ITEMID: 001-86222
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GUSEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture;Violation of Article 5 - Right to liberty and security
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1981 and lives in St Petersburg.
7. In 1998 a criminal case was opened against the applicant on suspicion of theft, an offence under Article 158 § 1 of the Criminal Code. The applicant signed an undertaking to appear.
8. On 2 February 2000 the Primorskiy District Court of St Petersburg convicted the applicant of theft and sentenced him to probation of an unspecified duration. Counsel for the applicant appealed.
9. On 5 July 2000 the St Petersburg City Court upheld the conviction but relieved the applicant from punishment by virtue of the Amnesty Act of 26 May 2000 (cited in paragraph 45 below).
10. In early 1999 a criminal case was opened against the applicant on suspicion of his having stolen, in January 1999, car parts valued at 200 Russian roubles (RUB, less than 8 euros). The prosecutor preferred the charge of theft aggravated by repetition and substantial damage, an offence under Article 158 § 2 of the Criminal Code.
11. On 19 April 2000 the Primorskiy District Court ordered the applicant’s retrieval and arrest for the following reasons:
“On 2 February 2000 [the applicant] received a copy of the bill of indictment in this criminal case. He was summoned, by a phone call, to the court hearing at 10 a.m. on 18 April 2000, but he did not appear at that time.
Due to [the applicant’s] absence the examination of the case was adjourned until midday on 19 April 2000 to find out whether there had been any valid reasons for his absence. At about 4 p.m. on 18 April 2000 [the applicant’s] mother called the court on the phone and said that she and her son had been advised belatedly by her relatives – who had taken the phone call – about the court hearing on 18 April, and that was the reason why her son had not appeared at the court. [The applicant’s] mother also told [the registry] that [the applicant] had no illness preventing him from appearing before the court and no medical certificate. During that conversation [the applicant’s] mother was informed that the court hearing was scheduled for midday on 19 April 2000.
At the court hearing at midday on 19 April 2000 [the applicant] failed to appear once again. The case was rescheduled for 4 p.m. on 19 April 2000. At about 4 p.m. [the applicant’s] mother again telephoned the court and said that, although she and her son had known about the scheduled court hearing, he would not appear before the court unless the summons was sent by mail. Under these circumstances the court has reasons to believe that [the applicant] is absconding from justice, that he refuses to appear before a court and interferes with timely examination of the case. In this connection the court considers it necessary to order retrieval of [the applicant] and vary the measure of restraint to that of placement in custody.”
12. On 23 April 2000 the applicant was taken into custody.
13. Counsel retained by the applicant’s mother asked the Primorskiy District Court to commission an expert examination of the applicant’s mental health and to release him pending trial.
14. On 10 May 2000 the District Court held as follows:
“According to the available case file materials, [the applicant] was repeatedly, on three occasions between 18 and 19 April 2000, summoned to a court hearing and failed to appear without a valid reason. [The applicant] is charged with an offence which is classified as a serious crime, and in such cases a custodial measure may be imposed for the sole reason of the dangerousness of the committed offence. [The applicant’s] explanation that he did not appear in court because his mother had asked him not to is without substance because [the applicant] is an adult who should have been aware of the consequences of a violation of the undertaking given by him, as well as of the fact that liability for his failure to appear would be his and not his mother’s.”
15. The court remanded the applicant in custody sine die and ordered a psychiatric examination. It appears that the decision was not appealed against. The following hearing in the case was fixed for 25 September 2000.
16. On 25 September 2000 counsel for the applicant asked the District Court to vary the legal characterisation of the applicant’s act, to prefer a lesser charge of non-aggravated theft and to discontinue proceedings on the basis of the Amnesty Act of 26 May 2000. The District Court granted the lawyer’s request, finding as follows:
“The investigators had characterised Mr Gusev’s acts as repetitive theft, having regard to the fact that he had already been charged [with theft] on 11 August 1998. However, on 2 February 2000 Mr Gusev was convicted of that offence... and, by the appeal decision of 5 July 2000... was relieved from punishment. Thus, the acts of Mr Gusev lack the constituent element of repetition.
It has not been shown that Mr Gusev caused substantial damage to the victim P. because he is charged with theft of a car jack and a pump valued at 200 roubles. It does not appear that the small amount of 200 roubles was important for the victim and there is no information about his income or dependants.”
17. Having thus established that the aggravating circumstances had ceased to exist or had not been made out, the District Court characterised the applicant’s act as non-aggravated theft under Article 158 § 1 of the Criminal Code and discontinued the second criminal case against him on the basis of the Amnesty Act of 26 May 2000. However, the District Court held that the applicant should remain in custody on the basis of the arrest warrant of 22 September 2000 (see below).
18. In the meantime, on 17 May 2000 an investigator with the Primorskiy District Police Department of St Petersburg initiated a third criminal case against the applicant (case no. 160556) on suspicion of his having stolen certain items from a car in December 1999 which were valued at RUB 4,600 (EUR 170). The investigator designated the act as repetitive theft, an offence under Article 158 § 2 of the Criminal Code.
19. On 22 September 2000 Ms M., an investigator with the investigations department of the Primorskiy District Police Department, ordered the applicant’s placement in custody. On the same day the arrest warrant was approved by a deputy prosecutor of the Primorskiy District.
20. On 20 and 28 November 2000 counsel for the applicant lodged a complaint against the detention order of 22 September 2000. He submitted that the order had been unlawful and unjustified because it had referred to the “gravity” rather than the “dangerous nature” of the offence charged.
21. On 28 December 2000 counsel lodged a further complaint. He claimed, in particular, that Article 5 § 1 (c) of the Convention did not provide for such a ground for pre-trial detention as the “gravity of the offence” and that the prosecutor’s statements about the applicant’s intention to abscond or obstruct the establishment of the truth were not substantiated. He further pointed out that a copy of the order had not been served on the applicant and the procedure for lodging an appeal had not been explained to him. In any event, his authorised detention had expired on 22 November 2000 and no documents in the case file indicated that it had been extended. Finally, the applicant’s lawyer pointed to the appalling conditions of the applicant’s pre-trial detention.
22. On the same date the Primorskiy District Court dismissed the challenge. It found as follows:
“The decision to impose the chosen measure of restraint was read out to [the applicant] on 25 September 2000 at the Primorskiy District Court of St Petersburg following the pronouncement of the judgment. Likewise, the procedure for lodging an appeal against the detention order was explained to him. However, [the applicant] refused to sign that document, and [the investigator M.], lacking professional experience, omitted to make an appropriate note thereof. At present the periods of preliminary investigation and pre-trial detention of [the applicant] have been extended in accordance with the law.
