ITEMID: 001-94200
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF STRATI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 8 - Right to respect for private and family life;Violation of Article 3 - Prohibition of torture (Substantive aspect);No violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial;No violation of Article 7 - No punishment without law;No violation of Article 11 - Freedom of assembly and association;No violation of Article 13 - Right to an effective remedy;No violation of Article 14 - Prohibition of discrimination read in the light of Article 5 - (Art. 5) Right to liberty and security;No violation of Article 14 - Prohibition of discrimination read in the light of Article 6 - (Art. 6) Right to a fair trial;No violation of Article 14 - Prohibition of discrimination read in the light of Article 7 - (Art. 7) No punishment without law
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza
TEXT: 7. The applicant was born in 1964 and lives in Larnaca.
8. The applicant claimed that his home had been in the village of Marathovounos in the District of Famagusta (northern Cyprus). His family had owned considerable immovable property in northern Cyprus and was one of the wealthiest families in the village. The applicant's parents had intended to transfer to him a quarter share in their immovable properties when he reached the age of 18. However, because of the 1974 Turkish intervention this did not happen. The applicant considered that, even though the formal registration process was not completed, he had been the “beneficial owner” of the said share in the properties from the age of 18.
9. The properties listed below were all transferred to the applicant by way of gift from his parents on 6 August 1996 (declarations of transfer nos. D-1534, D-1535, D-1537 and D-1538):
(a) Famagusta, Marathovounos, Rashies, plot no. 149, sheet/plan: 22/24; description: house (area: approximately 250 square metres) and yard (ground floor); use: residence; area 2,339 sq. m; share: ¼;
(b) Famagusta, Marathovounos, plot no. 223, sheet/plan: 22/24; description: field; area 2,161 sq. m; share: ¼;
(c) Famagusta, Marathovounos, plot no. 170, sheet/plan: 22/24; description: field; area 1,339 sq. m; share: ¼;
(d) Famagusta, Marathovounos, Rashies, plot no. 188, sheet/plan: 22/24; description: field; area 2,190 sq. m; share: ¼;
(e) Famagusta, Marathovounos, plot no. 303/1/1, sheet/plan: 22/24.V.1; description: field; area 276 sq. m; share: ¼;
(f) Famagusta, Marathovounos, Xylogefyro, plot no. 130, sheet/plan: 23/26; description: field; area 26,127 sq. m; share: ¼;
(g) Famagusta, Marathovounos, Landes, plot no. 406, sheet/plan: 22/32; description: field; area 4,925 sq. m; share: ¼;
(h) Famagusta, Marathovounos, Paneloporta, plot no. 274, sheet/plan: 22/32; description: field; area 4,076 sq. m; share: ¼;
(i) Famagusta, Marathovounos, Paneloporta, plot no. 275, sheet/plan: 22/32; description: field; area 4,413 sq. m; share: ¼;
(j) Famagusta, Marathovounos, Pallourokampos, plot no. 403, sheet/plan: 22/31; description: field; area 9,382 sq. m; share: ¼;
(k) Famagusta, Angastina, plot no. 439/1, sheet/plan: 22/31; description: field; area 7,055 sq. m; share: ¼;
(l) Famagusta, Angastina, plot no. 439/2, sheet/plan: 22/31; description: field; area 974 sq. m; share: ¼;
(m) Famagusta, Marathovounos, Parraka, plot nos. 330/2/1, 330/3, 335/1, sheet/plan: 22/7; description: field; area 8,758 sq. m; share: ¼;
(n) Famagusta, Marathovounos, Tzaetika, plot no. 135, sheet/plan: 22/16; description: field; area 3,145 sq. m; share: ¼;
(o) Famagusta, Marathovounos, Hepipis, plot no. 236, sheet/plan: 22/16; description: field; area 2,703 sq. m; share: ¼;
(p) Famagusta, Marathovounos, Vitsada Road, plot no. 269, sheet/plan: 22/16; description: field; area 2,325 sq. m; share: ¼;
(q) Famagusta, Marathovounos, Tzaetika, plot no. 246/1, sheet/plan: 22/16; description: field; area 1,994 sq. m; share: ¼;
(r) Famagusta, Marathovounos, Tzaetika, plot no. 246/2, sheet/plan: 22/16; description: field; area 1,918 sq. m; share: ¼.
10. The properties listed below were all transferred to the applicant by way of gift from his parents on 12 January 2000 (declaration of transfer no. D-36):
(a) Famagusta, Marathovounos, plot no. 321, sheet/plan: 22/24.V.1; description: house and yard (ground floor); area 1,238 sq. m; share: ¼;
(b) Famagusta, Marathovounos, Limni, plot no. 147, sheet/plan: 22/32; description: field; area 1,370 sq. m; share: ¼;
(c) Famagusta, Marathovounos, Limni, plot no. 140/1, sheet/plan: 22/32; description: field; area 11,050 sq. m; share: ¼;
(d) Famagusta, Marathovounos, Mazeri, plot no. 180/1, sheet/plan: 23/17; description: field; area 13,500 sq. m; share: 1/8;
(e) Famagusta, Marathovounos, Toumpa, plot no. 34, sheet/plan: 23/17; description: field; area 17,827 sq. m; share: 1/32.
11. The properties listed below were all transferred to the applicant by way of gift from his parents on 13 January 2000 (declarations of transfer nos. D-45 and D-46):
(a) Famagusta, Marathovounos, Trachonas, plot no. 805, sheet/plan: 22/24; description: field; area 11,542 sq; m; share: 1/8;
(b) Famagusta, Angastina, Angoulos, plot no. 267, sheet/plan: 22/30; description: field; area 13,925 sq. m; share: 1/16;
(c) Famagusta, Angastina, Angoulos, plot no. 152, sheet/plan: 22/38; description: field; area 3,295 sq. m; share: 1/16.
12. In order to substantiate his claim to ownership, the applicant produced the relevant certificates of ownership of Turkish-occupied immovable property issued by the Republic of Cyprus.
13. The applicant alleged that since the 1974 Turkish intervention he had been deprived of his property rights, as his property was located in the area that was under the occupation and control of the Turkish military authorities. They had prevented him from having access to and from using his properties.
14. On 19 July 1989, the applicant joined an anti-Turkish demonstration in the Ayios Kassianos area in Nicosia in which the applicants in the Chrysostomos and Papachrysostomou v. Turkey and Loizidou v. Turkey cases (see below) also took part.
15. According to an affidavit sworn by the applicant before the “TRNC” Nicosia District Court on 7 August 2000, the demonstration of 19 July 1989 was peaceful and was held on the fifteenth anniversary of the Turkish intervention in Cyprus, in support of the missing persons and to protest against human-rights violations.
16. The applicant heard about the demonstration from the local radio and press. During the afternoon of 19 July 1989 the radio announced that Turkish soldiers and policemen had started to cruelly beat the demonstrators. The applicant, a nursing officer, decided to go to the area where the events were taking place. He took with him a special bag containing first-aid equipment and wore an armband marked with the Red Cross sign.
17. The applicant told UN officers that he was a nurse and they informed him that they needed his help for a woman who had received an injury to the head and was lying on the ground. While he was trying to attend to the woman, the applicant was beaten with clubs about the head and body by Turkish military personnel and/or other personnel acting under Turkish control. Despite his attempts to explain that he was a nurse, they continued to hit him. He felt a powerful blow to the head and started bleeding. He was led away at gunpoint through an angry crowd that shouted abuse and threats and was then taken by bus to the so-called “Pavlides Garage”. The crowd had encircled the bus and was hitting it with sticks and throwing stones at the arrested persons.
18. At the garage a body search was carried out and all the applicant's personal effects were taken. The crowd was shouting and throwing stones at the garage, some of which came through the roof. Some hours later he was taken to hospital where he had stitches to his head. He was then taken back to the garage. He was still bleeding and his clothes were soaked with blood. Sometime after midnight he was interrogated by a Greek-speaking officer. The applicant declared that he had joined the demonstration voluntarily for humanitarian reasons. He was told to sign a statement in Turkish but refused as he did not understand Turkish and signing would have been tantamount to recognising the “Turkish Republic of Northern Cyprus” (the “TRNC”).
19. In the morning of 20 July 1989 he was taken to Seray Police Station and put in a cell that was dark, damp and dirty. While at the station he was beaten and threatened.
20. On 20 July 1989 he was given back his personal effects and taken to court, where an interpreter explained the charges to the accused. The applicant understood that he was accused of having violated the borders of the “TRNC”. He informed the judge that he had attended the demonstration only in order to offer humanitarian aid as a member of the Red Cross. The court remained completely indifferent to what he said.
21. He was remanded in custody for two days and then taken to Ortakeuy Prison where all his personal effects were taken away again. He was blindfolded and led to another area of the prison where he was interrogated and punched. The interrogation was aimed solely at eliciting military information and the applicant lied about certain details. He was forced to wash the blood from his clothes before appearing in court the next day. After the interrogation he was taken to the central prison.
