ITEMID: 001-109138
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF EREMIASOVA AND PECHOVA v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicants are Czech nationals who were born in 1978 and 1938 respectively, and live in Brno.
6. According to police records, on 18 June 2002 V.P., partner of the first
applicant who gave birth to his child in February 2003 and son of the second, of Roma origin, was arrested by the police on suspicion of having committed a burglary and transported to the Brno-Královo Pole District Police Department (the “District Police Department”). Having been questioned between 2 p.m. and 3.05 p.m., he was charged with illegal entry into a dwelling and theft at 6.20 p.m.
7. According to the statement made by the police officers, at approximately 4 p.m., V.P. had been situated in the separate waiting-room on the ground-floor. Between 5 p.m. and 6 p.m., finger-prints were taken. After that, V.P. had been taken into the office situated on the second floor of the police station, in order to be informed about the charges.
8. According to the official report, at 6.30 p.m., after signing the notice of charges, V. P. asked to use the toilet claiming that it was urgent. It was decided that two police officers would accompany him to the ground floor of the police building due to the fact that there were no bars at the toilet located on the second floor. On the ground floor, V. P. was not allowed to close the door of the toilet for security reasons. On the way back, police officer P. walked in front of V. P. and officer K. was on the latter’s right holding his wrist. There are discrepancies between different statements of officers K. and P. as to whether officer K. held V.P.’s left or right wrist with his left hand. Handcuffs were not used and the grasp was not very firm due to V. P.’s calm behaviour. The group went without any problems through the mezzanine floor between the ground and the first floor where windows were provided with bars. When officer P. had already crossed the mezzanine floor between the first and the second floor and when V.P. and officer K. were just arriving to the mezzanine floor, V. P. suddenly turned, struck with his open palm the left shoulder of the officer who held him by the wrist, broke away and jumped, head first, through a closed window into the yard. After having reeled, officer K. unsuccessfully attempted to catch him by the legs as they disappeared through the broken window. The police officers started to shout in order to have an ambulance called, ran out to the yard and provided, together with other officers, first aid to V. P. He was taken to the hospital by ambulance and died the next morning at 7.15 a.m.
9. On the very same day, the Brno Complaints and Monitoring Unit (the “Complaints and Monitoring Unit”) started an investigation. They inspected the scene of incident, sketched and photographed it. All participants were invited to draw an official record (úřední záznam) where they would comment on the incident.
10. The District Police Department opened an investigation on suspicion of the commission of the crime of participation in a suicide and conducted a number of investigative acts. Between 7.30 and 8.20 p.m. the Technical Criminal Unit surveyed the scene of incident, sketched it and drew a report.
An officer from the Supervision Department of the Minister of the Interior (“the Supervision Department”) inspected the scene of incident, took explanations from the Head of the District Police Department, police officer P., and police officer W. However, she did not speak to police officer K. as he was being provided with necessary medical aid resulting from the assault by V.P. Basing her conclusion on the preliminary findings of the control and monitoring bodies, she concluded that there were no grounds for suspecting the police officers of having committed a crime. Accordingly, the investigations were further led by the Complaints and Monitoring Unit.
11. Still on 18 June 2002, the police officers who had had contact with V.P. prior to his death (police officers P. and K., and the police officers who had been investigating V.P.’s criminal activity) drew separate official records (úřední záznam) where they commented on the incident. In his official record, officer K. stated he had held V.P.’s right wrist during the escort. Officer P. did not mention which wrist it had been.
12. On 19 June 2002 the medical report issued upon request of the Head of the District Police Department by the hospital to which V.P. had been brought, stated that death probably resulted from serious cerebral injury.
13. At 0.30 the Head of the District Police Department described the incident to the first applicant and V.P.’s sister. A few hours later the Head of the District Police Department ordered an autopsy on the body, which was performed by two experts on the same day.
14. A preliminary autopsy report was issued on 21 June 2002. It concluded that “The death of [V.P.] unequivocally resulted from violent causes as a consequence of massive blunt violence to the head area. This mechanism entirely corresponds with injuries following a fall from a height. During the autopsy no indications were found which would unequivocally suggest third party active intervention in the death of [V.P.]”. The autopsy findings were described in a report of 16 July 2002 which inter alia stated that “During the autopsy no indications were found which would unequivocally suggest third party active intervention in the death of [V.P.]. Therefore, the autopsy findings are not in contradiction with the police statement that the injuries had been caused by the fall from a height upon jumping through a closed window from the second floor of a building.” It was noted that V.P. was 170 cm tall, weighed 58 kg and had been brought to the Institute of Judicial Medicine without clothes.
15. On 19 June 2002 the Head of the District Police Department ordered expert toxicological examination of V.P.’s body. On 19 July 2002 the expert concluded that no such substances had been found.
16. On 19 June 2002 the Technical Criminal Unit ordered an expert analysis of the biological material retained on the day of the incident from the frame of the window V.P. had jumped through. An expert report was established on 31 July 2002 by the South-Moravia Region Department of Criminalist Technique and Expertise of the Police. It specified that the hair secured on the window morphologically corresponded to V.P.’s hair.
17. On 19 June 2002 the brother of V.P. and the first applicant filed a criminal complaint with the Supervision Department against the police officers on duty at the station. According to the protocol, V.P.’s brother alleged that V.P. had obviously been thrown out of the window.
18. On 20 June 2002 the Director of the Brno Municipal Police Directorate, having seen the results of the internal police enquiry conducted by the Complaints and Monitoring Unit into the escort, found that the provisions of the internal police regulations had not been breached by the respective police officers. Given that the incident was being investigated by the Supervision Department, the Brno Police Directorate discontinued the investigation.
19. On 24 June 2002 the Supervision Department initiated an inquiry into the allegations of V.P.’s brother and the first applicant on suspicion of abuse of power by the police officer.
20. On 25 June 2002 the Head of the District Police Department and the police officers K. and P. were questioned. The unit which took their statements is not identified in the protocol. It would however seem that the statements were taken by an officer of the Supervision Department. Police officers K. and P. stated inter alia that V.P.’s behaviour had been calm during the whole escort and that nothing indicated that he would do anything unexpected. Officer K. stated that after V.P. had been picked up by an ambulance, he had gone to the doctor because he had felt pain in his shoulder. He also stated that after several days he could still only move his shoulder in a limited way. Officer K. stated that he had held V.P. by his left wrist during the escort, while officer P. stated it had been V.P.’s right wrist.
21. On 27 June 2002 the officers of the District Police Department questioned officers K. and P. Officer K. stated again that he had held V.P.’s left wrist, while officer P. did not mention which wrist it had been.
22. On 26 July 2002 the Supervision Department denied access to the investigation file to the first applicant’s representative as the officer in charge of the investigation was absent.
23. On 29 July 2002 the Supervision Department informed the first applicant’s representative that the applicants could study the file after 5 August 2002.
24. On 30 July 2002 the first applicant’s representative unsuccessfully complained about the denial of access to the case-file to the Brno-venkov District Prosecutor. He also raised other complaints about the inquiry. In a letter of 1 August 2002 the District Prosecutor informed him that the denial was due to his failure to present a power of attorney. The applicants state that their representative had a duly signed power of attorney when he requested access to the file at the Supervision Department and that the officer reasoned her denial of access to the file because the officer investigating the case was on vacation. Thus, the representative was only enabled to study the file on 5 August 2002.
25. On 8 and 9 August 2002 the sister and the brother of V.P., respectively, were questioned. They both pointed out that V.P. had been in a good mental and physical condition and had never thought of suicide.
26. On 15 August 2002 the Supervision Department decided not to proceed with the first applicant’s criminal complaint against the police officers. It found no reasonable suspicion of any offence on the part of the police officers. Except for the additional evidence described above, the Supervision Department based its investigation and conclusions on the official records made by the District Police Department and the Complaints and Monitoring Unit, which contained the description of the scene of incident, the photographic evidence, the autopsy report, toxicological reports, and the official records.
27. On 22 August 2002 the first applicant filed a complaint against this decision, stating that the investigation was not objective and impartial. She pointed to a number of deficiencies in the inquiry.
28. On 3 September 2002 the district prosecutor quashed the decision of 15 August 2002 as premature and remitted the case to the Supervision Department for further investigation.
29. On 4 September 2002 the district prosecutor requested the Supervision Department to procure the following evidence: (i) witness statements from the officer of the Supervision Department who visited the scene of event on the day of incident; (ii) witness statements from rescuers, doctors, and experts who carried out the autopsy to provide inter alia information about V.P.’s injuries and clothes; (iii) information about all officers present at the police station at the time of the incident and their activity; (iv) written evidence on V.P.’s personality (for example any previous attempts to commit suicide); (v) forensic expert report regarding the physical mechanics of breaking windows and the subsequent fall; (vi) a reconstruction of the incident at which the district prosecutor and an expert would attend.
30. On 1 October 2002 the officer of the Supervision Department who had inspected the scene of incident on the day of incident was heard.
31. In a letter of 8 October 2002 the district prosecutor informed the applicant’s representative that there were no shortcomings in the conduct of the investigation by the police and that the issue that the initial investigation had been led by the Complaints and Monitoring Unit complied with Instruction of the Police President No. 130 of 30 November 2001. An officer of the Supervision Department had immediately arrived to the scene of incident but had not found any signs of commission of a crime by the police officers.
