ITEMID: 001-57799
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF VIDAL v. BELGIUM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6;Just satisfaction reserved
JUDGES: C. Russo
TEXT: 7. In 1983 Mr Frans Vidal was a warder at Saint-Gilles Prison (Brussels), having previously worked at Namur Prison until October 1982.
8. On 6 February 1983 Mr Bosch Hernandez, an inmate of Namur Prison serving a life sentence imposed by the Brabant Assize Court, attempted to escape. Using a revolver which he had managed to obtain clandestinely, he took the chief warder hostage, but another warder succeeded in disarming him. A note signed by Mr Vidal was found on him; it was undated and read as follows:
"I hereby promise to pay the sum of ten thousand francs by 1 or 2 November 1982."
When questioned by the Namur police and an investigating judge, he first refused to disclose where the weapon had come from, and then stated that he had been given it by the applicant.
9. Mr Vidal was charged on the following day by the investigating judge of the Namur Court of First Instance (tribunal de première instance).
He was detained on the same day and denied that he had provided the weapon. He admitted having written and signed the document, but claimed that he had given it to another inmate, Mr Bieseman, from whom he said he had borrowed the sum of 10,000 Belgian francs to pay gambling debts.
10. The detention order was confirmed on several occasions in 1983.
11. Mr Derriks, the Deputy Director of Namur Prison, indicated that he had new information for the investigators, and was interviewed on 31 August 1983 by the police inspector assigned to the inquiry. He stated as follows:
"For some months there have been rumours among the prisoners in C wing suggesting that the former warder, Frans Vidal, was not the person who brought into the prison the revolver used by Bosch Hernandez.
More recently, on 29 August 1983, I saw the inmate Alain Scohy in an office of our prison. I had to inform him of an internal administrative decision. On that occasion Scohy told me that he wished to give me information confided in him by other inmates of C wing. He said that the weapon used by Bosch Hernandez had been introduced into the prison initially for the use of the prisoner Omer Bieseman by a certain Miss Lhoir, a visitor of the prisoner Marcel Castris. After she had smuggled the weapon into the prison and hidden it in the visitors’ lavatory, Bieseman had escaped when, on 10 January 1983, he had been taken for a medical examination at the Ste-Camille Clinic. The weapon remained in the prison and finally ended up in the hands of Juan Bosch Hernandez, who had planned to escape with Bieseman using the weapon.
According to Scohy, after it had been brought into the building, the weapon was hidden at the bottom of a dustbin, which Bosch alone, as a server, had the possibility of using as a hiding place for at least three months.
...
I must inform you that Alain Scohy made this statement spontaneously, but hoping to increase his chances of release on licence.
I would add that Bieseman has still not been re-arrested since his escape on 10 January 1983 and that Marcel Castris, nicknamed the ‘C wing banker’, was provisionally released, with a view to deportation, on 19 August 1983.
The latter’s visitor may be identified as: Dominique Lhoir ..., or her sister Marie-Eve Lhoir, ...
Again according to Scohy, Frans Vidal is totally unconnected with the bringing into the prison of these weapons.
..."
12. The investigators tried to question the persons referred to in the above statement.
On 8 September 1983 Mr Bosch Hernandez reaffirmed before the investigating judge that the applicant had provided him with the weapon, in exchange for payment of 100,000 Belgian francs.
Mr Scohy, who was questioned in prison on 27 September 1983, refused to say anything, for fear of provoking animosity from the other inmates. He added that he would report of his own accord to the investigating judge once he had obtained his release on licence, and that he would give evidence in the Assize Court if, by then, he was back with his family so that he could protect them from any reprisals by Mr Castris.
On 3 October 1983 the police questioned Miss Marie-Eve Lhoir, who denied the accusation that she had introduced a weapon for the use of Mr Castris, a close friend of her sister Dominique. She stated that, although they used her address, Mr Castris and her sister lived elsewhere.
Mr Castris and Miss Dominique Lhoir were summoned to appear on 4 October 1983. They telephoned the investigators on that day to tell them that for personal reasons they were unable to appear for the time being but they were willing to come forward at a later date. They did not comply with three further summonses. On 14 October 1983 the investigators informed the investigating judge that the two persons concerned had left their residence for an unknown destination, and that Mr Castris, a foreign national, had been released provisionally shortly before and was subject to a deportation order.
13. On 7 October 1983 the Namur Committals Chamber (chambre du conseil) rescinded the detention order concerning the applicant. Its decision was confirmed by the Liège Indictments Division (chambre des mises en accusation) on 18 October 1983.
14. Mr Vidal was sent for trial before the Namur Criminal Court, charged with:
"A. on 6 February 1983 ... as an accessory ... having procured weapons which were used to commit a criminal offence, knowing that they were intended to be so used, or having knowingly aided or abetted the perpetrator of the offence ... in respect of action which prepared or facilitated the offence or which carried it out, having attempted to take a hostage, by holding, detaining or seizing Roger Frederick, a prison warder, in order to ... prepare or facilitate the escape [of Bosch Hernandez], the intention to commit the offence having been manifested by conduct which objectively constituted the first step towards the perpetration of the offence and which conduct was halted or failed to attain the aim pursued only as a result of circumstances outside the control of its perpetrators.
B. ... having, between 1 October 1982 and 6 February 1983, being the officer on duty with responsibility for an inmate convicted of a criminal offence, namely, Juan Carlos Bosch Hernandez, facilitated the latter’s escape by supplying him with a weapon, the said escape having been attempted using violence or threats.
C. ... having, in 1982, prior to 1 November, over an unspecified period, had in his possession a firearm without having duly registered it.
D. ...
E. ... having, in October or November 1982, at a date as yet undetermined, sold a firearm to a person who was neither a manufacturer nor an arms dealer nor in possession of an authorisation to purchase it.
..."
On 9 August 1984 the court acquitted him on the following grounds:
"...
It is not possible on the basis of the case-file or the evidence adduced at the hearing to form, beyond all possible doubt, a conviction as to the ... defendant’s guilt; the statements, albeit categorical, [of Bosch Hernandez] cannot in fact be verified by any specific objective evidence in the case-file;
..."
In the same judgment, it convicted Mr Bosch Hernandez and sentenced him to three years’ imprisonment.
At the hearing on 28 June 1984 the court had heard the applicant and Mr Bosch Hernandez, and had also taken evidence from two prison warders and three police officers.
15. The prosecution and the civil party seeking damages appealed. By a unanimous judgment of 26 October 1984, the Liège Court of Appeal sentenced Mr Vidal to three years’ imprisonment, the part of the sentence exceeding the time spent in detention on remand being suspended for five years.
It found that:
"... the co-defendant’s accusations have remained consistent although he had no interest in ... securing [the applicant’s] downfall, and in addition to other information in the case-file concerning the defendant’s financial circumstances and conduct, the latter having admitted borrowing money from a prisoner, they give rise to serious, precise and concurring presumptions which constitute proof of the charges ..."
At the same time it confirmed the sentence imposed on Mr Bosch Hernandez at first instance.
16. Mr Vidal appealed, and the Court of Cassation quashed the judgment on 29 May 1985, on the grounds that the Court of Appeal had been presided over by a judge who had on 26 August 1983 presided over the Indictments Division when it had confirmed a decision of the Committals Chamber refusing to order the appellant’s release, and, having regard to Article 6 para. 1 (art. 6-1) of the Convention, on which he had relied, such a circumstance could arouse in the appellant "a legitimate doubt as to the ability of the Court of Appeal ... to hear the case in an impartial manner."
17. On an application by Mr Vidal, the principal public prosecutor of the Brussels Court of Appeal, to which the case had been remitted, sent the public prosecutor of Créteil (Val-de-Marne) a letter of request on 26 July 1985 asking him to question Mr Bieseman, who had in the meantime been arrested in France and was being held at Fresnes Prison. He was questioned by the French police on 25 October 1985 and denied having lent the applicant 10,000 Belgian francs. The record of his statements was added to the applicant’s case-file.
18. On 11 December 1985 the Brussels Court of Appeal, by a unanimous decision, sentenced Mr Vidal to four years’ imprisonment. The court gave the following reasons for its decision:
"...