22. On 21 July 1989 he was taken to court. Foreign journalists and UN officers were present in the courtroom. The accused had no legal representation and the quality of the interpretation was poor; the applicant felt that the interpreter was not translating all of what was being said. One of the accused (the Bishop of Kitium) spoke on behalf of the others and said that they would agree to be defended only by a Greek-Cypriot or UN lawyer. The judge replied that she could only appoint a lawyer registered with the “TRNC” bar association. The accused pleaded not guilty and stated that they did not recognise the legitimacy of the “TRNC” or its tribunals. Four witnesses were called by the prosecution. The Bishop of Kitium put some questions to the first witness. However, the judge refused to allow some of the questions and the Bishop accordingly declined to cross-examine any other witness. The prosecution witnesses lied about basic facts surrounding the demonstration and the arrest of the accused. One of the persons present in the courtroom spoke briefly to the Bishop, who became frightened as a result. After the trial the applicant and his co-accused were taken back to prison. Their pictures were taken.
23. On 22 July 1989 the applicant was again taken to court. A hostile crowd gathered outside the courtroom. The applicant was sentenced to three days' imprisonment and a fine of 50 Cyprus pounds (CYP) – approximately 85 euros (EUR) – with five additional days in prison in default of payment within 24 hours. This decision was translated into Greek and the accused stated that they would not pay the fine. An angry crowd had assembled within the precinct of the court and was shouting, swearing and making obscene gestures at the accused. The applicant had the impression that the crowd's presence and actions were being orchestrated and controlled by the police.
24. From 24 until 28 July 1989 the applicant went on a hunger strike to protest about the prison director's refusal to give the Bishop of Kitium church vestments and holy vessels with which to celebrate mass. He was put in an isolation cell as punishment but continued his strike notwithstanding the pressure exerted by the prison staff.
25. On 28 July 1989 the applicant was released and taken back to southern Cyprus.
26. On 29 July 1989 he went to the police headquarters in Nicosia and made a complaint about his arrest and ill-treatment. He was referred to Nicosia General Hospital, where he was examined by a doctor.
27. In support of his claim of ill-treatment, the applicant produced a medical certificate issued on 29 July 1989 by Dr A. Hadjihannas, a medical officer at Nicosia Hospital. This document reads as follows:
“I have examined today 29.7.89 Costas Stratis and found a head injury (left frontal bone). Four stitches. B.P. = 120/80. Removal of stitches and cleaning of wound was recommended. He complains about mild pain in the epigastrium and nausea. Treatment was provided and urine culture was recommended for old nephritis.”
28. The Government alleged that the applicant had participated in a violent demonstration with the aim of inflaming anti-Turkish sentiment. The demonstrators, supported by the Greek-Cypriot administration, were demanding that the “Green Line” in Nicosia should be dismantled. Some carried Greek flags, clubs, knives and wire-cutters. They were acting in a provocative manner and shouting abuse. The demonstrators were warned in Greek and English that unless they dispersed they would be arrested in accordance with the laws of the “TRNC”. The applicant was arrested by the Turkish-Cypriot police after crossing the UN buffer zone and entering the area under Turkish-Cypriot control. The Turkish-Cypriot police intervened in the face of the manifest inability of the Greek-Cypriot authorities and the UN Force in Cyprus to contain the incursion and its possible consequences.
29. No force was used against demonstrators who did not intrude into the “TRNC” border area and, in the case of demonstrators who were arrested for violating the border, no more force was used than was reasonably necessary in the circumstances in order to arrest and detain the persons concerned. No one was ill-treated. It was possible that some of the demonstrators had hurt themselves in the confusion or in attempting to scale barbed wire or other fencing. Had the Turkish police, or anyone else, assaulted or beaten any of the demonstrators, the UN Secretary General would no doubt have referred to this in his report to the Security Council.
30. The applicant was charged, tried, found guilty and sentenced to a short term of imprisonment. He pleaded not guilty, but did not give evidence and declined to use the available judicial remedies. He was asked if he required assistance from a lawyer registered in the “TRNC”, but refused and did not ask for legal representation. Interpretation services were provided at the trial by qualified interpreters. All the proceedings were translated into Greek.
31. In his report of 7 December 1989 on the UN operations in Cyprus, the UN Secretary General stated, inter alia:
“A serious situation, however, arose in July as a result of a demonstration by Greek Cypriots in Nicosia. The details are as follows:
(a) In the evening of 19 July, some 1,000 Greek Cypriot demonstrators, mostly women, forced their way into the UN buffer zone in the Ayios Kassianos area of Nicosia. The demonstrators broke through a wire barrier maintained by UNFICYP and destroyed an UNFICYP observation post. They then broke through the line formed by UNFICYP soldiers and entered a former school complex where UNFICYP reinforcements regrouped to prevent them from proceeding further. A short while later, Turkish-Cypriot police and security forces elements forced their way into the area and apprehended 111 persons, 101 of them women;
(b) The Ayios Kassianos school complex is situated in the UN buffer zone. However, the Turkish forces claim it to be on their side of the cease-fire line. Under working arrangements with UNFICYP, the Turkish-Cypriot security forces have patrolled the school grounds for several years within specific restrictions. This patrolling ceased altogether as part of the unmanning agreement implemented last May;
(c) In the afternoon of 21 July, some 300 Greek Cypriots gathered at the main entrance to the UN protected area in Nicosia, in which the UN headquarters is located, to protest the continuing detention by the Turkish-Cypriot authorities of those apprehended at Ayios Kassianos. The demonstrators, whose number fluctuated between 200 and 2,000, blocked all UN traffic through this entrance until 30 July, when the Turkish-Cypriot authorities released the last two detainees;
(d) The events described above created considerable tension in the island and intensive efforts were made, both at the UN headquarters and at Nicosia, to contain and resolve the situation. On 21 July, I expressed my concern at the events that have taken place and stressed that it was vital that all parties keep in mind the purpose of the UN buffer zone as well as their responsibility to ensure that that area was not violated. I also urged the Turkish-Cypriot authorities to release without delay all those who had been detained. On 24 July, the President of the Security Council announced that he had conveyed to the representatives of all the parties, on behalf of the members of the Council, the Council's deep concern at the tense situation created by the incidents of 19 July. He also stressed the need strictly to respect the UN buffer zone and appealed for the immediate release of all persons still detained. He asked all concerned to show maximum restraint and to take urgent steps that would bring about a relaxation of tension and contribute to the creation of an atmosphere favourable to the negotiations.”
32. The applicant produced 21 photographs taken at different times during the demonstration on 19 July 1989. Photographs 1 to 7 were intended to show that, notwithstanding the deployment of the Turkish-Cypriot police, the demonstration was peaceful. In photographs 8 to 10 members of the Turkish-Cypriot police are seen breaking up the UNFICYP cordon. The final set of photographs show members of the Turkish-Cypriot police using force to arrest some of the demonstrators.
33. The English translation of the “TRNC” Nicosia District Court's judgment of 22 July 1989 indicates that the applicant, together with 9 other men, was charged with two offences: entering “TRNC” territory without permission (contrary to sections 2, 8 and 9 of Law no. 5/72 – see paragraph 40 below) and entering “TRNC” territory other than through an approved port (contrary to subsections 12(1) and (5) of the Aliens and Immigration Law – see paragraph 41 below).
34. The judgment was given in the presence of the accused and of an interpreter. The trial judge noted the following:
(i) the accused did not accept the charges against them and stated that they did not wish to use the services of a lawyer registered in the “TRNC”;
(ii) the public prosecutor called five witnesses, whose statements were translated into Greek for the accuseds' benefit;
(iii) the witnesses (mainly police officers on duty at the time of the demonstration) declared that the accused had illegally crossed the “TRNC” border, shouted abuse at the Turkish-Cypriot forces and resisted arrest by pulling and pushing; knives and other cutting objects had been found in the bags of some of the demonstrators who had been arrested;
(iv) the accused had been told that they could cross-examine witnesses in turn and, if they so wished, choose one of their number to cross-examine the witnesses on behalf of all the accused; during the hearing of evidence, one of the accused put a few questions to one of the prosecution witnesses;
(v) the applicant had stated that he considered the Cypriot coast to be the border and for that reason did not accept that he had violated the border; before the District Court gave its sentence, the Bishop of Kitium, speaking on behalf of all the accused, had made a statement saying that their struggle had been peaceful, that their aim was to have Greek-Cypriots and Turkish-Cypriots living together in peace, that they had not been carrying weapons and that they had asked for UN protection;
(vi) relying on statements by the prosecution witnesses, which were not undermined by the statements made by some of the accused, the District Court came to the conclusion that the accused had crossed the borders of the “TRNC” at an unapproved entry point and without permission and had resisted by various means the UN and Turkish forces which had tried to stop them;
(vii) the prosecution had proved its case beyond reasonable doubt, so that the accused were guilty on both counts;
(viii) in deciding on the sentence, the District Court had taken into account the seriousness of the offence, and the fact that the accused had shown no remorse and continued to deny the validity of the “TRNC”.
35. Section 70 of the Cypriot Criminal Code reads as follows:
“Where five or more persons assemble with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace they are an unlawful assembly.
It is immaterial that the original assembly was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.
When an unlawful assembly has begun to execute the purpose, whether of a public or of a private nature, for which it assembled by a breach of the peace and to the terror of the public, the assembly is called a riot, and the persons assembled are said to be riotously assembled.”