32. On 24 October 2002 the doctors who had carried out the autopsy and established the autopsy report made an official statement before the Supervision Department. They reiterated that no indications of active intervention of a third party had been found but clarified that this could not be unequivocally determined due to the extensive and interrelated injuries.
33. On 20 February 2003 the Supervision Department concluded that due to the expert report in the field of forensic biomechanics that had been ordered on 21 January 2003, there was no need to conduct a reconstruction of the incident.
34. On 21 February 2003 the Supervision Department again decided not to proceed with the first applicant’s criminal complaint against the police officers, finding that there was no reasonable suspicion of an offence. The Supervision Department relied on the forensic biomechanics report of 6 February 2003 which had stated that the incident was caused by the own active jump of the victim with the primary impact on his vertex and which had explicitly excluded any use of force by third persons. In response to the request of the district prosecutor and apart from the evidence described above, 53 official records were procured which described the activities of the policemen during the presence of V.P. at the police station. The rescuers were heard and written evidence was analysed as to the personality of V.P.
35. On 28 February 2003 the District Police Department discontinued the investigation into the participation in suicide, the inquiry having not shown that the crime of participation in suicide or any other crime had been committed.
36. On 14 March 2003 the first applicant’s representative was again denied access to the case file.
37. On 21 March 2003 the first applicant filed a criminal complaint suggesting that the police officers had assisted in the applicant’s suicide. She requested the Brno Regional Prosecutor to supervise the criminal investigation into the allegations. She pointed to various deficiencies in the inquiry, stating that it lacked objectivity and was perfunctory. On 26 March 2003 the second applicant joined these proceedings.
38. On 29 May 2003 the applicants complained to the regional prosecutor that they received no information concerning the outcome of the investigation into their new allegations.
39. On 25 June 2003 the regional prosecutor informed them that he had found no evidence supporting the allegation that a crime had been committed. He concluded that V.P. had not intended to commit suicide but had unsuccessfully attempted to escape, being unable to control his dive from the height of 8.1 metres. He rejected other allegations of breach of the procedure, but admitted the following procedural shortcomings: (i) a failure of the Municipal Prosecution Office to defer the case to the Brno-venkov District Prosecution Office as specialized authority for criminal activity of police officers, (ii) that original investigation by the Supervision Department had been “entirely insufficient”, (iii) that the applicants’ representative had been wrongly denied access to the file, (iv) a failure to seize V.P.’s clothes and to examine them by the way of criminal expert report, (v) contradictory information in the case-file regarding the issue whether the officer K. could have been at the scene of incident at 6.30 pm which was however due to an administrative error. The prosecutor concluded that these procedural shortcomings had no impact on the exactitude of the established facts, but he requested that the evidence be completed.
40. On 12 August 2003 the district prosecutor requested the Supervision Department to supplement the evidence following the regional prosecutor’s decision.
41. On 9 October 2003 the Supervision Department once again decided not to proceed with the applicants’ criminal complaint against the police officers, finding that there had been no reasonable suspicion of an alleged offence. It was noted, inter alia, that V.P.’s clothes had been given to the latter’s family at the hospital.
42. On 16 October 2003 the applicants appealed against this decision, challenging a number of factual inconsistencies and errors in the case-file.
43. On 12 November 2003, the expert who established the forensic biomechanics expert report was heard by the District Prosecutor. He apologized for several formal mistakes in his report but maintained that the substantial conclusions were correct. He explained that the errors in the name of the deceased and in the location of the incident were due to the fact that he had copy-pasted parts of the report from a previous report. He also apologized for the error under point three of the report where it was stated that V.P. fell first on his legs. The expert explained that that was his error and referred to the autopsy report which unequivocally showed that V.P. fell first on his head.
44. On 13 November 2003 the district prosecutor dismissed the applicants’ appeal as ill-founded. In respect of the challenged report of 6 February 2003, the district prosecutor noted that the expert had admitted that it contained errors but further noted that these had been classified as formal. The prosecutor agreed with the opinion of the regional prosecutor that V.P. had most probably attempted to escape. Given that the windows were partly shaded, he could not see the concrete surface below nor could he exactly estimate the height. Thus he might have thought that it would be possible to escape. The prosecutor concluded by stating that this had only been the prosecutor’s personal view and that the victim’s intentions would never be known.
45. Section 72(1)(a) stipulates that a constitutional appeal may be submitted: a) pursuant to Article 87 § 1d) of the Constitution, by a natural or legal person, if he or she alleges that his or her fundamental rights and basic freedoms guaranteed in the constitutional order have been infringed as a result of the final decision in proceedings to which he or she was a party, of a measure, or of some other encroachment by a public authority.
46. By virtue of Section 82(3) if the Constitutional Court grants the constitutional appeal of a natural or legal person under Article 87 § 1d) of the Constitution, it shall: a) quash the contested decision of the public authority, or b) if a constitutionally guaranteed fundamental right or basic freedom was infringed as the result of an encroachment by a public authority other than a decision, enjoin the authority not to continue to infringe this right or freedom and order it, to the extent possible, to restore the situation that existed prior to the infringement.
47. Article 13 § 1 grants the right to just satisfaction in cases of impairment of a right guaranteed by Article 11 among which figure especially protection of life and health, civic honour and human dignity, privacy, name, and personal expression.
48. Pursuant to Article 13 § 2, an individual has the right to pecuniary compensation for non-pecuniary damage if the just satisfaction within the meaning of Article 13 § 1 is insufficient.
49. The State is by virtue of Section 3 liable for damages inflicted by, inter alia, its authorities.
50. Section 13(1) as in force until 26 April 2006 provided that the State was liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. Under section 13(2) a person who had suffered loss on account of such an irregularity was entitled to damages.
51. On 27 April 2006 Act no. 160/2006 entered into force amending, inter alia, section 13(1) which newly provides that the State is liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. Act no. 160/2006 also introduced a new section 31a which provides for a reasonable satisfaction for non-pecuniary damage caused by an irregularity in the conduct of proceedings including non-compliance with the obligation to perform an act or to adopt a decision within a reasonable time.
52. Pursuant to Article 161 § 2, investigation is led by the units of Criminal Police and Investigation Service, unless provided otherwise. The Minister of the Interior can entrust with investigation also other entities of the Police of the Czech Republic.
53. Pursuant to Article 161 § 3 an investigation (vyšetřování) into crimes committed by police officers is carried out by a prosecutor.
54. Under Article 174 § 1 a prosecutor supervises criminal proceedings to ensure their lawfulness.
55. Section 2(4) provided that criminal offences committed by police officers were investigated by the Supervision Department of the Minister of the Interior, an internal unit of the Ministry directly managed by the Minister.
56. Section 3 provided that the Police was subordinated to the Ministry of the Interior. The actions of the Police were directed by the Police Presidium, unless provided otherwise by the law, headed by the Police President. The Police President was appointed and revoked by the Minister with the approval of the Government. The Police President accounted for the acts of the Police before the Minister.
57. Section 49 provided, inter alia, for State liability for bodily harm, death or damage caused to individuals by the police.
58. Pursuant to section 103, signs indicating possible commission of a crime by police officers are to be examined (prověřit) by the Police Inspectorate headed by a director accounting to the Government. The Police Inspectorate is part of the Ministry. Its Director is appointed and revoked by the Government. The Police Inspectorate is composed of police officers assigned to the Ministry.
59. According to this internal rule applicable within the police units subject to the Police President, suspected crimes punishable by up to three years of imprisonment were to be examined (prověřit) by the police monitoring authorities (kontrolní útvary Policie) in case of (i) suicide or self-harm of persons occurring in connection with the active duty interventions or other acts of police officers, and of (ii) signs of incidents discovered by themselves until it appears that there is suspicion that a crime has been committed by an officer or an employee of the Police in connection with the execution of their tasks.
60. According to these internal rules, the Directorate encompasses different services and units which are all directly or indirectly subordinated to the Director. These units comprise also the Complaints and Monitoring Unit, the District Police Department, and the Technical Criminal Unit, which are however distinct units not hierarchically dependent of each other.
The Director decides, inter alia, on service and employment issues of the officers and employees. All police officers of the Directorate are subordinated to him. He is the direct superior of the Director of the Complaints and Monitoring Unit.
61. In this decision the court rejected a victim’s claim under Article 3 of the Convention contesting a prosecutor’s decision confirming suspension of an investigation of alleged police ill-treatment by the Supervision Department. It held that due to the constitutional principle of separation of powers, courts, including the Constitutional Court, could not interfere with the power of the prosecutor to bring charges or not. It could only review a prosecutor’s decision to the extent that it was arbitrary. It found that the decision of the prosecutor had been sufficiently reasoned and that the prosecutor had proceeded in accordance with the Code of Criminal procedure.