A detailed examination of the evidence in the case-file and of the evidence adduced at the hearing has enabled the court to form the conviction that the defendant is guilty of the offences as charged;
This conviction is based on two items of evidence which are complementary:
(1) the statements of Bosch Hernandez; (2) the promissory note signed by Vidal;
(1) The statements of Bosch Hernandez
Notwithstanding the caution with which the statements of a person such as Bosch Hernandez should be treated, the court is bound to observe that the accusations which he levelled against Vidal have remained consistent throughout the investigation and that the statements which he made on numerous occasions both when questioned by the police and on examination by the investigating judge are precise and coherent;
In addition it should be stressed that the case-file contains no evidence to support the claim that there was between Vidal and Bosch Hernandez a matter of dispute or disagreement capable of explaining or justifying the accusation made by the latter against the former;
Vidal himself has not cited in this respect any reason for his accuser to bear ill-feelings against him;
The defendant unsuccessfully alleged in his submissions that Bosch Hernandez’s statements were improbable in numerous respects and contained discrepancies;
The court is bound to note that, as regards the essential question, namely the allegation that Vidal supplied Bosch Hernandez with the firearm which was used to carry out the escape attempt, Bosch Hernandez has never altered his statements;
In short, these statements at no time appeared improbable or incoherent; on the contrary, they are highly believable and capable of sustaining the conviction formed by the court;
(2) The promissory note signed by Vidal
It is established that a document constituting a promissory note for a sum of 10,000 francs, signed by Vidal, was discovered in the search made of Bosch Hernandez after his abortive escape attempt;
The court notes that the existence of this document accordingly constitutes an objective fact which corroborates Bosch Hernandez’s accusations and shows that there existed between the two men business relations of which the least that can be said is that they were unacceptable as far as Vidal was concerned because of his duties as a prison warder and that these relations were such as to undermine his independence vis-à-vis prisoners;
Although he is unable to deny that he had contracted a debt, he has unsuccessfully alleged that he had borrowed the sum from another inmate;
This statement, in the first place, is formally contested both by Bosch Hernandez and the other prisoner, a certain Bieseman, and secondly, is not at all consistent with the fact that the disputed document was found in Bosch Hernandez’s hands;
It is hard to see why the promissory note should be among the documents in Bosch Hernandez’s possession if Vidal had not been his debtor;
These two objective items of evidence, which are in no way incompatible with all the other evidence regarding the defendant’s conduct in relation to the inmates (borrowing sums of money from them, abnormal familiarity, serious failures to carry out proper surveillance), are sufficient to lead the court to form its conviction;
The first-instance court wrongly found that charges A, B and E were not established; it did not rule on charge C;
These four charges [see paragraph 14 above] are established; the offences referred to therein are a manifestation of a single criminal intention and justify the imposition of only one sentence, the heaviest of those applicable;
...
The offences committed by the defendant are extremely serious ones;
By facilitating by supplying a weapon the escape of a prisoner serving life imprisonment, even though the escape failed because of circumstances outside his control, the defendant Vidal endangered the lives of certain of his fellow-warders who, like him, were on duty with responsibility for prisoners;
Such actions must be punished by a sentence commensurate with their seriousness, and the imposition of any suspended sentence is consequently out of the question;
..."
19. In submissions of 19 November 1985 counsel for the defence had asked the court:
"...
As principal submission
To hold that each and every charge brought against the defendant Vidal is not established, to find him not guilty and acquit him.
In the alternative
To carry out all appropriate additional investigative measures, and in any event to order Alain Scohy, Jules Bodart, Gérard Dauphin and Pierre Dausin, all detained in Namur Prison at the time of the alleged offences, to be called as witnesses ..."
With respect to Mr Scohy, the application was based on the following considerations (pp. 3-4 and 21-23 of the said submissions):
"...
Short statement of the facts
...
7. During the investigation ...
In late August 1983, following rumours which had circulated persistently for some months in C wing of Namur Prison (Vidal had not been inside this prison since being arrested on 7 February 1983, hence no contact with the prisoners in that wing), it had turned out, according to these rumours among prisoners, that it had not been Vidal who had introduced the revolver ‘used by Bosch Hernandez’ ...
On 29 August 1983 prisoner Alain Scohy reported these rumours and gave full details as to how the weapon had been introduced and the persons involved - directly or indirectly: Castris, another server in C wing when being visited by his friend Dominique Lhoir - concealment of the weapon, passing it to Bieseman, finally reaching Bosch Hernandez.
Bieseman escaped on 10 January 1983.
Castris released on licence and deported in October 1983.
N.B. No detailed investigation took place regarding these facts.
Scohy was not even questioned by the investigating judge, although he had promised [the police] that he would give evidence (i.e. on oath) before the Court of Assizes if necessary ...
...
Critical appreciation of the investigation ...
...
1. The Deputy Director of Namur Prison, Mr Derriks, considered it his duty to bring to the attention of the judicial authorities certain facts (which he thus considered to be sufficiently important), rumours of long standing and statements made by a prisoner Scohy, all of direct relevance to the Vidal/Bosch Hernandez case-file.
2. Rumours (persistent ones) had been circulating for months among the inmates of C wing (the wing of Bosch, a server, of Bieseman, often in the workshop, of Castris, another server ...)
according to which the former warder Frans Vidal had not been the person who had introduced the revolver used by Bosch Hernandez ...
Commentary
This literal quotation from the beginning of the statement by the Deputy Director itself demonstrates uncontradictably that there was a ‘serious’ item of evidence here, to be verified and checked in an exhaustive and thorough manner of course, as to the introduction of the revolver into the prison by some person other than Vidal.
The saying ‘no smoke without fire’ which applies here is a vivid expression of popular wisdom.
3. Statements made by prisoner Scohy (to Mr Derriks on 29.8.83)
These statements are precise enough as to how the weapon was introduced:
(a) by a woman visitor ... in the lavatory (b) Castris, the deported ‘banker’ (c) Bieseman, escaped on 10 January 1983 ... (d) Bosch Hernandez these two were known as having made plans to escape ... (e) the weapon was hidden at the bottom of a dustbin.
Commentary
These three facts mentioned above would on their own have deserved a thorough investigation (the third fact appears believable since Bosch Hernandez stated it himself).
4. Scohy’s offer to give evidence on oath - possibly at the Assizes, with reference to the correctness of the content of his statements ...
Commentary
Even if this declaration appears from his point of view to favour his request for release on licence, nothing prevented such statements and such an offer of sworn evidence at the very least engaging the attention of an impartial investigator, always hard at work in such a case to find out an undeniable method or opportunity of introducing a weapon into the prison (by a method not involving a prison warder), as Mr Gouverneur, the acting Director of the prison, appositely said ...
The investigation appears to us to be manifestly incomplete, as the investigating judge did not consider it necessary to question Scohy before terminating the investigation, even though many facts in the case-file gave Scohy’s statements definite verisimilitude - the possibility of an object being introduced by a woman visitor, who is not searched and has access to the lavatory; the undoubted possibility of hiding a weapon there (for example, securing it in the flushing system or elsewhere); because of his duties in the workshop, access to whole prison by Bieseman, Castris, server, Bosch Hernandez, server, obsessed with gaining freedom, as was his fellow-prisoner Bieseman (escape plans).
Extensive contacts between these prisoners in C wing, 20-30 in contact daily for at least two hours usually ... from 12.30 to 1.30 p.m. and from 4.30 to 5.30 p.m., for over ten months.
It follows from the above: persistent specific rumours for some months (Vidal did not introduce the weapon), statements made by a prisoner in C wing (no doubt one prisoner among many, in view of the rumours), offer to testify on oath with reference to these quite precise statements, highly likely to be true at least in part, that additional investigative measures in great detail were necessary, at appropriate times and under appropriate conditions;
The defence must deplore such a deficiency in the case- file, even though it now appears unnecessary or superfluous in view of the conclusions which now necessarily follow, after a methodical examination of all the facts which have been presented and a critical evaluation of them.
..."
This offer to produce evidence was implicitly rejected by the Brussels Court of Appeal, which did not mention it in its decision, and did not call any witnesses before giving judgment.
20. The applicant appealed to the Court of Cassation, relying inter alia on Article 6 paras. 1, 2 and 3 (d) (art. 6-1, art. 6-2, art. 6-3-d) of the Convention. In an appeal comprising six points, he criticised the Court of Appeal in essence for not having replied to certain of his submissions, including his request for witnesses to be called, and for having based its decision on the extremely dubious statements of Mr Bosch Hernandez and a promissory note of no probative value.