[The applicant] is charged with a serious crime and its dangerousness alone may be, pursuant to Article 96 of the Code of Criminal Procedure, the ground for... holding him in custody. In these circumstances, dangerousness of the crime to which the law refers is in itself sufficient to anticipate undesirable conduct on the part of the accused, including continuation of criminal activities and absconding upon commission of a crime, in other words the reference in the law to the dangerous nature of a crime enables the investigative authorities to anticipate these very events to which the [European] Convention refers.
No information showing that [the applicant] cannot remain in the investigative ward was provided to the court.”
23. On 3 and 30 January 2001 counsel appealed against the court decision of 28 December 2000. He indicated, in particular, that the provision of the Code of Criminal Procedure relied upon by the first-instance court had been struck down as incompatible with the Constitution by the Constitutional Court in the part which provided for placement in custody on the sole ground of the dangerous nature of an offence.
24. On 6 February 2001 the St Petersburg City Court dismissed the appeal as unsubstantiated.
25. In the meantime, on 16 January 2001 the third criminal case against the applicant and his co-defendants was submitted for trial by the Primorskiy District Court. On 24 January 2001 the applicant’s lawyer made a new request for the applicant’s release pending trial.
26. On 1 February 2001 the Primorskiy District Court issued a decision to schedule the first trial hearing for 3 May 2001. In the same decision the court dismissed the lawyer’s request for release, stating that the measure of restraint had been imposed “lawfully and reasonably, taking into account the gravity of the charge and the information on his character”. It did not specify for how long the applicant should remain in custody. Counsel for the applicant appealed, relying on the same grounds as before. On 27 March 2001 the St Petersburg City Court upheld the decision of 1 February 2001.
27. It appears that the hearing scheduled for 3 May 2001 was adjourned.
28. On 6 July 2001 the Primorskiy District Court again adjourned the criminal proceedings until 25 September 2001, because counsel for the applicant’s co-defendant failed to appear. It also extended the applicant’s pre-trial detention until 16 October 2001 as, in the court’s opinion, “[his] release would impede a thorough, complete and objective examination of the case”.
29. The applicant appealed against the decision. He pointed, in particular, to the inhuman and degrading conditions of his detention in facility no. IZ-47/1. He also submitted that he had a permanent residence in St Petersburg and lived with his disabled mother, five younger brothers and four sisters and that there were no grounds to believe that he would abscond. A supplementary appeal on points of law was lodged by his lawyer.
30. On 4 September 2001 the St Petersburg City Court dismissed the appeals, finding the extension order had been lawful and justified because “the arguments set out in the appeals had been known to the trial court which [had] had due regard to them”.
31. On an unspecified date the applicant’s mother made another request for the applicant’s release pending trial.
32. On 26 September 2001 the Primorskiy District Court examined the request and, upon finding that the maximum detention period of nine months would expire in October 2001, ordered the applicant’s release against a written undertaking not to leave the city.
33. By a judgment of 10 July 2003, the Primorskiy District Court convicted the applicant of aggravated theft and sentenced him to four years’ imprisonment conditional on two years’ probation. The applicant was relieved from the punishment by virtue of the Amnesty Act of 26 May 2000. The applicant did not appeal against the conviction.
34. On 23 April 2000 the applicant was taken into custody and placed in remand centre IZ-47/1 of St Petersburg, commonly known as “Kresty”.
35. The applicant was held in cell 430 until 1 May 2000, then in cell 106 until 9 August 2000 and in cell 79 after that date. In his submission, each cell measured six to eight sq. m and accommodated ten to thirteen persons simultaneously. Part of each cell was occupied by a table, toilet bowl and bed, so that the living space was 0.2 to 0.4 sq. m per inmate. The Government indicated the floor space of each cell as 8 sq. m and asserted that the number of detainees detained in each cell was impossible to establish as the relevant documents had been destroyed.
36. The applicant indicated that he had never had a separate bed. In cell 430 he had shared the bed on the third tier with two other inmates. In cell 106 he had not been allowed by the informal “chief” of the cell to sleep on a bed, he had slept on the floor or under the bed. In cell 79 he had shared the bed on the third tier with another inmate. No bedding had been provided by the facility, until 9 May 2000 he had slept on wooden planks and covered himself with his clothing. In their post-admissibility submissions the Government enclosed a certificate issued by the remand centre director on 21 December 2006, according to which the applicant had had a separate bed and personal bedding at all times.
37. In support of his contentions, the applicant submitted written statements by Mr P., who had been held in the same remand centre from October 1997 to March 2000 and by Mr B., who had stayed there from January 2001 to at least February 2005. Although they had not shared cells with the applicant, they attested, in particular, to the general overcrowding of the remand centre in 2001 and the lack of sleeping places and bedding.
38. The applicant further submitted that the windows in all cells had bars and iron shutters on them which blocked access to daylight and air. The shutters covered the entire window and it was forbidden to open them. The Government claimed that the cells had been “naturally ventilated” through the holes in the walls. The applicant denied that, indicating that ventilation holes in the walls had been patched with concrete. In their initial submissions on the admissibility and merits of the case, the Government indicated that on 11 June 2001 the temperature in the cell had been 20.5o C. In their submissions following the admissibility decision, the Government enclosed a certificate issued by the director of the remand centre on 21 December 2006. It said that the temperature in the cells had been taken and recorded on a quarterly basis and the average temperature had been 22o C in summer and 18o C in winter.
39. The Government stated that the cells had been equipped with sanitary installations separated from the living space by a folding screen. They enclosed a certificate issued by the director of the remand centre on 27 December 2006 which attested to that fact. The applicant submitted that there had been no folding screen and that it had been prohibited to separate the cell from the toilet bowl located about fifty centimetres from the table.
40. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should be afforded four square metres of personal space in the cell.
41. A repetition of criminal offences exists if the suspect has committed two or more offences characterised under the same provision of the Criminal Code (Article 16 § 1). Criminal offences are not considered repetitive if the proceedings in respect of the previously committed offence have been discontinued or if the criminal record of that offence has been extinguished or purged (Article 16 § 2).
42. Article 158 § 1 established that simple theft was punishable by up to three years’ imprisonment. Article 158 § 2 (b) and (g) established that repetitive theft entailing substantial damage was punishable by up to six years’ imprisonment. Article 158 § 3 established punishment for theft committed by a person who had been previously convicted of theft or extortion on two or more occasions.