62. In this decision the Constitutional Court rejected a victim’s complaint under Articles 3 and 13 of the Convention contesting the suspension of an investigation into alleged police ill-treatment. The appellant complained that the investigation had not been independent and impartial because it had been carried out by the Supervision Department of the Minister of the Interior and only formally supervised by a prosecutor. The court held:
“The possibility of interference by the Constitutional Court with the investigation phase of criminal proceedings must be interpreted restrictively. The Constitutional Court can correct only the most extreme excesses. ...
In the past, the Constitutional Court occasionally stepped out of its now well-established case-law. It did so in instances when the prosecutor had failed to sufficiently reason its decision to reject the complaint against a decision of the police to bring charges (see nos. III. ÚS 511/02 and III. ÚS 554/03).
Even after the delivery of these judgments the Constitutional Court does not consider that it has the power to review conduct of prosecutorial authorities regarding the substantive reasons and justification for bringing charges. It follows that only complaints claiming insufficient reasons for a decision that would suggest arbitrariness by the prosecutorial authorities can be subject to a review by the Constitutional Court.”
The Constitutional Court added that, having reviewed the administrative case file, the investigation by the police authorities had been compatible with the law and that the appellant’s procedural rights had been protected. It did not give any opinion on his complaint that the investigation had not been independent and impartial.
63. By that judgment, the court, on appeal of the accused, quashed a prosecutor’s decision approving the decision of the police to charge the applicant because the prosecutor had failed to examine the appellant’s complaints efficiently and to explain the reasons for the decision. As a general principle, the court held that a decision of a prosecutor must be reasoned and he or she must properly examine the complaints. It added that it did not have the power to review the substance of a decision by a prosecutor to bring charges against an individual or to comment whether a particular criminal investigation was justified; these were questions that fell exclusively within the power of prosecutorial authorities.
64. In this decision the Supreme Court found that a failure by the State to carry out an effective investigation, within the meaning of Article 3 of the Convention, into an alleged ill-treatment by the police, was not part of personality rights protected by Article 11 of the Civil Code. Thus, civil courts could not review the issue as part of a civil action for the protection of personality rights.
65. By this judgment three individuals were awarded CZK 500,000 (EUR 19,592) each pursuant to Articles 11 and 13 of the Civil Code in compensation of the death of their spouse and mother respectively caused by a wrongful act of a police officer. The police officer responsible had been previously convicted for the crime of physical injury by the Mělník District Court. The Municipal Court based its factual finding on the case-file of the Mělník District Court in the criminal proceedings and the defendant, the Czech Republic represented by the Ministry of the Interior, acknowledged its responsibility for the damages caused by the act of the police officer.
66. By this judgment two individuals were awarded damages pursuant to the Act 58/1969 replaced by the State Liability Act in compensation of the death of their son caused by the police. The police officer concerned had been convicted of the crime of physical injury by the Prague West District Court and the Prague Regional Court. The Prague 7 District Court based its findings inter alia on the Prague West District Court’s case-file in the criminal proceedings.
67. On 27 January 2000, the Ministry concluded a settlement agreement pursuant to the Czech Police Act in the case mentioned above (see paragraph 66). The conclusion of the agreement was preceded by a conviction of the police officer. The Ministry acknowledged its responsibility.
On 13 September 2001, 5 October 2001, and 30 October 2001, the Ministry concluded three settlement agreements pursuant to the Czech Police Act in the case mentioned above (see paragraph 65). These settlement agreements had been concluded before the officer was convicted. The Ministry acknowledged that the death resulted from an act of a police officer.
Three of the above mentioned settlement agreements provided compensation for expenses connected to the burial. One of them granted the deceased husband a monthly pension.
68. On 7 February 2008, the Ministry awarded damages pursuant to the State Liability Act to a person who had suffered serious physical injuries as a consequence of being shot by a police officer. The damages were awarded after a prosecution had been brought against the police officer. The Ministry had acknowledged liability.
69. The Committee recommended that the Czech Republic take appropriate measures to ensure the independence of investigations of offences committed by law-enforcement officials by introducing a mechanism of external control.
70. The Committee expressed its concerns that complaints against the police are handled by an internal police inspectorate, while criminal investigations are handled by the Ministry of the Interior, which has overall responsibility for the police. That system lacked, in the Committee’s view, objectivity and credibility and would seem to facilitate impunity for police officers involved in human rights violations.
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-80395
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MEMBERS OF THE GLDANI CONGREGATION OF JEHOVAH'S WITNESSES AND OTHERS v. GEORGIA
IMPORTANCE: 2
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations) (Procedural aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion;Manifest religion or belief);Violation of Article 14+9 - Prohibition of discrimination (Article 14 - Discrimination) (Article 9 - Freedom of thought, conscience and religion;Article 9-1 - Freedom of religion;Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
TEXT: 9. The applicants are 97 members of the Gldani Congregation of Jehovah’s Witnesses (“the Congregation”), together with Mr Vladimer Kokosadze, Ms Nino Lelashvili, Mr Alexi Khitarishvili and Ms Leila Dzhikurashvili, who are also members of the said congregation and live in Tbilisi. It appears that Mr Vladimer Kokosadze is also the Congregation’s spokesperson.
10. The facts of the case, as submitted by the parties, may be summarised as follows.
11. During a religious meeting on 17 October 1999, the Congregation, composed of 120 persons, was attacked by a group of Orthodox believers led by Mr Basil Mkalavishvili (“Father Basil”). Father Basil had been a priest in the autocephalous Orthodox Church of Georgia prior to being defrocked by that denomination on 31 July 1995 following his adhesion to the League of Separatist Priests of Greece. The Synod also accused him of various acts of physical aggression against members of the Orthodox Church, and of insulting the Catholicos-Patriarch of All Georgia.
12. Towards noon on 17 October 1999 one of the applicants, Mr Mirian Arabidze, saw Father Basil’s group, made up of several dozen individuals, arriving at the service entrance of the theatre in which the Congregation was holding its meeting.
13. Ms Nunu Gviniashvili, an applicant, has described the fear experienced by members of the Congregation who had previously seen television broadcasts showing acts of aggression by Father Basil and his supporters against Jehovah’s Witnesses.
14. The attackers, some of whom wore cassocks, were shouting and advancing with large iron crosses and sticks in their hands. One of the attackers (Ms Lia Akhalkatsi, according to the applicants) was filming their progress. When the attackers reached the back door of the meeting room, several Jehovah’s Witnesses, including Mr M. Arabidze, tried to hold the door closed until the other participants could leave the room by the main entrance. In the meantime, however, some of Father Basil’s supporters had also arrived at the building’s main entrance, and the Jehovah’s Witnesses found themselves trapped between two groups of attackers. Only a few were able to take refuge in the cellar and called the police from their mobile telephones.
15. In the meeting room, about 60 Jehovah’s Witnesses were beaten and struck with crosses, sticks and belts.
16. Mr Mirian Arabidze was also beaten and, when he fell to the ground, his attacker (Mr Mikheil Nikolozishvili, according to the applicants) told him that he was “going to die for Jehovah!”. The recording of the attack (see paragraph 35 below) shows that several stick-wielding men surrounded the applicant, who immediately covered his head with his hands but fell to the ground under their blows. He was subsequently kicked in the head and back.
17. Ms Roza Kinkladze, applicant, was struck on the face, head and back. Ms Natela Kobaidze, applicant, was struck on the face and her lips started bleeding. She also sustained a sprained thumb. Ms Nino Dzhanashvili, applicant, was struck and pushed in the stairs. Having fallen to the ground, she saw Ms Nino Gnolidze, Ms Nino Lelashvili and Ms Nora Lelashvili, applicants, lying on the ground unconscious. Ms Lia Bakhutashvili, applicant, was attacked by three women and a young priest, who kicked her, tore her clothing and pulled her by the hair. The same priest used a cross and a stick to beat applicant Ms Nora Lelashvili, who fainted. Her daughter, Nino Lelashvili, was dragged along the ground, kicked in the face and flogged with a belt until she lost consciousness. Mr Merab Zhizhilashvili, applicant, was hit with sticks and punched. Having fallen to the ground, he was kicked and his clothing was torn. Ms Ia Chamauri, applicant, was struck on the head with a belt. Mr Vladimer Kokosadze, applicant, was also beaten ruthlessly by six men. Nonetheless, he successfully negotiated with Father Basil and his right-hand man, Mr P. Ivanidze, to obtain permission for thirty women and children, who were locked inside the theatre director’s office, to leave the building. They were allowed to leave but were followed and attacked in the street.
18. Mr Alexi Khitarishvili, applicant, was beaten, then trampled on when he fell to the ground. His glasses were broken. The recording of the attack (see paragraph 35 below) shows that several men held this applicant upright and shaved his head while pronouncing “in the name of the Father and of the Son and of the Holy Ghost!” Having been unable to shave him completely, the exasperated attackers continued to insult and strike him. The applicant, who could hear his mother screaming in the distance as she was attacked by a group of women, lost consciousness.
19. The blood-spattered men, women and children ran from the building. 16 victims were immediately admitted to hospital.
20. Applicant Ms Patman Tabagari sustained permanent damage to the retina of one eye on account of the kicks she received to the head. She was kept in hospital from 17 to 21 October 1999. On admission to hospital she was bleeding from the eye. According to the medical report drawn up between 29 October and 2 November 1999, she was suffering from concussion and had sustained bruising and injuries as well as contusion of the right eye.