36. According to section 71 of the Criminal Code, any person who takes part in an unlawful assembly is guilty of a misdemeanour and liable to imprisonment for one year.
37. Section 80 of the Criminal Code provides:
“Any person who carries in public without lawful occasion any offensive arm or weapon in such a manner as to cause terror to any person is guilty of a misdemeanour, and is liable to imprisonment for two years, and his arms or weapons shall be forfeited.”
38. According to section 82 of the Criminal Code, it is an offence to carry a knife outside the home.
39. The relevant part of Chapter 155, section 14 of the Criminal Procedure Law states:
“(1) Any officer may, without warrant, arrest any person -
...
(b) who commits in his presence any offence punishable with imprisonment;
(c) who obstructs a police officer, while in the execution of his duty...”
40. Section 9 of Law No. 5/72 states:
“... Any person who enters a prohibited military area without authorization, or by stealth, or fraudulently, shall be tried by a military court in accordance with the Military Offences Act; those found guilty shall be punished.”
41. Subsections 12 (1) and (5) of the Aliens and Immigration Law read as follows:
“1. No person shall enter or leave the Colony except through an approved port.
...
5. Any person who contravenes or fails to observe any of the provisions of subsections (1), (2), (3) or (4) of this section shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding one hundred pounds or to both such imprisonment and fine.”
VIOLATED_ARTICLES: 3
8
P1
VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_ARTICLES: 11
13
14
5
6
7


ITEMID: 001-68077
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ENHORN v. SWEDEN
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-1-e;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 8. The applicant was born in 1947 and is homosexual. In 1994 it was discovered that he was infected with the HIV virus and that he had transmitted the virus to a 19-year-old man with whom he had first had sexual contact in 1990.
9. In this context, on 1 September 1994 a county medical officer (smittskyddsläkaren) issued the following instructions to the applicant pursuant to the 1988 Infectious Diseases Act (smittskyddslagen – “the 1988 Act”).
“[The applicant] is not allowed to have sexual intercourse without first informing his partner about his HIV infection. He is required to use a condom. He is to abstain from consuming such an amount of alcohol that his judgment would thereby be impaired and others put at risk of being infected with HIV. If the applicant is to have a physical examination, an operation, a vaccination or a blood test or is bleeding for any reason, he must tell the relevant medical staff about his infection. He must also tell his dentist [about it]. Moreover, the applicant is prohibited from giving blood and donating organs or sperm. Finally, he is to visit his consulting physician again and to keep appointments fixed by the county medical officer.”
It appears to be in dispute whether the instructions were included in the applicant's medical record as prescribed by section 16 of the 1988 Act. It is not in dispute, however, that the applicant was informed of the instructions, which were issued to him on 1 September 1994, both orally and in writing.
10. The applicant kept three appointments with the county medical officer in September 1994 and one in November 1994. He also received two home visits by the county medical officer. He failed to appear as summoned five times during October and November 1994.
11. On 2 February 1995 the county medical officer petitioned the County Administrative Court (länsrätten) for a court order that the applicant be kept in compulsory isolation in a hospital for up to three months pursuant to section 38 of the 1988 Act.
The court's record of the applicant's statement reads, inter alia, as follows:
“After learning about his HIV infection he had hardly had any sexual relationships. Henceforward he would only have sexual relations with other HIV infected persons. The applicant did not wish to visit the county medical officer or a psychiatrist, but finding his communication with his consulting physician satisfactory he intended to pay the latter monthly visits.”
The county medical officer stated, among other things:
“[The applicant] may not be sexually active at present, but experience has shown that when the opportunity arises he is likely to have sexual relations, preferably with younger men and without thinking of the consequences. [The applicant] refuses to face his situation, does not want to change his conduct and distorts reality in such a way that he is never to blame for anything. In order for [the applicant's] behaviour to change it is necessary for him to consult a psychiatrist. Having regard to his [resistance thereto], the risk of him spreading the disease is obvious.”
12. A statement of 16 February 1995 was submitted to the County Administrative Court by a deputy chief physician and specialist in psychiatry, S.A., who had met the applicant twice in a psychiatric ward at an infection clinic. He found, inter alia:
“Having learnt that he was HIV-positive, the applicant reacted with a high level of anxiety, which he attempted to alleviate with alcohol. He has maintained that he drinks three strong beers at night in order to be able to sleep. He has had periods of extensive [alcohol] abuse as a consequence of learning that he was infected with HIV but also when he lost his job. [The applicant's] lack of social contact and his feeling of being an outsider, in combination with possible alcohol abuse, could increase the risk of destructive sexual relations.”
13. In a judgment of 16 February 1995, finding that the applicant had failed to comply with the measures prescribed by the county medical officer, aimed at preventing him from spreading the HIV infection, the County Administrative Court ordered that the applicant should be kept in compulsory isolation for up to three months pursuant to section 38 of the 1988 Act.
The order took effect immediately, but the applicant failed to report to the hospital; the police accordingly took him there on 16 March 1995.
14. It appears that the order and others subsequently issued by the County Administrative Court were upheld on appeal by the Administrative Court of Appeal (kammarrätten), so that the applicant's compulsory confinement was repeatedly prolonged by periods of six months at a time.
15. While being isolated the applicant had the opportunity to go outdoors every day together with members of the hospital staff, but not on his own. Also, he was able to accompany staff members on different activities outside the hospital grounds.
The applicant absconded from the hospital several times, first on 25 April 1995. The police, whom he had contacted voluntarily, returned him to the hospital on 11 June 1995. On 27 September 1995 he ran away again and was at large until the police found him on 28 May 1996. The applicant absconded for a third time on 6 November 1996 but returned of his own accord on 16 November 1996. He ran away for the fourth time on 26 February 1997 and was not returned until 26 February 1999.
During the period from 26 February until 2 March 1999 the applicant was detained in his room.
16. On 14 April 1999 the county medical officer petitioned the County Administrative Court anew for an extension of the applicant's compulsory isolation. According to the record of a hearing held in camera on 20 April 1999, the applicant explained, among other things, the following:
“... before 1994 he had had ten to twelve sexual relations per year. His partners were partly old acquaintances, partly new ones, whom he met in parks and so on. The boy, who was 15 years old when they met, took the initiative both emotionally and sexually. Today [the applicant] realises that he infected the boy, which he finds very regrettable. A relative with psychiatric problems, with whom [the applicant] had had a longer sexual relationship, was likewise the initiator. While he was on the run from [26 February] 1997 until [26 February] 1999, he had had no sexual relations. He had taken precautions against spreading the disease and, having had to visit physicians twice during his period at large, on both occasions he had informed them about his HIV infection. Mostly he had kept to himself. From October 1997 until June 1998 and from August 1998 until February 1999, he had lived at a farm hostel and, during the periods in between, when the hostel was full, he had camped. He had spent his time shopping, cooking, watching TV, spending money on lottery games and drinking beer. He had drunk approximately six strong beers a week and never got drunk. He dreamt of living on his own in a flat, supporting himself on sickness benefit. He had lost all sexual desire and would in future have to decline all sexual relations. If he were to be exempted from compulsory isolation he would follow the instructions issued by the county medical officer.”
17. The owner of the farm hostel gave evidence on the applicant's behalf. The record of his statement reads, inter alia, as follows:
“[The applicant], under a pseudonym, had stayed at his farm hostel from October 1997 until June 1998 and from August 1998 until January 1999. [The owner] had talked briefly with him almost every day during those periods. [The applicant] had not bothered anybody and had not formed any personal relationships. He used to go shopping once a day, usually for beer, and [the witness] would estimate that he had drunk between four and six cans of beer every day ... [The applicant] had gone to Stockholm or Norrköping on a few occasions in order to deal with money matters ... However, in Norrköping he had primarily gone to the liquor store ... [The witness] could hardly imagine that [the applicant] had had any sexual relations while living at the hostel ...”
18. Also on the applicant's behalf, an opinion was submitted by a chief physician, P.H., on 16 April 1999 regarding the applicant's alcohol consumption. Having examined various laboratory tests performed since 31 July 1995 in order to check the applicant's liver, he found no divergent results. The most recent laboratory test, carried out on 18 March 1999, indicated that the applicant had a healthy liver.
It was noted that subsequent to his return the applicant had been in contact with a chief physician and specialist in psychiatry, C.G., who was not connected to the hospital.
19. A statement was submitted to the court by a consulting psychiatric chief physician, P.N., connected to the special care facility at the hospital to which the applicant had been admitted. After the applicant's involuntary return, P.N. had attempted to establish contact with him three times, but in vain. He claimed that on the latest occasion, in March 1999, the applicant had made a lunge at him. In P.N.'s view, the applicant had not made any positive progress since 10 October 1996, the date of P.N.'s most recent official opinion regarding the applicant's condition, in which he had, inter alia, made the following assessment:
“The applicant suffers from a paranoid personality disorder and from alcohol abuse. He is considered to be completely devoid of any sense of being ill and also lacks awareness. The combination of a sexual leaning towards younger men and a possible alcohol-related neuro-psychological functional impairment with, from time to time, a probably paranoid personality disorder, close to psychosis, and previous dangerous behaviour from the infection-spreading viewpoint, is deemed unfavourable. The chances of eliminating or limiting the continuous risk of the infection being spread by means of a prolonged placement in isolation in accordance with the Act are deemed – all facts considered – to have not yet completely vanished.”