The Court of Cassation dismissed the appeal on 12 February 1986, for the following reasons:
"...
... The judgment states: ‘that a detailed examination of the evidence in the case-file and of the evidence adduced at the hearing has enabled the [Court of Appeal] to form the conviction that the [appellant] is guilty of the offences as charged’ and specifies the facts on which that conviction was based;
As the court thus gave the reasons on the basis of which it formed its conviction, it was not bound to indicate the reasons for which it dismissed the application submitted to it for additional evidence to be taken, considered implicitly but clearly in its decision to be of no value in establishing the truth;
...
... The submission, which ... does not state in what way the Court of Appeal failed to give adequate reasons for its decision, or indicate the defence submissions or applications which the appellant put forward in his appeal and which the judgment allegedly failed to answer, is inadmissible as insufficiently specific;
...
The judgment noted that the accusations made by the co-defendant Bosch Hernandez against Vidal had been consistent throughout the investigation and that the statements which he had made on numerous occasions, both when questioned by the police and before the investigating judge, were precise and coherent, and considered that they were at no time improbable or incoherent, that they were, on the contrary, highly believable and capable of sustaining the conviction formed by the Court of Appeal and that the appellant’s allegations concerning the loan which he had contracted were categorically denied both by Bosch Hernandez and by another inmate, a certain Bieseman, and moreover were in no way consistent with the fact that the document in question was in Bosch Hernandez’s possession;
Where statute, as in this case, does not lay down a specific form of proof, the trial court assesses with unfettered discretion the probative value of the evidence which has been adduced before it and which the parties have been able freely to contradict;
The judgment was therefore able, without infringing the statutory provisions cited [by the appellant], to rely on the statements of a co-defendant as evidence against the appellant;
...
In addition, the submission which ... amounts to criticising the appellate court’s assessment of the facts is inadmissible;
...
... It is not contradictory to consider that certain statements should be treated with caution and to find that the accusations contained in such statements were formulated consistently throughout the investigation, that they were made on numerous occasions, that they were precise, that at no time did they appear improbable or incoherent and that they were, on the contrary, highly believable and capable of sustaining the conviction formed by the court;
... On the basis of such considerations, the judgment, which decided that ‘the [appellant] unsuccessfully alleged in his submissions that Bosch Hernandez’s statements were improbable in numerous respects and contained discrepancies’, answered the submissions indicated in this point of the appeal;
...
That the contested judgment did not base its decision on an element of fact which had been mentioned by the decisions of the investigating authorities or the trial court below does not in itself lead to the conclusion that there has been a violation of the statutory provisions relied on in the appeal;
In so far as the judgment under appeal convicted the appellant on the basis of the statements of a co-defendant and the fact that the appellant had signed a promissory note, it gave an adequate statement of the reasons on which it was based and a justification in law for reaching its decision;
..."
21. Under Article 154 of the Code of Criminal Procedure,
"Petty offences (contraventions) shall be proved by official reports or, where there are no such reports, or in support thereof, by evidence taken from witnesses.
On pain of nullity, witness evidence in addition to or contradicting the contents of official reports or reports of police officers empowered by law to make findings in respect of lesser offences and petty offences, unless it is alleged that they have been tampered with or forged, shall not be admissible. As regards reports made by other officials and officers whose reports are not regarded by the law as authoritative in the absence of such an allegation, they may be contested by written or oral evidence, if the court considers it appropriate to admit such evidence."
This provision applies also to lesser offences (délits correctionnels), under Article 189 of the Code.
22. "Official reports duly drawn up are evidence of the material facts stated by the reporting officers acting within their capacities, and in particular of the reality of the declarations which they state have been made to them", but "this probative force does not extend to the honesty of the declaration or the accuracy of the facts stated to them" (Court of Cassation (Cass.), 22 January 1980, De Rijcke, Pasicrisie (Pas.), 1980, I, p. 575).
23. The above-mentioned Articles 154 and 189 "are merely declaratory" (Cass., 18 September 1950, De Bock et De Broe, Pas., 1951, I, p. 3). "[They are] not an exhaustive list of the means whereby offences may be proved" and "[do] not prevent the trial court, in cases where statute does not prescribe ... a particular method of proof, reaching its conviction on the basis of all the evidence in the case which has been duly admitted and which the parties have been able to contradict" (Cass., 17 August 1978, Segers, Pas., 1978, I, p. 1259; see also Cass., 7 May 1934, Sevrin c. Thill, Pas., 1934, I, p. 269, and the aforementioned De Bock et De Broe judgment). The court may thus also "have regard to items of evidence other than official reports, other reports and the testimony of witness" (see the above-mentioned De Bock et De Broe judgment).
24. The court may base its conviction on presumptions, that is to say, on what Article 1349 of the Civil Code defines as "assumptions about an unknown fact which statute or the court makes on the basis of a known fact", but under Article 1353 of the Code it "can only admit presumptions which are serious, precise and concurring".
Such presumptions may legally be admitted as evidence of an offence and "the court need not state its reasons for considering that the presumptions on which it bases its conviction are serious, precise and concurring" (Cass., 25 March 1981, Gueben c. Godefroid, Pas., 1981, I, p. 805): it has unfettered discretion to assess whether the items of evidence mentioned by it are of such nature (Cass., 6 May 1946, De Broyer, Pas., 1946, I, p. 171).
25. The court decides, again at its discretion, on "the necessity or appropriateness of an investigative measure or additional steps" (Cass., 11 March 1957, Sors et Mniszek, Pas., 1957, I, p. 826; see also Cass., 15 April 1981, De Buck, Pas., 1981, I, p. 919, and Cass., 6 March 1973, Neyrinck, Pas., 1973, I, p. 624), inter alia as to the calling of witnesses (Cass., 13 June 1907, Jolly, Pas., 1907, I, p. 273; see also the aforementioned Neyrinck judgment).
It "is empowered to determine with unfettered discretion whether, having regard to the evidence already received, further witnesses for the prosecution or the defence must be heard in order for it to form its conviction" (Cass., 26 November 1962, Thomas, Pas., 1963, I, p. 395; see also the aforementioned De Buck judgment). "If it refuses such a request on the grounds that it considers the measure requested to be unnecessary for founding its conviction, it does not violate the rights of the defence" (see the above-mentioned Neyrinck judgment).
This rule applies on appeal as well as at first instance (Cass., 4 March 1912, Bonus, Pas., 1912, I, p. 141; Cass., 23 December 1912, Deckers, Pas., 1913, I, p. 42; Cass., 8 July 1940, De Smedt c. Bultinck et consorts, Pas., 1940, I, p. 188).
26. Finally, unless statute prescribes "a particular method of proof" (see the above-mentioned De Rijcke and Segers judgments), the trial court "assesses in unfettered discretion the probative value of the evidence in the case": this is a "general rule with respect to the taking of evidence in criminal cases" (see the above- mentioned Neyrinck judgment).
27. Under Article 211 bis of the Code of Criminal Procedure, an appellate court may not replace an acquittal by a conviction or impose a more severe sentence on a defendant, unless its members are unanimous in reaching that decision.
VIOLATED_ARTICLES: 6


ITEMID: 001-122743
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: MURADI AND ALIEVA v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens
TEXT: 1. The first applicant, Ms Selma Alieva, is an Azerbaijani national who was born in 1989. The second applicant, Mr Ali Muradi, is an Afghan national who was born in 1982. They are both currently in Sweden. They are represented by Ms I. Andersen from Virserum.
2
3. The first applicant applied for asylum and a residence permit in Sweden on 10 October 2011. Before the Migration Board (Migrationsverket) she stated the following. She had lived in an orphanage until she was five, after which a couple had taken care of her. Her stepmother had passed away when she was seven years old. Her stepfather had been very cruel and harsh; he had beaten and battered her. Furthermore, he had begun to abuse her sexually when she was 12 years old. A Kurdish man used to visit them when she was approximately 16 years old. She had had the impression that he wanted to marry her. Subsequently, she and her stepfather had travelled with the Kurdish man to Turkey. The morning after their arrival there her stepfather had disappeared. Following this, the Kurdish man had abused her sexually and had left her at a hotel where she had been forced into prostitution. This had continued for approximately five years until she had been able to flee to Sweden. She had no male relatives who could protect her in Azerbaijan. She did not want to have any contact with her stepfather.
