ITEMID: 001-97625
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF R.C. v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (in case of expulsion to Iran)
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 7. The applicant was born in 1965 and is currently in Sweden.
8. On 18 October 2003 the applicant arrived in Sweden and three days later he requested the Migration Board (Migrationsverket) to grant him asylum and a residence permit in Sweden.
9. The Board held a first interview with the applicant on 27 May 2004 during which he stated that he was Shia' Muslim and came from a city in the south of Iran where his wife and two minor sons remained. A smuggler had arranged for his travel to Sweden and he had travelled all the way hidden in a lorry. He claimed that he had criticised the Iranian government on several occasions and, the last time he had participated in a student demonstration to show his sympathy, he had been arrested. He had spent seven months in Sepah prison and then been transferred to a prison in his home town where he had spent another seventeen months. He had never been formally tried in court but every third month there had been a sort of religious trial where he had been put before a priest who had decided on his continued imprisonment. While imprisoned, he had been subjected to torture and still suffered from headaches because of it. He knew others who had participated in the demonstration and who were still imprisoned without trial.
10. A complete asylum investigation was conducted by the Migration Board on 4 June 2004 where the applicant maintained his initial statements and essentially added the following. In 1993 he had quit his job and returned to his village to work as a farmer. He had discussed with other villagers about the lack of human rights and freedom in Iran. One night the Basij (a “people's militia”, loyal to the Supreme Leader) had come and destroyed his fields with a tractor. When he had tried to report the incident to the police, they had advised him not to, since it would lead nowhere. He had also expressed his opinion of the government when he had watched television in public places. The Basij had later destroyed his car, thrown stones at his house and sent messages that he should stop his activities and “information evenings”. He had received the threats through a relative of his wife who worked for the regime. The threats had commenced in 1997 but had become more serious after he had participated in his first demonstration in 2000. It had been a student demonstration and he had escaped when the police intervened. On 9 July 2001 he had participated in his second student demonstration where he had been arrested because police had closed off all escape routes and had been filming the protesters as evidence. Many others had also been arrested. During the demonstration they had shouted slogans against the president and the government and demanded the release of student prisoners. In Sepah prison he had been tortured. He had been stabbed twice in the thigh, boiling water had been poured over his chest and his captors had hit him with their fists. However, on 11 February 2002, he had been transferred to the prison in his home town. He had been planning to escape for almost nine months by being very co-operative with the prison guards so that he had earned their trust. The “religious trials” had taken place at a court outside the prison and the applicant had spoken with three of his friends, who had visited him in prison to help him. On 19 July 2003 he had been taken to the court and his friends had been there. He had worn his normal clothes under his prison outfit and he had not had any handcuffs as the guards trusted him. He had told the guard that he had to go to the bathroom, where he had taken off his prison outfit. In the meantime one of his friends had gone to start the car and another friend had spoken to the guard to distract his attention from the applicant. The applicant had then walked straight out of the court, got into the car and they had driven off. It had been a revolution court and there had been a lot of people. He had then remained hidden at a friend's home for about two months while his friend had found a smuggler to help him out of the country. While he had been in hiding, his wife had been taken to the police twice for questioning about his whereabouts. His father had also been questioned. The applicant underlined that he was not, and never had been, a member of a political party or any organisation and that he had never been formally convicted of any crime. He was convinced that he would be executed if returned to Iran since he had escaped from prison and because he would be accused of having co-operated with those who are against Islam.
11. The applicant further stated that he continuously suffered from headaches and sleeplessness and had problems with his legs. He submitted a medical certificate, dated 4 February 2005 and issued by Dr I. Markström, a physician at a local health care centre. The certificate stated that the applicant had scars around both ankles, scars on the outside of both kneecaps and two lateral scars on his left thigh. He also had a reddish area stretching from his neck down to his chest and when he yawned there was a loud clicking sound from the left side of his jaw. In the physician's opinion, these injuries could very well originate from the torture to which the applicant claimed that he had been subjected in Iran, namely, that he had been chained around his ankles and suspended upside down for several hours, that boiling water had been thrown at his chest, that he had received blows to his head, jaw, abdomen and legs, and that he had been stabbed twice in the left thigh with a bayonet.
12. On 27 May 2005 the Migration Board rejected the request. It first noted that the applicant had not claimed to have been a member either of an organisation or of a political party or to have had a leading role in the organisation of demonstrations. Moreover, the proceedings before the revolutionary courts were in general not open to the public. The Board found that the applicant had not substantiated his story in any way and that he had thus failed to show that he had been, or would be, of interest to the Iranian authorities. It therefore considered that the applicant would not attract special attention from the Iranian authorities if he were to be returned to his home country. As concerned the ill-treatment and torture of which the applicant claimed to have been the victim, the Board found that the medical certificate did not prove that he had been tortured even if the injuries documented could very well originate from the torture described. In its view, there was no reason to believe that the applicant would be subjected to ill-treatment or torture upon return to Iran. Thus, it concluded that the applicant could neither be granted asylum in Sweden nor a residence permit based on humanitarian grounds.
13. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden), maintaining his claims and adding that about half of the inhabitants in his home town knew him since he used to be a football player. Moreover, he had been one of ten to twelve organisers of the demonstration held in 2001. They had written the banners and decided which slogans to use. The other organisers, who were students and previously imprisoned critics of the regime, had also been punished. Following his escape, his wife had been taken in for questioning about his whereabouts on seven occasions and had been kept in detention on three occasions. His father had been questioned on two occasions and their home had also been searched on two occasions. The applicant further claimed that he had been kept in an isolation cell for the first two months of his detention. Furthermore, the public had access to hearings before the revolutionary courts and it had been relatively easy for him to escape since his friends had distracted the guards and he had thus been able to leave the building. Lastly, submitting four medical certificates, the applicant invoked his deteriorating health as he suffered, inter alia, from depression and panic attacks.
14. In March 2006 the applicant was informed that the case would be transferred to the Migration Court (Migrationsdomstolen) for further proceedings, following the entry into force of a new Aliens Act (see below under Relevant Domestic Law).
15. On 18 June 2007 the Migration Court held an oral hearing. In response to his lawyer's questions the applicant stated, inter alia, that he had participated in demonstrations critical against the regime since 1988 and that, in 1997 or 1998, he had started to notice that his criticism was not appreciated. He had participated in yearly demonstrations, such as on women's day and on labour day. Mostly he had participated in meetings on various premises. A relative of his wife had been an official at the intelligence agency and thus he had been assured that nothing would happen to him. He had been one of 4-5,000 participants in the demonstration in 2001 and he had played no special role, but it had been monitored by the authorities. He had been arrested and accused of being against Islam and the regime. In connection with a visit by his wife to Sepah prison while he was there, she had been detained for three days and questioned about him. However, no other relatives had been summoned or questioned by the authorities. He had escaped when his friends had come to the revolutionary court for his hearing and had pretended to have a fight with each other so that he could go to the toilets to change. It had then taken him fifteen seconds to leave the building since there were no exit controls. In response to questions by the Migration Board, the applicant claimed that he had organised demonstrations and that he had been one of the leaders at the demonstration in 2001. He had been arrested because he had been in the front row and had shouted slogans.
16. In a judgment of 9 July 2007, the Migration Court, by three votes to one, rejected the appeal. It first noted that the applicant appeared to have expanded his grounds for asylum by claiming that he had not just participated in demonstrations but had actually been involved in organising them. However, since he had not been a member of a party or an organisation which was critical of the regime, the court found it unlikely that he would be of any interest to the authorities in his home country if he returned. It further considered that the applicant's account of how he had escaped from the revolutionary court was not credible, having regard, inter alia, to international sources which stated that insights into the functioning of the revolutionary courts were very limited. The court also noted that he had remained in Iran for two months following his escape before leaving the country. Moreover, it found that the applicant had failed to show that he had been tortured in IranSweden and that his health problems were not of such a serious nature that he could be granted leave to remain on humanitarian grounds.
17. One of the three lay judges dissented as he considered that the applicant had given a credible account of events and should be granted asylum as a refugee in Sweden.
18. On 17 July 2007 the applicant appealed to the Migration Court of Appeal (Migrationsöverdomstolen), maintaining his claims and stating that he was only telling the truth. He was also of the opinion that the Migration Court had failed to take into account the medical certificate testifying to his torture injuries. He further requested some extra time in order to submit certain documents that his family had sent to him from Iran. The court granted an extension of the time-limit and, on 7 August 2007, the applicant submitted, among other things, two summonses, one to his wife and one to his father, to appear before the revolutionary court in his home town on 6 August 2003 to answer questions concerning the applicant and his escape from prison.
