code of Administrative Offences a warning was issued.”
29. After his release from the police station on 19 December 2001 the applicant was examined by a doctor in the trauma unit of the local hospital and diagnosed with an injury to the left side of his chest. In the absence of visible traces of an injury, the diagnosis was made by means of palpation of the chest, with the applicant complaining of pain. The doctor called the Sverdlovskiy district police department and reported the applicant's injury, allegedly sustained at the hands of the police officers. The officer on duty recorded the conversation in an information log and assigned it case number 014623.
30. On the same day officer D. filed a one-sentence report indicating that on 19 December 2001 at 9.20 a.m., he and officer M. had arrested the applicant because he had been drunk, had been walking unsteadily and looked untidy.
31. On 19 December 2001 a duty police officer questioned the applicant about the circumstances in which he had sustained his injury. The applicant explained that on the morning of the same day he had been approached by two police officers who had asked him to present identification documents. In response to the applicant's statement that he had no papers, a police officer tried to search him. The applicant objected and was taken to the local police station, where he was searched. After the search one of the officers took him to a cell, where he hit the applicant several times in the chest, accompanying the blows with instructions to learn to communicate with the police properly.
32. On the following day officer M. addressed a written explanation to a higher-ranking officer. The explanation read as follows:
“In response to the questions asked [I] can explain that on 19 December 2001, at approximately 9.20 a.m., when I, a police officer, was on patrol with officer D., we noticed a suspicious man who was dressed untidily (his coat was unbuttoned). Having approached the man, we introduced ourselves and asked him to present identification documents, in response to which [the applicant],... used offensive language and refused to show [the documents], saying that he did not have time. Subsequently we asked [the applicant] to accompany us to the police station... When we arrived at the station, the man was asked to put sharp objects on a shelf. [The applicant] took out a rusty clinch nail and said that he did not have anything else except for a plastic bag with documents which he needed to take to the Sverdlovskiy District Court. We suggested that he go to a cell for administrative arrestees. He entered the cell. Subsequently, a record of administrative arrest was drawn up under Article 162 of the Russian Code of Administrative Offences... After that [the applicant] was released.”
33. On 20 December 2001 the applicant requested the Sverdlovskiy district prosecutor to institute criminal proceedings against the police officers, alleging that he had been unlawfully taken to the police station and that he had been searched and beaten up there. The applicant also claimed that no reports had been drawn up concerning his arrest.
34. On 25 December 2001 the Sverdlovskiy district prosecutor re-directed the applicant's complaint to the Sverdlovskiy district police department, requesting an internal inquiry.
35. On 9 January 2002 the head of the police department issued a report, finding as follows:
“On 19 December 2001, at approximately 9 a.m., patrol officers [M. and D.] and police trainee, Ms I., started their shift from [the local police station]. At approximately 10.15 a.m. near a house.... officers M. and D. stopped [the applicant], who was in the state of alcohol intoxication, looked untidy, and was walking unsteadily, holding his right hand to his bosom, arousing the officers' suspicion. The police officers brought [the applicant] to the police station as he did not have any identification documents on him. Record [of the arrest] no. 1977 was entered in the arrests registration log in the station. On being signed in [the applicant] was searched in compliance with the requirements of section 11(2) of the Police Act.
Police officer M. drew up administrative offence record no. 29384 in relation to [the applicant's] offence proscribed by Article 162 of the RSFSR Code of Administrative Offences. On 19 December 2001 a decision was issued on the basis of the case file materials: [the applicant was] warned.
The arrests registration log shows that [the applicant] was released at 11 a.m.
In his complaint [the applicant] contended that the police officers had arrested him without any valid reasons; furthermore, the police officers had unlawfully performed a body search on him. After he was brought to the police station he had been beaten up by a police officer.
Police officers M. and D. explained in their statements that on 19 December 2001 they had arrested [the applicant]; an administrative offence record under Article 162 of the RSFSR Code of Administrative Offences had been drawn up concerning him; no physical force or special measures had been used against [the applicant].
The official internal inquiry did not manage to resolve the discrepancies between the police officers' and [the applicant's] statements.”
The materials from the police internal inquiry were sent to the office of the Sverdlovskiy district prosecutor.