4. On 28 December 2011 the Migration Board rejected the request. It first stated that, although the first applicant had not submitted any documents to substantiate her identity or asylum story, she had made it credible that she was an Azerbaijani national. The Board then observed that, according to country information, it had become easier for women in Baku to participate in society and to work over the last few years. Moreover, the Board found it possible for the first applicant to reside in Baku without having any contact with her stepfather. Furthermore, the Board noted that she had not sought protection from the domestic authorities in Azerbaijan as regards the violence and abuse by her stepfather. She had not substantiated that the domestic authorities would not be able or willing to protect her upon return. In conclusion, the Board found that the first applicant had not shown that she was in need of protection in Sweden.
5. The first applicant appealed to the Migration Court (Migrationsdomstolen), maintaining her claims and adding the following. She feared that, if returned to Azerbaijan, she would again be a victim of trafficking and be forced into prostitution. Those who had forced her into prostitution were still looking for her. Due to the fact that she had no contacts in Azerbaijan, no education and no assets, it would be impossible for her to manage on her own there.
6. On 28 May 2012 the Migration Court rejected the appeal. It first observed that, according to country information, trafficking and prostitution were big problems in Azerbaijan. However, the court considered that the general situation for young women in the country was not a ground for protection per se. Moreover, the court noted that the stepfather had abused the first applicant when she was a child and that it had not emerged that she had been forced into prostitution in Azerbaijan. Underlining that she was now an adult woman, the court found that there was nothing to suggest that she would risk abuse by her stepfather upon return. As regards her claim that those who had forced her into prostitution in Turkey were still looking for her, the court noted that this had been stated for the first time in the appeal to the court and that she had not presented any concrete information or explanation as to how she had found out about this.
7. It appears that the first applicant did not appeal to the Migration Court of Appeal (Migrationsöverdomstolen).
8. The second applicant applied for asylum and a residence permit in Sweden on 5 October 2011. Before the Migration Board he stated the following. He was Hazara and came from the province of Ghazni, Afghanistan. His family had recently moved to Pakistan. The Taliban had visited his family’s house in Afghanistan and had told him and his father to cooperate or be killed. They had replied that they would think about it. Subsequently, the Taliban had come looking for him on two occasions. Because of this, his father had wanted him to flee and, in 2008, he had travelled to Iran. In 2009 his father had been killed. The second applicant thought that this was an act by the Taliban, since his father did not have any other enemies. He could not return to Afghanistan because there were Taliban everywhere in the country. Furthermore, it would be difficult for him to find an occupation in another part of the country.
9. On 4 January 2012 the Migration Board rejected the request. It first noted that the second applicant had submitted a tazkira but considered that it did not make his identity credible. However, the Board found it credible that he came from the province of Ghazni. Turning to his individual claims, the Board considered that the asylum story was brief and that it concerned alleged events which had occurred in the relatively distant past. The Board found it unlikely that those who had wanted to recruit him three years earlier would still be interested in him upon return. As regards the general situation in Ghazni the Board noted that, according to country information, there was an internal armed conflict in the province. In the light of this, the Board found it unreasonable for him to return there. However, it considered that it was possible and reasonable for him to return to Kabul, finding, inter alia, that the security situation was better there and that the second applicant was a young, healthy man capable of working.
10. The second applicant appealed to the Migration Court, maintaining his claims and adding that the Taliban who had killed his father would find him even if he moved to Kabul. The second applicant submitted, inter alia, a document which was allegedly a warrant for his arrest, issued by the Taliban.
11. On 29 May 2012 the Migration Court rejected the appeal. The court found that the second applicant’s story did not raise any questions as to his home province and thus decided to examine the appeal on the basis, in the first place, of a return to Ghazni. Turning to the general situation in the province, the court agreed with the Board that there was an internal armed conflict and that the second applicant therefore could not return to Ghazni. However, it considered that, although the security situation in Kabul was volatile, the second applicant was a healthy young man who should be able to settle there despite the generally serious situation. As to the second applicant’s asylum story, the court considered that it related to events in Ghazni which had occurred in the relatively distant past. In the court’s view, the fact that there were Taliban in Kabul did not automatically entail a personal threat against the applicant there. Furthermore, the court had doubts about the alleged arrest warrant submitted, noting that the document contained stamps in English, which the court found difficult to associate with official Taliban documents. As there were no other grounds to grant the second applicant leave to remain in Sweden, it rejected the appeal.
12. On 5 October 2012 the Migration Court of Appeal refused leave to appeal.
13. In October 2012 the applicants requested the Migration Board to reconsider its previous decisions due to new circumstances. They stated that they had met and established a relationship and that the first applicant was pregnant. It was imperative, for the sake of their child, that they be allowed to stay in Sweden. The first applicant would not be able to go to Afghanistan because of the security situation there. Moreover, she had no network in Azerbaijan to support her or her child. The second applicant suffered from depression and claimed that if he were separated from his partner and their future child, there was a risk that his health would deteriorate seriously. Furthermore, he alleged that he had converted to Christianity in Sweden and that it would be very dangerous for him to return to Afghanistan. He could not go to Azerbaijan for several reasons: he would not be able to find work there and the state did not accept or provide any assistance to refugees. The applicants submitted, inter alia, the second applicant’s baptism certificate dated 9 April 2012, which stated that he had confessed faith in the Gospel and its teachings.
14. On 1 November 2012 the Migration Board found that no such new circumstances had been presented which could justify granting residence permits to the applicants. It first noted that the applicants had been in Sweden for a relatively short period of time and considered that they did not have a strong connection to Sweden. The Board also noted that the applicants had not submitted any medical certificates substantiating that the second applicant had a serious health condition. Furthermore, the Board observed that the applicants’ family situation had emerged after the decisions to send them back to their native countries, when they had both been well aware that the future of their family life in Sweden was highly uncertain. In its view, the difficulties of maintaining family life under such circumstances did not constitute a reason to grant them residence permits. As regards the second applicant’s conversion, the Board considered that the fact that he had converted after the Board’s decision to return him to Afghanistan suggested that his conversion was not authentic and genuine. The baptism certificate submitted did not change the Board’s view in this regard. The Board further noted that the second applicant had submitted no information about why he had converted or regarding other circumstances concerning the conversion.
15. The applicants appealed to the Migration Court, maintaining their claims and adding the following. The second applicant had now been a practising Christian for about a year and he had been baptised seven months earlier. His faith was genuine. The Migration Board had not properly investigated his conversion and the case should therefore be remitted to the Board. If returned to Afghanistan, he would risk serious punishment. The applicants had been living together since April 2012 and were expecting their first child in April 2013. In the light of this, they should be granted residence permits in Sweden since there was no other country in which they could live together.
16. On 3 December 2012 the Migration Court rejected the appeal as concerned the second applicant’s conversion and dismissed the remainder of the appeal as the Migration Board’s decision in that part was final. As concerned the conversion, the court found that the second applicant’s story was general in nature and that it did not describe the considerations and thoughts which had led to his conversion.
17. The applicants appealed to the Migration Court of Appeal which, on 4 January 2013, refused leave to appeal.
18. Subsequently, the applicants submitted a copy of a medical record concerning both of them. The Migration Board considered this as a request for reconsideration of their case.
19. On 6 December 2012 the Migration Board once again found that no such new circumstances had been presented that could lead to the granting of residence permits. It noted that, according to the medical record, the second applicant had claimed that he was suffering from psychological problems and difficulties sleeping. However, the Board found that no medical certificate had been submitted showing any need for medical care and that these problems did not constitute grounds to stay the expulsion orders.
20. On 13 February 2013 the applicants lodged their application with the Court and requested it to apply Rule 39 of the Rules of the Court in order to stop the enforcement of their expulsion. They stated the following. The second applicant risked being punished or killed due to the fact that he had converted to Christianity. He had been wanted by the Taliban before he fled from Afghanistan. Furthermore, the applicants wanted to live together as a family and the second applicant wanted to raise his future son as a Christian. A removal to their native countries would mean the end of their lives.
21. In support of their claims the applicants submitted, inter alia, the following:
A copy of a certificate regarding the second applicant, dated 27 December 2012, in which a pastor stated that the second applicant was a member of his congregation.