19. On 4 September 2007 the Migration Court of Appeal refused leave to appeal.
20. The applicant was called to a meeting with the Migration Board on 9 November 2007.
21. On 8 November 2007, following a request by the applicant, the President of the Chamber to which the case had been allocated decided, under Rule 39 of the Rules of Court, to indicate to the Swedish Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to deport the applicant to Iran until further notice.
22. Following the request by the Court, on 9 November 2007 the Migration Board stayed the enforcement of the deportation order until further notice.
23. Upon request by the Court, the applicant submitted a forensic medical report dated 14 November 2008 and issued by Dr E. Edston, specialist in forensic medicine at the Crisis and Trauma Centre at Danderyd Hospital. The report was drawn up on the basis of the protocols from the interviews with the applicant before the Migration Board, the medical certificate by Dr I. Markström, a letter from the applicant's representative dated 16 October 2008 and the applicant's own story as told to Dr Edston during his examination on 4 November 2008. The report contained photos of the scars together with a written protocol of all the scars and the medical record from the examination as well as Dr Edston's opinion.
24. The report noted that the applicant had claimed that he had been tortured in prison in 2001 and that the torture had consisted of beating with fists, kicks, being hit on his kneecaps with rifle butts, having a bayonet stuck twice in his thigh, as well as being flogged, suspended upside down for prolonged period of times and having hot water poured over him. He further stated that, as a result of the torture, he suffered from chronic headaches, reduced feeling in his right thigh, reduced mobility of his jaw, reduced eye sight, an ulcer, pain in his knees when walking and medical problems with his thyroid gland and diabetes. Dr Edston examined the applicant and found numerous scars on his body.
25. In Dr Edston's opinion, the injuries invoked by the applicant could very well have occurred in 2001 as claimed and the scars observed on his body had the appearance and localisation which corresponded well with his statements of how they had appeared. For example, the scars on his kneecaps could well correspond to blows with rifle butts, the marks on the front of his shins from having been kicked with boots, the marks on his left ankle could have appeared as a consequence of having been suspended upside down by his ankles and the pigmentation on his neck corresponded well with a burn injury. In conclusion, Dr Edston noted that, in cases like this, alternative causes for the origins of the scars could not be completely excluded but that experience showed that self-inflicted injuries and injuries resulting from accidents normally had a different distribution to those showed by the applicant. The findings in the present case favoured the conclusion that the injuries had been inflicted on the applicant completely or to a large extent by other persons and in the manner claimed by him. Thus, the findings strongly indicated that the applicant had been tortured.
26. 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 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.
27. Chapter 5, Section 1, of the 2005 Act stipulates that 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 2005 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 2005 Act).
28. 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 2005 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 2005 Act).
29. 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 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an 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. If a residence permit cannot be granted under this provision, 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 2005 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 re-examination (Chapter 12, Section 19, of the 2005 Act).
30. Under the 2005 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 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist.
31. On 25 June 2009 the Parliamentary Assembly of the Council of Europe (PACE) adopted a resolution on the situation in Iran in which it urged the Iranian authorities to refrain from using force and violence against peaceful demonstrators and to release the more than 400 demonstrators arrested since the elections on 12 June 2009 as well as the more than 170 politicians, members of their families and journalists detained. At its subsequent session in Strasbourg, on 1 October 2009, the Political Affairs Committee of the PACE, adopted a declaration in which it considered the violent reactions of the Iranian authorities to peaceful protests to be a serious breach of Iranian citizens' human rights. It also called upon governments of other countries not to expel Iranian citizens to Iran.
32. In a report (A/64/357) of the United Nation's Secretary-General on The situation of human rights in the Islamic Republic of Iran, dated 23 September 2009, and presented to the UN General Assembly at its 64th session, it was noted that 2009 had seen an increase in human rights violations targeting women, university students, teachers, workers and other activist groups, particularly in the aftermath of the elections in June 2009. Hence, during June, July and August 2009, several independent UN experts as well as the Secretary-General had voiced grave concerns about the use of excessive police force, arbitrary arrests, killings, ill-treatment of detainees and the use of torture to obtain confessions. Moreover, a variety of cases suggested a widespread lack of due process, access to lawyers and the failure to respect the rights of detainees, including allegations that individuals had been placed in detention without charge and had been kept “incommunicado”. It was noted that no visits by any special procedure mandate holders had taken place since 2005.
33. In its World Report 2009, Human Rights Watch noted that respect for basic human rights in Iran continued to deteriorate and that the government showed no tolerance for peaceful protests or gatherings, routinely detaining participants and subjecting them to torture. The Judiciary and the Ministry of Intelligence continued to be responsible for many serious human rights violations. Amnesty International, in its Amnesty International Report 2009, made the same findings, also noting that demonstrations frequently led to mass arrests and unfair trials. Some were also detained without trial for long periods beyond control of the judiciary and were reported to have been tortured and denied access to lawyers and their families. Amnesty International has repeatedly observed that trials before the revolutionary courts are not public. For instance, on 4 August 2009, in its article “Over 100 Iranians face grossly unfair trials”, Amnesty International noted that more than 100 persons had gone on trial in Tehran accused of organising widespread civil protests. The trial was held before the Revolutionary Court in Tehran and it was closed to the public and even to the defendants' lawyers.
34. According to Sections 3.28 and 3.31 of the U.K. Home Office's Country of Origin Information Report on Iran, dated August 2009, the pressure for democratic reform in Iran changed dramatically after the student protests at Tehran University in July 1999. Every year on the anniversary of the 1999 event, students have gathered at Tehran University and other major campuses throughout the country and the date has been a flashpoint for violence and tension (Section 3.27). Thus, in June 2003, thousands of Iranians took to the streets and about 4,000 people were arrested all over the country before and after the protests. Although many of them had since been released, there were still scores of students behind bars. Some of these had been in prison since they were arrested as a result of similar disturbances in 1999, 2000 and 2001.
35. Section 27.14 of the U.K. Report further noted that in “Evaluation of the August 2008 Country of Origin Information Report on Iran” by Dr Reza Molavi and Dr Mohammad M Hedayati-Kakhki of the Centre for Iranian Studies at Durham University, dated 23 September 2008, it appeared that, if an Iranian arrived in the country without a passport or any valid travel documents, they would be arrested and taken to a special court at Mehrabad Airport in Tehran where the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations or groups and any other circumstances would be assessed. This procedure also applied to people who were deported back to Iran, not in the possession of a passport containing an exit visa; in this case the Iranian Embassy would issue them with a document confirming their nationality. Illegal departure was often prosecuted in conjunction with other, unrelated offences since the investigation into the facts surrounding the offence of illegal departure could result in the discovery of an underlying offence.
36. The Danish Immigration Service's report Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc., released in April 2009, following a fact finding mission to Iran from 24 August to 2 September 2008, stated that some of its sources had claimed that the granting of travel documents at an Iranian embassy did not necessarily mean that the person would not face problems with the Iranian authorities upon return to Iran. The person in charge of passport border control at the Imam Khomeini International Airport in Tehran (a newly built airport which had replaced Mehrebad airport) had explained that an Iranian travelling on a laissez-passer was likely to be interviewed upon arrival in Iran and questioned about how he or she had lost the previous passport. However, if a person arrived in Iran on a travel document issued by an Iranian representation and the security check had been completed at the embassy, the airport authorities would not check his or her identity. The authorities at the airport would, however, ask the person how he or she had left Iran, since there was no exit stamp in his or her new travel document. A source in Iran claimed that, if a person had left Iran illegally, he or she had not been registered in the computer system as having left Iran and therefore would be questioned upon return. It was added that a person who had left the country illegally could also be arrested if he or she had committed an illegal act before leaving Iran. It was further observed that a person on a laissez-passer, issued by an Iranian representation abroad, might be fined for illegal exit or subjected to a few hours' interrogation.
VIOLATED_ARTICLES: 3


ITEMID: 001-66630
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: JOHANS v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs Raija Johans, is a Finnish national, who was born in 1942 and lives in Uusikaupunki. She is not represented before the Court.
The facts of the case, as submitted by the applicant and as they appear from the documents, may be summarised as follows.
A bank commenced an action against the applicant and her company, claiming repayment of loans. They contested the claim, arguing that the bank had agreed to extend the term of payment.
On 5 September 1997 the District Court (käräjäoikeus, tingsrätten) of Mynämäki sanctioned the claim and ordered the applicant and her company to repay the loans. They appealed.
On 10 March 1998 the Turku Court of Appeal (hovioikeus, hovrätten) held an oral hearing during which the persons heard before the District Court were reheard. During the hearing the applicant and her company argued that the District Court Judge X was disqualified from deciding their case on the ground that he at the same time acted as a supervisor of the plaintiff bank. Commercial bank supervisors’ duties within the bank’s administration entail promoting and supervising a particular office’s activities and acting as that office manager’s supporting person.