36. On 18 January 2002 the prosecutor ordered a graphological analysis of the signature on the report of 19 December 2001 because the applicant claimed that he had not signed any document that day. On 5 February 2002 the Krasnoyarsk town expert bureau submitted an opinion, noting that the data provided insufficient basis for a firm finding to the effect that the applicant had signed the report. However, the experts did not exclude the possibility that the signatures belonged to the applicant.
37. On 18 February 2002 an assistant of the Sverdlovskiy district prosecutor, relying on the results of the internal police inquiry, the graphological expert report and on statements by the applicant, police officers M. and D. and the doctor who had examined the applicant on 19 December 2001, refused to institute criminal proceedings against the police officers, finding no criminal conduct in their actions. In particular, the assistant prosecutor held as follows:
“Thus, the investigation did not establish the elements of a criminal offence... in the actions of police officers M. and D. [The applicant's] arrest and his signing-in at [the local police station] were performed in compliance with the administrative legal norms; an administrative offence report under Article 162 of the RSFSR Code of Administrative Offences was issued in respect of [the applicant]. On 19 December 2001 it was decided to take administrative action against [the applicant] in the form of a warning. For conduct to form the corpus delicti of an offence proscribed by Article 286 of the Russian Criminal Code an official must have committed acts which no one in any circumstances may commit (injuring an individual without any reason). However, it was impossible to reliably establish that [the applicant] had sustained an injury because his diagnosis was called into question and was not monitored in time. No forensic medical expert examination was performed in respect of those injuries.”
38. The applicant appealed to the Sverdlovskiy District Court, complaining, inter alia, that his arrest on 19 December 2001 and his charging with an administrative offence had been unlawful. He insisted that he had only learned about the administrative charges from the assistant prosecutor's decision.
39. On 11 July 2002 the District Court quashed the decision of 18 February 2002 and authorised the prosecution authorities to perform an additional investigation. In particular, it stressed that the investigating authorities should question the police trainee, Ms I., about the circumstances surrounding the applicant's arrest and the doctor from the trauma unit about the applicant's alleged state of alcohol intoxication. The District Court also observed that the applicant should lodge a separate complaint concerning the administrative arrest.
40. No appeal was lodged against the decision of 11 July 2002 and it became final. The applicant did not complain of the alleged unlawfulness of his administrative arrest in separate proceedings.
41. On 20 September 2002 a Sverdlovskiy deputy district prosecutor closed the investigation, finding no prima facie case to be answered. The decision incorporated the text of the decision issued on 18 February 2002 together with additional paragraphs which read as follows:
“In the course of the additional investigation the acting head of the trauma unit of Sverdlovsk District, Mr B., was questioned; [he] explained that when a person is admitted to the trauma unit in a state of intoxication, a record in “a criminal registry” log is made stating that the person is in a state of alcohol intoxication. In [the applicant's] case no such record was made; that is why he cannot describe the state in which the applicant had been.
A police officer from the patrol division of the Sverdlovsk district police department, Ms I., when questioned in the course of the additional investigation, explained that in December 2001 she had been a trainee. On 19 December 2001 she was in a patrol unit ... together with police officers M. and D. Between 9.30 a.m. and midday, [the applicant] was brought in; [he] behaved inappropriately and was dressed untidily. The man was placed in a cell for administrative arrestees and an administrative offence record under Article 162 of the RSFSR Code of Administrative Offences was drawn up in respect of his conduct. [The applicant] signed the record.”
42. In response to the applicant's complaints about the prosecution authorities' failure to investigate his ill-treatment complaints thoroughly, on 14 November 2002 the Krasnoyarsk Regional Court, at final instance, upheld the decision of 20 September 2002, finding that the deputy prosecutor had thoroughly assessed the evidence and had drawn the correct conclusions.
43. On 30 January 2003 the Krasnoyarsk first deputy regional prosecutor quashed the decision of 20 September 2002, finding that the investigation was incomplete and the decision premature. He ordered a new round of investigations, setting out a list of steps to be taken, including the identification of individuals who might have seen the applicant in the police station. The first deputy also noted a number of inconsistencies in the police officers' statements regarding, among other aspects, the time of the arrest, the applicant's state of intoxication and the absence of identification documents.