A copy of a medical certificate dated 2 January 2013, in which a chief physician at a psychiatric clinic stated that the applicants were being treated at the clinic. As regards the first applicant, she was suffering from a severe form of Post-Traumatic Stress Disorder (PTSD) called DESNOS (disorder of extreme stress, not otherwise specified). Everyday situations reminded her of traumatic experiences in the past. She was anxiety-ridden but not deeply depressed. As regards the second applicant, he was anxious about their difficult situation.
An undated copy of a letter, allegedly written by the second applicant, in which he described Christianity as a religion of peace and love and Islam as a religion of the opposite.
22. On 26 February 2013 the Acting President of the Section decided to grant priority to the above application and to ask the Swedish Government for factual information regarding, inter alia, the possibility to send the second applicant to Azerbaijan and the presence of organisations in Azerbaijan which provide shelters for women seeking protection.
23. In their response, dated 13 March 2013, the Government submitted that, according to Chapter 12, section 4, paragraph 3, of the Aliens Act (Utlänningslagen, 2005:716), an alien who is to be refused entry or expelled may always be sent to a country where the alien shows that he or she can be received. This rule is complementary to the provisions that otherwise apply and can only serve as a basis for expulsion to a country to which the alien wants to go (travaux préparatoires, 2003/04:50, p.77). In the light of this, the Government considered that it was possible to send the second applicant to Azerbaijan together with the first applicant, if he agreed to this and showed that he could be received there. Moreover, if he was to leave Sweden voluntarily, as he was supposed to, he could travel to any country of his choosing.
24. As regards the formalities and requirements which must be observed and complied with in order to send the second applicant to Azerbaijan, the Government stated the following. The Migration Board had clarified that in order for the migration authorities to send an alien to a country other than specified in the expulsion order, the alien was normally required to have a residence permit for the country to which he or she wished to travel. Moreover, it should not be substantially more expensive or result in delay to expel the alien to another country than the one specified in the decision. The Government had consulted the relevant and accessible Azerbaijani legislation and drawn the conclusion that it was possible for a relative or a spouse of an Azerbaijani citizen to be granted a residence permit in Azerbaijan. Azerbaijan had an embassy in Stockholm where the applicants should be able to obtain further information and submit an application. It should also be possible for the second applicant to acquire an Azerbaijani visa. It appeared that he could then travel to Azerbaijan and apply for a residence permit there. This could be an option, as long as the applicants made the travel arrangements themselves.
25. Furthermore, the Government noted that in order to apply for an Azerbaijani visa or residence permit, the second applicant had to have a passport. If the second applicant did not have a passport, he should be able to acquire one at an Afghan embassy, for example at the embassy in Oslo. According to information from the Norwegian migration authorities, the Afghan embassy in Oslo normally granted passports to applicants who had a tazkira. As regards the first applicant, she should be able to apply for a passport or other identity documents at the Azerbaijani embassy in Stockholm.
26. As regards the presence of various organisations in Azerbaijan, and in Baku in particular, which provide shelters for women seeking protection, the Government had consulted a number of reports relating to the situation for women in Azerbaijan. The reports mentioned, inter alia, a few government-operated centres for victims of trafficking and two shelters for women in the Baku area that were run by non-governmental organisations.
27. In their response, dated 26 March 2013, the applicants submitted that it was not a good option, from a humanitarian point of view, to send them to Azerbaijan. The first applicant had had a tragic childhood there. Furthermore, both applicants suffered from psychiatric problems and both had been hospitalised in Sweden for a considerable time. Their child would be born very soon.
28. The applicants’ son was born on 12 April 2013.
29. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act, as amended on 1 January 2010.
30. Chapter 5, section 1, of the Aliens Act stipulates than an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, section 1, of the Aliens Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2, of the Aliens Act).
31. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6, of the Aliens Act).
32. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2, of the Aliens Act).
33. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, section 18, of the Aliens Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced.
34. If a residence permit cannot be granted under Chapter 12, section 18, of the Aliens Act, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, of the Aliens Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a reexamination (Chapter 12, section 19, of the Aliens Act).
35. Under the Aliens Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, section 3, and Chapter 16, section 9, of the Aliens Act). However, no appeal lies against a decision by the Migration Board not to grant a residence permit under Chapter 12, section 18, of the Aliens Act (Chapter 14 of the Aliens Act, a contrario).


ITEMID: 001-110262
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ALİ GÜNEŞ v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1968 and lives in Istanbul. He is a high school teacher, an executive member of the Education and Science Workers’ Union and a member of the Confederation of Public Workers’ Unions.
6. The 2004 NATO summit took place in Istanbul from 28 to 29 June. The Governor of Istanbul designated thirteen locations in Istanbul where people would be allowed to hold demonstrations.
7. As the remaining facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicant are set out in Section B below (paragraphs 8-10) and the Government’s submissions concerning the facts are summarised in Section C below (paragraphs 11-13). The documentary evidence and further factual elements submitted by the applicant and the Government is summarised in Section D (paragraphs 14-27).
8. On 28 June 2004 the applicant and a number of other teachers arrived at the square outside the Mecidiyeköy Underground Station in Istanbul, which is one of the thirteen locations referred to above, to issue a press release.
9. The applicant and all his colleagues were unarmed and behaved in a peaceful manner. Nevertheless, police officers who had been circling the crowds grabbed the applicant and his friends by the arms, sprayed them with tear gas and beat them up.
10. The police officers then took the applicant to a police station, where he was kept for a period of eleven hours. He was subsequently brought before a prosecutor, who ordered his release.
11. After the applicant and other demonstrating teachers finished reading their press release, police officers asked them to disperse. When the demonstrators refused to do so, the police officers warned them that they would be taken into custody. The group continued to refuse to disperse and, instead, went on to stage a sit-in protest. They told the police officers that they would continue with their protest until their friends, who had been arrested elsewhere, had been released.
12. When the police continued to try to persuade them, the demonstrators attacked the police with stones and sticks. They also damaged cars in the vicinity and injured a number of police officers. As a result, the police officers used tear gas in order to disperse them. The applicant was taken to the police station, where he was kept for a period of eleven hours before his release was ordered by a prosecutor.
13. On the same day the applicant was examined by two doctors. The first examination was carried out at 11.30 a.m. at the Haseki State Hospital. The doctor noted that the applicant’s eyes were red, and considered it necessary for the applicant to be examined by a specialist doctor. The specialist doctor who examined the applicant at Sağmalcılar Hospital at 6.45 p.m. on the same day noted that there was no sign on the applicant’s body that he had been subjected to ill-treatment.
14. According to a report prepared on 28 June 2004 by nine of the police officers who had taken part in the incident, the spokesperson for the demonstrators in Mecidiyeköy told the police officers that a number of fellow union members had been arrested at another location in Istanbul earlier in the day. The spokesperson added that the demonstrators in Mecidiyeköy would not be dispersing unless and until their friends had been released, and would instead march to Taksim Square. When the police informed the spokesperson that this would not be allowed and warned the demonstrators to disperse, the demonstrators attacked the police officers with the sticks from their banners, and proceeded to stage a sit-in protest. The Rapid Response Force (Çevik Kuvvet) then dispersed the demonstrators and arrested eleven persons, including the applicant, who refused to disperse.
15. The incident was widely reported in the national press. In a photograph published in the daily newspaper Sabah the applicant is pictured between two police officers who are holding him by the arms, and one of whom is spraying the applicant’s nose and mouth with gas at very close range.
16. At 11.30 a.m. on the same day the applicant was examined by a doctor at Haseki Hospital, who noted redness in both eyes and referred him to a specialist doctor. The ophthalmologist who examined the applicant later that day at the same hospital observed hyperaemia in both eyes, and recorded his findings in a report.
17. At 6.45 p.m. on the same day the applicant was apparently examined by another doctor. However, no entries were made by that doctor in the sections of the report reserved for detailing the incident, the applicant’s allegations and the doctor’s findings. These parts of the report were simply crossed out by the doctor. Thus, the report only mentions the name of the applicant, his date of birth, the time of the medical examination and the name of the police officer who accompanied him.
18. It appears that the applicant was examined by yet another doctor on the same day. The doctor noted in his report (report no. 3015) that there were ecchymosed areas measuring 8 centimetres and 5 x 8 centimetres below the applicant’s shoulders. The doctor also noted that the applicant’s eyes were reddened.
19. According to medical reports submitted by the Government, the ten demonstrators who had been arrested together with the applicant (see paragraph 14 above) also had various injuries on their bodies.