The Court of Appeal invited X to comment on the issue, which he did. According to X, he had acted as a supervisor of effectively the same bank since the 1970s. All the parties filed observations on X’s comment.
By its judgment of 24 November 1998 the Court of Appeal, rejecting the disqualification allegation, upheld the lower court’s judgment. As to the alleged partiality it noted that the name of Judge X, who ruled on the case in the District Court, had been on the list of the plaintiff bank’s supervisors until the end of 1997. However, on 25 November 1996, i.e. prior to the case becoming pending, X informed the bank in writing that he would resign as a supervisor. The Court of Appeal considered that the mere fact that in 1997 X still remained on the list of supervisors did not call his objective impartiality into question. There was nothing to indicate his subjective partiality. The applicant and her company requested leave to appeal.
On 13 September 2000 the Supreme Court (korkein oikeus, högsta domstolen) granted them leave to appeal as far as the disqualification claim was concerned.
On 28 June 2001 the Supreme Court (decision no. 1391), having first noted that X, despite his declaration of 25 November 1996, had acted as a supervisor for the bank until the end of 1997 and thus, at the time when he decided the present case, rejected the disqualification claim giving the following reasons:
“A commercial bank supervisor cannot be considered disqualified from deciding litigation where the bank in question is a party to the proceedings in light of chapter 13, section 1 of the Code of Judicial Procedure.
In assessing whether a judge is disqualified, attention has to be paid also to the provisions of the European Convention on Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights.
In the determination of his civil rights and obligations everyone is entitled to a hearing by an independent and impartial tribunal according to Article 6 § 1 of the Convention. In light of the Human Rights Court’s case-law, a judge must not hold a preconception or have a prejudged view of the case in question or have a desire to favour one of the parties’ interests (subjective impartiality). In addition, all legitimate doubts as to the judge’s impartiality must be eliminated (objective impartiality). In assessing impartiality from the last-mentioned point of view, attention has to be paid to whether the judge’s previous activities or his relations to the parties from an objective point of view give a party reason to believe that his impartiality is jeopardized.
In his comment to the Court of Appeal X stated that the credits in question had come to his knowledge when the case became pending. As he also had knowledge of also other claims related to a company previously run by the applicant and her husband which was being dissolved ... X had said in open court that the granting of additional loans to the same debtor caused him astonishment.
In their appeal the applicant and her company argued that the above statement showed that X had a certain bias with regard to the present case.
Having regard on the one hand to the contents of the statement and on the other to the issues in dispute, the Supreme Court considers that the statement is not a sufficient indication of X’s personal bias or his desire to favour the bank’s interests. Nor are there any other such indications. Accordingly, the allegation that X would have been partial from a subjective point of view is unfounded.
Commercial bank supervisors’ position, duties or responsibility within the bank’s administration are not based on the law. However, they are based on the statute approved by the bank’s board of governors. According to the statute the supervisors’ duty is to promote and supervise a particular branch’s activities and act as that branch manager’s supporting person.
If the judge deciding a litigation in addition to his or her regular post holds a position of trust and according to the description of that position has a relationship as mentioned above with the other party to the proceedings, this fact is likely to raise questions as to whether the judge’s impartiality is jeopardized. According to the constant case-law of the European Court of Human Rights, in assessing whether a judge is disqualified attention has to be paid to the impression given in the circumstances to an observer (see the reasoning in the cases of Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000-XII and Ferrantelli and Santangelo v. Italy, judgment of 7 December 1996, Reports of Judgments and Decisions 1996-III, § 58 and other authorities mentioned therein). Having regard to the above-mentioned paragraphs in particular and the fact that the litigation concerns the acts by the branch in question, the supervisors’ duty description in the bank’s statute contains features that may give an observer an objectively justified fear that the judge may have ties of loyalty to the bank or the office’s management that jeopardize his impartiality.
The duties, obligations or expectations that attach to the supervisors’ position are, however, not precise or strict. Also the remuneration is so modest that it cannot as such be assumed to bring pressure to bear on the supervisors to render the bank or its branch special favours. The factual role of the supervisor and his or her possible ties to the bank and the branch’s management in question thus depends to a large extent on the supervisor’s individual attitude and may in practice be small or even non-existent.
About six months prior to the present case becoming pending, X already considered that the supervisor’s position with regard to the office of a judge may be problematic in the eyes of an observer and bring about unnecessary fear of partiality. Therefore he informed the branch in question that he was no longer at the bank’s disposal as a supervisor. However, from a formal point of view, X’s position as supervisor ended at the end of the term. Having regard to the above concerning a supervisor’s factual role, the Supreme Court considers that regard has to be paid to X’s letter of resignation in assessing whether he was partial in deciding the present case. X resigned specifically with a view to preventing any suspicion as to his impartiality. His conduct has been such that he can be considered to have resigned from the position as a supervisor already when he left his letter of resignation and not when his term formally ended. In these circumstances X’s ties to the bank and its office in question or its management cannot be considered to be such at the time during which the present case has been pending that they warrant the conclusion that there is objectively justified suspicion as to his impartiality.
These reasons can warrant the conclusion that X was not disqualified from examining and deciding the present case”.
The Supreme Court’s decision became a precedent (KKO 2001:69).
The afore-mentioned bank commenced another action against the applicant and her company, claiming repayment of loans. On 22 January 1999 the District Court of Vakka-Suomi sanctioned the claim and ordered the applicant and her company to repay the loans. On 7 January 2000 the Turku Court of Appeal upheld the judgment.
On 13 September 2000 the Supreme Court granted the applicant and her company leave to appeal as far as the disqualification claim against X was concerned. By its judgment of 28 June 2001 (decision no. 1392) it rejected the disqualification claim on the same grounds as in the first set of proceedings.
Chapter 13, section 1 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), as in force at the material time, provided in relevant part:
“... The following shall be the legal grounds for disqualification [of a judge]: when the judge is related by blood or marriage to one or the other party in a manner where marriage is prohibited under chapter 2 of the (1734) Marriage Code, including cousinship by blood although not by marriage; when the judge is the opposing party or a public opponent of a party; when the judge or his or her relative here listed has an interest in the case, when they stand to obtain particular benefit or suffer particular loss as a result of it; when the judge has served as a judge in the case in another court; when the judge has served as an advocate or a witness in the case; or when the judge has previously, on the orders of a court, decided a part of the case; or when the judge has a similar case pending before another court ...”


ITEMID: 001-107703
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SCHWABE AND M.G. v. GERMANY
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 11;Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicants were both born in 1985 and live in Bad Bevensen and Berlin respectively.
6. From 6 to 8 June 2007 a G8 summit of Heads of State and Government was held in Heiligendamm, in the vicinity of Rostock.
7. The police considered that there was a threat of terrorist attacks, in particular by Islamist terrorists, during the summit. Furthermore, having regard to the experience of previous G8 summits, they considered that there was a risk of property damage by left-wing extremists. The latter were found to have planned to protest against, block and sabotage the summit.
8. The police estimated that there would be around 25,000 participants at an international demonstration in Rostock on 2 June 2007, 2,500 of whom were ready to use violence, and that there would be around 15,000 demonstrators present during the summit, 1,500 of whom would be ready to use violence.
9. On 2 June 2007 serious riots broke out in Rostock city centre, involving well-organised violent demonstrators, forming what has been termed a “black block”, who attacked the police with stones and baseball bats. 400 policemen were injured.
10. According to a press release of the Mecklenburg-West Pomerania Ministry of the Interior dated 28 June 2007, some 17,000 police officers had been involved in ensuring that the G8 summit could be held without disruption and in protecting its participants from attacks by terrorists or antiglobalisation demonstrators prepared to use violence. During the summit, 1,112 people had been detained in holding pens for prisoners (Gefangenensammelstellen). The courts had been asked to confirm the detainees’ detention in 628 cases; they had done so in respect of 113 individuals.
11. In June 2007 the applicants drove to Rostock in order to participate in demonstrations against the G8 summit in Heiligendamm.
12. On 3 June 2007 at around 10.15 p.m. the applicants’ identity was checked and established by the police in a car park in front of Waldeck prison, where they were standing next to a van in the company of seven other people. No other people were present in the car park. The police submitted that the first applicant had physically resisted the identity check. He had allegedly hit the arms of a policeman who had attempted to determine the second applicant’s identity. He had also kicked another policeman’s shin in order to prevent his own identity from being determined. The applicants submitted that the second applicant had himself been hit by the police, although he had already been holding his identity card in his hand ready for inspection. The police searched the van and found folded-up banners bearing the inscriptions “Freedom for all prisoners” and “Free all now”. The applicants were arrested. It appears that the banners found were seized.