43. On 26 May 2000 the State Duma of the Russian Federation adopted an act of amnesty in commemoration of the 55th anniversary of the victory in the Great Patriotic War of 1941-45 (Second World War).
44. The Amnesty Act provided that criminal proceedings in cases pending before investigative bodies or courts were to be discontinued if, in particular, the person was charged with a criminal offence committed before the entry into force of the Amnesty Act and punishable with no more than three years’ imprisonment (section 8 (a)).
45. The Amnesty Act also provided that the convicts who had been sentenced to probation should be relieved from punishment (section 6).
46. The Amnesty Act was to be implemented by investigative bodies in respect of suspects whose cases were being investigated or by courts in respect of defendants whose cases had been submitted for trial (section 1 of the State Duma Resolution no. 399-III on the procedure for application of the Amnesty Act).
47. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). A decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96 of the RSFSR Code of Criminal Procedure, the “CCrP”).
48. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment (Article 96 of the CCrP). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they have committed.
49. After the arrest the suspect was placed in custody “pending investigation” for an initial two-month period (Article 97 of the CCrP). Further extensions could be granted by prosecutors at ascending levels of jurisdiction.
50. Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file, the file was submitted to a trial court. From that day the defendant’s detention was “before the court” (or “pending trial”). Until 14 March 2001 the Code of Criminal Procedure set no time-limit for detention “pending trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during trial” could not normally exceed six months from the date the court received the file.
VIOLATED_ARTICLES: 3
5


ITEMID: 001-114769
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SÁSKA v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
TEXT: 5. The applicant lives in Budapest.
6. On 13 October 2008 the applicant applied to the Budapest Police Department for authorisation for a political demonstration in front of Parliament, in Kossuth Square, a vast open area traditionally used for political demonstrations. The declared objectives of the demonstration were, among others, commemoration of the revolution of 1956 and of the tumultuous events in Budapest in 2006 as well as to call attention to the perceived absence of legal certainty in the country. The event was scheduled for Friday, 17 October 2008.
7. According to Parliament’s official and public activity log available on the Internet, the only event taking place on that date in Parliament’s building was a conference and open day organised by the Hungarian Alliance for Enhancing Female Careers under the title “Employment – Equality of Chances – Competitiveness”. No parliamentary session was scheduled.
8. On 14 October 2008 the Police Department proposed to the applicant that the planned demonstration be held in a secluded part of Kossuth Square, rather than its entirety. The applicant refused this suggestion.
9. On 15 October 2008 the Police Department forbade the demonstration. It was of the view that the planned demonstration would ‘gravely endanger’ the functioning of Parliament, which was a legitimate ground for prohibiting it under section 8(1) of the Assembly Act. In particular, the speeches and music – belonging in the programme and amplified – might disturb the MPs’ work. Moreover, the participants – whose number was estimated at 150 to 200 persons – might physically impede the MPs’ driving in and out of Parliament’s car park, which, in the authority’s view, amounted to restricting their freedom of movement and to inhibiting the functioning of the organ of the people’s representation.
10. The applicant applied for judicial review. He submitted in particular that another demonstration with an agenda identical to his but scheduled for Wednesday, 15 October 2008, had not been forbidden on exactly the same location; this fact showed, in his view, discrimination against him and his planned event. According to Parliament’s official and public activity log available on the Internet, on 15 October 2008 five parliamentary commissions were in session.
11. On 22 October 2008 the Budapest Regional Court dismissed his complaint, endorsing in essence the Police Department’s reasoning.
VIOLATED_ARTICLES: 11
VIOLATED_PARAGRAPHS: 11-1


ITEMID: 001-58827
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF LOFFLER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
TEXT: 6. On 11 April 1986 preliminary investigations on the suspicion of murder were instituted against the applicant. On 31 March 1987 a Court of Assizes (Geschworenengericht) at the Linz Regional Court (Landesgericht) convicted the applicant of murder and sentenced him to eighteen years' imprisonment. On 15 September 1987 the Supreme Court (Oberster Gerichtshof) dismissed the applicant's plea of nullity and appeal against sentence.
7. On 6 September 1990 the applicant requested the re-opening of the criminal proceedings against him. On 11 December 1991 the Linz Regional Court dismissed the applicant's request. On 15 June 1992 the Linz Court of Appeal (Oberlandesgericht) granted the applicant's appeal and reopened the criminal proceedings against him. At the same time the applicant was released.
8. On 23 August 1993 the Linz Public Prosecutor's Office filed a bill of indictment charging the applicant with murder. On 7 October 1993 the Linz Court of Appeal accepted the applicant's objections to the indictment.
9. On 30 May 1994 the Public Prosecutor's Office filed a new bill of indictment against the applicant. On 9 September 1994 the Court of Appeal dismissed the applicant's objections to it.
10. On 6 February 1995 the Supreme Court dismissed a request by the Linz Regional Court to transfer jurisdiction in the case to a court in Vienna.
11. On 3 April 1995 the applicant filed a request under Section 91 of the Courts Organisation Act (Gerichtsorganisationsgesetz) with the Linz Court of Appeal. He complained about the inactivity of the Regional Court and requested the Court of Appeal to order the Regional Court to fix a date for the trial. On 24 May 1995 the Court of Appeal refused this request. The Court of Appeal found that the Regional Court had to wait for further expert opinions concerning a DNA test of hair and skin parts which had been found on the victim and the applicant’s clothes.
12. On 30 October 1995 the DNA test results were transmitted to the court.
13. On 12 February 1996 the Presiding Judge of the Assize Court fixed the date of the applicant's trial for 19 August 1996.
14. The applicant's trial commenced on 19 August 1996 and finished on 29 August 1996. On 29 August 1996 the Assize Court acquitted the applicant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77688
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF LEDYAYEVA, DOBROKHOTOVA, ZOLOTAREVA and ROMASHINA  v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings
JUDGES: Christos Rozakis
TEXT: 9. The first applicant was born in 1948, the second in 1928, the third and the fourth applicants were born in 1932. They all live in the town of Cherepovets, Vologda region, an important steel-producing centre situated about 300 km north-east of Moscow.