20. The applicant and the other demonstrators were brought before the prosecutor and questioned. In his statement the applicant maintained that he had not committed any offences but had simply exercised his democratic rights. He also informed the prosecutor that the police had used pepper spray against him. According to the statement, a lawyer was present during the applicant’s questioning.
21. On 7 September 2004 the applicant lodged an official complaint with the Şişli prosecutor against the police officers. He argued that when he and his colleagues had been preparing for their press release at 10.00 a.m. on the day of the incident, a number of police officers had attacked them with their truncheons and sprayed them with tear gas. He complained that he had been beaten up with truncheons and punched and kicked by the police officers even after he had been arrested. He pointed out that the police officers responsible could be identified from the photographs published in the newspapers. The applicant argued that the police officers’ actions had been in violation of both the domestic legislation and his rights under the Convention, including his rights to liberty and security, freedom of expression and protection from ill-treatment.
22. The applicant subsequently found out in 2007 that before he had even lodged his official complaint on 7 September 2004 a prosecutor had already decided on 30 June 2004 not to prosecute the police officers. In the prosecutor’s decision sixteen persons, including the applicant, were referred to as “the complainants”. The sixteen persons also included the ten demonstrators arrested together with the applicant (see paragraph 14 above). The nine police officers (see paragraph 14 above) were named as the defendants. The offence in question was given as “ill-treatment”.
23. The prosecutor stated in his decision that the police officers had allowed the demonstrators to read out their press release but that when the demonstrators had wanted to march to Taksim square, they had had to disperse them. In the opinion of the prosecutor the officers had been carrying out their duties under the Act on the Powers and Duties of the Police, and had not committed any offences. Despite the fact that it was expressly stated in the decision that it was to be communicated to the complainants, and that the complainants could lodge objections against it, the prosecutor’s decision was not communicated to the applicant.
24. On 4 July 2007 the applicant wrote to the Şişli prosecutor and asked for information about the investigation.
25. In his reply of 21 November 2007 the Şişli prosecutor forwarded to the applicant’s legal representative a copy of the decision adopted by his office on 30 June 2004.
26. On 4 December 2007 the applicant lodged an objection against the decision and drew attention to the prosecutor’s failure to have regard to the medical reports described above (see paragraphs 16 and 18 above) and the photographs of him in the press.
27. On 8 February 2008 the Beyoğlu Assize Court rejected the objection, stating that the prosecutor’s decision of 30 June 2004 had been in compliance with the applicable legislation and procedure.
VIOLATED_ARTICLES: 3


ITEMID: 001-101189
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF DIYA 97 v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 5. The applicant company is a legal entity registered under Ukrainian law with its office in Kyiv.
6. On 17 May 2001 a company Yu. (“Yu.”), pledged in favour of the applicant company real estate located in the town of Yevpatoriya (“the real estate”). The pledge was notarised and provided that in the event of default by Yu. under the main agreement the applicant company could request a notary to issue a writ of execution regarding the real estate.
7. On 4 July 2001, following the applicant company's request, the notary issued a writ of execution ordering that the real estate be sold by the State bailiffs at public auction and the applicant company's claims be satisfied from the funds received.
8. On 11 July 2001 the Yevpatoriya Department of the State Bailiffs' Service (“the Bailiffs”) instituted enforcement proceedings in respect of the writ of execution.
9. On 7 May 2002 the Commercial Court of the Autonomous Republic of Crimea ordered that Yu. pay 171,728.86 Ukrainian hryvnias (UAH) to the applicant company. The Bailiffs instituted separate enforcement proceedings in respect of that judgment.
10. On 6 June 2002 the Bailiffs joined the enforcement proceedings in respect of the writ of execution and the judgment.
11. On 12 September 2002 the Bailiffs, having failed to sell the real estate at public auction, transferred its ownership to a company, M. (“M.”), which was one of the other creditors of Yu. The applicant company challenged those acts of the Bailiffs.
12. On 3 December 2002 the Commercial Court of the Autonomous Republic of Crimea declared the applicant company's complaint against the Bailiffs inadmissible. The court noted that the complaint had been timebarred and, in view of Article 121-2 of the Code of Commercial Procedure (“the CCP”), could not be considered by the commercial courts, since it raised the issue of the allegedly inappropriate enforcement of a notary's writ of execution, which was outside the competence of the commercial courts.
13. On 12 February 2003 the Sevastopol Commercial Court of Appeal (“the Commercial Court of Appeal”), considering the applicant company's appeal, decided that the complaint had been lodged in time but endorsed the conclusion of the first-instance court that the commercial courts had no jurisdiction over the complaint. The applicant company appealed in cassation against that resolution.
14. On 13 May 2003 the Higher Commercial Court imposed an interim measure, by which it attached the real estate pending consideration of the case.
15. On 19 May 2003 the Higher Commercial Court quashed the resolution of 12 February 2003 as unsubstantiated and remitted the case to the Commercial Court of Appeal for fresh consideration.
16. On 23 June 2003 the Commercial Court of Appeal found that the commercial courts did have jurisdiction over the applicant company's complaint, since the enforcement proceedings in question also concerned a judgment of a commercial court (namely, the judgment of 7 May 2002). It further declared the decision of the Bailiffs of 12 September 2002 unlawful and obliged them to sell the real estate at public auction at a reduced price.
17. On 27 October 2003 the Higher Commercial Court quashed the resolution of 23 June 2003, for the reason that the parties had not been duly informed of the hearing, and remitted the case to the Commercial Court of Appeal for reconsideration.
18. In the meantime, under the agreements of 11 and 18 September and 2 October 2003 M. sold the real estate to V., a physical person.
19. On 22 January 2004 the Commercial Court of Appeal declared the Bailiffs' decision of 12 September 2002 unlawful and obliged the Bailiffs to sell the real estate at public auction at a reduced price.
20. On 21 April 2004 the Higher Commercial Court upheld the Commercial Court of Appeal resolution of 22 January 2004.
21. On 26 August 2004 the Supreme Court rejected the Bailiffs' cassation appeal against the Higher Commercial Court resolution of 21 April 2004.
22. On 7 October 2004 V. lodged with the Supreme Court a cassation appeal against the Higher Commercial Court resolution of 21 April 2004. He asked for the time-limit for his cassation appeal to be extended for the reason that he had not been aware of the proceedings before 1 October 2004. He further requested that the proceedings be terminated as the commercial courts had no jurisdiction over the case.
23. On 18 November 2004 the Supreme Court gave V. leave to appeal in cassation and instituted fresh cassation proceedings.
24. On 21 December 2004 the Supreme Court, considering V.'s cassation appeal on the merits, found that the applicant company's complaint referred to the allegedly improper enforcement of the notary's writ of execution, while the commercial courts could deal with complaints concerning the enforcement of judgments, rulings, and resolutions taken exclusively by the commercial courts. It further held that at that moment the real estate was owned by a physical person. The Supreme Court therefore found that the case was outside the competence of the commercial courts, quashed the resolution of the Higher Commercial Court of 21 April 2004, and terminated the proceedings in the case.
25. On an unspecified date the applicant company instituted proceedings in the Kyiv Commercial Court against the Bailiffs and the Ministry of Justice, seeking to invalidate the Bailiffs' decision of 12 September 2002 and claiming damages.
26. On 10 March 2005 the court found that the Bailiffs' decision of 12 September 2002 was unlawful. It further dismissed the applicant company's claims for damages for failure to pay the required court fees. The applicant company did not appeal against that judgment. The Bailiffs appealed.
27. On 31 August 2005 the Kyiv Commercial Court of Appeal rejected the Bailiffs' appeal as time-barred.
28. On 29 March 2006 the Higher Commercial Court upheld the Kyiv Commercial Court of Appeal ruling of 31 August 2005.
29. On 18 May 2006 the Supreme Court upheld the Higher Commercial Court resolution of 29 March 2006.
30. On 16 August 2006 the applicant company instituted proceedings in the Kyiv Commercial Court against the Bailiffs, the Ministry of Justice, and the State Treasury, seeking damages in compensation for the unlawful decision of the Bailiffs of 12 September 2002.
31. On 30 January 2008 the court rejected the applicant company's claim as time-barred and unsubstantiated.
32. On 10 April 2008 the Kyiv Commercial Court of Appeal upheld the judgment of 30 January 2008. The applicant company failed to state whether it had appealed in cassation against the resolution of 10 April 2008.