21. Extracts from the medical records of certain applicants, updated during their hospitalisation, were submitted to the Court. They contain the following observations:
- Mr Ilia Mantskava – pain in the forehead and left eye;
- Mr Vladimer Kokosadze – a cranial injury, subcutaneous haematoma on the forehead and contusion on the chest;
- Mr Alexi Khitarishvili – subcutaneous haematoma on the back and chest; his back was bleeding on admission to hospital;
- Ms Nino Lelashvili – a cranial injury and subcutaneous haematoma on the neck; headaches and backache;
- Ms Ia Chamauri – a cranial injury, swollen left side of the head, subcutaneous haematoma and headaches;
- Mr Mirian Arabidze – a cranial injury, contusion on the right hand, contusions on the upper lip, headaches and congestion around the eyes;
- Ms Zaira Dzhikurashvili – a cranial injury, subcutaneous haematoma and headaches;
- Mr Merab Zhizhilashvili – a cranial injury at facial level, swollen eyes and headaches;
- Ms Nora Lelashvili – a cranial injury, subcutaneous haematoma around the eyes and congestion of the right ear.
22. 14 of the 15 applicants mentioned in paragraphs 16-18, 20 and 21 above (with the exception of Ms Nino Gnolidze), and 44 others have described the facts surrounding the attack against them on 17 October 1999.
23. Their witness statements indicate that Mr Nodar Kholod, Mr Tenguiz Dzhikurashvili, Ms Bela Kakhishvili, Ms Lia Mantskava, Ms Khatuna Kerdzevadze, Ms Elene Mamukadze, Ms Nana Pilishvili, Ms Makvala Mamukadze, Ms Ether Chrelashvili, Ms Lamara Mchedlishvili, Ms Nana Kapanadze, Ms Pikria Tsarielashvili, Ms Nani Kobaidze and Ms Lili Kobesova were also beaten.
24. As to the other applicants, Ms Izolda Purtseladze was pulled along by the hair; Ms Ia Vardanishvili was struck on the back and, like her children, pulled along by the hair; Mr Dzhumber Bgarashvili was struck on the head and sustained a nose injury; Ms Leila Mchedlishvili was elbowed violently and began tottering in the stairwell; she was also struck on the head; Ms Leila Tsaritov was pulled along by the hair; Ms Raisa Maisuradze was pulled along by the hair and her attackers twisted her arm behind her back before striking her; meanwhile her son was seriously injured and pushed into the stairwell; Ms Ketino Kimeridze was dragged by the hair and struck; Ms Amalia Ardgomelashvili was pulled by the hair and fainted after the attack; Ms Natia Milashvili was struck and received violent blows to the head; Ms Iza Khitarishvili, surrounded by seven women, was dragged by the hair and beaten; Mr Shota Maisuradze was beaten by several men.
25. The vast majority of witness statements indicate that Kakha Koshadze, the son of Ms Lia Bakhutashvili (see paragraph 17 above), was severely beaten in the head and stomach and lost consciousness. The doctors at Tbilisi Hospital no. 1 subsequently noted that Kakha Koshadze had an injured skull and broken ribs.
26. According to Ms Lamara Arsenishvili, Ms Elene Dzhodjua, Ms Ketevane Dzhanashvili, Ms Tina Makharashvili, Ms Dodo Kakhishvili, Ms Lali Khitarishvili, Ms Nunu Gviniashvili, Ms Neli Giorgadze, Ms Eka Kerdzevadze, Ms Daredzhan Kotranova, Ms Lia Sidamonidze, Ms Cecile Gagnidze, Ms Shakhina Sharipov, Mr Romiko Zurabashvili, Mr Amiran Arabidze, Mr Zakro Kochishvili, Mr Dzhambul Arabidze and Mr Dato Gvaramia, applicants, they escaped physical aggression. However, Ms Lia Sidamonidze’s and Ms Cecile Gagnidze’s children were beaten by the attackers.
27. Without claiming that she herself had been physically attacked, Ms Leila Dzhikurashvili complained that her ten-year-old daughter had been dragged along by the hair, her eleven-year-old son had been slapped and punched in the head and her seven-year-old disabled son had been attacked.
28. Mr Amiran Arabidze claimed that, when the attack began, he managed to leave the building and went to the police. Ms Eka Kerdzevadze stated that, after escaping from the attack, she and her husband went to the police in Gldani micro-district III and informed the police officers that the Jehovah’s Witnesses were being subjected to a violent attack in the theatre building. The police merely recorded this statement but chose not to intervene. Ms Lia Sidamonidze also claimed that she had gone to the same police station with several other Jehovah’s Witnesses. The head of the police station replied that “in the attackers’ place, he would have given the Jehovah’s Witnesses an even worse time!” While escaping from the site of the attack, Mr Vladimer Kokosadze met three police officers on the road; after listening to his request to take action, they replied that they “didn’t get involved in that type of incident”.
29. However, according to Ms Leila Mchedlishvili, Ms Dodo Kakhishvili, Ms Makvala Mamukadze and Ms Shakhina Sharipov, it was only when the police arrived on the scene that the Jehovah’s Witnesses who were still trapped in the theatre were able to escape. According to Ms Shakhina Sharipova, one of the victims rushed up to a police officer, showing him the hand which Father Basil had wounded with a blow from a cross, and said: “Look what Basil has just done to me!”
30. All the applicants testified that when the victims managed to escape from the building they were confronted by a cordon of Father Basil’s supporters, gathered in front of the exit. These women had been instructed to restrain the victims and push them back inside the building, where the attacks were continuing. In addition, they carried out body-searches of the victims, emptying their pockets and bags. Bibles, religious literature and tracts were then confiscated and thrown into a nearby fire. The victims were forced to remain in front of the fire and watch it. During the search, handbags were torn and thrown on the ground. Ms Makvala Mamukadze, applicant, had her handbag taken from her: it contained money, the keys of her flat, a Bible and her watch. These objects were never returned to her. The attackers allegedly also stole other personal effects belonging to the victims, such as jewellery and cameras.
31. Without exception, all 58 applicants (see paragraph 22 above) complained that they were mocked, insulted, called every name imaginable - including “traitors” - and accused of “selling out the motherland for a bag of rice”. The majority of applicants claimed that the attackers smelled of alcohol.
32. The above-mentioned applicants (see paragraphs 23, 24, 26 and 27) confirmed the acts of aggression against the 15 of their companions who had been attacked with the greatest violence, listed in paragraphs 16-18, 20 and 21 above.
33. The police who arrived at the scene decided to take Mr Mirian Arabidze to the police station, where he was insulted by police officers. Father Basil and his supporter Mikheil Nikolozishvili, who were also at the police station, attempted to attack the victim again.
34. The recording of the Gldani attack was broadcast on the national television channels Rustavi-2 and Kavkasia on 17, 18 and 19 October 1999. Father Basil, Mr P. Ivanidze and other members of their group were clearly identifiable from these recordings. Their names were also submitted to the relevant authorities by the victims.
35. The recording of the news broadcast of 18 October 1999 on the Rustavi-2 channel, submitted to the Court by the applicants, illustrated the facts of the attack as set out above. It does not appear that the applicants responded to the acts of violence to which they were subjected. The recording shows a fire containing burning books, and Father Basil and his supporters praying and singing. It also includes an extract from an interview with Father Basil who, standing with the fire in the background, explains the validity of his actions and expresses satisfaction at their outcome.
36. In several subsequent interviews Father Basil claimed that, before going to a particular place, he would alert the police and the State security services, so that the latter would not intervene. This complicity was also noted by the non-governmental organisations which issued a joint statement on 13 March 2001 (see paragraph 76 below).
37. Interviewed after the attack on the applicants, the Georgian President stated that he condemned any form of pogrom and that an investigation should be conducted to ensure that the perpetrators of the attacks were prosecuted in criminal proceedings.
38. Between 17 and 29 October 1999, about 70 victims of the Gldani attack, including the 58 applicants listed in paragraphs 16-18 (with the exception of Ms Nino Gnolidze), 20, 21, 23, 24, 26 and 27 above, lodged a complaint with the Tbilisi Public Prosecutor and asked that their attackers be punished.
39. Criminal proceedings were instituted by the investigation unit of the Gldani District of the Ministry of the Interior, but the proceedings were suspended, initially on 13 September and again on 3 December 2000, on the ground that the perpetrators of the attack had not been identified. When the proceedings resumed for the last time in March-April 2001 (see paragraph 63 below), the investigating officer, Mr K., indicated to the victims that they should not expect an outcome anytime in 2001. In spite of five reminders addressed to the Georgian Procurator General, the last of which was dated 8 March 2001, no action was taken on these complaints.
40. The applicants set out the proceedings in chronological order.
By orders of 22, 25 and 27 October and 5 December 1999, only eleven applicants were recognised as civil parties by the Gldani District Ministry of the Interior’s investigation unit (criminal case no. 0999140) – Mr Mirian Arabidze and Ms Nora Lelashvili for physical and non-pecuniary damage, Mr Ilia Mantskava for physical and pecuniary damage, Ms Makvala Mamukadze for pecuniary damage, Ms Zaira Dzhikurashvili for pecuniary and non-pecuniary damage, Ms Natela Kobaidze, Ms Patman Tabagari, Ms Nino Lelashvili, Ms Ia Chamauri and Mr Shota Maisuradze for physical damage and Mr Vladimer Kokosadze for physical, non-pecuniary and pecuniary damage.