20. Also submitted was a statement of 8 April 1999 by B.S., a psychologist at the special care facility at the hospital who had met the applicant once. B.S. found that the applicant was intellectually above average and that he appeared immature and fragile and showed signs of being suspicious and distrustful.
21. The statement of the county medical officer, who gave evidence before the court, is recorded, inter alia, as follows:
“During the last two years when he was on the run, [the applicant] sought medical treatment twice and it has been established that both times he said that he had the HIV virus [as opposed to the period when he absconded between September 1995 and May 1996, during which he failed three times to inform medical staff about his condition]. Moreover, [the applicant] has [finally] accepted that he infected the young man with whom he had a long-lasting relationship from the beginning of the 1990s, thus admitting that it was not the other way around. Also, he has agreed to sign a treatment plan and to consult two physicians of his own choice ... These circumstances suggest the beginning of an improvement in [the applicant's] attitude towards treatment. Nevertheless, it has not been established that [the applicant] has materially changed his attitude regarding the risk that he may spread the disease. He continues to show himself unable to accept the aid and support measures he is entitled to receive; he has refused to consult the psychiatrist P.N. and the psychologist B.S. Moreover, having been in touch with the physicians whom [the applicant] has [recently] contacted voluntarily [P.H. and C.G.], the county medical officer considers that these consultations were partly economically motivated [on account of the fact that the applicant needed medical certificates in order to continue to receive sickness benefit], partly motivated by his wish to be declared mentally healthy, but [not motivated] by any willingness to commence treatment. During [the applicant's] contact with the doctors in question, they did not discuss the risk of spreading the disease at all. A treatment plan was not formally signed [by the applicant]. In conclusion, in the county medical officer's opinion, [if released the applicant] will not voluntarily comply with the instructions given or limit the spreading of the disease.”
As regards the laboratory tests concerning the applicant's liver, the county medical officer found these to be of doubtful value, since they had been performed in connection with the compulsory isolation of the applicant at the hospital, but never in connection with a period of intoxication.
22. On 23 April 1999 the County Administrative Court delivered its judgment, finding against the applicant for the following reasons:
“[The applicant] is HIV-positive and thus carries the HIV infection. He has been subjected to compulsory isolation since February 1995 and has during this period absconded from the hospital on several occasions – on the latest occasion for more than two years. During these two years he did not have any contact with the county medical officer or the consulting physician. Periodically he has used a false name and has been living a very secluded life, obviously owing to the risk of being discovered. A life at liberty makes great demands upon the person carrying the infection. During the time preceding his compulsory isolation, [the applicant] was not able to follow the practical instructions issued. Subsequently, he has consistently declined the help offered by the consulting physician and the psychiatrist at the special care facility at the hospital and has instead responded with aversion and mistrust – and by escaping. [The Court] finds that it has been difficult for [the applicant] to accept the information regarding the HIV infection and that he needs help in dealing with this critical situation. It appears from the evidence that [the applicant] still shows aversion to the treatment offered and that he is considered likely to abscond. [The Court] has not been convinced that [the applicant] is not misusing alcohol and finds that, especially in connection with alcohol consumption, [the applicant] is likely to be unable to control his sexual behaviour. Against this background, [the Court] finds that there is good reason to suppose that, if he remains free, [the applicant] will not comply with the practical instructions issued and that this entails a risk of the infection spreading.”
23. On 12 June 1999 the applicant again absconded, leaving his whereabouts unknown. In the meantime, he had appealed against the above judgment to the Administrative Court of Appeal, before which he relied on an opinion of 14 May 1999 by the aforementioned chief physician and specialist in psychiatry, C.G., which stated, inter alia, the following:
“The opinions [by other psychiatrists and one psychologist] resulting from previous examinations were fairly unanimous in their conclusion that [the applicant] was a man with a paranoid personality disorder, who misused alcohol. 'Misuse' in psychiatric terms is defined as a maladaptive use of substances ... This diagnosis is to be distinguished from alcohol dependency, which means a compulsive use of alcohol with abstinence and social complications, and is more difficult to master. The diagnosis 'paranoid personality disorder' is defined as a pervading suspiciousness and lack of trust in other people, whose motives are consistently perceived as malicious. It follows from the definition of 'paranoid personality disorder' itself that this is manifest in the patient's personality from the time he or she becomes an adult. Owing to the fact that the person in question perceives the disorder as part of his or her own self, the motivation for change is usually insufficient. It is not correct to talk in terms of lack of awareness of a disease, since it is not considered that a disease is involved but rather a variation in personality, although the latter may well cause complications in relations with other individuals and society. When such complications occur, an individual with a personality disorder may display different symptoms such as depression, anxiety, etc. In [my] interview with [the applicant], the latter was fairly open and talkative. When he talked about experiences from his time at school, he displayed different emotions. He also showed empathy as far as other people from those years were concerned. He was also partly able to shoulder responsibility for his own mistakes, without blaming others. However, he was very rigid in his interpretation of what had occurred in his adult life and particularly the events of recent years after he had been informed that he had the HIV virus in September 1994. His attitude towards the county medical officer and the staff at the infection ward, whom he believed had kept harassing him unjustly, was almost hateful. [The applicant] felt that he had been subjected to persecution between 1994 and 1995. This could possibly be interpreted as a symptom of delusion. From 1996, he had not experienced feelings of persecution, inter alia since he had secured his own liberty. With regard to sexual relations, [the applicant] has stated that he preferred sexual contact with boys around the age of 17. He was not interested in pre-pubescent boys. He had been celibate since 1996 and had no longer any particular sexual desires or fantasies. He was fully aware that he was carrying the HIV virus and was careful to stress that he was not afraid to die. His attitude towards medication against the HIV infection was negative. The reasons for this were that such medication could have side effects and perhaps, above all, because it would entail limitations on his freedom since he would be subjected to various check-ups. [The applicant] spontaneously expressed a wish to have further talks on a voluntary basis. When asked whether such talks could be part of a treatment plan in cooperation with the county medical officer and the staff at the infection ward, he answered 'no', the reason being that he would feel ashamed of himself if he were to give up this fight.”
In conclusion, C.G., found that the applicant fulfilled the criteria for a paranoid personality disorder, and that, judging from previous information, the applicant suffered from misuse of alcohol but not from alcohol dependency. According to C.G. the applicant could be described in everyday terms as an odd person, but not as mentally ill. With regard to the risk that the applicant might pass on the HIV infection to other persons, C.G. believed that neither he nor anyone else could do anything but guess. The weightiest indications in this regard, however, ought to be deduced from the applicant's behaviour during the years he had spent at large.
24. In a judgment of 18 June 1999, the Administrative Court of Appeal found against the applicant. Leave to appeal against the judgment was refused by the Supreme Administrative Court (Regeringsrätten) on 5 October 1999.
25. Several applications for an extension of the applicant's compulsory isolation were submitted by the county medical officer after June 1999 and granted, until on 12 December 2001 an application was turned down by the County Administrative Court, which referred to the fact that the applicant's whereabouts were unknown and that therefore no information was available regarding his behaviour, state of health and so on.
26. It appears that since 2002 the applicant's whereabouts have been known, but that the competent county medical officer has made the assessment that there are no grounds for the applicant's further involuntary placement in isolation.
27. The 1988 Infectious Diseases Act (“the 1988 Act”) divides infectious diseases into diseases dangerous to society and other infectious diseases. One of the diseases described as dangerous to society is the infection by the human immunodeficiency virus (HIV). The relevant provisions of the 1988 Act read as follows:
“Each county council [landsting] shall be responsible for ensuring that the necessary measures for the prevention of infectious diseases are taken within its area ...”
“Every county council shall have a county medical officer ...”
“It shall be the duty of any person having reason to suspect that he has been infected with a disease dangerous to society to consult a physician without delay and to allow the physician to carry out examinations and to take any specimens needed in order to establish whether he has been infected with such a disease. It shall also be his duty to comply with the practical instructions issued to him by the physician. The same shall apply when a person, having been infected with a disease dangerous to society, states that he has been in contact with some other person in such a way that the infection may have been transmitted.”
“Any person infected with a disease dangerous to society must supply the consulting physician with information concerning the person or persons from whom the infection may have come or to whom it may have been passed on, and must supply general particulars concerning the possible source of the infection and where it may have been spread further.”
“The consulting physician shall issue to a person being examined for a disease dangerous to society any practical instructions needed to prevent the spread of the infection. These instructions may refer to that person's contact with the physician, hygiene, isolation in the home, employment and attendance at educational establishments, as well as his general way of life. The instructions shall be included in the infected person's medical record. The physician must as far as possible see to it that the instructions are complied with.”
“At the request of the individual concerned or of his own motion, the county medical officer may alter the instructions in the manner he finds most appropriate.”
“A consulting physician having reason to believe that a patient infected or suspected of being infected with a disease dangerous to society will not comply, or is not complying with the practical instructions issued, must promptly notify the county medical officer. This shall also apply when such a patient discontinues his current treatment without the consent of the consulting physician.”