10. The Cherepovets steel plant (“the steel-plant”) was built in the 1950-s and owned by the Ministry of Black Metallurgy of the Russian Soviet Federative Socialist Republic (RSFSR). The plant was and remains the largest iron smelter in Russia and the main contributor to the environmental pollution: it is responsible for 95-97 per cent of industrial emissions into the town's air. According to the annual report by the Federal Agency for State Statistics, in 2003 overall emissions from stationary sources of atmospheric pollution were 97 thousand tons for Moscow, a city of more than ten million people, and 349 thousand tons for Cherepovets, which counts less than 350,000 residents. As a result, the concentration of certain dangerous substances in the residential areas around the steel-plant is high above the safe levels, as defined by the domestic legislation.
11. In order to delimit the areas in which pollution caused by steel production could be excessive, the authorities established a buffer zone around the steel-plant premises – “the sanitary security zone”. Although this zone was, in theory, supposed to separate the plant from the town's residential areas, in practice thousands of people (including the applicants' families) lived there.
12. The apartment buildings in the zone belonged to the plant and were designated mainly for its workers, who occupied the flats as life-long tenants. Since the 1970-s several consecutive State programs have been adopted and implemented in order to reduce the pollution to acceptable levels and/or to resettle the inhabitants of the zone. Despite certain success in reducing the levels of atmospheric pollution and resettling some of the residents of the zone, these programs failed in bringing the atmospheric pollution down to the safe levels, as defined by Russian legislation.
13. The zone was first delimited in 1965. It covered a 5,000 metre-wide area around the territory of the plant. By municipal decree no. 30 of 18 November 1992 the boundaries of the sanitary security zone around the plant were redefined. The width of the sanitary security zone was reduced to 1,000 metres from the territory of the plant.
14. In 1993 the steel-plant was privatized and acquired by “Severstal” PLC. In the course of privatisation the apartment buildings owned by the steel-plant and situated within the zone were transferred to the municipality.
15. In 2002 the municipality challenged its own decree no. 30 of 1992, which had established the zone's boundaries. On 13 June 2002 the Cherepovets Town Court declared decree no. 30 invalid. The Town Court ruled that at the relevant time the municipality had not had jurisdiction to define the width of the zone. The boundaries of the sanitary security zone around the Severstal facilities currently remain undefined.
16. For further details concerning the status of the zone and the environmental situation in Cherepovets in general see the judgement Fadeyeva v. Russia (no. 55723/00, §§ 10-19, and §§ 29-43, ECHR 2005...).
17. At the relevant time the applicants lived in the council houses situated within the sanitary security zone, as delimited by municipal decree no. 30 of 1992. They acquired those flats from the local authorities or the plant itself and lived there under the “social tenancy agreement” (see the “Relevant domestic law” part below). Their respective housing conditions may be summarised as follows.
18. In the 1960-s the first applicant's family moved to a flat situated at 49, Metallurgov Street in Cherepovets. That flat was provided by the plant to the applicant's father under a “protected tenancy” agreement. After his death in 1968 the applicant became the tenant. In the 1970-s she left Cherepovets but then returned to the city and settled in that flat. In the early 1990-s the applicant's family had obtained from the State a right of protected tenancy to another flat in Cherepovets. The applicant registered that flat as her main place of residence (место прописки). However, there is no indication that she had physically moved there.
19. In 1996 the municipality started repair works in the apartment block where the first applicant lived. In May 1996 the applicant registered again the flat at 49, Metallurgov street as her place of permanent residence. The municipality proposed the applicant to move temporarily to another flat in the same building during the works in her flat. The applicant refused to do so, claiming that she had to be resettled outside the sanitary security zone once and for all. On 7 July 1999, upon the municipal authorities' request, the applicant was temporarily evicted from her flat and moved to another apartment in the same building. In 2002, however, she returned to the flat no. 49.
20. The second applicant lived in a flat at 38, Lomonossova street. In 1992 she privatised the flat. However, in 1997, upon her request, the court declared the privatisation contract null and void. She continues to live in the flat as a tenant.
21. The third applicant lives in a flat at 12, Babushkina street as a tenant. She moved to that flat in 1985.
22. The fourth applicant lived in a flat at 20, Gagarina Street as a tenant. On 2 March 2000 she moved to another flat at 86, Leningradskaya street, which was situated outside the sanitary security zone as defined by the municipal decree of 18 November 1992. That flat was provided to her by the municipality of Cherepovets. She recently privatized that flat.
23. On 19 May 2005 the Court adopted a judgement in the case Fadeyeva v. Russia, cited above. Ms Fadeyeva, the applicant, lived within the sanitary security zone and complained about the effects of the operation of the “Severstal” steel-plant on her health and well-being.
24. In that judgment the Court found that the concentration of certain toxic substances in the air near the applicant's home had constantly exceeded the safe levels established by the Russian legislation. The Court also established that the nuisances endured by the applicant were in direct relation with the operation of the steel-plant.
25. In reaching that conclusion the Court relied, inter alia, on the information on air pollution in the whole town. In addition, the Court referred to the data collected by the State Agency for Hydrometeorology at the monitoring post situated at 4 Zhukov Street (post no. 1). That post was the closest one to the applicant's house, and in the absence of any more precise measurement, the data obtained from post no. 1 was regarded as the nearest approximation to the applicant's individual situation.
26. Information referred to in the Fadeyeva judgment is fully relevant for the purpose of the proceedings in the present four cases and will be taken into account by the Court. However, the parties produced certain new evidence as to the pollution in the area and its effects on the applicants' health and well-being. This information will be examined below.
27. The first and fourth applicants' houses are located in the vicinity of post no. 1, situated at 4, Zhukov Street. The data collected from that post showed that in 1999-2003 the concentration of dust, carbon disulphide and formaldehyde in the air constantly exceeded the “maximum permissible limits” (MPLs, safe levels of various polluting substances, as established by Russian legislation, предельно допустимые концентрации). Moreover, an over-concentration of various other substances, such as manganese, benzopyrene and sulphur dioxide, was registered during that period (for further details see § 28 et seq. of the Fadeyeva judgment, with further references). In 2004 an over-concentration of manganese (1.12 times higher than MPL), dust (1.18 times higher), and formaldehyde (6.29 times higher) was registered.
28. As regards the houses of the second and third applicants, they are located somewhere in between post no. 1 and post no. 2, situated at 43, Stalevarov street. As follows from the data produced by the Government in the Fadeyeva case, the pollution levels registered there were slightly lower than those registered at post no. 1. Nevertheless, in 1999-2003 the concentration of formaldehyde in the air was from 2.6 to 4.4 times higher than the respective MPL. The concentration of carbon disulphide was from 1.24 to 3.6 times higher (except for 2002, when it did not reach dangerous levels). Other pollution levels were below MPL (except for the over-concentration of dust registered in 1999). In 2004 the over-concentration of the following substances was registered: nitrogen dioxide (1.06 times higher than MPL), carbon disulphide (1.2 times), and formaldehyde (3.73 times).