41. On 9 December 1999 the case was referred back to the Tbilisi police for further investigation. On 25 December 1999 it was referred to the public prosecutor’s office in Gldani District. On 14 January 2000 it was submitted to the Tbilisi public prosecutor’s office.
42. On 26 January 2000 the lawyer for Ms Natela Kobaidze, Ms Patman Tabagari, Ms Nino Lelashvili, Ms Ia Chamauri, Ms Nora Lelashvili, Ms Zaira Dzhikurashvili, Mr Mirian Arabidze, Mr Vladimer Kokosadze, Mr Merab Zhizhilashvili, Mr Alexi Khitarishvili, Mr Ilia Mantskava and Mr Dzhumber Bgarashvili complained to the Tbilisi prosecutor, alleging that their case had been unnecessarily sent from one department to another. He also complained that the public prosecutor’s office had not kept him, as their lawyer, informed of developments.
43. On 31 January 2000 the same lawyer submitted a complaint to the Tbilisi city prosecutor and to the Procurator General about the failure to bring criminal proceedings against the perpetrators of the attack. He claimed that this impunity was encouraging other acts of violence.
44. On 31 January 2000 the Tbilisi city prosecutor’s office referred the case to the city police. The police investigator, Mr Kh. stated that he was an Orthodox believer and could not be impartial in the case.
45. Nonetheless, on 20 April 2000 Mr Kh. proceeded with identification and cross-examination of four individuals, including Mr Mikheil Nikolozishvili, applicant Mirian Arabidze’s presumed attacker. During questioning, Mr Nikolozishvili again threatened this applicant, who identified Mr Nikolozishvili and another individual as the persons who had attacked him.
46. On 13 June 2000 Mr Kh. informed Mr Mirian Arabidze that, by a decision of 9 June 2000, he himself had been placed under investigation on a charge of participation in the attack.
47. On the same day, two of Father Basil’s supporters (Ms Tsiuri Mrebrishvili and Ms Despin Shoshiashvili) were also placed under investigation on suspicion of having burnt religious literature.
48. On 13 September 2000 the criminal proceedings instituted following the Gldani attack were suspended by the Gldani District investigation unit on account of a failure to identify its perpetrators. This decision was not served on the applicants, which meant that it was impossible for them to challenge it before the courts
49. On the same date, the lawyer mentioned in paragraph 42 sent a letter to the Procurator General complaining that the perpetrators of the attack had still not been punished, one year after proceedings had been instituted.
50. On 24 October 2000 the decision of 13 September 2000 was set aside by the Tbilisi prosecution service and the criminal proceedings were resumed. The applicants were not informed.
51. On 3 December 2000 the proceedings were again suspended, on the ground that it had proved impossible to identify the presumed perpetrators. The applicants were not informed. On 6 December 2000 that decision was approved by the Procurator-General’s Office.
52. In the meantime, having been placed under investigation (see paragraph 46 above), Mr Mirian Arabidze was accused of having committed acts endangering public order during the attack in question. In particular, he was charged with having “used an object as a weapon” against another person.
53. On 16 August 2000 the criminal trial of Mr Mirian Arabidze and two of Father Basil’s supporters (see paragraph 47 above) began at the GldaniNadzaladevi Court of First Instance in Tbilisi. One of the defendants confirmed that she had burned books, as her faith and Father Basil had directed her to. She asserted that she was prepared to kill on behalf of the Orthodox faith.
54. In the afternoon a group of believers led by Father Basil burst into the courtroom. They assaulted the Jehovah’s Witnesses, journalists and the foreign observers who were present in the courtroom. The attackers were equipped with iron crosses and used them as weapons. They took control of the courtroom. The court imposed no penalties on the believers who had occupied the courtroom by force.
55. This attack was filmed and the recording was broadcast on the Rustavi-2 and Kavkasia channels. The recording of a television news programme, broadcast on 16 and 17 August 2000 (and submitted by the applicants to the Court) shows that, on the first day, the attacks took place within the courtroom. Father Basil can be seen entering the court during the hearing with several dozen of his supporters (80, according to the reporter), who are carrying a large white cross, icons and a bell which one of the attackers (Mr Z. Lomthathidze, according to the applicants) is pealing, while the others attack the Jehovah’s Witnesses, their lawyers and the foreign observers. The victims are punched out of the courtroom. On the following day Mr D.P. and Mr G.B., two human rights activists, were kicked outside the courtroom and Mr Mirian Arabidze’s lawyers were attacked.
56. At the close of this trial on 28 September 2000, Mr Mirian Arabidze was found guilty of having committed acts endangering public order during the attack against the Congregation on 17 October 1999 and given a suspended sentence of three years’ imprisonment for having caused minor injuries to Mr M. Nikolozishvili and to another member of Father Basil’s group.
57. On the same date, the judge decided not to determine the guilt of Father Basil’s two supporters and to return the part of the case which concerned them for further investigation, particularly with a view to determining the ownership and value of the literature which was destroyed, and the legal status of the entity which had assembled the Jehovah’s Witnesses for the meeting on 17 October 1999.
58. On 14 May 2001 the Tbilisi Court of Appeal overturned the judgment convicting Mr Mirian Arabidze and sent the case back for further investigation.
59. On 11 October 2001 the Georgian Supreme Court quashed the appeal court’s judgment and acquitted Mr Mirian Arabidze. In its judgment, the Supreme Court considered it “established” that, on 17 October 1999, Father Basil’s group had gone to the Gldani premises on its own initiative and that a confrontation had taken place between “persons of differing religious convictions. During that confrontation, several individuals had been injured and religious literature belonging to the Jehovah’s Witnesses had been burnt”. The Supreme Court found that the Gldani meeting had not represented any danger to public order. It established that the authorities had not imposed any restrictive measure in that connection and that, consequently, Father Basil had had no grounds for interfering with Mr Mirian Arabidze’s exercise of his right as guaranteed by Article 9 of the Convention and Article 19 of the Constitution.
60. In the meantime, on 13 February 2001, 14 volumes of petitions demanding protection for Jehovah’s Witnesses were delivered to the administration of the Georgian President. The attack against the applicants and other acts of religiously-motivated violence were brought to the attention of the Head of State. By an order of 22 March 2001, the President ordered the Procurator-General, the Ministry of the Interior and the Ministry of State Security to take special measures to put an end to religiouslymotivated crimes, identify their perpetrators and punish those responsible.
61. On 15 March 2001, after examining the complaints concerning acts of violence perpetrated “for years” by Father Basil and Mr P. Ivanidze, the Procurator-General’s Office decided to join them and ordered that the case file (no. 0100118) be investigated. On 30 March 2001 Father Basil was placed under investigation on a charge of organising collective actions which endangered public order and of participating in such actions (Article 226 of the Criminal Code), and on a charge of illegally preventing the conduct of religious rites (Article 155 § 1 of the Criminal Code).
62. On 2 April 2001 the investigator responsible for the case applied to the Vake-Saburtalo Court of First Instance seeking to have Father Basil placed in pre-trial detention. The court did not allow this application and imposed a less onerous preventative measure, namely judicial supervision.
63. Following a letter of 8 March 2001 in which the applicants’ lawyer requested information as to which department held the case file and what progress had been made with the case, the applicants’ lawyer was informed on 26 April 2001 that the proceedings had again been resumed. He learned at this point that they had been suspended on 3 December 2000 (see paragraph 51 above). On the same date, Ms Patman Tabagari and Mr Vladimer Kokosadze, applicants, were also informed in writing that the proceedings had been resumed.
64. On 8 May 2001 the investigator informed the victims’ lawyer that he would not have time to examine the case before December 2001.
65. On 4 October 2001 several cases were severed from case file no. 0100118 in order to be investigated under file no. 1001837 (an attack in the Ombudsperson’s office, an attack against the newspaper Rezonansi and others). Father Basil and Mr P. Ivanidze were charged by the Tbilisi prosecutor’s office in connection with those cases.
66. The applicants stated that, in the programme “60 minutes”, broadcast on “Rustavi-2” in September 2000, a journalist interviewed Father Basil and commented that he had been seen entering the building of the State Security Ministry on several occasions. Father Basil replied:
“... No, not the KGB... Except in connection with an attack against the Jehovah’s Witnesses. They thought I was going to do something else, so I went to explain that it had been to go to Marneuli to attack the Witnesses. That was the only time... I always warn them in advance. Of course I do, and if they are brave enough, they join me. If they don’t support me, they will get what they deserve.”
67. On 11 May 2001, in an interview broadcast on “Rustavi-2”, Father Basil stated:
“I categorically warn the entire population of Georgia, and especially the representatives of the Jehovah’s Witnesses sect, that they must not meet together and hold their Satanic meetings. Although I have been forbidden from going to see them as I did in the past in order to prevent their meetings, I declare publicly that I myself will not appear, but the members of my parish will come and that, starting today, terrible pogroms will begin. We will do this because they have been parachuted by unsavoury and anti-Christian foreign forces in order to destroy Georgia. For that reason, they can no longer be tolerated.”