13. In two separate decisions taken on 4 June 2007 at 4.20 a.m. and 4 a.m. respectively, the Rostock District Court, having examined both applicants in person, ordered their detention (amtlicher Gewahrsam) until 9 June 2007, 12 noon at the latest.
14. Relying on section 55(1), paragraph 2(a), and section 56(5) of the Mecklenburg-West Pomerania Public Security and Order Act (Gesetz über die öffentliche Sicherheit und Ordnung in Mecklenburg-Vorpommern – “the PSOA”, see paragraphs 37-38 below), the District Court found that the applicants’ detention had been lawful in order to prevent the imminent commission or continuation of a criminal offence. As the applicants had been found in front of Waldeck prison in a van in which objects calling for the liberation of prisoners had been discovered, it had to be assumed that they had been about to commit or aid and abet a criminal offence.
15. The District Court further found that the applicants’ continued detention was indispensable and proportionate. At the hearing, both applicants had given the impression that they had intended to proceed with committing an offence. As they had not made any statements or submissions on the merits, they had been unable to justify their conduct.
16. On 4 June 2007 the Rostock Regional Court, in two separate decisions, dismissed appeals (sofortige Beschwerde) lodged by the first and second applicants.
17. The Regional Court confirmed the District Court’s finding that the applicants’ arrest had been lawful under section 55(1), paragraph 2 (a), of the PSOA. As the applicants had been found in the vicinity of Waldeck prison in possession of banners with an imperative wording (“free”), they had intended to incite others to free prisoners and that constituted an offence. Moreover, having regard to the material in the case file, the first applicant had obstructed police officers in the exercise of their duties. The second applicant, for his part, had been charged with dangerous interference with rail traffic in 2002 in connection with the transport of “castor” containers. The Regional Court further agreed with the District Court’s reasoning to the effect that the continuation of the applicants’ detention was indispensable and proportionate.
18. On 7 June 2007 the Rostock Court of Appeal dismissed further appeals (sofortige weitere Beschwerde) subsequently brought by the applicants. In their appeals, the applicants, represented by counsel, had submitted that the slogans on the banners had been addressed to the police and the authorities, urging them to end the numerous arrests and detentions of demonstrators. They had not been meant to call upon others to attack prisons and to free prisoners by force, an interpretation which had to be considered far-fetched, given that there had not been any violent liberation of detainees from German prisons in recent decades.
19. The Court of Appeal upheld the lower courts’ finding that the requirements of section 55(1), paragraph 2(a), of the PSOA had been met. The applicants’ arrest and continued detention was indispensable in order to avert a danger to public security and order. The banner “Free all now”, together with the banner “Freedom for all prisoners”, could be understood as an incitement to liberate prisoners, an offence under Article 120 of the Criminal Code (see paragraph 41 below). The police had been entitled to assume that the applicants had intended to drive to Rostock and display the banners at the partly violent demonstrations there. As a result, a crowd which had been ready to use violence might have been incited to liberate people who had been arrested and detained.
20. In respect of the second applicant, the requirements of section 55(1), paragraph 2(c), of the PSOA (see paragraph 37 below) had also been met. The second applicant had been arrested in 2002 in comparable circumstances on suspicion of dangerous interference with rail traffic in connection with the transport of castor containers. It was irrelevant whether he had subsequently been convicted.
21. The applicants had not contested the courts’ conclusions; they had not made any statements or submissions on the merits. The police had been obliged to take into consideration the general security situation in Rostock on 2 and 3 June 2007. On those days, very violent clashes between demonstrators and the police had taken place in the city centre. Moreover, the applicants had proved to be prone to violence themselves by attacking police officers.
22. The Court of Appeal further considered that the applicants’ right to freedom of expression under the Basic Law did not warrant a different conclusion. It accepted that the slogans on the banners could be understood in different ways. However, in the tense situation in and around Rostock the police had been authorised to prevent ambiguous declarations which could have lead to a risk to public security and order.
23. Furthermore, the duration of the applicants’ detention was proportionate. According to a report by the Rostock police of 6 June 2007, between 6,000 and 10,000 anti-globalisation activists, some of whom were very violent, were moving towards Heiligendamm and were calling for an “attack on the embankment”. It could not be ruled out that the applicants would have participated in those demonstrations with the banners and would thus have incited other demonstrators to liberate prisoners.
24. On 6 June 2007 both applicants lodged a constitutional complaint with the Federal Constitutional Court and applied for an interim injunction ordering their immediate release.
25. The applicants complained that their detention had violated, in particular, their right to liberty and their right to freedom of expression. The second applicant further submitted that his detention had been in breach of his right to freedom of assembly. Both applicants argued that it had been far-fetched to interpret the slogans on the banners as inciting other demonstrators to attack prisons and to liberate prisoners. The banners had been addressed to the police, who had already arrested many antiglobalisation activists, to the participants in the G8 summit and to the public in general, and had not advocated acts of violence. The applicants further stressed that they did not have any previous convictions. The second applicant submitted, in particular, that the criminal proceedings against him for dangerous interference with rail traffic had been discontinued.
26. These complaints were initially registered under file nos. 2 BvR 1195/07 and 2 BvR 1196/07. On 8 June 2007 the reporting judge at the Federal Constitutional Court informed the applicants’ representatives by telephone that the Federal Constitutional Court would not take a decision on the applicants’ request for interim measures.
27. On 9 June 2007 at 12 noon the applicants were released from prison.
28. The applicants’ constitutional complaints of 6 June 2007 were then considered to have become devoid of purpose following their release.
29. On 6 July 2007 the applicants asked the Constitutional Court to find that their detention had been unconstitutional, despite the fact that they had been released in the meantime. Thereupon, their constitutional complaints were registered anew (files nos. 2 BvR 1521/07 and 2 BvR 1520/07).
30. On 6 August 2007 the Federal Constitutional Court, in two separate decisions, declined to consider the first and second applicants’ constitutional complaints, without giving reasons (file nos. 2 BvR 1521/07 and 2 BvR 1520/07).
31. The decision was served on the first applicant’s counsel on 14 August 2007 and on the second applicant’s counsel on 13 August 2007.
32. The criminal proceedings instituted against the first applicant for having obstructed public officers in the exercise of their duties (Widerstand gegen Vollstreckungsbeamte) in the course of the identity check on 3 June 2007 were discontinued, in exchange for the first applicant paying 200 euros (EUR). The criminal proceedings against the second applicant for the same offence were discontinued on grounds of insignificance.
33. The applicants submitted that one of the police officers involved in their arrest had later been convicted of causing bodily harm while discharging public duties in relation to a different matter. They submitted that the proceedings were still pending before the appellate court. The Government did not comment on that point.
34. No criminal proceedings were brought against the applicants for having incited others to free prisoners.
35. On 20 December 2007 the Rostock Court of Appeal dismissed the applicants’ complaints of a violation of their right to be heard.
36. On 1 May 2008 the Federal Constitutional Court declined to consider the first applicant’s fresh constitutional complaint (file no. 2 BvR 538/08) and on 3 May 2008 it declined to consider the second applicant’s fresh constitutional complaint (file no. 2 BvR 164/08). In their complaints the applicants had relied, in particular, on their rights to liberty, to freedom of expression and to freedom of assembly.
37. Section 55(1) of the PSOA, in so far as relevant, provides:
“A person may only be detained if:
1. ... ;
2. this is indispensable in order to prevent the imminent commission or continuation of a criminal offence; the assumption that a person will commit or aid and abet such an offence may be based, in particular, on the fact that
(a) he or she has announced or incited the commission of the offence or carries banners or other items containing such incitement;
...
(c) he or she has been apprehended in the past on comparable grounds as a person involved in the commission of offences, and if facts warrant the conclusion that a repetition of this conduct is to be expected ...”
38. Section 56(5) of the PSOA provides that if the police take a person into custody, they must immediately obtain a judicial decision on the lawfulness and continuation of the detention. The judicial decision must set a maximum duration of detention, which may not exceed ten days in cases governed by section 55(1), paragraph 2. The District Court in the district in which the person concerned was arrested has jurisdiction to take the decision.
39. Under section 52 of the PSOA, the authorities may order a person to leave a place or prohibit a person from going to a specific place (Platzverweisung) in order to avert a real danger. If the facts warrant the conclusion that the person will commit an offence in a specific area, the person may be prohibited from entering that area for up to ten weeks.
40. Under section 61(1) of the PSOA, an item may only be seized in order to avert an imminent danger to public security or order (paragraph 1) or if the facts warrant the conclusion that it might be used in order to commit a criminal or regulatory offence (paragraph 4).