44. On 18 March 2003 a deputy prosecutor of the Sverdlovskiy District dismissed the applicant's ill-treatment complaint as manifestly ill-founded. The decision repeated the wording of the previous two decisions refusing the institution of criminal proceedings against the police officers. In addition, a deputy prosecutor cited statements given by police officers M., D. and I. during the additional investigation. Owing to the remoteness of the events the three police officers were unable to recall the exact time when they had arrested the applicant. The deputy prosecutor also pointed out that the samples of the police officers' handwriting did not allow a forensic expert to make a conclusive finding as to the authorship of the signatures on the record of the applicant's arrest. The final paragraph of the decision read as follows:
“Thus, the investigation did not establish any criminal conduct ... [in the police officers' D., M., and I.] actions. [The applicant's] arrest and his signing-in at the [local police station] were performed in accordance with the administrative law in force at the material time; an administrative offence record was drawn up in respect of [the applicant]; he appealed against it in accordance with the procedure established by law. On 19 December 2001 [the applicant] was found guilty of [an administrative offence] and a warning was issued. For conduct to form the corpus delicti of an offence under Article 286 of the Russian Criminal Code an official must have committed acts which no one in any circumstances may commit. By virtue of sections 10 [and] 11 of the Police Act, police officers must put an end to and prevent the commission of administrative offences, [must] check individuals' identification documents if there are grounds to suspect them of having committed an administrative offence, [must] perform searches on individuals and their personal belongings; and [must] perform administrative arrests and draw up records of administrative actions. According to the Statutes of the Russian Federation Police Officers Patrol Service, patrol units must ensure public safety and preserve public order on their rounds, at their duty points and in the adjacent areas; [they] must prevent and put an end to administrative offences... Mr M. and Mr D. gave statements during the investigation explaining that they had checked [the applicant's] documents because [the applicant] was suspected of having committed an administrative offence.”
45. On 16 September 2003 the Krasnoyarsk Regional Court, acting at final instance, dismissed the applicant's complaint against the decision of 18 March 2003, concluding that the deputy prosecutor's findings were correct.
46. On 18 February 2002 the applicant complained before the courts that officials from the Krasnoyarsk regional prosecutor's office had not examined his complaints properly and had also intercepted his complaints to the Prosecutor General of the Russian Federation. On 17 April 2002 the Krasnoyarsk Regional Court disallowed the claim because the applicant had failed to comply with the procedural requirements for lodging such a complaint.
47. The applicant brought an action before the Sverdlovskiy District Court against the Russian Ministry of Finance, the Ministry of the Interior, officials of the Krasnoyarsk regional and Sverdlovsk district prosecutors' offices and the Sverdlovskiy district police department. He sought compensation for damage caused by the police officers on 19 December 2001 on account of his arrest, ill-treatment and search and the forgery of administrative records concerning him.
48. On 26 December 2003 the Sverdlovskiy District Court dismissed the applicant's action, relying on the deputy prosecutor's decision of 18 March 2003 and citing Articles 151, 1064 and 1070 of the Russian Civil Code. The reasoning of the District Court read as follows:
“Taking into account the circumstances established and having regard to the legal norms cited, the court does not see any ground to allow the action as it is unsubstantiated; [the applicant] did not provide the court with any evidence showing that he had sustained damage as a result of unlawful actions on the part of the police officers and prosecution authorities. At the same time, the lawfulness of the police officers' and prosecution authorities' actions ... was thoroughly looked into on a number of occasions and was confirmed by the decision of 17 July 2003 of the Sverdlovsk District Court of Krasnoyarsk, as upheld on appeal by the Krasnoyarsk Regional Court on 16 September 2003.
[The applicant's] allegations that he sustained non-pecuniary damage as a result of unlawful actions on the part of the police officers and prosecution authorities are manifestly ill-founded having regard to the grounds which [the court took into account] in dismissing the action.”
49. Article 117 § 2 (f) of the Criminal Code of the Russian Federation makes acts of torture punishable by up to seven years' imprisonment. Under Article 286 § 3 (a) and (c) abuse of an official position associated with the use of violence or entailing serious consequences carries a punishment of up to ten years' imprisonment.