68. In addition to the Gldani attack at the centre of these proceedings, the applicants described several other attacks carried out by Father Basil and his group, with a view to illustrating the general context in which the Jehovah’s Witnesses were obliged to live. In particular, they referred to the attacks of 8 and 16 September 2000 in Zugdidi and Marneuli in which, according to the applicants, representatives of the State played a direct role (see Begeluri and 98 Others v. Georgia, no. 28490/02, application pending); the attack in the office of the Ombudsperson of the Republic on 22 January 2001; the attack on a meeting of Jehovah’s Witnesses, held on 22 January 2001 in a private individual’s home on the Verkhana alley, Tbilisi; the attack on Jehovah’s Witnesses on 27 February 2001 during their meeting in a private home in the Mount Elia district of Tbilisi; the attack on Jehovah’s Witnesses meeting on 5 and 6 March 2001 in a private residence in Sachkhere; the attack on 30 April 2001 against the Jehovah’s Witnesses’ new site on Verkhana alley, Tbilisi; the setting alight, in the early morning of 31 May 2001, of a house belonging to a family of Jehovah’s Witnesses, of which there remained only a large pile of ashes and rubble, etc.
Father Basil stated in connection with certain of those attacks that he had warned the police in advance. Each attack involved the destruction of premises and of religious literature.
69. The applicants considered that these acts of violence were the direct result of the authorities’ negligence regarding the attack carried out against their Congregation on 17 October 1999. In their opinion, by permitting this dangerous precedent of religiously-motivated aggression to occur with no response from the relevant authorities, the State had permitted the situation to become accepted as the status quo and repeated acts of violence to take place with impunity. The applicants alleged that on several occasions the Customs Service had confiscated religious literature arriving for the Jehovah’s Witnesses from abroad and that landlords refused to rent out meeting rooms for fear that their property would be ransacked in the event of an attack.
70. In total, the Jehovah’s Witnesses alleged that they had been subjected to 138 attacks between October and November 2002 and that 784 complaints had been lodged with the relevant authorities. No careful and serious investigation had been carried out into any of those complaints.
71. Resolution 1257 (2001) of the Parliamentary Assembly of the Council of Europe:
“11. The Assembly ... is also strongly concerned about repeated cases of violence by Orthodox extremists against believers of minority religious groups, such as Jehovah’s Witnesses and Baptists.
12. The Assembly urges the Georgian authorities to conduct a proper investigation into all cases of human rights violations and the abuse of power, to prosecute their perpetrators irrespective of their functions, and to adopt radical measures to bring definitively the country into line with the principles and standards of the Council of Europe.”
72. Conclusions and recommendations of the UN Committee against Torture, dated 7 May 2001:
“The Committee expresses concern about ... the instances of mob violence against religious minorities, in particular, Jehovah’s witnesses, and the failure of the police to intervene and take appropriate action despite the existence of the legal tools to prevent and prosecute such acts and the risk of this apparent impunity resulting in such acts becoming widespread; ...”
73. The Chair of the delegation of the Parliamentary Committee on Cooperation between the European Union and Georgia, Ms Ursula Schleicher, stated on 5 September 2000:
“On behalf of the European Parliament delegation I wish to express my consternation of the latest incident in the series of violent attacks on journalists, human rights activists and Jehovah’s Witnesses which occurred in a courtroom in Tbilisi on 16 August. I regard this kind of act as an outrageous attack against the fundamental human rights to which Georgia is committed as a signatory of the European Convention for the Protection of Human Rights and Fundamental Freedoms. May I reiterate the position of the EU-Georgia Parliamentary Cooperation Committee of 9 May 2001 condemning religious intolerance and nationalist extremism which are incompatible with the long tradition of religious and cultural tolerance in Georgia.”
74. According to the 2001 Annual Report by the Ombudsperson for Georgia:
“... freedom of conscience is among the rights which are most brutally violated in Georgia. We are talking about the non-traditional religious organizations, which are dismissed as sects in Georgia and assailed and persecuted every way... I am not dismissing or diminishing the role and influence of the Orthodox Church in our country. The Orthodox Church has always been and will continue to be the fundament on which Georgian statehood and, so to say, the very existence of the nation, rest. However, Georgia has always taken pride in her religious tolerance. It has become a typical example that the temples of different confessions stand and operate almost side by side in the capital of Georgia. Another shining example of tolerance specific to the Georgian nation – the good neighbourly relations and friendship that exist between the Georgians and the Jews have survived millennia. Against such seemingly tolerant background, it is really intolerable to put up with the current tide of extremism against religious minorities. We mean the multiple acts of violence to which the members of such unconventional religious groups as Jehovah’s Witnesses (above all), Baptists, Krishna followers, and others fell victim...”
75. In its 2002 Annual Report, Human Rights Watch stated:
“ The Georgian authorities allowed organized groups of civilian militants to conduct a sustained campaign of violent assaults and intimidation against members of several non-Orthodox religious faiths, chiefly Jehovah’s Witnesses, Pentacostalists, and Baptists. The assailants broke up religious services, beat congregants, ransacked or looted homes and property, and destroyed religious literature. Vasili Mkalavishvili, a defrocked Georgian Orthodox priest who led most of the attacks, justified them by claiming that charismatic faiths were defiling Georgia’s nationhood and religious tradition. He boasted of receiving assistance from the police and security services. Emboldened by inaction or complicity of prosecutors and police, and by a February Supreme Court decision to deregister the Jehovah’s Witnesses as a legal entity in Georgia, the frequency of mob attacks rose in 2001...”.
76. On 13 March 2001 several non-governmental organisations – the Association Law and Freedom, the Atlantic Council of Georgia, the Black Sea Media Institute, Caucasian House, the Forensic Examination Foundation, Former Political Prisoners for Human Rights, the Georgian Young Lawyers Association, the Human Rights Centre, the Human Rights Group of the Caucasian Institute for Peace, Democracy and Development, the Independent Journalists’ Club, the International Society for Fair Elections and Democracy, the Landowners Rights Protection Association, Liberty Institute, Tbilisi Press Club and Transparency International–Georgia issued a joint declaration stating:
“During last two years we are evidencing massive infringement of freedom of religion and persecution of religious minorities. The Government of Georgia is completely unable to protect human rights and minorities. Moreover, violation of human rights take place with the silent consent of the State, very often with its inspiration and sometimes with active participation of State officials, especially those of law enforcement agencies. On the basis of the aforesaid, it should be noted without exaggeration that religious minorities in Georgia face permanent danger, intimidation and terror..., Jehovah’s Witnesses...have suffered attacks, persecution, bodily insult and harassment. Frequent pogroms take place in their offices and churches. Their literature, holy objects of worship and other belongings were destroyed... The most significant pogroms took place in Tbilisi, Marneuli and Zugdidi. Police were aware of these actions without any reaction or were participating in them, while prosecutors and judges convicted the victims. Vasil Mkalavishvili has openly confirmed on TV that he notifies police and security in advance of carrying out his pogroms. Deputy Minister of State Security declared at a Parliamentary hearing that the State should restrict the activities of non-traditional religious sects. Similar declarations have been made by other senior government officials – for example, the Tbilisi police chief...”
“The State recognises the special role of the Georgian Orthodox Church in Georgian history. Simultaneously, however, it declares complete freedom of religious belief and confession, as well as the independence of the church from the State.”
“1. Everyone has the right to freedom of speech, thought, conscience, religion and belief.
2. It is prohibited to persecute an individual for his or her thoughts, beliefs or religion and to oblige an individual to express his or her opinions about them.
3. The rights provided for in this Article may not be restricted unless their exercise infringes upon the rights of others.”
“Public prosecution shall be conducted with regard to all categories of criminal offences.
Public prosecution shall be conducted by an investigative body, a prosecutor and an investigating officer, who shall institute proceedings on the basis of information provided by natural or legal persons, notification from the authorities and nongovernmental organisations and information imparted by the mass media.
The investigative body, prosecutor and investigating officer shall be obliged to institute proceedings in all cases where there is evidence of a criminal offence, to take the measures necessary to establish the truth and identify the perpetrator of the offence, and prevent an innocent person from being placed under investigation.”
“With regard to the criminal offences provided for in Articles 120 [intentional minor damage to health], 125 [physical violence] and 148 [false accusation]... , criminal proceedings shall be instituted only on the basis of a complaint by the victim and, in the event of a friendly settlement between the parties, this complaint must be dropped.”
“Prosecution may be suspended if ... the person to be placed under investigation cannot be identified, and shall remain suspended until such time as that person is identified or the prosecution is time-barred.”
“The investigating body is a State body or a senior representative of the civil service which shall have jurisdiction to conduct the initial investigative measures and to carry out, in the context of the pre-trial investigation and at the instruction of the investigating officer or the prosecutor, an investigative measure or any other act or to participate in the conduct of such acts.
The investigating bodies are: (a) the departments of the Ministry of the Interior and its sub-directorates in respect of all criminal cases, except where these fall within the jurisdiction of other investigating bodies;...”