33. Article 1 of the CCP provides, inter alia, that legal entities and citizens who have been registered as private entrepreneurs are entitled to apply to commercial courts, in accordance with the relevant jurisdictional rules, for protection of their rights and interests.
34. Under Article 26 and 27 of the CCP, third parties shall be admitted to proceedings before a judgment of the first-instance commercial court has been adopted and shall have the same procedural rights as the other parties.
35. Under Article 107 and 108 of the CCP the parties to a case and a prosecutor have the right to appeal in cassation to the Higher Commercial Court against a judgment of a first-instance commercial court which has come into effect, and against a resolution of a commercial court of appeal. A cassation appeal may also be lodged by persons who have not participated in the proceedings but whose rights and obligations have been affected by the impugned court decisions.
36. Article 111-14 of the CCP states, inter alia, that the parties to a case and the General Prosecutor have the right to appeal in cassation to the Supreme Court against a Higher Commercial Court resolution.
37. According to Article 111-16 of the CCP, a Higher Commercial Court resolution may be appealed in cassation to the Supreme Court within one month of the date of its adoption. However, if the grounds for appealing in cassation arose after the expiration of this time-limit, the Supreme Court shall be obliged to accept the cassation appeal for consideration.
38. Article 121-2 of the CCP provides, inter alia, that complaints about acts or omissions of the bodies of the State Bailiffs' Service concerning the enforcement of judgments, rulings, or resolutions of the commercial courts can be lodged by the creditor, the debtor, or the prosecutor within ten days of the date of the impugned measure or after the above persons have become aware of it, or after the relevant measure should have been taken.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22733
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: DUMAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto;Mark Villiger
TEXT: The applicant, Mr Tuncer Duman, is a Turkish national, who was born in 1972 and lives in Amasya.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 May 1997 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 94(b) of Law 926.
The Government submit the following in the light of the intelligence reports concerning the applicant:
The applicant, a sergeant, was a member of the Işık sect which was supporting the establishment of a state based on Islamic law. He established contacts with other officers who adopted the same ideology. He acted discriminatorily in favour of the soldiers who adopted the same ideology.
His superiors considered the applicant as an insubordinate and undisciplined soldier. The applicant was sentenced to ten days’ confinement for disobedience, forty days’ confinement for disobeying his superiors and twenty-five days’ confinement for lack of discipline. The applicant also received warnings for lack of discipline.
A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion.
The relevant provisions of the Constitution are as follows:
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions.
...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review ...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
...”
Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”


ITEMID: 001-72984
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VIDEMSEK v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1963 and lives in Velenje.
6. On 5 February 1996 the applicant was injured in an accident at work in a mine. The applicant’s employer had taken out insurance with the insurance company ZT.
7. On 27 May 1998 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 3,068,257 tolars (approximately 12,800 euros) for the injuries sustained.
Between 19 June 2001 and 14 February 2002 the applicant lodged five preliminary written submissions and/or adduced evidence.
Between 10 November 1998 and 30 March 2001 he made five requests that a date be set for a hearing.
Neither of the hearings held on 24 September 2001 and 11 March 2002 was adjourned at the request of the applicant.
During the proceedings the court appointed a medical expert.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 11 April 2002.
8. On 15 April 2002 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed.
On 9 July 2003 the court dismissed both appeals.
The judgment was served on the applicant on 25 August 2003.
9. On 12 September 2003 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). ZT cross-appealed.
On 17 February 2005 the court dismissed the appeal.
The judgment was served on the applicant on 21 March 2005.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61701
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF WEH v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 10. The applicant, Mr W. Weh, was born in 1952 and lives in Bregenz.
11. On 21 March 1995 the Bregenz District Authority (Bezirkshaupt-mannschaft) served an anonymous order (Anonymverfügung) upon the applicant in the sum of 800 Austrian schillings (ATS). It stated that on 5 March 1995 the driver of the car, registered in the applicant's name, had exceeded the city area speed limit of 50 km/h by 21 km/h.
12. The applicant did not comply with the anonymous order. Consequently, the order became invalid (see paragraph 31, below).
13. Subsequently, the Bregenz District Authority opened criminal proceedings for exceeding the speed limit against unknown offenders and, on 27 April 1995, it ordered the applicant as the registered car owner, under section 103 § 2 of the Motor Vehicles Act (Kraftfahrgesetz), to disclose who had been driving his car. The applicant answered that “C.K.[first and family name in full]”, living in “USA/University of Texas” was the person who had used the car.
14. On 25 July 1995 the Bregenz District Authority issued a provisional penal order (Strafverfügung) in which it sentenced the applicant under sections 103 § 2 and 134 of the Motor Vehicles Act to pay a fine of ATS 900 (with 54 hours' imprisonment in default). It noted that he had submitted inaccurate information.
15. The applicant filed an objection (Einspruch) against this decision. On 22 August 1995 the Bregenz District Authority requested the applicant to submit his defence either in writing or to appear at an oral hearing. The applicant did not react to this request.
16. On 18 September 1995 the Bregenz District Authority issued a penal order (Straferkenntnis) confirming its previous decision and sentenced the applicant to a fine of ATS 900 (with 24 hours' imprisonment in default). In addition it ordered him to pay ATS 90 by way of contribution to the costs of the proceedings. The District Authority found that the information supplied by the applicant had been inaccurate.
17. The applicant appealed to the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat).
18. On 15 April 1996 the Vorarlberg Independent Administrative Panel dismissed the applicant's appeal and ordered him to pay ATS 180 by way of contribution to the costs of the appeal proceedings. Prior to giving its decision, the Panel held a hearing in the presence of the applicant who stated that he considered the information submitted by him to be sufficiently accurate.
19. The Panel dismissed the applicant's defence, noting that section 103 § 2 of the Motor Vehicles Act required the registered car owner to disclose the name and address of the driver. Further, it referred to the Administrative Court's case-law according to which not only the failure to give any information at all but also the disclosure of inaccurate information amounted to a failure to comply with section 103 § 2. Finally, the Panel observed that the University of Texas had 14 different locations in Texas. Therefore the information provided by the first applicant had indeed been inaccurate.
20. On 3 June 1996 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He raised various issues regarding the tribunal quality of the Independent Administrative Panel and the fairness of the proceedings. However, given that the relevant sentence of section 103 § 2 of the Motor Vehicles Act has the rank of constitutional law (see paragraph 25, below), he did not raise the issue of his right to remain silent and not to incriminate himself.
21. On 26 November 1996 the Constitutional Court refused to deal with the applicant's complaint for lack of prospects of success.
22. On 27 June 1997 the Administrative Court (Verwaltungsgerichtshof) refused to deal with the applicant's complaint pursuant to section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) since the amount of the penalty did not exceed ATS 10,000, and no important legal problem was at stake.
23. The applicant was not prosecuted for exceeding the speed limit.
24. Section 103 § 2 of the Motor Vehicles Act (Kraftfahrgesetz), as amended in 1986, provides as follows:
25. The ultimate sentence of this provision was enacted as a provision of constitutional rank after the Constitutional Court had, in its judgments of 3 March 1984 and 8 March 1985, quashed previous similar provisions on the ground that they were contrary to Article 90 § 2 of the Federal Constitution which prohibits inter alia that a suspect be obliged on pain of a fine to incriminate himself.
26. In its judgment of 29 September 1988 the Constitutional Court found that the first to third sentences of section 103 § 2 of the Motor Vehicles Act as amended in 1986 were, like the previous provisions, contrary to the right not to incriminate oneself which flowed from Article 90 § 2 of the Federal Constitution and from Article 6 of the European Convention of Human Rights but were saved by the ultimate sentence of that provision which had constitutional rank. In reaching that conclusion the Constitutional Court had examined whether the ultimate sentence of section 103 § 2 was contrary to the guiding principles of the Constitution, but had found that this was not the case.
27. Section 134 of the Motor Vehicles Act, in the version in force at the material time, provided for a fine of up to ATS 30,000 to be imposed on a person who violates the regulations of this Act.
28. The 1987 amendment of the Law on Administrative Offences (Verwaltungsstrafgesetz) introduced a possibility to issue and serve an anonymous order (Anonymverfügung) in case of minor administrative criminal offences.