“... Before resorting to any coercive measure, the county medical officer must try to obtain voluntary compliance if this can be done without the risk of the infection being spread.”
“A county medical officer who has been informed by a consulting physician that a patient carrying the HIV infection has not complied, or is suspected of not complying, with the practical instructions issued shall notify the social welfare committee, the police authority and the principal probation officer. In doing so he shall supply particulars concerning the identity of the person to whom the practical instructions apply and the implications of those instructions. No information shall be supplied if the county medical officer believes this unnecessary in order to secure compliance with the practical instructions or otherwise finds it immaterial with regard to the prevention of communicable disease.”
“The County Administrative Court, on being petitioned by the county medical officer, shall make an order for the compulsory isolation of a person infected with a disease dangerous to society if that person does not voluntarily comply with the measures needed in order to prevent the infection from spreading. An order of this kind shall also be made if there is reasonable cause to suppose that the infected person is not complying with the practical instructions issued and this omission entails a manifest risk of the infection being spread. Compulsory isolation shall take place in a hospital run by a county council.”
“If a compulsory isolation order by the County Administrative Court cannot be awaited without danger, the county medical officer shall issue an order of the kind referred to in section 38. The order issued shall thus be submitted immediately to the County Administrative Court for approval.”
“Compulsory isolation may continue for up to three months from the day on which the infected person was admitted to hospital under the isolation order.”
“Following a petition from the county medical officer, the County Administrative Court may order the continuation of compulsory isolation beyond the maximum period indicated in section 40. An order of this kind may not exceed six months at a time.”
“When there is no longer cause for compulsory isolation, the county medical officer shall order its termination immediately ...”
“A person in compulsory isolation shall be properly cared for. He shall be offered the support and help needed, and shall be encouraged to change his attitude and way of life in order to terminate his involuntary confinement. Subject to the provisions of this Act, a person in compulsory isolation may not be subjected to any other restriction of his liberty. A person in compulsory care shall be offered employment and physical training suitable for his age and state of health. Unless there are exceptional circumstances, he must have an opportunity to be outdoors every day for at least an hour.”
“A person in compulsory isolation may be prevented from leaving the hospital premises or that part of the hospital to which he is admitted, and may in other respects be subjected to such constraints on his liberty of movement as are necessary to ensure his compulsory isolation. His freedom of movement may also be restricted when considerations of his own safety or that of other persons so demand.”
“Appeals against a decision by the county medical officer under the 1988 Act may be lodged with the County Administrative Court if the decision concerns:
1. practical instructions under section 17;
2. temporary detention under section 37;
3. rejection of a request for the termination of compulsory isolation;
...”
28. There is no particular provision in the Act concerning criminal sanctions against a person who transmits a dangerous disease. Certain types of behaviour, however, are considered to be criminal and therefore fall under the Criminal Code.
In March 1999 a parliamentary committee entrusted with the task of reviewing the present legislation concerning infectious diseases submitted its report (SOU 1999:51). The committee expressed the view that compulsory isolation should take place only in very particular and exceptional circumstances. The committee proposed, having regard, among other things, to Article 5 of the Convention, a fixed time-limit permanently ending any compulsory isolation after a maximum of three months. So far, no government bill has been presented to Parliament.
29. Numerous charters and declarations which specifically or generally recognise the human rights of people living with HIV/Aids have been adopted at national and international conferences. A few of these are mentioned below.
In 1998 the Office of the High Commissioner for Human Rights (OHCHR) and the Joint United Nations Programme on HIV/Aids (UNAIDS) issued “International Guidelines on HIV/Aids and Human Rights”. These guidelines built on expert advice to integrate the principles and standards of international human rights law into the HIV/Aids response. Under the heading “III. International human rights obligations and HIV/Aids” (subheading “C. The application of specific human rights in the context of the HIV/Aids epidemic”), several examples of the application of specific human rights to HIV/Aids are illustrated. For example, Section 9, “Right to liberty and security of person” reads as follows:
“110. Article 9 of the International Covenant on Civil and Political Rights provides that 'Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law'.
111. The right to liberty and security of person should, therefore, never be arbitrarily interfered with, based merely on HIV status by using measures such as quarantine, detention in special colonies, or isolation. There is no public health justification for such deprivation of liberty. Indeed, it has been shown that public health interests are served by integrating people living with HIV/Aids within communities and benefiting from their participation in economic and public life.
112. In exceptional cases involving objective judgments concerning deliberate and dangerous behaviour, restrictions on liberty may be imposed. Such exceptional cases should be handled under ordinary provisions of public heath, or criminal laws, with appropriate due process protection.
113. Compulsory HIV testing can constitute a deprivation of liberty and a violation of the right to security of person. This coercive measure is often utilised with regard to groups least able to protect themselves because they are within the ambit of government institutions or the criminal law, e.g. soldiers, prisoners, sex workers, injecting drug users and men who have sex with men. There is no public health justification for such compulsory HIV testing. Respect for the right to physical integrity requires that testing be voluntary and that no testing be carried out without informed consent.”
In order to reflect new standards in HIV treatment as regards the international law on health rights, Guideline 6 concerning “Access to prevention, treatment, care and support” was revised following the Third International Consultation on HIV/Aids and Human Rights in Geneva on 25 to 26 July 2002.
In its Recommendation on the ethical issues of HIV infection in the health care and social settings, the Committee of Ministers of the Council of Europe recommended the following with regard to health controls (Appendix to Recommendation No. R (89) 14, I. Public heath policy, C. Health controls):
“Public health authorities are recommended to:
– refrain from introducing restrictions on freedom of movement through ineffective and costly border procedures, for travellers of all kinds, including migrant workers;
– not resort to coercive measures such as quarantine and isolation for people infected with HIV or those who have developed Aids.”
When this recommendation was adopted on 24 October 1989, the Representative of Sweden, referring to Article 10.2.d of the Rules of Procedure of the meetings of the Ministers' Deputies, recorded her abstention and, in an explanatory statement, said that her government would not consider itself bound by the recommendation.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-e


ITEMID: 001-78427
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BURDEN AND BURDEN v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 14+P1-1
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 8. The facts of the case, as submitted by the parties, may be summarised as follows.
9. The applicants are unmarried sisters, born on 26 May 1918 and 2 December 1925 respectively. They have lived together all their lives; for the last 30 years in a house built on land inherited from their parents in Wiltshire.
10. The house is owned by the applicants in their joint names. According to an expert valuation dated 12 January 2006, the property was worth GBP 425,000, or GBP 550,000 if sold together with the adjoining land. The sisters also jointly own two other properties, worth GBP 325,000 in total. In addition, each sister owns in her sole name shares and other investments worth approximately GBP 150,000. Each has made a will leaving all her property to the other.
11. The applicants submitted that the value of their jointly-owned property had increased to the point that each sister's one-half share was worth more than the current exemption threshold for inheritance tax (see paragraph 13 below), and that the survivor might have to sell the house in order to pay the tax.
12. By sections 3, 3A and 4 of the Inheritance Tax Act 1984 (“the 1984 Act”), inheritance tax is charged at 40% on the value of a person's property, including his or her share of anything owned jointly, passing on his or her death, and on lifetime transfers made within seven years of death. The charge is subject to a nil rate threshold of GBP 275,000 for transfers between 5 April 2005 and 5 April 2006; GBP 285,000 for transfers during the tax year 2006-2007; and GBP 300,000 for 2007-2008 (section 98 of the Finance Act 2005).
13. Interest is charged, currently at 4%, on any tax not paid within six months after the end of the month in which the death occurred, no matter what caused the delay in payment. Any inheritance tax payable by a person to whom land is transferred on death may be paid, at the tax-payer's election, in ten equal yearly instalments, unless the property is sold, in which case outstanding tax and interest must be paid immediately (1984 Act, section 227(1)-(4)).
14. Section 18(1) of the 1984 Act provides that property passing from the deceased to his or her spouse is exempt from charge. With effect from 5 December 2005, this exemption was extended to a deceased's “civil partner” (see paragraphs 16-18 below).
15. The purpose of the 2004 Act was to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships, and to confer on them, as far as possible, the same rights and obligations as entailed by marriage.
16. A couple is eligible to form a civil partnership if they are (i) of the same sex; (ii) not already married or in a civil partnership; (iii) over the age of 16; (iv) not within the prohibited degrees of relationship.
17. A civil partnership is, like marriage, indeterminate in nature and can end only on death, dissolution or annulment. The 2004 Act created a comprehensive range of amendments to existing legislation, covering inter alia pensions, tax, social security, inheritance and immigration. The courts have similar powers to control the ownership and use of the civil partners' property upon dissolution of a civil partnership as upon dissolution of a marriage.
18. When the Civil Partnership Bill was passing through Parliament, an amendment to it was passed in the House of Lords by 148 votes to 130, which would have had the effect of extending the availability of civil partnership, and the associated inheritance tax concession, to family members within the “prohibited degrees of relationship”, if (i) they were over 30 years of age; (ii) they had co-habited for at least 12 years; and (iii) they were not already married or in a civil partnership with some other person. The amendment was reversed when the Bill returned to the House of Commons.