29. As regards general effects of industrial pollution on the population of Cherepovets, the Government produced a report, prepared in 2003 by the Mechnikov Medical Academy in St-Petersburg in order to delimit the boundaries of the sanitary security zone. The conclusions of the report may be summarised as follows. The steel-plant's emissions in 2000 were half as much as in 1982. However, in 2000-2001 the concentration of several polluting substances in the air of the residential areas of the town still exceeded safe levels. At the same time the birth rate in the town was higher than the average in the country and the morbidity rate was lower. Most of the deceases registered in the town were not place-specific. However, prevalence of some chronic respiratory diseases was directly linked to the distance of the patients' houses from the territory of the steel-plant. The measures provided by the steel-plant in order to reduce emissions, would be capable of reducing health risks for the population of Cherepovets. If all these measures were implemented, by 2015 the concentration of pollutants in the air of the residential areas of the town could reach 1 MPL, which is the acceptable level. It would be possible to establish a sanitary security zone at a distance of one kilometre from the main sources of pollution. Having regard to the measures, scheduled for the period of 2002-2015, it would be possible to fix the boundaries of the sanitary security zone at the confines of the residential areas of the city.
30. On the basis of that report the Chief Sanitary Inspector of the Russian Federation issued a certificate, confirming that the project “On creating a sanitary security zone around the Severstal PLC” was in conformity with the requirements of the relevant Russian legislation. That certificate concluded that the realisation of the project would allow by 2015 a complete reduction of the concentration of air contaminants to hygienic standards, which would “guarantee reaching acceptable levels of public health hazards”.
31. The Government further produced a set of materials, prepared by the “Severstal” PLC called “For the important contribution to the environmental protection”. These materials described the environmental protection policy of the plant, environmental risks assessment mechanisms in place, the management structure of the environmental protection programs, particular technological measures implemented by the plant in order to reduce pollution levels and to normalise the environmental situation in the town, payments to the local budget for excessive pollution levels, participation of the plant in environmental education programs etc.
32. The Government further produced a certificate, issued by the Bureau Veritas Quality International, which confirmed that the management systems of the “Severstal” PLC in the areas of environmental protection and occupational hazards were in accordance with the standards, applied by that organisation.
33. As regards the effects of the pollution on the applicants' health, the Government produced the following information. As regards the first applicant, the Government did not have official information on her state of health, and, therefore, could not comment on it. As to the second and third applicants, according to the Public Health Department of the Vologda Region, their diseases were occupational or age-related. As to the fourth applicant, the Government stated that in 1997 she had been excluded from the list of people in need of regular examinations by the TB dispensary. In sum, the Government claimed that the applicants' diseases were of general character and had not been caused by the their living near the steel-plant.
34. The applicants claimed that the air pollution in the area where they lived was and continued to be above safe levels. Thus, according to a letter of the Cherepovets Centre for Sanitary Control, between 1990 and 1999 the average concentration of dust in the air within this zone exceeded the MPL by 1.6 to 1.9 times, the concentration of carbon bisulphide – by 1.4 to 4 times, the concentration of formaldehyde – by 2 to 4.7 times. The State Weather Forecast Agency of Cherepovets reported that the level of atmospheric pollution between 1997 and 2001 within the zone was rated as “high” or “very high”. Notably, a high concentration of hazardous substances, such as hydrogen sulphide, ammonia and carbolic acid was registered. According to a resolution of the Chief Health Inspector (главный санитарный врач) of 7 August 2000, the atmospheric pollution in the zone adversely affected public health, increasing the risk of cancer, as well as of respiratory and cardiac diseases.
35. According to the letter of the Head of the Environment Protection Department of the Vologda Region, in 2003 atmospheric pollution in the town was rated as “high”. Namely, over-concentrations of formaldehyde, benzopyrene, dust and carbon disulphide were registered.
36. As regards 2004, the applicants referred to the information published on the website of the Northern Department of the State Agency for Hydrometeorology. This source reported that in January-October 2004 the concentration of formaldehyde in Cherepovets was from 4 to 8 times higher than the respective MPL. According to an article published in the local newspaper “Golos Cherepovtsa” in May 2004 the concentration of dust registered at post no. 1 was 2 times higher than MPL, the concentration of nitrogen dioxide was 1.2 times higher, the concentration of carbonic oxide was 1.9 times higher. Pollution levels registered at the post no. 2 were 1.2, 2.6 and 1.6 higher than the corresponding MPLs.
37. The applicants also produced various medical documents, which confirmed that they suffered from certain chronic diseases. However, none of these documents certified that there was a link between any given illness and the place of residence of the respective applicant.
38. Finally, the applicants relied on the expert report of Mark Chernaik, Ph.D., submitted to the Court in the Fadeyeva case. In that report Dr. Chernaik analysed the effects of several polluting substances, present in the town's air in excessive quantities. As a result of his research Dr. Chernaik concluded that he would expect that the population residing within the sanitary security zone would suffer from excess incidences of various diseases, such as respiratory infections, cancer of nasal passages, chronic irritation of the eyes etc. Dr. Chernaik attributed these effects to the emissions of the steel industry (for further details see the Fadeyeva judgment, § 45).
39. In April 2005 Dr. Chernaik updated his report, taking into account data produced by the Government. In this new report Dr Chernaik concluded that emissions of harmful pollutants from the Severstal steel-plant and ambient levels of pollutants in the vicinity of it had not substantially declined in recent years; levels of dust, carbon disulfide and formaldehyde were still above permissible levels and were generally higher at monitoring stations closest to the Severstal facility. Dr. Chernaik also found that there was no substantiation of the claim that the Severstal Company had complied with the European and international environmental requirements.
40. On 30 March 1999 the first applicant requested the municipality to confirm that her house was located within the sanitary security zone. On 27 May 1999 the municipality replied that the boundary of the zone had not been officially delimited. On 9 July 1999, upon the applicant's request, the Cherepovets Town Court ordered the municipality to provide her with the information sought. That decision was upheld on 29 September 1999 by the Vologda Regional Court. The Regional Court found that, pursuant to Resolution no. 30 of 1992, the applicant's house was indeed located within the zone.