41. Section 120(1) of the Criminal Code provides that anyone who frees a prisoner or incites or helps him to escape is to be punished by imprisonment of up to three years or a fine. Subsection 3 of section 120 provides that an attempt to commit such an offence is also punishable.
42. Sections 112 et seq. of the Code of Criminal Procedure concern pretrial detention. Pursuant to Section 112(1) of the Code, a defendant may be remanded in custody if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him. Pre-trial detention may not be ordered if it is disproportionate to the importance of the case and to the penalty or measure of correction and prevention expected to be imposed.
VIOLATED_ARTICLES: 11
5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-5889
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: JOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Momir Jović, is a Croatian national, born in 1933 and living in Rijeka. He is represented by Mr Miloš Markiš, a lawyer practicing in Rijeka. The respondent Government are represented by their agent Ms Lidija Lukina-Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant served in the Yugoslav People’s Army (YPA) and in 1983 retired from service. His military pension was assessed according to his rank and years of service and was paid from the Federal Pension Fund. The payments terminated in December 1991, following the dissolution of the Federal Republic of Yugoslavia.
However, on 1 February 1993, the Croatian Social Security Fund, Rijeka Office, assessed the applicant’s pension, as from 1 October 1992, to 63,22 % of the amount he had received in December 1991. The applicant appealed against that decision and after his appeal was dismissed, instituted administrative proceedings with the Administrative Court, which dismissed the applicant’s claim on 2 February 1994.
On 1 August 1994 the applicant lodged a constitutional complaint claiming that the decisions of the administrative bodies and the Administrative Court violated his constitutional rights.
The Constitutional Court rejected the applicant’s claim on 21 April 1999.


ITEMID: 001-77888
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: WEBER v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mrs Susanne Weber, is a German national who was born in 1951 and lives in Barntrup. The respondent Government are represented by their Deputy Agent, Mr H.–J. Behrens, Ministerialrat, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s late father was the owner of real estate located in Hoyerswerda in Saxony. In 1944 the German Reich seized that plot of land for the purpose of railway construction, but did not expropriate the land. In 1948 the German State Railways intended to buy that plot of land, but the negotiations between the applicant’s father and the company failed. Following the foundation of the German Democratic Republic (“GDR”) on 7 October 1949 the German State Railways (Deutsche Reichsbahn) of the GDR continued to use the land. The plot has a size of 3,099 square metres. At an unknown point of time the applicant’s father left Hoyerswerda.
At the time of the German reunification on 3 October 1990 the applicant’s father was listed as the real estate’s owner in the land register (Grundbuch). In 1991 the German State Railways and the applicant’s father again negotiated the purchase of the land and agreed on a purchase price of 247,920 Deutschmarks (DEM) (approximately 126,760 Euros (EUR)). However, the German State Railways of the former GDR withdrew its offer shortly before the signing of the contract.
Subsequently the German State Railways of the former GDR and the German State Railways of the Federal Republic of Germany (Deutsche Bundesbahn) merged to form the German State Railways Corporation (Deutsche Bahn AG), which is a State-owned company. The German State Railways Corporation continues to use the plot of land in question. The applicant’s father passed away on 13 November 1994 and the applicant inherited the plot of land. A copy of the land register (Grundbuch) dated 3 June 2005 lists the applicant as the current owner.
The applicant does not pay property tax (Grundsteuer), but the German State Railways Corporation does.
The applicant brought an action for delivery of possession (Klage auf Herausgabe- rei vindicatio) against the German State Railways Corporation in the Bautzen Regional Court. On 24 March 1995 the Regional Court ordered the German State Railways Corporation to deliver (herausgeben) the real estate. The court held that the applicant’s father had never been expropriated and that the applicant was thus the owner. Furthermore, it found that the applicant’s claim had not lapsed (ist nicht erloschen) according to the “Act for the General Settlement of Damages Caused by the War and the Collapse of the German Reich” (“Gesetz zur allgemeinen Regelung durch den Krieg und den Zusammenbruch des Deutschen Reichs entstandener Schäden – Allgemeines Kriegsfolgengesetz – hereinafter called the “General Settlement of Damages Act” – see “Relevant domestic law” below). According to section 1 of that act all claims against the German Reich or the German State Railways are excluded, but according to section 19 claims of delivery of possession (Herausgabeansprüche) are to be satisfied by the successor of the German Reich and the German State Railways.
However, according to the German Unification Treaty of 1990 (Einigungsvertrag) only sections 1 and 2, and not section 19, of the aforementioned act were to apply in the territory of the former GDR (neue Bundesländer - hereinafter called new Länder). Nevertheless, the Regional Court held that the aforementioned provisions had to be interpreted in conformity with the German Basic Law (Grundgesetz), and accordingly, the applicant’s claim could not be excluded.
The Dresden Court of Appeal confirmed the lower court’s decision. It held that the applicant was the owner and that the German State Railways Corporation possessed the real estate within the meaning of the General Settlement of Damages Act. The court considered that the pertinent provisions of the Unification Treaty could not be interpreted in accordance with the German Basic Law. However, it found that sections 19 and following of the General Settlement of Damages Act had to be applied by analogy. It pointed out that when deciding on the Unification Treaty the German Parliament had been of the opinion that section 19 was no longer needed as no such claims existed anymore. Therefore, the Parliament had overlooked that there was still a need for regulation of cases such as the present one. Hence sections 19 and following had to be applied by analogy, as there was no objective reason for treating the applicant’s case differently from one in which the real estate in question was located on the territory of the Federal Republic of Germany (“FRG”) prior to the German reunification (alte Bundesländer- hereinafter called old Länder). The court also pointed out that the applicant was not entitled to any compensation under current German Law for her loss of possession, as the regulations which awarded compensation for acts of the Nazi Regime required an act of expropriation.
While the proceedings were pending before the court, the German State Railways Corporation offered the applicant to buy the real estate for 8.00 DEM (approximately 4.09 EUR) per square metre, resulting in a purchase price of about 12,000 EUR. The applicant refused that offer.
The Federal Court of Justice set aside the judgment of the Court of Appeal. It acknowledged that the applicant was the property’s owner (” die Klägerin ist Eigentümerin eines...Grundstücks”), but rejected her claim for delivery of possession.
The court found that section 19 of the General Settlement of Damages Act could not be applied by analogy as this would be contrary to the legislator’s will. From the pertinent provisions of the Unification Treaty it deduced that the legislator actually intended to treat the owners of real estate located in the old or new Länder differently. It found that, according to the travaux préparatoires, those provisions of the Unification Treaty were meant to be a final settlement of the question of the damages caused by the war and the collapse of the German Reich. The court concluded that the legislator had not wished to include claims such as in the present case, because it considered that there was no further need for regulation. Furthermore, the court found that there was no indication that the legislator might have erroneously overlooked that in some particular cases the need for regulation persisted. On the contrary, the legislator had accepted that in some cases the aim of the General Settlement of Damages Act could not be achieved.
The court held that the rejection of the applicant’s action for delivery of possession did not violate the German Basic Law for the following reasons. The exclusion of claims for delivery of possession did not fall within the ambit of Article 14 of the German Basic Law, which guarantees the right to property (see “Relevant domestic law” below). It doubted that the applicant still had a right protected by that provision. The real estate had been in possession (im Besitz) of the GDR for more than 40 years. Therefore, it found that the applicant’s property had become an “empty shell” (bloβe Hülse). In any event, Article 14 of the German Basic Law was not applicable as Article 135 § 2 of the German Basic Law was lex specialis in the present case (see “Relevant domestic law” below). It stipulates that the FRG can determine which liabilities of the GDR are to be satisfied.
The court pointed out that in the context of the German reunification similar questions had arisen as after the end of the Second World War. In 1957 the Parliament of the FRG had passed the afore-mentioned General Settlement of Damages Act in order to determine the liabilities accumulated by the German Reich. To rectify the de facto bankruptcy of the German Reich, the FRG was in general allowed to repudiate the liabilities of the German Reich.
The Federal Court of Justice held that this reasoning could be applied to the situation subsequent to the German reunification, as far as it concerned the damages caused by the war and the collapse of the German Reich with which the GDR had not dealt. Therefore, the FRG was entitled to choose which liabilities it would fulfil. The court stressed that the legislator, when assessing the State’s financial capacity in this respect, enjoyed a wide margin of appreciation.