19. During the course of the debate in the House of Lords, Lord Alli, a Labour Peer, stated:
“I have great sympathy with the noble Baroness, Lady O'Caithlin [the Conservative Peer who proposed the amendment], when she talks about siblings who share a home or a carer who looks after a disabled relative. Indeed, she will readily acknowledge that I have put the case several times—at Second Reading and in Grand Committee—and I have pushed the Government very hard to look at this issue. There is an injustice here and it needs to be dealt with, but this is not the Bill in which to do it. This Bill is about same-sex couples whose relationships are completely different from those of siblings.”
During the same debate, Lord Goodhart, Liberal Democrat Peer, stated:
“There is a strongly arguable case for some kind of relief from inheritance tax for family members who have been carers to enable them to continue living in the house where they have carried out their caring duties. But that is a different argument and this is not the place or the time for that argument. This Bill is inappropriate for dealing with that issue.”
During the course of the debate in the Standing Committee of the House of Commons, Jacqui Smith MP, Deputy Minister for Women and Equality, stated:
“As I suggested on Second Reading, we received a clear endorsement of the purpose of the Bill—granting legal recognition to same-sex couples, ensuring that the many thousands of couples living together in long-term committed relationships will be able to ensure that those relationships are no longer invisible in the eyes of the law, with all the difficulties that that invisibility brings.
We heard a widespread agreement from Members across almost all parties that the Civil Partnership Bill is not the place to deal with the concerns of relatives, not because those concerns are not important, but because the Bill is not the appropriate legislative base on which to deal with them.”
20. The 1998 Act entered into force on 2 October 2000. Section 3(1) provides:
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
Section 4 of the 1998 Act provides (so far as relevant):
“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ...
(6) A declaration under this section ... -
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and
(b) is not binding on the parties to the proceedings in which it is made.”
Section 6 of the 1998 Act provides:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if -
(a) as a result of one or more provisions of primary legislation, the authority could not have acted any differently; or
(b) in the case of one or more provisions of ... primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. ...”
Section 10 of the 1998 Act provides:
“(1) This section applies if –
(a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right and, if an appeal lies –
(i) all persons who may appeal have stated in writing that they do not intend to do so; or
(ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or
(iii) an appeal brought within that time has been determined or abandoned; or
(b) it appears to a Minister of the Crown or Her Majesty in Council that, having regard to a finding of the European Court of Human Rights made after the coming into force of this section in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention.
(2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.”
21. The Government submitted that the objective of giving the national courts the power under section 4 had been to provide a formal means for notifying the Government and Parliament about a situation in which legislation was found not to comply with the Convention, and to provide a mechanism for speedily correcting the defect. Once a declaration had been made (or once the European Court of Human Rights had found a violation based on a provision of domestic law), there were two alternative avenues for putting right the problem: either primary legislation could be introduced in Parliament, or the Minister concerned could exercise his summary power of amendment under section 10 of the 1998 Act.
22. When the Human Rights Bill passed through the House of Lords on 27 November 1997, the Lord Chancellor explained that:
“we expect that the government and Parliament will in all cases almost certainly be prompted to change the law following a declaration of incompatibility.”
One of the Ministers with responsibility for the 1998 Act explained to the House of Commons on 21 October 1998 that:
“Our proposals [for remedial orders] safeguard parliamentary procedures and sovereignty, ensure proper supervision of our laws and ensure that we can begin to get the ability both to enforce human rights law and to create a human rights culture. They also ensure that we can do it in the context of not having to worry that if something is decided by the Strasbourg court or by our courts that creates an incompatibility, we do not have a mechanism to deal with it in the quick and efficient way that may be necessary.”
The most recent report of the Joint Committee on Human Rights, published on 4 August 2006, showed that declarations of incompatibility had been made in twenty cases between December 2000 and December 2004. In seven of these cases the declaration had been overturned on appeal, or the judgment on appeal was pending. In ten cases the offending legislation had been amended or repealed (in one case by a remedial order), and in the remaining three cases, amendments to the offending legislation were pending or under consideration.
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-90243
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: PLYATSEVYY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
TEXT: The applicant, Mr Denys Oleksandrovych Plyatsevyy, is a Ukrainian national who was born in 1985 and lives in Kamyanets-Podilsky. He is represented before the Court by Mr I.A. Melnyk, a lawyer practising in Kamyanets-Podilsky. The respondent Government are represented by their agent, Mr Y. Zaytsev.
In January 2002 Mr V.L. complained to the police that the applicant had taken several hundred U.S. dollars from V.V., his minor son, as well as giving V.V. some forged dollar bills. On 23 February 2002 criminal proceedings were instituted against the applicant.
In summer 2002 the police also received complaints from other minors, who alleged that on various occasions the applicant had extorted from them or robbed them of petty cash and various objects, such as an ice-cream cone or a school bag. Having found out about these complaints, the applicant’s mother, cousin, and, according to contested accounts of some minors, his advocate, visited the complainants’ families. On several occasions the applicant’s mother returned to the families the amounts of money claimed to have been stolen by the applicant. According to some records, she also returned the stolen school bag to R.G., one of the minors. According to other records, she gave R.G. a bag which simply resembled his.
Following these visits, in August 2002 S.S., one of the complainants, as well as parents of three other complainants (O.L., I.D. and S.Z.) informed the police that their complaints against the applicant had been written under duress on behalf of the police officers.
In spite of these submissions, on 26 August 2002 new charges of extortion and robbery were brought against the applicant. In September 2002 the applicant was further charged with hooliganism. In particular, he was accused that in August 2002 jointly with L.L. he had beaten S.R. in a public place.
During the pre-trial investigation, twelve minors, including those whose parents had attempted to retract their complaints in August 2002, testified that the applicant had extorted from them or robbed them of their money and possessions.
On 29 October 2002 the applicant and L.L. were committed to the Podilsky District Court (Подільський міськрайонний суд Хмельницької області, “the District Court”) for trial.
On 25 November 2002 the District Court allowed the requests submitted by minors S.S., O.P., S.Z. and the parents of O.L., O.P., R.G. and I.D. to hold hearings in camera, in view of pressure purportedly exerted on them by the applicant’s entourage to retract their allegations.
In the course of the hearings, the District Court questioned V.V. and his father, who confirmed their earlier testimonies that the applicant had taken several hundred dollars from V.V. and given him some forged bills.
Five other minors (I.D., O.L., O.P., S.S. and S.Z.) confirmed their testimonies given to the police concerning petty extortion and robbery. O.L., S.Z. and I.D. corroborated each other’s statements concerning some of the episodes. The parents of O.P., S.S. and S.Z. corroborated the statements of their children and explained that the children had earlier complained to them on several occasions about the applicant’s conduct. The mother of R.G., the seventh minor, who was absent from the courtroom, spoke before the court in support of her son’s testimony given to the police concerning the theft of a school bag and several episodes of petty extortion. Those individuals who had earlier attempted to retract their accusations against the applicant contended before the court that they had done so under pressure from the applicant’s entourage.
The judge further announced that another five minors, who had been questioned by the investigation under pseudonyms, had lodged requests to be dispensed from attendance at the hearings for fear of reprisals by the applicant’s entourage and that in these requests they had confirmed their earlier statements given to the police. The judge then read out the depositions given before the police by these minors, and other documentary evidence. According to the case file materials, the applicant, represented by the lawyer, did not question or challenge these testimonies before the District Court.
Further, the District Court heard L.L. (the applicant’s co-accused on the charge of hooliganism) and some thirty other witnesses, who gave details predominantly concerning the beating of S.R. and V.V.’s character.
On 10 December 2002 the District Court found that the applicant was guilty of some seven counts of robbery and eight counts of extortion in respect of the injured parties who had been examined in the courtroom. It further found that the applicant was guilty of three counts of robbery and six counts of extortion in respect of the victims whose identities had been concealed. The court finally designated the applicant’s actions as repeated robbery and extortion and sentenced him to three years’ imprisonment for each of the offences. The court further found it unnecessary to add up the two full terms and determined the final punishment as four years’ imprisonment. However, in view of the applicant’s age, other personal circumstances and the nature of his offences, the applicant was released from punishment subject to two years’ probation.
The applicant, represented by a lawyer, appealed, seeking to be acquitted. He pleaded that the case had been falsified by the police in retaliation for his mother’s complaints that he had been beaten during the first questioning, in January 2002. Hence the victims who gave evidence against the applicant at the trial had done so under threats from the police to institute proceedings against them for their own transgressions, as they were all on the police juvenile offenders’ register. The episodes in respect of the anonymous victims had been completely falsified. Moreover, the testimony of I.B., one of these alleged victims, was improbable, as on the date of the purported offence the applicant had not attended the school in which he had allegedly committed it. No specific challenge was raised to the accounts of events contained in the testimonies of other absentee victims. The applicant further challenged various details of the testimonies obtained during the hearings as unreliable. Lastly, he complained that the hearings had been held in camera.
On 4 March 2003 the Khmelnytsky Regional Court of Appeal (Апеляційний суд Хмельницької області) upheld the judgment of 10 December 2002, having found no violation, in that the hearing had been held in camera and that the case file materials contained sufficient evidence to find the applicant guilty of repeated extortion and robbery of minors.