Article 235 §§ 1 and 2
“The complaint is to be lodged with the body responsible for criminal proceedings or the state employee who, in accordance with the law, has jurisdiction to examine it and to reach a decision...”
A complaint against an action or decision by the investigator, investigating body, investigating office or head of the investigating body is to be submitted to the relevant prosecutor. A complaint against an action or decision by the prosecutor shall be submitted to the prosecutor who has hierarchical superiority...”
Article 242 § 3
“The parties to the proceedings may apply to a court against an action or decision by the investigating officer or investigator if the prosecutor dismisses their complaint or submit that complaint directly to the court...”
“In all cases where evidence of an offence occurs, the investigator, with the agreement of the prosecutor, is obliged, as far as their powers permit, to institute criminal proceedings.”
“Information concerning the fact of a criminal offence having been committed may be submitted in writing or orally.
Information thus submitted shall be examined promptly. Where the presumed perpetrator of an offence has already been arrested, verification of the truth of the information alleging that a criminal offence has been committed and institution of prosecution must be carried out within 12 hours following the person being apprehended by the police or another investigating body. In other cases, institution of proceedings may also be preceded by verification the truthfulness of the information received, but this must not last more than 20 days.”
Articles 155 and 166 of the Criminal Code provides for sanctions, including prison terms, for offences such as unlawfully preventing the performance of religious rites using violence or the threat of violence, and for unlawfully preventing the activities of a religious organisation using violence or the threat of violence.
In accordance with Article 71 § 1 (a) of this Code, the limitation period for the offences set out in Articles 120 [intentional minor impairment of health], 125 [physical violence], 155 and 166 is two years.
VIOLATED_ARTICLES: 14
3
9
VIOLATED_PARAGRAPHS: 9-1


ITEMID: 001-58147
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF J.J. v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Costs and expenses partial award - domestic proceedings
TEXT: 7. The applicant is a freelance tax consultant.
8. On 14 December 1989 the Inspector of Direct Taxes sent the applicant an assessment of supplementary income tax (naheffingsaanslag) for the year 1984. In accordance with the applicable provisions (see paragraph 17 below) a fiscal penalty was additionally imposed to an amount equal to that of the assessment. The penalty came to 38,656 Netherlands guilders (NLG).
9. On 20 December 1989 the applicant lodged an appeal against this assessment with the Taxation Division of the Leeuwarden Court of Appeal (gerechtshof). By letter of 21 December the registrar of that court asked the applicant to pay a court registration fee of NLG 75 pursuant to section 5 of the Taxation Disputes (Administrative Jurisdiction) Act (Wet administratieve rechtspraak belastingzaken).
10. The applicant’s appeal was declared inadmissible by the President of the Taxation Division on 23 March 1990 on the ground that the court registration fee had not been paid.
11. On the same day the applicant lodged an objection (verzet) against this decision with the Taxation Division. He submitted that he had sent an order to his bank for the payment by bank transfer of the court registration fee, but that that order had not been carried out. In his view this error on the part of the bank could not be held against him.
12. Having held a hearing on 19 September 1990, the Taxation Division of the Court of Appeal declared the applicant’s objection unfounded on 26 October. It held that, as the applicant had himself chosen to make use of the services of a bank, it had been up to him to see to it that his order was correctly carried out.
13. The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad) on 20 November 1990. He submitted that the Court of Appeal had erred in law by holding him responsible for a mistake made by his bank in carrying out his transfer order. In the alternative, he submitted that the imposition of a fiscal penalty amounted to a penal sanction, and that it was inappropriate to levy a court registration fee in any case concerning the determination of a “criminal charge”.
The Deputy Minister of Finance (Staatssecretaris van Financiën) filed a written statement of defence (vertoogschrift).
14. One of the advocates-general to the Supreme Court submitted an advisory opinion on 19 November 1991. He did not address the applicant’s primary submission, apart from expressing the view that the decision of the Court of Appeal had been correct, but gave extensive reasons why the alternative submission should be rejected.
15. The applicant did not receive a copy of the advisory opinion until the Supreme Court delivered its judgment.
16. The Supreme Court dismissed the applicant’s appeal on 17 June 1992.
It held that a failure on the part of a bank to carry out an order for the transfer of a court registration fee could not be held against the person who had given such an order if the latter saw to it that the payment was made as soon as possible after he could reasonably be expected to be aware of such failure. Nevertheless, it appeared that the applicant had not paid the court registration fee at all and his primary submission had therefore to be rejected.
It further held that the court registration fee in question was not such as to constitute any real impediment to a taxpayer’s right of access to a court, and that in appropriate cases a reduction of the fee in question could be granted. The applicant’s alternative submission was therefore also rejected.
17. Pursuant to section 20(1) of the General Act on State Taxes (Algemene wet inzake rijksbelastingen) a demand for supplementary tax is made if a tax for which the taxpayer is under an obligation to file a declaration (die op aangifte behoort te worden voldaan of afgedragen) is not paid in its entirety or not paid at all.
In such cases a fiscal penalty is additionally imposed to an amount equal to the amount due in tax (section 21(1)).
18. It is open to a taxpayer to submit an administrative objection (bezwaarschrift) to the competent tax inspector (section 23).
An appeal against the latter’s decision lies to the Taxation Division of the Court of Appeal (section 26).
19. It is, however, also open to the taxpayer to lodge an appeal directly to the Taxation Division of the Court of Appeal without first submitting an administrative objection to the tax inspector (section 26(2)). This was the course followed by the applicant in the present case.
20. A taxpayer who lodges an appeal with the Taxation Division of the Court of Appeal is required to pay a court registration fee, which at the relevant time amounted to NLG 75 (section 5(1) of the Taxation Disputes (Administrative Jurisdiction) Act). This fee is reduced by NLG 35 if the financial interest is very small (section 5(3)), or if the taxpayer is indigent (section 5(4)).
The entire fee is paid back to the taxpayer if his appeal is upheld in whole or in part (section 5(7)).
21. An appeal on points of law against the decision of the Taxation Division of the Court of Appeal lies to the Supreme Court (section 19). Such an appeal may be lodged by the competent tax inspector or other tax authority as well as by the taxpayer.
22. The defendant party – tax authority or taxpayer, as the case may be – may submit a written statement of defence (section 22(2)).
23. The Supreme Court does not hold an oral hearing unless it is asked to do so by one of the parties. Such a request may be made in either the statement of points of appeal or the statement of defence, or after the filing of those statements, by the party which has lodged the appeal on points of law; in the latter case the time-limit for so doing is fourteen days after the statement of defence was sent to the party concerned (section 23(1)).
24. If the Procurator-General expresses the wish to be heard, the case file is sent to him after the hearing, or after the filing of the written statements if no hearing is held (section 24(1)). He must submit his advisory opinion in writing (section 24(2)).
It is not provided that the taxpayer must be supplied with a copy of the advisory opinion before the delivery of the judgment of the Supreme Court.
25. The Supreme Court deliberates in camera. Although there is no legal provision prohibiting the Procurator-General from attending the Supreme Court’s deliberations, in practice he never attends.
26. The Supreme Court may quash the decision appealed against on the grounds adduced or on other grounds (section 25). In that event it decides on the merits of the case, substituting for the decision of the Taxation Division of the Court of Appeal the decision on the merits which the latter ought to have given. Only if the decision on the merits depends on important facts which have not been established at an earlier stage of the proceedings does the Supreme Court refer the case back to the Court of Appeal which gave the decision appealed against or one of the other courts of appeal (ibid.).
27. The duties and position of the Procurator-General’s department (openbaar ministerie) are defined in the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie).
28. The Procurator-General’s department consists of the Procurator-General and advocates-general of the Supreme Court, the procurators-general and advocates-general of the courts of appeal and the public prosecutors of the regional and district courts (section 3(1) of the Judiciary (Organisation) Act). The advocates-general of the Supreme Court act as deputies of the Procurator-General of that court and are subordinate to him (sections 3(2), 5a and 6(1)).
29. The Procurator-General’s department must be heard by the courts in so far as the law so prescribes (section 4). The advisory opinion of the Procurator-General or an advocate-general to the Supreme Court takes the form of a learned treatise containing references to relevant case-law and legal literature and a recommendation, which is not binding on the Supreme Court, to uphold or reject points of appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-93043
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: ZEMEROV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Viktor Alekseyevich Zemerov, is a Russian national who was born in 1937 and lives in Moscow. The Russian Government (“the Government”) are represented by their Agent, Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 September 2000 the Lefortovskiy District Court of Moscow upheld the applicant’s action against the Ministry of Internal Affairs and awarded him a lump sum of 154,017.71 Russian roubles (RUB) in compensation for health damage and RUB 4,498.16 in monthly payments starting from 1 September 2000. The District Court also noted that monthly payments were to be adjusted to increases of the minimum statutory wage. The judgment was upheld on appeal and became final on 26 January 2001.
The lump sum was paid in one month and eight days after the judgment became final. The monthly payments were made on time. However, the adjustment the authorities made was wrong and the applicant brought a civil action for damages.
On 20 June 2003 the Moscow City Court, in the final instance, dismissed the applicant’s claims.