The court furthermore held that the applicant had not been discriminated against contrary to Article 3 of the German Basic Law (see “Relevant domestic law” below). It pointed out that under GDR law the applicant’s right of ownership had already been diminished, as her real estate had been in public use during the entire time. Furthermore, there had been more than 40 years between the end of the war and the German reunification. It concluded that the German legislator had had a wide margin of appreciation in this respect, in particular regarding the financing of the German reunification.
Lastly it found that even the fact that the applicant permanently lost the possession of her property while remaining proprietor did not make a difference. The court held that this had to be accepted (hinnehmen) by the applicant. It further denied any compensation under civil law for the continued use of the property by the German State Railways Corporation, stating that such claims had lapsed as well according to the General Settlement of Damages Act.
On 27 August 1998 the applicant lodged a constitutional complaint solely invoking Article 3 of the Basic Law (prohibition of discrimination).
On 4 August 1999 the Federal Constitutional Court refused to admit the applicant’s complaint against the judgment of the Federal Court of Justice and the above-mentioned provisions of the Unification Treaty. It acknowledged that the applicant had suffered a disadvantage in comparison to owners whose property, located in the old Länder, had been seized by the German Reich during the war. However, the court found that this disadvantage did not breach Article 3 of the German Basic Law, as there were objective reasons for it. It found that the Second World War had led to the establishment of two German States with different forms of Government and social orders. Each State had dealt with the damages caused by the war and the collapse of the German Reich in a different way and was responsible for those caused in its territory. Therefore, the FRG was under no obligation to compensate for damages which had not been taken care of by the GDR. Moreover, the court found that the FRG would have been administratively and financially overstrained with that task in any event. It concluded that the disadvantage suffered by the applicant was reasonable (zumutbar), in particular because, more than 40 years after the end of the Second World War, the applicant could not expect to ever resume possession of her property again.
The relevant provisions read as follows:
Section 1
Forfeiture of Claims
“(1) Claims against
the German Reich, including the separate estates of the German Railways (Deutsche Reichsbahn) and the German Post (Deutsche Reichspost),
the former Land of Prussia,
the enterprise German Motorways (Reichsautobahnen)
expire, unless this Act provides differently. ...”
Section 2
Claims placed on a footing of equality (gleichgestellte Ansprüche)
“The provisions of this Act are to be applied, as appropriate, to
...
2. Claims against the Federal Government (Bund) or public legal entities (öffentliche Rechtsträger) to delivery (Herausgabe) of property seized by the legal entities listed in section 1 paragraph 1. ...”
Section 19
Claims based on rights in rem (dingliche Ansprüche) and claims based on a violation of such rights
“(1) Claims (section 1) based on property or other rights in rem and aimed at delivery (auf Herausgabe der Sache) shall be honoured.
...”
Appendix I Chapter IV Section A Paragraph 1 No. 12
“Federal Law will enter into force according to Article 8 of the Treaty except for the following:
...
12. Act for the General Settlement of Damages Caused by the War and the Collapse of the German Reich, ... except for sections 1 and 2.”
The relevant provisions are worded as follows:
Article 3
“(1) All persons shall be equal before the law.
...”
Article 14
“(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.
(2) Property entails obligations. Its use shall also serve the public good.
(3) Expropriation shall only be permissible in the public interest. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute respecting the amount of compensation, recourse may be had to the ordinary courts.”
Article 135a
“(1) Federal legislation enacted pursuant to paragraph (4) of Article 134 or paragraph (5) of Article 135 may also provide that the following obligations shall not be performed, or that they shall be performed only in part:
1. obligations of the Reich, of the former Land of Prussia, or of such other corporations and institutions under public law as no longer exist;
2. such obligations of the Federation or of corporations and institutions under public law as are connected with the transfer of assets pursuant to Article 89, 90, 134, or 135, and such obligations of these bodies as arise from measures taken by the bodies designated in subparagraph 1;
...
(2) Paragraph (1) of this Article shall apply mutatis mutandis to obligations of the German Democratic Republic or its institutions as well as to obligations of the Federation or other corporations and institutions under public law that are connected with the transfer of assets of the German Democratic Republic to the Federation, Länder, or municipalities, and to obligations arising from measures taken by the German Democratic Republic or its institutions.”


ITEMID: 001-73062
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SARI AND ÇOLAK v. TURKEY [Extracts]
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-3;Not necessary to examine Art. 5-1-c;Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: András Baka;Jean-Paul Costa;Karel Jungwiert;Mindia Ugrekhelidze
TEXT: 7. The applicants, Mr Sarı and Ms Çolak, were born in 1973 and 1977 respectively. At the material time they lived in Ankara.
8. On 17 November 1997, at 11.45 p.m., the applicants were arrested and taken into police custody by officers of the Ankara security police in connection with an investigation into the illegal organisation THKP-C Dev Yol – Devrim Hareketi (Turkish People’s Liberation Party-Front – Revolutionary Way – Revolutionary Movement).
9. The applicants’ detention in police custody was extended, under section 16 of Law no. 2845 (see paragraph 17 below), initially until 21 November 1997, on the authorisation of the public prosecutor at the Ankara National Security Court, and subsequently until 23 November 1997 (inclusive) by order of a judge of that court.
10. Before the end of their police custody period, on 23 November 1997 at 11.45 p.m., the applicants were questioned by the public prosecutor. They were not brought before a judge until the following morning, that is to say on 24 November 1997. The judge ordered Ms Çolak to be released for the duration of the proceedings and remanded Mr Sarı in custody.
11. By a bill of indictment of 8 December 1997, the public prosecutor committed the applicants to stand trial before the National Security Court. He called for their conviction, under Article 168 § 2 of the Criminal Code, on a charge of belonging to an armed gang.
12. Following a hearing on 9 June 1998 before a trial court, Mr Sarı was granted provisional release.
13. In a judgment of 22 April 1999, after reclassifying the offence, the National Security Court found the applicants guilty of aiding and abetting an armed gang, an offence punishable under Article 169 of the Criminal Code. It sentenced them to three years and nine months’ imprisonment each, and banned them from holding public office for three years.
14. The applicants appealed on points of law against that judgment.
15. In a judgment of 23 February 2000, the Court of Cassation quashed the judgment on account of an erroneous classification of the offence.
16. The National Security Court, in a judgment of 7 November 2001, deferred its decision on the applicants’ case.
17. Pursuant to section 9(a) of Law no. 2845 on procedure in the national security courts, the offences provided for under Articles 125, 168 and 169 of the Criminal Code fall within the exclusive jurisdiction of those courts. At the material time, section 16 of that Law provided that any person arrested in connection with one of those offences had to be brought before a judge within forty-eight hours at the latest, or, if the offence was a joint one committed outside the region under emergency rule, within seven days, not including the time needed to convey the prisoner to the judge.
18. The fourth paragraph of Article 128 of the Code of Criminal Procedure provides that any person who has been arrested, or whose police custody period has been extended on the order of a public prosecutor, is entitled to challenge that measure before the appropriate judge with a view to securing his or her immediate release. Such an application may also be lodged by the person’s lawyer, legal representative, close relatives or spouse.
The third paragraph of Article 128 of the Code of Criminal Procedure, amended by Law no. 4744 of 6 February 2002, reads as follows:
“After an arrest has been made, and upon a decision of the public prosecutor, [the authorities] shall promptly inform a relative, or other person designated by the arrested person, that he or she has been arrested or that his or her police custody period has been extended.”
VIOLATED_ARTICLES: 5
8
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-85618
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ADAMICEK v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Richard Adamíček, is a Czech national who was born in 1964 and lives in Napajedla. He was represented before the Court by Mr I. Juřena, a lawyer practising in Zlín. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 February 1997 the applicant lodged an action with the Zlín District Court (okresní soud) against a certain B.D., seeking the payment of CZK 352,000 (EUR 13,541).
It appears that the proceedings are still pending.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-94009
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MOSKAL v. POLAND
IMPORTANCE: 2
CONCLUSION: Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant, Ms Maria Moskal, is a Polish national who was born in 1955 and lives in Glinik Chorzewski.
6. The applicant is married with three children. She has a medium-level education. Prior to her early retirement she was employed for thirty-one years and had paid her social security contributions to the State. Her child, born in 1994, suffers from atopic bronchial asthma (atopowa astma oskrzelowa), various allergies and recurring sino-pulmonary infections.
7. On 6 August 2001 the applicant filed an application with the Rzeszów Social Security Board to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension.
8. The particular type of pension sought by the applicant was at the relevant time regulated by the Cabinet’s Ordinance of 15 May 1989 on the right to early retirement of employees raising children who require permanent care (Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki) (“the 1989 Ordinance”).