41. Shortly thereafter the first applicant brought proceedings against the “Severstal” company. She claimed that the “City Planning Regulations”, a Government Decree adopted in 1989, imposed on the owners of the plant an obligation to take various environmental protection measures in the zone, including the resettlement of its inhabitants, which obligation the company had failed to observe. Consequently, she claimed the resettlement outside the zone or the payment of a sum sufficient to purchase new housing in a safer area.
42. On 8 December 1999 the Cherepovets Town Court rendered a judgment in that case. The court discharged the company from any obligation to resettle the applicant, and ordered the municipality to put the applicant on the general waiting list for the new housing. This judgment was upheld by the Vologda Regional Court on 1 March 2000. The applicant was placed on two waiting lists. In 2004 the first applicant was no. 7613 on the general waiting list and no. 3692 on the priority waiting list.
43. On 11 February 2002 the Presidium of the Vologda Regional Court quashed, by way of supervisory review, the judgment of 8 December 1999. The Presidium established that the applicant lived in the sanitary security zone of the plant, where the concentration of by-products of steel production regularly exceeded the health limits. The Presidium further criticized the judgment of 8 December 1999 in the following words:
“The lower court did not assess whether the measures taken in order to resettle the residents of the sanitary security zone were adequate in comparison to the degree of the threat that the plaintiff encounters. As a result, the court did not establish whether providing [Ms Ledyayeva] with new housing under the provisions of the housing legislation by placing her on the waiting list could be regarded as giving her a real chance to live in an environment that is favourable for her life and health”.
The Presidium further analysed the legislation and concluded that it was for the polluting enterprise to take all necessary measures and to “develop” the sanitary security zone around its premises. The Presidium remitted the case to the Cherepovets Town Court for a fresh examination.
44. In 2002 the municipality challenged before the town court Resolution no. 30 of 1992 fixing the boundary of the zone. The applicant requested that she participate in the proceedings as a third party but this motion was refused. On 13 June 2002 the Cherepovets Town Court declared Resolution no. 30 invalid as ultra vires, in the presence of the only interested party – the municipality.
45. On 12 July 2002 the Cherepovets Town Court rejected the applicant's claims against the steel-plant. The court, referring to its judgment of 13 June 2006, held that the new boundary of the sanitary security zone had not been defined yet. The Federal Program of 1996, referred to by the applicant, contained such measure as the resettlement of the zone residents. However, that program has been abolished by Government Decree no. 860 of 7 December 2001, which did not provide for any resettlement.
46. Further, the court found that the 1989 town planning regulations provided that no housing should be situated within the sanitary security zone. However, those regulations had been adopted after the applicant's house had been built and, therefore, could not be referred to. Finally, the court noted that the applicant's family had moved to the flat at issue voluntarily.
47. The court also observed that the “Severstal” PLC was aware of the environmental consequences of its activities and was taking measures in order to reduce their impact.
48. The court concluded that the “Severstal” PLC could not be held responsible for not resettling the applicant from the zone. On 14 August 2002 this decision was upheld by the Vologda Regional Court.
49. In 1996 the second, third and fourth applicants brought a court action against the company, seeking their resettlement outside the zone.
50. On 25 April 1996 the Cherepovets Town Court rendered a judgment regarding the third applicant. On 10 July 1996 this judgment was upheld by the Vologda Regional Court on appeal. The judgment in respect of the second applicant was rendered by the town court on 23 May 1996, and upheld on appeal on 31 July 1996. The judgment with respect to the fourth applicant was delivered on 30 October 1996 and upheld on 25 December 1996.
51. In each case the courts came to the same conclusion by using a similar line of reasoning, which can be summarised as follows.
52. The courts noted that, before 1993, the applicants' flats had been owned by the Ministry of Steel Production, which had also owned the steel plant. Following the privatisation of the plant in 1993, it became a privately-owned entity, while the applicants' flats had become the property of the local authorities. The courts concluded that the company was therefore under no obligation to resettle the applicants.
53. The courts further recognised that the applicants lived in the sanitary security zone, where the concentration of dangerous substances and the level of noise exceeded the maximum limits permitted. The courts in principle accepted the applicants' claims, stating that they had the right in domestic law to be resettled by the local authorities. However, no specific order to resettle the applicants was made by the courts in the operative parts of the judgments. Instead, the courts stated that the municipality should put the applicants on a waiting list to obtain new housing (see the 'Relevant domestic law and practice' part below).
54. Enforcement proceedings were opened in this respect. In the absence of any special procedure for the resettlement of residents of the sanitary security zone, the applicants were put on the general waiting list for those entitled to better housing on social grounds. The second applicant was put on the list on 23 May 1999 with the number 6859, and the third and fourth applicants on 23 April 1999 with the numbers 6827 and 7032, respectively.
55. In 1999 the applicants brought new court proceedings, alleging that the judgments of 1996 had not been duly enforced. The applicants claimed flats in an ecologically-safe area, or the means to buy new flats themselves.
56. The Cherepovets Town Court dismissed their claims. The court established that no special waiting list existed for the zone residents and that on different dates the applicants had been put on the general waiting list. Therefore, the judgments of 1996 had been duly executed, and there was no need to undertake any further measures. These decisions were upheld by the Vologda Regional Court with respect to the second, third and fourth applicants on 4 August, 22 September and 7 July 1999 respectively.
57. Article 42 of the Constitution of the Russian Federation reads as follows:
“Everyone has the right to a favourable environment, to reliable information about its state, and to compensation for damage caused to his health or property by ecological offences”
58. Pursuant to the Federal Law of 30 March 1999 on Sanitary Safety (О санитарно-эпидемологическом благополучии населения), the Federal Sanitary Service establishes State standards for protecting public health from environmental nuisances. In particular, these standards are applied in assessing air quality in cities: atmospheric pollution is assessed in comparison to the maximum permissible limits (MPLs), the measure which defines the concentration of various toxic substances in the air. It follows from Regulation 2.1 of the Sanitary Regulations of 17 May 2001 and section 1 of the Atmospheric Protection Act (Об охране атмосферного воздуха, 1999) that if the MPLs are not exceeded the air is safe for the health and well-being of the population living in the relevant area. Pursuant to Regulation 2.2 of the Sanitary Regulations, the air quality in the residential zones of cities should not exceed 1.0 MPL for all categories of toxic elements, and should not exceed 0.8 MPL in recreational zones.