The applicant appealed in cassation before the Supreme Court of Ukraine, raising essentially the same arguments as before the Regional Court.
On 15 July 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation.
On 12 January 2004 the applicant and his mother instituted civil proceedings against the Kamyanets-Podilsky Police Department, seeking monetary compensation for the pecuniary and non-pecuniary damage allegedly suffered as a result of their unlawful actions when investigating the applicant’s case. On 16 March 2005 the District Court rejected the applicant’s claim. The applicant appealed. On 17 May 2005 his appeal was dismissed by the Khmelnytsky Regional Court of Appeal.
On 15 January 2002 the applicant was taken by police officers to the police department, where he was questioned in connection with the case above. The applicant was allegedly put under pressure, threatened and beaten to make him confess; and he was released from the police only upon the arrival of his mother some eleven hours after his apprehension.
On 17 January 2002 the applicant was examined by a court medical expert at his request. No injuries were recorded. According to the applicant, the expert refused to record injuries.
On 28 February 2002 the applicant was examined by a doctor, who established that he was suffering from cerebral concussion, injury to the left kidney and hepatitis. It was only then that the applicant told his mother that he had been beaten by the police officers.
On 19 March 2002 the applicant’s mother lodged a criminal complaint against the police officers for the alleged ill-treatment of her son.
On 16 May 2002 the Kamyanets-Podilsky Prosecutor’s Office decided not to bring any charges against the police officers. It found, inter alia, that there was no evidence that the officers had committed the alleged offences, other than the applicant’s own allegations. Furthermore, regard being had to the lapse of time between the interrogation and the date on which the injuries were discovered by doctors, the injuries could have been sustained elsewhere.
On 27 May 2002 the Khmelnytsky Regional Prosecutor’s Office annulled this decision and ordered the applicant to undergo an additional medical assessment and additional measures to be taken to find possible witnesses.
On 2 July 2002 the applicant’s mother withdrew her complaint. She explained that she had lodged it because she had been upset about the initiation of criminal proceedings against her son.
On 3 July 2002 the Kamyanets-Podilsky Prosecutor’s Office terminated the inquiry into the incident as a result of the applicant’s mother’s request.
On 4 October 2002 the Khmelnytsky Regional Prosecutor’s Office annulled this decision, having found that not all measures ordered in its previous decision had been carried out.
On 14 October 2002 the applicant was examined by a medical expert. He found that the applicant had no injuries at the time of the assessment. As regards the injuries recorded at the end of February, it was not possible to determine whether the applicant’s version of events was probable, on account of the lapse of time between the purported ill-treatment and his first application to a doctor and the further lapse of time before the present assessment.
In light of the above, on 24 October 2002 the Kamyanets-Podilsky Prosecutor’s Office dismissed the applicant’s mother’s request for the institution of criminal proceedings.
According to Section 186, repeated robbery is punishable by four to six years’ imprisonment.
According to Section 189, repeated extortion is punishable by three to seven years imprisonment.
According to Section 52-1, an injured party in the criminal proceedings may request security measures to prevent a real threat of harm to his life, limb or property. If this request is granted, according to Section 52-3, the injured party’s personal data may be replaced by a pseudonym in all procedural documents.
According to Section 290, in exceptional circumstances the court may absolve an injured party, in whose respect security measures have been indicated, from the duty to appear for the hearings, if he submits a written statement that he confirms his earlier depositions.
According to Sections 303 and 308, the parties may request cross-examination of a witness or an injured party who is absent from the courtroom for safety reasons, via a teleconference. To reduce the risk of identification of the voice of the witness (the injured party), acoustic distortion may be created. If it is not possible to organise a teleconference, the court may examine the witness (the injured party) in the absence of the defendant. The judge in this event is obliged to disclose his testimony to the defendant and to give him an opportunity to comment on it. The defendant and other parties to the proceedings may ask questions of the witness (injured party), which are answered in the absence of the defendant.
Further relevant provisions of the Code concerning the rights of defence in respect of examination of witnesses can be found in the admissibility decision in the case of Khivrenko v. Ukraine (no. 65743/01, 25 September 2007).


ITEMID: 001-4592
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: KARASSEV v. FINLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The application was originally submitted by four applicants of which Pasi Karassev was the fourth one (later; the applicant). The other applicants’ complaints were declared inadmissible by the European Commission of Human Rights on 14 April 1998. The present applicant was born in 1992 in Finland of parents who were born in the former Soviet Union and were citizens of that country. The applicant and his parents are currently resident at Poitsila in Finland.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.
The applicant’s parents and his brother, who was born in 1983 in the former Soviet Union, arrived in Finland from the then Soviet Union on 20 August 1991, holding tourist visas valid from 3 to 21 August 1991. On the last-mentioned day they requested asylum in Finland, referring to the attempted coup d’etat in the Soviet Union. On 11 May 1992 the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) rejected their asylum request and found no reason to grant them a residence permit.
On 20 July 1992 the Hollola Police District proposed that the family be expelled. The family objected on 14 August 1992, arguing, inter alia, that although they had been citizens of the former Soviet Union they had not become citizens of the Russian Federation. On 4 November 1992 the Ministry of the Interior ordered their expulsion to the Russian Federation, considering, inter alia, that they were citizens of the former Soviet Union with no such ties to Finland as could prevent their expulsion. The Ministry also prohibited the family from returning to Finland or any other Nordic country during a period of two years. The family appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen).
On 16 December 1992 the present applicant was born. He was not registered as being entitled to Finnish social security benefits. The Social and Health Board (sosiaali- ja terveyslautakunta, social- och hälsovårdsnämnden) of Nastola refused the applicant’s mother’s request for maternity allowance, noting that she was not a Finnish citizen and had not been granted a residence permit in the country. No appeal was lodged against this refusal. The municipality donated to the applicant’s mother a maternity package with various supplies.
In 1993 the applicant’s father obtained employment in Hamina. On 1 September 1993 the applicant’s parents were refused housing allowance, as they had no residence permits in Finland. They did not appeal.
On 23 November 1993 the Supreme Administrative Court referred the matter back to the Ministry for renewed consideration, since the expulsion order had not concerned the present applicant.
On 4 January 1994 the Hollola Police District proposed to that the applicant and his family be expelled. The applicant and his family objected and requested that the expulsion order would at least not be enforced until the applicant’s possible entitlement to Finnish citizenship had been examined.
In February 1994 the applicant requested to be granted Finnish citizenship by application. On 26 April 1994 the Ministry of the Interior found no reason to grant him a residence permit. Instead the applicant and his family were ordered to be expelled to the Russian Federation, as they were all considered to be citizens of that State pursuant to its 1991 Citizenship Act which had entered into force on 6 February 1992. In a memorandum of 2 March 1994 the Ministry recalled that the applicant’s parents and his brother had arrived in Finland on a tourist visa. At the time when the Russian Citizenship Act had entered into force, the applicant’s parents and his brother had not been permanently residing in Finland but in the Russian Federation. As the applicant’s parents had thus become citizens of the Russian Federation, the Ministry concluded that the applicant had obtained Russian (and thus not Finnish) citizenship by birth.
In the summer of 1994 the applicant’s father established his own company in Hamina.
On 28 April 1995 the Supreme Administrative Court rejected the applicant’s and his family’s appeal against the new expulsion order.
In the summer of 1995 the applicant and his family lodged a further request for residence permits, supported by, among others, the Chief of the Hamina Police District. He stated that the applicant and his family had integrated well in Finland and that it would clearly be unreasonable to refuse them residence permits. In three decisions of 16 August 1995 the Ministry of the Interior nevertheless rejected the applicant’s and his family’s request. They then lodged an extraordinary appeal (purkuhakemus, ansökan om återbrytande) to the Supreme Administrative Court, requesting that the Ministry’s decision be quashed.
On 20 October 1995 the Ministry of the Interior objected to the applicant’s and his family’s request to the Supreme Administrative Court. The Ministry referred, inter alia, to its own inquiry according to which the applicant and his family had received Russian citizenship.
On 1 February 1996 the Office for Alien Affairs (ulkomaalaisvirasto, utlänningsverket) requested the applicant’s local Police District to inform the parents of the applicant of the costs of a negative decision on pursuing the application for citizenship.
On 1 February 1996 the Ministry of the Interior again considered that the applicant had already acquired Russian citizenship. Accordingly, he did not meet the conditions prescribed by section 4 of the 1968 Citizenship Act (kansalaisuuslaki, medborgarskapslag 401/1968) for granting him Finnish citizenship by application.
On 19 February 1996 the Supreme Administrative Court rejected the applicant’s and his family’s extraordinary appeal.
On 26 February 1996 the Consul General of the Russian Embassy in Finland certified that the applicant’s parents or his brother were not citizens of the Russian Federation.
On 28 February 1996 the applicant’s request for Finnish citizenship by application was withdrawn. Instead he requested that his Finnish citizenship be confirmed by the President of the Republic, given that his parents had not acquired Russian citizenship whether by application, declaration or acceptance. It was therefore argued that he had received Finnish citizenship by birth, pursuant to section 1, subsection 1 (4) of the Citizenship Act.