9. Along with her application for a pension, the applicant submitted, among other documents, a medical certificate issued on 2 August 2001 by a specialist in allergy and pulmonology from the Health Service Institution in Strzyżów (Zespół Opieki Zdrowotnej). The certificate stated that the applicant’s seven-year-old son had suffered from the age of three months from atopic bronchial asthma, various allergies, as well as frequent sinopulmonary infections often accompanied by fever and bronchial constriction (spastyczne skurcze oskrzeli). Consequently, he was in need of his mother’s constant care. It was further noted that the medical certificate had been issued in connection with the application for an early-retirement pension regulated by the 1989 Ordinance in view of the need to provide permanent care to the child from 31 December 1998 onwards.
10. On 29 August 2001 the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) issued a decision granting the applicant the right to an early-retirement pension in the amount of 1,683 Polish zlotys (PLN) gross (PLN 1,020 net), starting from 1 August 2001. In the same decision, however, the Social Security Board suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision.
11. On 31 August 2001 the applicant resigned from her full-time job as a clerk at the Polish Telecommunications Company in Rzeszów, where she had been employed for the past thirty years.
12. Consequently, on an unspecified date, the Rzeszów Social Security Board issued a new decision authorising the payment of the previously awarded retirement pension starting from 1 September 2001.
13. Subsequently, the applicant was issued with a pensioner’s identity card marked ‘valid indefinitely’ and for the following ten months she continued to receive her pension without interruption.
14. On 25 June 2002 the Rzeszów Social Security Board issued two decisions. By virtue of the first decision, the payment of the applicant’s pension was discontinued starting from 1 July 2002. By virtue of the second decision, the Board revoked the initial decision of 29 August 2001 and eventually refused to award the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance. The latter decision stated that on 4 June 2002 the proceedings concerning the applicant’s right to a pension had been re-opened ex officio and that, as a result, “the medical certificate attached to her application for a pension had been found to raise doubts [as to its accuracy]”. Furthermore, the following standard clause appeared in the decision:
“In the light of the medical documentation obtained concerning the child, it was established that the condition with which the child had been diagnosed was not enumerated in the [1989] Ordinance, and the analysis of the level of severity and the course [of the disease] did not indicate an impairment of bodily functions to such a degree as to justify the award of the pension [on account of] the necessity of permanent care of the child. It follows that the medical certificate serving as the basis for the award of the benefit is not supported by medical documentation. Consequently the right to a retirement pension is denied.”
15. The applicant appealed against the decision of 25 June 2002 divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her son required her constant care, as confirmed by the medical certificate attached to the original application. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights.
16. On 26 February 2003 the Rzeszów Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal.
17. A medical report by an expert in pulmonology was ordered by the Regional Court. Having examined the medical documentation concerning the applicant’s son, as well as the child in person, the expert found that the applicant’s son suffered from sporadic bronchial asthma and recurring sinopulmonary infections. The expert concluded that the child did not require, as of 31 December 1998 or at the time of the proceedings, his mother’s permanent care, her nursing or any further aid, since his bronchial asthma did not significantly impair his respiratory functions. He further observed that the applicant’s care was needed only when the child’s condition occasionally became more severe.
18. Relying on the above expert opinion, the Regional Court held that the applicant had been rightfully divested of the right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care. The Regional Court did not examine the case from the standpoint of the doctrine of vested rights.
19. On 16 October 2003 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal against the aforementioned judgment. The Court of Appeal agreed with the findings of fact contained in the expert opinion produced in the course of the first-instance proceedings to the effect that the applicant’s son did not require at the relevant time his mother’s permanent care.
20. On the issue of the re-opening of the proceedings, the Court of Appeal observed that decisions concerning retirement and disability pensions were only of a declaratory character. Therefore, they could be quashed by a social security authority where new evidence had been submitted or relevant circumstances, which pre-existed the initial pension award but which had not been taken into consideration by the authority beforehand, had come to light.
21. Furthermore, the Court of Appeal observed that pension decisions could be verified even in the light of pre-existing circumstances which had not been taken into consideration as a result of the authority’s own mistake or negligence. On the other hand, the Court of Appeal agreed with the applicant that the proceedings could not be re-opened as a consequence of a different assessment of the very same evidence which had accompanied the original application for a pension.
22. The Court of Appeal found that, in the instant case, the impugned pension proceedings had been re-opened because relevant circumstances pre-existing the initial pension award had been discovered by the authority in the course of a supplementary examination of the child’s entire medical record by the Social Security Board’s doctor (lekarz orzecznik).
23. Finally, the Court of Appeal stated that the doctrine of vested rights did not apply to rights acquired unjustly, for example when a person had been granted a right to a pension whereas in fact he or she had never met the requirements laid down in the relevant provisions. The Court of Appeal recalled that the purpose behind the 1989 Ordinance was to enable the carers of children with extremely severe disorders to take early retirement. It was aimed at providing a substitute source of income in cases where persons had lost their wages owing to the need to terminate their employment in order to take care of their sick children on a permanent basis. The Court of Appeal emphasised that, in such circumstances, it was necessary for the social security authorities to make a careful examination of whether or not persons applying for the right in question satisfied all the requirements.
24. On 7 May 2004 (decision served on 7 August 2004) the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal, fully endorsing the Court of Appeal’authority had lacked evidence as to the severity of the child’s condition, since the medical certificate attached to the application did not specify those activities which the child could not perform due to his alleged impairment. The fact that the aforementioned evidence had been lacking at the date of the decision did not come to light until after the validation of the decision. Therefore, the impugned proceedings had been re-opened due to the discovery of new relevant circumstances and not on the basis of a reexamination of the very same evidence attached to the applicant’s application for a pension.
25. The applicant was not ordered to return her early-retirement benefits paid by the Social Security Board from 1 September 2001 until 1 July 2002, despite the revocation of her right to the early-retirement pension.
26. In the period from 1 July 2002 (the date on which the payment of the applicant’s “EWK” pension was discontinued) to 25 October 2005 the applicant was not in receipt of any social benefits. The applicant submitted that in that period she had had no other income.
As a result of separate social security proceedings, which had been instituted by the applicant, the Strzyżów District Labour Office (Powiatowy Urząd Pracy) decided on 25 October 2005 to grant the applicant a preretirement benefit (zasiłek przedemerytalny) in the amount of 523 Polish zlotys (PLN) net. Because, under the applicable law, a three-year statute of limitations applies to social security claims the decision to grant the right had a retroactive effect, with a starting date of 25 October 2002.
As a result, on an unspecified date, presumably on 1 August 2004, the applicant received a pre-retirement benefit in the form of a lump-sum payment for the period between 25 October 2002 and 31 July 2004, without interest.
The benefit was at first paid by the Strzyżów Regional Labour Office (Powiatowy Urząd Pracy) and since 1 August 2004 it was paid by the Rzeszów Social Security Board. As of March 2008 the applicant’s preretirement benefit amounts to 594 Polish zlotys (PLN) net.
27. In the light of the law as it now applies, it appears that the applicant will qualify for a regular retirement pension in 2015.
28. Approximately 120 applications arising from a similar fact pattern have been brought to the Court. The applicant in the instant case and most of the other applicants form the Association of Victims of the Social Security Board (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region.
29. The applicant submitted, according to the Association, that only 10% of the total number of “EWK” pension recipients had been subjected to review and re-opening under Section 114 of the 1998 Law.
30. The Government submitted that as of the end of 2006 approximately 76,600 individuals had been in receipt of the “EWK” pension. Although there were no statistics as to how many pensions had been revoked either countrywide or in each region, that number was very small.
31. The system of social security in Poland is regulated by the Law of 13 October 1998 on the system of social insurance (Ustawa o systemie ubezpieczeń społecznych) and a number of other acts applying to specific occupational groups and regulating specific types of benefits.
Proceedings for granting welfare benefits are two-tier. First, an application for a benefit is made to the regional Social Security Board. The board makes an assessment of the eligibility criteria for each type of benefit and issues a decision. Then, in the event that an individual concerned appeals, the decision becomes subject to judicial review by a social security court, which is a specialised branch of a regional civil court. The Social Security Board is a State authority which carries out administrative functions and issues declaratory decisions. In the judicial review phase, the Board becomes a party to the proceedings before the social security court.
A judicial decision taken by the regional social security court may then be challenged by either party to the proceedings before a special social security branch of a court of appeal. Ultimately, a decision delivered by an appellate court may be appealed to the Supreme Court. This remedy is available irrespective of the amount of the claim.
32. The 1989 Ordinance ceased to be in force on 31 December 1998. However, its provisions remained in operation with regard to persons who had met the requirements of an early-retirement pension before that date but had failed to apply for the benefit in due time. The conditions to be fulfilled by a person in order to qualify for an early-retirement pension were laid down by paragraph 1 of the 1989 Ordinance.