59. Pursuant to the Atmospheric Protection Act, the federal environmental agency establishes environmental standards for various types of polluting sources (cars, farms, industrial enterprises etc). These general standards are applied to specific enterprises by the regional environmental agencies. In principle, an industrial enterprise's operations should not result in pollution which exceeds the MPLs (section 16 of the Act). However, for the sake of a region's economic development, a regional environmental agency may issue a temporary permit authorising an enterprise to exceed these norms (sections 1 and 12 of the Act). The permit should contain a schedule for the phased reduction of toxic emissions to safe levels.
60. Every polluting enterprise must create a “sanitary security zone” around its territory – a buffer area separating sources of pollution from the residential areas of a city (Regulations 3.5 and 3.6 of the 1996 Sanitary Regulations, enacted by Decree no. 41 of the State Sanitary Service of 31 October 1996; similar provisions were contained in the sanitary regulations of 2000, 2001 and 2003, which replaced the 1996 regulations). The levels of pollution in this buffer area may exceed the MPLs.
61. The minimum width of the zone is defined by the sanitary regulations for different categories of enterprises. Pursuant to the 1996 regulations, the sanitary security zone around a steel-plant of the size of Severstal ought to be 2,000 metres from the boundaries of the territory of the industrial zone. Pursuant to the sanitary regulations of 1 October 2000, the width of the sanitary security zone for a metallurgical enterprise of this size ought to be at least 1,000 metres. In certain cases the State Sanitary Service may enlarge the zone (for example, where the concentration of toxic substances in the air beyond the zone exceeds the MPLs). The width of the sanitary security zone is calculated from the confines of the industrial territory or from the sources of pollution depending upon the type of polluting emissions.
62. Regulation 3.6 of the 1989 city planning regulations provided that an enterprise must take all necessary measures in order to develop (обустроить) its sanitary security zone in accordance with the law, with a view to limiting pollution.
63. Regulation 3.8 of the 1989 town planning regulations provided that no housing should be situated within the sanitary security zone. This provision was later incorporated into the Town Planning Code (Градостроительный Кодекс) of 1998 (Article 43) and the sanitary regulations of 17 May 2001 and 10 April 2003. Art. 43 of the Town Planning Code of 1998 provided:
“Industrial zones are intended for placement of industrial objects, public utilities, warehouses... as well as for sanitary security zones thereof.
Development of sanitary security zones should be conducted at the expense of the owners of the industrial objects.
Placement of houses, kindergartens, schools, hospitals, [...]within the sanitary security zones of industrial objects [...] is prohibited”.
64. According to Regulation 3.3.3 of the 2001 sanitary regulations, a project to develop the zone may include, as a high-priority objective, resettlement of the zone's residents. However, there is no direct requirement to resettle the residents of the sanitary security zone around an enterprise which is already in operation.
65. Article 10 § 5 of the Town Planning Code of 1998 provided as follows:
“In cases where State or public interests require that economic or other activities be conducted on environmentally unfavourable territories, the temporary residence of the population on these territories is permitted, subject to the application of a special town planning regime ...”
66. On 29 December 2004 the new Town Planning Code was adopted. It came into force on 30 December 2004. The new Code does not contain the regulations on sanitary security zones, similar to article 43 of the former Code. The only provision on the matter is the inclusion of sanitary security zones in the category of “zones with special conditions in the use of territories”. The legal regime for this type of zone remains to be determined in accordance with article 36(5) of the new Code.
67. It follows from a judgment of the North-Caucasus Circuit Federal Commercial Court (decision of 3 June 2003, No. Ф08-1540/2003) that the authorities may discontinue the operation of an enterprise which has failed to create a sanitary security zone around its premises in accordance with the law.
68. The applicant produced an extract from the decision of the Supreme Court of the Russian Federation in the case Ivaschenko v. the Krasnoyarsk Railways (published in “Overview of the case-law of the Supreme Court”, Бюллетень Верховного Суда РФ, № 9, of 15 July 1998, § 22). In that case the plaintiff had claimed immediate resettlement from a decrepit house. The lower court had rejected the plaintiff's action, indicating that she could claim resettlement following the order of priority (i.e. should be put on the waiting list). The Supreme Court quashed this judgment, stating as follows:
“the [plaintiff's] house is not only dilapidated [...], but is also situated within 30 metres of a railway, within the latter's sanitary security zone, which is contrary to the sanitary regulations (this zone is 100 metres wide, and no residential premises should be located within it)”
The Supreme Court remitted the case to the first-instance court, ordering it to define specific housing which should be provided to the individual concerned as a replacement for her previous dwelling.
69. During the Soviet period, the majority of housing in Russia belonged to various public bodies or State-owned enterprises. The population lived in those flats as life-long tenants under “social tenancy agreements” (for further details see Teteriny v. Russia, no. 11931/03, § 19 et seq.,, 30 June 2005). In the 1990s extensive privatisation programmes were carried out. In certain cases, property that had not been privatised was transferred to local authority possession.
70. By the time of the events at issue, a certain part of the Russian population continued to live as tenants in local council homes on account of the related advantages. In particular, council house tenants were not required to pay property taxes, they paid a rent that was substantially lower than the market rate and they had full rights to use and control the property. Certain persons were entitled to claim new housing from the local authorities, provided that they satisfied the conditions established by law.
71. From a historical standpoint, the right to claim new housing was one of the basic socio-economic rights enshrined in Soviet legislation. Pursuant to the Housing Code of the RSFSR of 24 June 1983 in force at the time of the relevant events every tenant whose living conditions did not correspond to the required standards was eligible to be placed on a local authority waiting list in order to obtain new council housing. The waiting list established the priority order in which housing was attributed once it was available.
72. However, being on a waiting list did not entitle the person concerned to claim any specific conditions or timetable from the State for obtaining new housing. Certain categories of persons, such as judges, policemen or handicapped persons were entitled to be placed on a special “priority waiting list”. However, it appears that the Russian legislation guaranteed no right to be placed on the priority waiting list solely on the ground of serious ecological threats.
73. Since Soviet times, hundreds of thousands of Russians have been placed on waiting lists, which become longer each year on account of a lack of resources to build new council housing. The fact of being on a waiting list represented an acceptance by the State of its intention to provide new housing when resources become available. The applicants submit, for example, that the person who is the first on the waiting list in the Cherepovets municipality has been waiting for new council housing since 1968. On 29 December 2004 the new Housing Code of the Russian Federation was adopted. It came into force on 1 February 2005. Pursuant to the provisions of the new code the social housing may be obtained on very limited grounds. However, those who were placed on the “waiting lists” before the entry into force of the new Housing Code remained on the “waiting lists” (article 6 of the Federal Law “On the Entry into Force of the Housing Code of die Russian Federation” of 29 December 2004).