On 13 October 2003 the Lefortovskiy District Court of Moscow granted the applicant’s request for reopening of the proceedings due to newly discovered circumstances.
On 25 November 2003 the Lefortovskiy District Court upheld the applicant’s action against the Ministry of Internal Affairs, made an adjustment of the monthly payments the applicant asked for and awarded him a lump sum of RUB 101,272.78 representing arrears in monthly payments of compensation for damage for the period from 1 January 2001 to 30 November 2003 and RUB 9,625.78 in monthly payments from 1 December 2003. The District Court noted that monthly payments were to be adjusted to increases of the coefficient of the minimum subsistence level in Moscow. The judgment was not appealed against and became final.
The lump sum was paid one month and eight days after the judgment became final. The monthly payments were paid on time. The judgment was not enforced as regarded the adjustment and the applicant sued the authorities.
On 15 June 2004 the Lefortovskiy District Court found for the applicant and awarded him RUB 6,834.45 representing arrears in monthly payments for the period from 1 January to 31 May 2004 and RUB 10,992.64 in monthly payments to be increased accordingly. The judgment was not appealed against and became final on 28 June 2004.
The lump sum was paid one month and ten days after the judgment became final. The monthly payments were paid on time, but the authorities again failed to adjust the monthly payments and the applicant brought another action against them.
On 18 November 2005 the Lefortovskiy District Court awarded the applicant RUB 7,914.69 representing arrears in monthly payments for the period from 1 January to 31 September 2005 and RUB 11,872.05 in monthly payments to be increased according to the requirements of law. The judgment was not appealed against and became final on 28 November 2005. The lump sum was paid one month and twenty six days after the judgment became final. The monthly payments were paid on time.


ITEMID: 001-4852
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: YASAR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Turkish citizen, born in 1942 in Konya, Turkey. He is a practising lawyer in İzmir.
The applicant is represented before the Court by Mr Güney Dinç and Mr Nevzat Erdemir, both practising lawyers in İzmir.
A.
The facts of the case as submitted by the applicant may be summarised as follows.
In 1991 the applicant represented five landlords in a special enforcement procedure for the eviction of tenants renting their building during which the judge agreed to stay the eviction in view of the defendant’s offer of security. The judge dismissed the applicant’s objection to his decision.
On 11 May 1992 one of the applicant’s clients (T.K.) sent the judge a personal telegram stating that his decision was “very arbitrary, unheard of and biased”. The client stated that if the judge did not change his former decision, he would, under Article 573 of the Code of Civil Procedure (Hukuk Usulu Muhakemeleri Kanunu), hold him personally liable for any damage which may result.
On 18 May 1992 the applicant and three of his other clients signed a warning letter which they sent to the judge through the intermediary of a public notary. The letter referred to the telegram dated 11 May 1992 as “our telegram” and alleged that the judge’s decisions were “contrary to clear and definite provisions of a Law which needed no interpretation” within the meaning of Article 573 § 2 of the Code of Civil Procedure. The warning letter also referred to Article 574 § 2 of the Code of Civil Procedure which requires that any judge who refuses to accept a petition or to commence proceedings be warned in a notarised warning letter before an action can be initiated against him.
On 22 May 1992 the judge lifted his stay of execution decision. On the same day the defendants were evicted from the building.
On 22 May 1992 the judge lodged a complaint with the Head Office of the Public Prosecutor of İzmir, accusing the applicant and his clients of insulting (hakaret) and threatening (tehdit) a judge in their telegram and notarised warning letter. The Public Prosecutor eventually brought charges against the applicant under Article 266 § 3 of the Turkish Criminal Code which makes it a criminal offence to insult or threaten a judge in the exercise of his judicial functions.
The first hearing before the 1st Assize Court of İzmir was held on 28 March 1994. On that date, the judge happened to be sitting as a substitute member of the three-judge Assize Court. When it was time for the case in question to be heard, the judge took off his robe, left his seat for another substitute judge who came to replace him and sat in the place designated for complainants. During the hearing the judge was heard in his capacity of complainant. The applicant and his lawyers did not challenge the objectivity of the two other judges who were sitting with the judge prior to the hearing within the time-limit prescribed by Article 24 of the Code of Criminal Procedure. After the hearing, the judge took his seat as the substitute judge of the 1st Assize Court of İzmir for the hearings in the other cases listed for that day.
At a further hearing and in reply to the closing submissions of the Public Prosecutor, the applicant’s lawyers argued that the applicant had not personally co-signed T.K.’s telegram of 11 May 1992 and could not therefore be held liable for its contents. He maintained that he had no intention to insult or threaten the judge, his only purpose being to protect the interests of his clients by requesting that the impugned decision be changed and to remind the judge of his personal liability under Article 573 § 2 of the Code of Civil Procedure if the decision remained unchanged. In their final submissions the applicant’s lawyers referred to the first hearing held on 28 March 1994. In this respect, they complained inter alia, about the fact that the complainant judge who had brought the criminal proceedings against him served as a member of the 1st Assize Court of İzmir in other cases. They argued that in the course of the proceedings the complainant wrongfully tried to influence his colleagues on the bench. Without making a motion for the disqualification of any of the judges (“hakimin reddi talebi”), they concluded their observations on this issue with the words “We convey this situation to the Court’s understanding of law and justice”.
On 3 November 1994 the 1st Assize Court of İzmir acquitted the applicant on the charge of threatening the judge. However, it convicted him of insulting the judge contrary to Article 266 § 3 of the Turkish Criminal Code and sentenced him to five months’ imprisonment and a fine of 100,000 Turkish liras. The prison sentence was converted to a fine and suspended. The total fine imposed on the applicant was 833,333 Turkish liras. In its reasoning, the court held that the applicant’s reference to the telegram in the text of the notarised warning letter, with the words “our telegram”, was sufficient evidence to conclude that the applicant had been involved in preparing and sending the telegram. According to the court, the legal terminology used in the telegram indicated that it had not been drafted by a layman, but by a lawyer, namely the applicant. The court furthermore held that “a telegram” was not a method prescribed by law for warning judges. With reference to Article 138 § 2 of the Constitution (Anayasa), the court added that a judge could not be addressed in the exercise of his judicial powers in a manner intended to give him instructions. The court concluded, inter alia, that the sending of a notarised warning letter to the judge was not appropriate in the circumstances since the judge had not refrained from accepting petitions or commencing proceedings. One of the three judges on the 1st Assize Court of İzmir dissented on the basis that the applicant could not be held responsible for a telegram which he had not co-signed and that he had not intended to insult the judge.
On 2 December 1994 the applicant’s lawyers appealed to the Court of Cassation (Yargıtay). They referred to the opinion of the dissenting judge. In his grounds of appeal the applicant relied on the argument that the trial court did not attach sufficient importance to the fact that immediately before his trial began the complainant judge had been sitting on the bench of that same court. They also requested a hearing before the Court of Cassation.
On 18 May 1995 the Office of the Chief Public Prosecutor of the Court of Cassation submitted in writing its closing opinion to the 4th Chamber of the Court of Cassation for Criminal Matters. The Office of the Chief Public Prosecutor submitted that the applicant’s reference in the text of the notarised warning letter to the words “our telegram” was not sufficient evidence to conclude that the applicant had in fact written the telegram which, moreover, had not been signed by him. The Chief Public Prosecutor advised the Court of Cassation that the applicant’s conviction should be quashed. This written opinion was not served on the applicant.
On 7 July 1995 the 4th Chamber of the Court of Cassation for Criminal Matters rejected the applicant’s request for a hearing and upheld the judgment of the 1st Assize Court of İzmir. It found that the applicant was able to submit and have considered at his trial all evidence in his defence to the charges. The court concluded that the reasoning in the trial court’s judgment was sufficient, consistent and based on a proper evaluation of the evidence.
B. Relevant domestic law
Chapter 3 of the Turkish Code of Criminal Procedure contains provisions governing the disqualification of a judge. Article 24 provides:
“A motion for disqualification on grounds of suspected partiality of a judge may be made at any time before the final decision to open the trial or the accusation is read, and in the event of an appeal the motion to disqualify an appellate judge may be made at any tine before the presentation of the rapporteur’s report in those cases where there is a hearing, and in cases where there is no hearing, the motion may be made at any time before the initiation of the appellate review.
Where the circumstances entitling one to move for disqualification arise subsequent to the aforementioned ones, the motion may be made at any time prior to the final disposition of the case.”
According to Article 25 of the Code:
“A motion for disqualification may be made by a petition to the court or by making a declaration to the clerk of the court having him prepare a formal petition in that respect.
The party seeking the motion is obliged to submit proof of the grounds upon which disqualification is sought and a mere statement of belief is insufficient proof.
The court may require a judge whose disqualification is sought to comment on the particulars which furnish the basis of the motion, and the judge must set forth his conclusions as to the sufficiency of these particulars.”
Article 26 of the Code states, inter alia:
The motion to disqualify a judge is decided by that court of which the challenged judge is a member. However, if the non-participation of the challenged judge results in the court lacking a sufficient quorum and the court is a court of first instance, the Aggravated Felony court in the same jurisdiction shall decide on the matter ...”.