Paragraph 1.1 contained a reference to section 26 paragraph 1 point 2 of the Law of 14 December 1982 on retirement pensions of employees and their families. In the relevant part it provided that persons entitled to an earlyretirement pension were those persons (both women and men) who had been employed for at least 20 or 25 years and who personally took care of a child.
Paragraph 1.2 provided that for children under the age of 16 it was not necessary to submit an official Social Security Board disability certificate. It was sufficient to present a medical certificate issued by a specialist medical clinic stating: “due to the health condition, caused by one of the diseases enumerated in paragraph 1.3, the child requires permanent care”.
Paragraph 1.3 provided that early retirement was justified by the following physical and/or mental conditions of the child:
“1. Complete dysfunction of upper or lower limbs, pareses and palsies, which prevent the child from independent movement and from controlling his or her physiological functions;
2. Mild, moderate and severe mental retardation, mental disorders, injury or disease of the central nervous system, making impossible autonomy in decisions or in daily activities;
3. Mild mental retardation with accompanying significant impairment of movement, sight, hearing or other chronic diseases significantly impairing bodily functions;
4. Other diseases impairing body effectiveness to a very serious degree.”
33. The re-opening of the proceedings concerning the benefit in question is regulated in section 114 of the 1998 Law, which at the relevant time read as follows:
“114.1 The right to benefits or the amount of benefits will be re-assessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.”
34. In its resolution of 5 June 2003 (no. III UZP 5/03), adopted by a bench of seven judges, the Supreme Court (Sąd Najwyższy) dealt with the question submitted by the Ombudsman (Rzecznik Praw Obywatelskich) as to whether a different assessment of the evidence attached to the application for a pension, carried out by a social security authority after validation of the decision concerning the pension, might constitute a ground for reopening the proceedings leading to a review of the right to a pension in accordance with section 114 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund. The answer was in the negative. The Supreme Court held, inter alia:
“A different assessment of the [same] evidence as attached to the application for a retirement or disability pension, carried out by a social security authority after validation of the decision awarding the right to a pension, is not one of the circumstances justifying the ex officio re-opening of the proceedings for a review of the right to a pension in accordance with section 114 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund.”


ITEMID: 001-106542
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: TRZEPALKO v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Andrzej Trzepałko, is a Polish national who was born in 1950 and lives in Pruszków. He was represented before the Court by Ms M. Krasnodębska and Ms M. Gąsiorowska, lawyers practising in Warsaw.
2. On 11 March 2007 the applicant’s thirty-year-old daughter went into labour after a normal pregnancy. At 3.40 a.m. she was admitted to the maternity ward of the Bródnowski Hospital in Warsaw and, following an episiotomy, gave birth to a healthy baby boy at 7.30 a.m.
3. Following the delivery, she repeatedly complained to her parents and the hospital staff about intense pain in the perineum. She was unable to care for the baby. It appears that she behaved unusually as she lost interest in the baby and attempted to leave the hospital.
4. According to the applicant, twenty-four hours following the delivery the level of his daughter’s white blood cells considerably decreased and she suffered from low blood pressure, low temperature, intense pain, incoherent speech and temporary loss of consciousness. The applicant submits that the hospital staff did not react to those symptoms and did not administer any treatment.
5. On 13 March 2007 the applicant’s daughter was transferred to the intensive care unit. On the following day the hospital contacted her parents to inform them that her condition was very serious. On 15 March 2007 she died.
6. On 16 March 2007 the applicant filed a criminal complaint with the Warsaw-Praga Północ District Prosecutor. The prosecutor instituted an investigation into the case of unintentional homicide of the applicant’s daughter (Article 155 of the Criminal Code).
7. On 22 March 2007 an autopsy was carried out. It established the presence of streptococcus A bacteria in the body of the applicant’s daughter. No such bacteria had been found at the hospital following the examination of the medical personnel and the hospital premises.
8. Upon the applicant’s request, the District Sanitary Inspectorate carried out a control of the hospital on 16, 19 and 20 March 2007. It established that the bacteria at issue had not been found in any of the patients who had shared the room with the applicant’s daughter, or in any of the hospital staff who assisted at the delivery, nor on the hospital premises. The inspectors identified a number of shortcomings at the hospital, such as overcrowding of the maternity ward, but concluded that none of these shortcomings could have led to the applicant’s daughter being infected with the bacteria.
9. On 28 September 2007 the District Prosecutor ordered that an expert in hospital infections prepare a report for the purposes of the investigation. The report, which took into account the medical notes of the applicant’s daughter, the results of the control carried out by the Sanitary Inspectorate and the records of witnesses’ interviews, was submitted on 8 August 2008.
10. The expert found that the death had almost certainly resulted from sepsis and the related Multiple organ dysfunction syndrome (MODS) caused by a streptococcus A. That bacterium, which had been identified in the body of the applicant’s daughter on 13 March 2007, created very dangerous toxins which led to sepsis carrying a particular risk of fatality. The infection most likely originated from the perineum and the bacteria had already been present there before the delivery. The probability that the bacteria was transmitted from the hospital environment had been lower that 10%. All factors pointed to the probability that the applicant’s daughter had been infected prior to her admission to the hospital. In particular, no other patients had been infected and the bacteria had not been present in the hospital environment. The expert excluded the possibility that the infection had resulted from medical negligence of the hospital staff.
11. As regards the medical treatment, the expert established that the actions of the doctors had been adequate with respect to the condition of the patient and compatible with medical science. They could be reproached for their lack of reaction during the first twenty-four hours; however the sepsis had developed in a particular manner, namely without any accompanying fever. There were no other symptoms suggesting a developing infection and the applicant’s daughter had complained about pain in the perineum, which was typical following a delivery. Furthermore, the applicant’s daughter took – without consulting the doctors – excessive doses of paracetamol which could have disguised the infection and caused paracetamol toxicity. Following the diagnosis of infection, the medical treatment administered was comprehensive and adequate and the hospital staff had acted with the requisite diligence.
12. In the course of the investigation the prosecutor also heard members of the medical personnel, fellow patients and friends who had visited the applicant’s daughter.
13. On 11 September 2008 the Warsaw-Praga Północ District Prosecutor discontinued the investigation, finding that the offence of unintentional homicide had not been committed. Having regard to all the evidence and, in particular, the expert report, the prosecutor found that the death of the applicant’s daughter had not resulted from medical negligence. The hospital staff had administered adequate and appropriate treatment for her condition and had not, in any degree, contributed to her death.
14. On 25 September 2008 the applicant’s lawyer appealed. She pointed out that two important witnesses, namely the head of the obstetrics department and the doctor who had supervised the applicant’s daughter, had not been heard. The prosecutor failed to establish whether other women had been infected with the same bacteria in the hospital despite the fact that the applicant had provided him with details of a woman who had been so infected. The applicant’s lawyer also contested the findings of the expert. In particular, she averred that the response of the medical personnel to the deteriorating condition of the applicant’s daughter within the first fortyeight hours had been inadequate and limited to administering pain killers. Furthermore, the expert had not addressed the fact that not all of the doctors, midwives and nurses working at the obstetrics department had been tested for the bacteria. The expert had wrongly assessed the evidence and had erred in concluding that there had been no medical error on the part of the hospital staff. Consequently, the prosecutor’s decision that the death of the applicant’s daughter had not resulted from the actions of the medical personnel had been erroneous and needed to be revisited. The applicant filed his own appeal.
15. On 27 November 2008 the Warsaw Praga-Północ District Court upheld the District Prosecutor’s decision of 11 September 2008. It held that the prosecutor had obtained sufficient and relevant evidence and had assessed it correctly. Similarly, there were no grounds to contest the prosecutor’s factual findings or his legal assessment of the case.
16. The court found that the appeals had not put forward any arguments which could have resulted in the quashing of the decision. More specifically, it held that the allegations of the prosecutor’’s decision was based on the ample evidence obtained from the hospital staff (doctors and nurses) and the fellow patients, and, in particular, on the results of the autopsy and the expert report. The expert concluded, with the probability nearing on certainty, that the death had resulted from sepsis and the related MODS caused by a streptococcus A bacteria. The infection had not originated from the hospital environment and had not been caused by medical negligence. As regards the treatment administered to the applicant’s daughter both during and following her labour, the expert considered it adequate and appropriate. The court, despite the applicant’s misgivings, found no grounds to contest the reliability of the expert report. Furthermore, it considered that the alleged prosecutor’s failures to obtain additional evidence proposed by the applicant would not in any event change the conclusion of the investigation.
17. Article 155 of the Criminal Code of 1997 provides that a person who unintentionally causes the death of a human being shall be sentenced to a term of imprisonment between three months and five years.