29. According to section 49a of the Law on Administrative Offences, the competent authority may determine by decree minor offences for which it may serve an anonymous order.
30. If the person who has committed a minor administrative criminal offence is unknown to the competent authorities, the latter may serve an anonymous order on the person who is supposed to know the offender. The fine imposed must not exceed ATS 1,000 and may not be converted into a prison term in default.
31. The anonymous order is not regarded as an act of prosecution. No remedy lies against it. If the fine imposed is not paid within four weeks, the anonymous order automatically becomes invalid and a normal prosecution against unknown offenders is to be commenced. If the fine imposed is paid within four weeks, no prosecution is to take place. The anonymous order is not entered into any register and may not be taken into account when determining the sentence for other administrative criminal offences.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83568
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: LEDERER v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Gerd Lederer, is a German national who was born in 1950 and lives in Munich. He was represented before the Court by Mr M. Kleine-Cosack, a lawyer practising in Freiburg.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 6 September 1980 the Bavarian Minister of Justice admitted the applicant to the Bar of the Munich District Court (Amtsgericht) and the Munich Regional Court (Landgericht) to practise as a lawyer (Rechtsanwalt).
On 10 October 1985 the applicant was also admitted to the Bar of the Munich Court of Appeal (Oberlandesgericht) and, on 11 May 1992, to the Bar of the Landshut Regional Court.
He was appointed as a lecturer in business and employment law at Munich University of Applied Sciences (Fachhochschule) with effect from 1 September 1997, with the status of probationary civil servant (Beamter auf Probe).
In a letter of 12 August 1997, the applicant indicated his wish to continue practising as a lawyer in accordance with the first sentence of section 47(1) of the Federal Lawyers Act (Bundesrechtsanwaltsordnung – see “Relevant domestic law” below).
By orders issued on 25 September 1997, 4 March 1998 and 11 January 1999, the applicant obtained the relevant authorisations, valid for a specified period.
The applicant was appointed as a permanent civil servant (Beamter auf Lebenszeit) with effect from 26 May 1999.
By a decision of 19 November 1999, the President of the Munich Court of Appeal ordered the applicant’s name to be struck off the Bar Council roll in accordance with section 14(2), point 5, of the Federal Lawyers Act (see “Relevant domestic law” below) on the ground that he had not had his name removed from the roll despite being appointed as a permanent civil servant. The President of the Court of Appeal stressed that the relevant provision was mandatory and left no room for discretion. It was therefore neither necessary nor possible to make an exception for university professors and lecturers: the legislation was based on the principle that the distinctive status of permanent civil servants, and in particular the overriding importance of the public-law relationship between them and the State (öffentlich-rechtliche Bindung an den Dienstherrn) was incompatible with the profession of lawyer. The occupation of university lecturer was not fundamentally different in that respect from that of any other serving civil servant.
By a decision of 19 March 2001 a division of the Bavarian Lawyers’ Professional Practice Tribunal (Senat des Bayerischen Anwaltsgerichtshofs) upheld the decision to strike the applicant’s name off the Bar Council roll, on the same grounds. It considered, additionally, that the applicant’s work as a lawyer was only a secondary occupation and that the requirements in terms of compliance with the Constitution were therefore less stringent than in the case of a primary occupation.
In the view of the professional practice tribunal, the measure complained of also complied with the principle of proportionality as the legislature had sought to ensure the free exercise of the profession of lawyer in the public interest and in the interests of the proper administration of justice. Moreover, several factors made the interference less serious: removal from the Bar Council roll was required only in the case of judges and permanent civil servants, and a number of procedural provisions (see “Relevant domestic law” below) permitted university professors and lecturers to act as representatives before the courts (Prozessbevollmächtigte) and also to prepare expert reports. In view of the numerous provisions of this kind promoting the interests of professors and lecturers, the Federal Constitutional Court had always refused to allow an exception in their case to the general rule of incompatibility between the functions of permanent civil servant and lawyer.
The professional practice tribunal also considered that the incompatibility rule was not in breach of the principles of equality and freedom to exercise the profession of one’s choosing enshrined in Articles 3 § 1 and 12 § 1 respectively of the Basic Law (Grundgesetz – see “Relevant domestic law” below) and that, notwithstanding the relative freedom enjoyed by university professors and lecturers, no specific regulations were needed to protect their interests, as the factors uniting them with other civil servants predominated. Hence, university professors and lecturers, like all civil servants, needed to obtain authorisation in order to carry on a secondary professional activity. Such authorisation was generally granted only if the activity did not account for more than a certain percentage of their weekly work. The authorisation granted to the applicant on 6 October 1997 to “act as counsel and representative in business-law and employment-law cases, in particular as a lawyer” (Beratung und Vertretung in wirtschaftsprivat- und arbeitsrechtlichen Angelegenheiten, insbesondere als Rechtsanwalt) specified that his secondary activity must not account for more than one day a week on average. Furthermore, any income in excess of a certain amount had to be declared to his employer, a requirement which was incompatible with the free exercise of the profession of lawyer.
Finally, the professional practice tribunal considered that the fact that, in the new Länder, university professors and lecturers had the status of employees rather than civil servants had no bearing on the situation, as it was not a question of incompatibility between two professions, but of the incompatibility which existed in principle between the status of civil servant and that of lawyer. That also explained why the applicant could have practised as a tax adviser (Steuerberater) under section 57(3), point 4, of the Tax Advisers Act (Steuerberatungsgesetz), as the profession of tax adviser was a liberal profession different from that of lawyer.
In conclusion, the tribunal observed that European law was not applicable in the instant case, as the matter was a purely internal one within a member State; the applicant was a German citizen who did not have a residence in another member State and had not obtained any qualifications in such a State. Member States were free to regulate access to professions by their own nationals, since there was no European directive governing access to the profession of lawyer. Finally, even if a national of another member State, such as France – where no such incompatibility existed between the occupation of lawyer and that of a university professor or lecturer who was a civil servant – wished to practise as a lawyer in Germany on the basis of the principle of free movement of services and freedom of establishment, there would be no discrimination. A non-national lawyer could intervene in proceedings in Germany only by working together with a German colleague, a restriction to which German lawyers were, of course, not subject. If a non-national lawyer actually wished to be admitted to the Bar of a German court, sections 6 to 42 of the Federal Lawyers Act would apply to him or her in the same way as to a German lawyer.
By a decision of 22 April 2002, the Special Division of the Federal Court of Justice dealing with matters relating to lawyers (Senat für Anwaltssachen des Bundesgerichtshofes) dismissed the applicant’s appeal, referring to its settled case-law in the matter. It stressed in particular that, as the activity in question was a secondary occupation, the legislature had relatively broad discretion in restricting the applicant’s ability to practise as a lawyer when he was already a university lecturer with permanent civil servant status.
By a decision of 12 August 2002, the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a panel of three judges, declined to accept the applicant’s constitutional appeal for adjudication on the ground that it was not of constitutional significance in principle and did not involve a breach of the applicant’s fundamental rights.
The relevant Articles of the Basic Law read as follows:
“All persons shall be equal before the law.”
“All Germans shall have the right freely to choose their occupation or profession, their place of work and their place of training. The practice of an occupation or profession may be regulated by or pursuant to a law.”
Section 7, point 10, of the Federal Lawyers Act states that admission to the Bar is to be refused if the candidate is a permanent civil servant.
Section 14(2), point 5, states that lawyers are to be removed from the Bar Council roll on appointment as permanent civil servants.
The first sentence of section 47(1) states that lawyers who are also civil servants – but without permanent status – may not practise as lawyers. However, the judicial authorities of the Land in question may allow the lawyer, at his or her request, to continue to practise if this is not prejudicial to the proper administration of justice.
Article 138 of the Code of Criminal Procedure (Strafprozessordnung), section 67 of the Administrative Courts Act (Verwaltungsgerichtsordnung), Article 392 of the Tax Code (Abgabenordnung), Article 40 of the Federal Disciplinary Code (relating to civil servants) (Bundesdisziplinarordnung) and section 22 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) state that law professors and lecturers in German universities (Rechtslehrer an deutschen Hochschulen) may act as legal representatives on the same basis as lawyers before the relevant courts.
In cases before the civil courts (Article 157 § 3 of the Code of Civil Procedure (Zivilprozessordnung)), university professors and lecturers must obtain authorisation on a case-by-case basis.