50. The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) provides that a criminal investigation may be initiated by an investigator or a prosecutor following a complaint by an individual or on the investigative authorities' own initiative, where there are reasons to believe that a crime has been committed (Articles 146 and 147). A prosecutor is responsible for overall supervision of the investigation (Article 37). He can order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there are no grounds to initiate a criminal investigation, the prosecutor or investigator issues a reasoned decision to that effect, which has to be notified to the interested party. The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction under a procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of the participants in proceedings or prevent access to a court.
51. The relevant provisions of the Civil Code of the Russian Federation (of 30 November 1994) read as follows:
“1. An individual's life and health, dignity, personal integrity, honour and goodwill, professional reputation, the inviolability of his or her private life, personal and family secrets, the right to liberty of movement and to choose his or her place of temporary and permanent residence, the right to a name, copyright, other personal non-property rights and other incorporeal assets which a person possesses by virtue of birth or by operation of law shall be inalienable and shall not be transferable by any means...”
“If certain actions impairing an individual's personal non-property rights or encroaching on other incorporeal assets have caused him or her non-pecuniary damage (physical or mental suffering) ... the court may require the perpetrator to pay pecuniary compensation for that damage...”
52. Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to the person or property of a citizen must be compensated for in full by the tortfeasor. Under Article 1069, a State agency or a State official whose unlawful actions or failure to act cause damage to an individual will incur liability. Such damage is to be compensated for at the expense of the federal or regional treasury. Articles 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that compensation must be awarded for non-pecuniary damage irrespective of any award for pecuniary damage.
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 13
3


ITEMID: 001-108113
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF A.H. KHAN v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: 5. The applicant was born in 1971 and lives in Pakistan. He is the elder brother of the applicant in the case of A.W. Khan v. the United Kingdom, no. 47486/06, 12 January 2010.
6. The present applicant appears to have travelled from Pakistan to the United Kingdom with his family in 1978. He was subsequently granted indefinite leave to remain in the United Kingdom as the dependant of his parents. There is some dispute as to whether he remained continuously in the United Kingdom after his arrival, but it is clear that he returned to Pakistan at least twice prior to his deportation and that he married there in 1989. His current marital status and the whereabouts of his wife are not known.
7. The applicant’s mother and siblings still live in the United Kingdom and are all naturalised British citizens. The applicant claimed, furthermore, that his mother was in poor health with diabetes and a heart condition and as such was more than normally dependent on the applicant and her other children. The applicant has six children, all of whom were born in the United Kingdom, by two separate partners. His children are aged between 12 and 17 years. At the time of his deportation, the applicant claimed to be in a relationship not with either of the mothers of his children but with a third British citizen, whom he had started seeing whilst in immigration detention in 2008.
8. On 18 February 1992, the applicant was convicted of having sexual intercourse with an underage female and of two counts of attempted robbery. He was sentenced to four years’ imprisonment in a young offenders’ institution. On 30 November 1994, he was convicted for the theft of a vehicle and sentenced to two hundred hours of community service. On 4 January 1996, the applicant was convicted of driving whilst disqualified and without insurance and sentenced to twenty weeks’ imprisonment. He was also disqualified from driving for three years.
9. The applicant appears to have spent three months in Pakistan in 1998. On 19 December 2000, he was convicted of two counts of battery and of resisting or obstructing a constable, and sentenced to four months’ imprisonment. On 26 January 2001, following a conviction for dangerous driving and other related offences, the applicant was sentenced to eighteen months’ imprisonment, disqualified from driving for a further three years, and disqualified until he passed a driving test.
10. On 5 July 2001, the applicant was convicted of robbery, for which he was initially sentenced to six years’ imprisonment. The sentence was reduced to five years on appeal. As a result of this conviction, deportation proceedings against the applicant commenced and on 22 May 2006, he was notified of the Secretary of State’s intention to make a deportation order against him.