On 26 March 1996 the Consul General of the Russian Embassy certified that the applicant was not a citizen of the Russian Federation.
On 25 April 1996 the Chief of the Hamina Police District ordered the applicant and his family to leave Finland by 24 May 1996. The applicant and his family objected, referring, inter alia, to the pending request for a confirmation of the applicant’s Finnish citizenship and stating that they lacked the necessary travel documents.
On 29 April 1996 the head of the Consular Department of the Russian Embassy certified that pursuant to the Citizenship Act of the Russian Federation none of the applicant’s family members were Russian citizens. Their Soviet passports were no longer in force and were to be handed over to the Embassy. The family could request that new documents be issued to them by the Finnish authorities “because they were stateless”. They would be unable to enter the Russian Federation without proper documents. In the letter it was also stated that the applicant’s and his family’s expulsion from Finland “was not based on law”.
On 20 May 1996 the local Social Welfare Board decided to afford the applicant municipal day care as from 1 June 1996. The applicant’s brother enjoys the right to attend a public school in Finland.
On 21 May 1996 the Chief of Police of Hamina stated that the enforcement of the expulsion order had been postponed indefinitely.
On 26 June 1996 and 22 July 1996 the head of the Consular Department of the Russian Embassy again confirmed that the applicant or his family were not citizens of the Russian Federation.
On 7 January 1997 the Social Insurance Institution considered, pursuant to section 3 of the 1993 Act, that the applicant and his family were not entitled to sickness insurance benefits under the 1963 Sickness Insurance Act. The Social Insurance Institution noted that the members of the applicant’s family had arrived in Finland as refugees. Moreover, at the time of the Social Insurance Institution’s decision the applicant and his family had no passports or work permits in Finland nor had they been entered in the Finnish population register. The applicant and his family appealed to the Social Insurance Board (sosiaalivakuutuslautakunta, socialförsäkringsnämnden) on 10 January 1997, referring, in particular, to the fact that the applicant had been born in Finland.
On 10 February 1997 the applicant’s parents and brother were granted one-year residence permits in Finland. The Ministry of the Interior now considered that their citizenship was unknown. It recalled that the attempts to enforce the expulsion order regarding the applicant and his family had failed. Most recently, the Russian authorities had stated, on 2 January 1997, that the applicant and his family would not be accepted back into that country.
The applicant’s parents and his brother were granted aliens passports and temporary residence permits. The applicant has not lodged with the competent authorities an application for an alien’s passport and a residence permit
On 19 February 1997 the Population Registration Authority (maistraatti, magistraten) of Kotka stated that it could not yet deal with the applicant’s request to be registered as resident in Finland and to be granted a personal identification number. The registration Authority referred to the pending citizenship proceedings and recalled that the applicant’s registration would require proof of his Finnish citizenship or residence permit.
On 4 March 1997 the applicant’s mother was granted a monthly child allowance for the applicant’s brother exclusively.
On 12 March 1997 the Ministry of the Interior requested the Ministry of Foreign Affairs to seek clarification from the Russian authorities as regards the applicant’s and his family’s citizenship. The Ministry of the Interior now stated that under the terms of the Russian Citizenship Act, citizens of the former Soviet Union who were permanently resident within the Russian Federation’s territory when the Act entered into force were automatically granted Russian citizenship provided they did not refuse it within a year from the entry into force of the Citizenship Act. In the view of the Ministry of the Interior, the applicant’s parents had not presented evidence of such a refusal (according to the applicant’s family, their objection to becoming Russian citizens was addressed to the Russian authorities and lodged with the Finnish Ministry of Interior). The Ministry requested especially clarification, inter alia, as to why the applicant may not have received Russian citizenship at birth or, if he did so receive the citizenship, why and when he lost it later.
On 14 April 1997 the Social Insurance Institution granted the applicant’s mother a housing allowance as from 1 March 1997 and, on 18 April 1997, she was granted an employment allowance as from 13 March 1997. The applicant was not taken into account when the amounts of these allowances were fixed. On 16 May 1997 the employment allowance and housing allowance were nevertheless increased, both children having been taken into account.
On 6 May 1997 the Population Registration Authority of Kotka registered the applicant as resident in Finland and gave him a personal identification number. The applicant is registered in the official registry as born in Nastola, which is a municipality in Finland, but stateless while the nationality of his mother is registered as unknown.
In a diplomatic note of 26 May 1997 the Ministry of Foreign Affairs of the Russian Federation conveyed the reply of the Citizenship Commission of the President of the Russian Federation to the Finnish Ministry’s question concerning the citizenship of the applicant and his family. The Commission stated as follows (translation):
“The Ministry of Foreign Affairs of the Russian Federation expresses its respect for the Embassy of the Republic of Finland and, referring to the Embassy’s notice no. MOSVO 11-40 dated 18 April 1997 and to the notice no. MOSVO 11-55 dated 24 April 1997, it gives notice that the Citizenship Commission of the President of the Russian Federation has examined the citizenship of the Karassev family and declares as follows.
According to Decree no. 5206/1-1/17.6.1993 (the Russian Federation’s Decree implementing the Russian Federation’s Decree amending and supplementing of the Russian Federation’s Act on Citizenship of the Russian Federation) of the Highest Council of the Russian Federation, citizens of the former Soviet Union who, prior to 6 February 1992, were permanently resident abroad or had left the country temporarily for the purposes of work, studies, health care or private affairs, and who returned to the country after the Act on Citizenship of the Russian Federation entered into force, were, under section 13 subsection 1 of that Act, recognised as citizens of the Russian Federation. However, the Karassev family did not return to the country by this time and, as far as is known, have no intention of doing so.
According to the Russian Federation’s Act on Citizenship of the Russian Federation, citizenship is constituted by a continuous legal connection to the State, expressed in the unity of the mutual rights, obligations and liability between the person concerned and the State.
The International Court of Justice, which examined the Nottebohm case, which is comparable with the present case, defined nationality as a “legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties”.
Given that the Karassevs have resided in Finland for over five years they have, in the Commission’s opinion, lost those ties to the Russian Federation and, more importantly, have not expressed their willingness to renew those ties.
The Commission concludes that the Karassevs are, therefore, not citizens of the Russian Federation. ...”
On 28 May 1997 the applicant’s mother was also granted a child allowance for the applicant.
In response to the applicant’s and his family’s appeal of 10 January 1997 the Appellate Board for Social Insurance (tarkastuslautakunta, prövningsnämnden), on16 September 1997, referred the matter back to the Social Insurance Institution. According to the applicant and his family, the Social Insurance Institution has considered it unnecessary to decide this matter separately and has referred to its decisions of 16 and 28 May 1997.
In its opinion to the President of the Republic the Supreme Administrative Court, on 17 December 1997, considered that the applicant had not obtained Finnish citizenship on his birth in Finland. The Supreme Administrative Court noted, inter alia, that on their arrival in Finland the applicant’s parents and his brother had been citizens of the Soviet Union. They had not lost the citizenship of the successor State (the Russian Federation) by the time the applicant had been born. The Supreme Administrative Court’s decision discusses neither the Russian Decree of 1993 to which the Citizenship Commission of the President of the Russian Federation referred in the applicant’s and his family’s case nor the Russian Embassy’s certificates according to which the applicant and his family are not Russian citizens.
On 22 December 1997 the Russian Embassy, in a statement signed by an attaché, certified that pursuant to the Russian Citizenship Act the applicant was not and had not been a citizen of that State.
On 23 January 1998 the President of the Republic declared, with reference to the Supreme Administrative Court’s opinion, that the applicant was not a Finnish citizen.
The applicant has petitioned to the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) concerning the excessive length of the proceedings pertaining to the applicant’s request for a citizenship declaration. No decision has been made.
B. Relevant domestic law
Section 1, subsection 1(4), of the Citizenship Act (as amended by Act no. 584/1984) reads as follows (translation):
“A child receives Finnish citizenship by birth:
...
... if [it] is born in Finland and does not at that time receive citizenship of any other country.”
Under section 1 of the 1963 Sickness Insurance Act (sairausvakuutuslaki, sjukförsäkringslag 364/1963), every “resident” in Finland is entitled to the benefits guaranteed therein. The interpretation of “residence” shall be decided by the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) pursuant to the 1993 Act on Social Security based on Residence (laki asumiseen perustuvan sosiaaliturvalainsäädännön soveltamisesta, lag om tillämpning av lagstiftningen om bosättningsbaserad social trygghet 1573/1993). Under this Act a person shall be considered resident in Finland if his or her actual residence and home are in that country and he or she is permanently and principally staying there. An immigrant who intends to settle permanently can be considered resident as from his arrival, provided he or she is holding a residence permit valid for at least one year (should a permit be required). An asylum-seeker is not considered a resident if the decision on the asylum request or in the expulsion matter has not acquired legal force (section 3). An appeal against the Social Insurance Institution’s interpretation of “residence” lies to one out of several authorities, depending on the requested benefit which underlies the dispute (section 13).
Under section 5 of the 1991 Aliens Act (ulkomaalaislaki, utlänningslag 378/1991; later amended) an aliens passport may be issued if the alien is unable to obtain a passport from his or her country of origin or if there is another exceptional reason for issuing such a document.