11. The applicant did not exercise his right of appeal against the decision to deport him and the deportation order was signed on 2 October 2006. The applicant was convicted of a further driving offence in 2006. Directions were set for his removal to Pakistan on 25 June 2008, but cancelled when the applicant sought judicial review. The judicial review application was withdrawn by consent following agreement that further consideration would be given to the applicant’s case on human rights grounds. A decision was made on 15 October 2008 to refuse to revoke the deportation order but to grant the applicant an in-country right of appeal against this decision.
12. The applicant’s appeal was dismissed by the Asylum and Immigration Tribunal (“the Tribunal”) on 27 January 2009. The appeal was argued purely on the grounds of Article 8. The Tribunal accepted that the applicant enjoyed family life in the United Kingdom. Although there were no insurmountable obstacles to his two partners, both of whom were of Pakistani origin, and his children accompanying him to Pakistan, it was accepted that it would be unreasonable to expect them to do so, given that all were British citizens and the children had been educated in the United Kingdom. There was little evidence before the Tribunal as to the impact that the applicant’s deportation would have on his children, since neither of the two mothers of his children nor any third party had attended the hearing to give evidence. In any event, it was noted that the applicant had not seen any of his children since he had been remanded in custody in 2000, though he claimed to speak to all of them by telephone every day.
13. The Tribunal did not believe the applicant’s claims not to have returned to Pakistan since his arrival in the United Kingdom and not to have married there, since there was evidence to the contrary. It was not therefore accepted that he had no connections in Pakistan. No serious difficulty for the applicant in re-establishing himself in Pakistan was envisaged.
14. The Tribunal accepted that Article 8 would be engaged by the applicant’s deportation, since he would inevitably be separated from his partners and children. However, the interference with his family life would be proportionate, having regard on the one hand to the applicant’s persistent offending and the high risk he posed to p ublic safety, as assessed by his probation officer, and, on the other, to the lack of evidence as to a meaningful relationship between the applicant and his children over the past eight years.
15. An application for reconsideration of the Tribunal’s decision was refused on 15 May 2009. Directions were again set for the applicant’s removal, but cancelled when he claimed asylum on 25 June 2009. The basis of his claim was that his parents’ families in Pakistan might seek to harm him because they had disapproved of his parents’ love marriage and their emigration to the United Kingdom; and that the relatives of three women with whom he had had relationships in the United Kingdom were also after him. It is not clear who the women concerned were. His asylum claim was refused on 20 October 2009, since the applicant had had no direct contact with any of those persons whom he claimed to fear and it was not believed that any of them would recognise him, or know that he had returned to Pakistan, or be able to trace him. In any event, there was found to be a sufficiency of protection against the actions of non-state actors available in Pakistan. The applicant’s asylum claim was certified as clearly unfounded, meaning that he had no further right of appeal from within the United Kingdom.
16. The applicant made further representations on 16 November 2009 and 13 and 14 January 2010, claiming that he feared his current partner’s ex-husband, who had recently been deported to Pakistan, and that he was taking medication, namely methadone and various sleeping tablets, which would not be available to him once deported. His representations were rejected on 18 January 2010, as the applicant had not raised any new issues regarding his fear of return and his family life had previously been considered by the Tribunal. As to his concerns regarding his health, there were mental health facilities available in Pakistan. In any event, the applicant had been assessed by medical staff at the immigration detention centre as being fit to fly and had not been noted as having any particular medical problems.
17. Directions were set on 5 January 2010 for the applicant’s deportation to Pakistan on 20 January 2010. The applicant sought permission to apply for judicial review of the decision to set removal directions, but his application was refused by the High Court on 12 February 2010. In the meantime, the applicant had also sought interim measures from this Court under Rule 39 of the Rules of Court on 2 February 2010, to prevent his deportation which had been reset for 15 February 2010. His application for interim measures was refused on 12 February 2010.
18. The applicant was deported to Pakistan on 15 February 2010.
19. Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good.
20. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision, inter alia, on the grounds that the decision is incompatible with the Convention.
21. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
22. Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides:
“353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
A fresh claim, if it is accepted as such by the Secretary of State, and if refused, gives rise to a fresh right of appeal on the merits. If submissions are not accepted as amounting to a fresh claim, their refusal will give rise only to a right to seek judicial review of the decision not to treat them as a fresh claim.
NON_VIOLATED_ARTICLES: 8