VIOLATED_ARTICLES: 8


ITEMID: 001-105197
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KRUSKOVIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 4. The applicant was born in 1966 and lives in Jurdani.
5. On 25 February 2003 the applicant was divested of his legal capacity (poslovna sposobnost) by a decision of the Opatija Municipal Court (Općinski sud u Opatiji). The decision was based on a report by a psychiatrist, who established that the applicant suffered from organic personality disorder and antisocial personality disorder as a result of his long-term drug abuse. The psychiatrist recommended that the applicant be divested of his legal capacity for a period of at least five years in order to undergo psychiatric treatment.
6. On 2 April 2003 the Opatija Social Welfare Centre (Centrar za socijalnu skrb Opatija) appointed the applicant’s mother, Lj.I.G., as his guardian.
7. On 29 September 2006 the Opatija Social Welfare Centre appointed the applicant’s father, D.K., as his guardian since his mother had fallen ill. On an unspecified date the same centre appointed its employee J.L as the applicant’s guardian.
8. On 30 June 2007 K.S. gave birth to a daughter, K., and named the applicant as the child’s father. On 17 August 2007 the applicant, with the consent of the child’s mother, gave a statement at the Rijeka Birth Registry (Matični ured Rijeka) saying that he was the father of the child, and he was subsequently registered as such on the child’s birth certificate. On 14 September 2007 the applicant gave the same statement before the Rijeka Welfare Centre (Centar za socijalnu skrb Rijeka).
9. On 19 October 2007 the Rijeka Social Welfare Centre informed the Birth Registry that the applicant had been divested of his legal capacity.
10. The Rijeka Birth Registry instituted proceedings in the Primorsko-goranska County Office of State Administration (Ured državne uprave u Primorsko-goranskoj županiji) for the annulment of the registration of the applicant as K.’s father. On 29 October 2007 the County Office gave a decision ordering that an amendment be made to the child’s birth certificate annulling the previous note stating that the applicant was the father of the child, on the ground that as a person divested of his legal capacity he did not have the right to recognise K. as his child before the law.
11. This decision was not served on the applicant, since he had been divested of his legal capacity. It was served on his mother.
12. On 21 March 2010 the Opatija Welfare Centre brought a civil action in the Opatija Municipal Court against the applicant, K.S., and K., seeking that the Municipal Court establish that the applicant was K.’s father. The proceedings are still pending.
13. The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) read:
“(1) ... paternity may be recognised before a registrar of a registry office, a social welfare centre or a court ...
...”
“(1) The child’s mother shall give consent to the registering of the recognition of paternity.
...”
“A social welfare centre may lodge a civil claim seeking ... to establish paternity up until the child’s eighteenth birthday.”
“(1) An adult who, owing to mental illness or for other reasons, is not able to care for his or her own needs, rights and interests, or who presents a risk for the rights and interests of others, shall be partially or completely divested of his or her legal capacity by a court of law in non-contentious proceedings.
(2) Before adopting a decision under paragraph 1 of this section, a court shall obtain the expert opinion of a medical expert about the health conditions of the person concerned ...”
“The competent social welfare centre shall place under guardianship any person ... divested of his or her legal capacity ...”
“(1) The guardian shall take care of the person, rights, obligations and well-being of the ward with due diligence, manage his or her assets and take measures to enable the ward to have an independent working and personal life.
...”
“(1) The guardian represents the ward.
...”
“In order to undertake more extensive measures concerning the person, personal status or health of the ward, the guardian shall obtain prior consent from a social welfare centre.”
VIOLATED_ARTICLES: 8


ITEMID: 001-103940
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF KOTELES v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Ireneu Cabral Barreto
TEXT: 4. The applicant was born in 1936 and lives in Budapest.
5. On 22 July 1999 the applicant suffered a road accident while driving, due to a burst tyre, and was seriously injured. He subsequently brought an action in compensation against the tire company and its retailer before the Pest Central District Court on 10 February 2000.
6. In its interlocutory judgment of 6 April 2004 the District Court established the respondents' liability for damages, which was finally upheld by the review bench of the Supreme Court on 27 October 2005.
7. After obtaining the opinion of two forensic experts, the Pest Central District Court awarded the applicant compensation on 3 October 2006. In the absence of an appeal, the judgment became final on 28 November 2006. The judgment was rectified for a clerical error on 9 January 2007.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107450
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF AL HANCHI v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3 (in case of expulsion to Tunisia);Remainder inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 8. The applicant was born in Tunisia in 1965. He arrived in Bosnia and Herzegovina during the 1992-95 war and joined the foreign mujahedin. The mujahedin phenomenon is explained by the International Criminal Tribunal for the former Yugoslavia in the Hadžihasanović and Kubura judgment, IT-01-47-T, §§ 411-18, 15 March 2006, as follows:
“411. Witnesses for both the Prosecution and Defence agreed that the foreign mujahedin began to arrive in Zenica and Travnik during 1992, particularly in the second half of the year.
412. At that time, the borders of the RBiH (Republic of Bosnia and Herzegovina) were controlled by the organs of Republika Srpska or HVO authorities, which made it very difficult for the RBiH legal authorities, more specifically the MUP (Ministry of the Interior), to control the entry and movements of foreigners in the RBiH. Foreign mujahedin reached Bosnia via the Republic of Croatia and via Herzegovina where the HVO had established power. They frequently arrived as members of humanitarian organisations and did not register with the RBiH authorities.
413. Most of the foreign mujahedin came from the countries of North Africa, the Near East and the Middle East, i.e. Algeria, Afghanistan, Saudi Arabia, Qatar, Egypt, Iran, Pakistan, Tunisia, Turkey and Yemen. Some also came from European countries, but how many is not known.
414. Foreign mujahedin were easily recognisable by their traditional clothing and dark complexion. They had long beards and wore turbans or hats. Some wore camouflage uniforms or parts of camouflage uniforms, while others wore long white robes. There were also those with scarves around their head and neck. Most of them did not know the Bosnian language and spoke only Arabic. The foreign mujahedin carried automatic rifles and rocket launchers. Some had sabres or long knives. Some witnesses recognised the insignia the foreign mujahedin wore on their shoulders.
415. According to the evidence characterising the position of the foreign mujahedin, the term ‘mujahedin’ refers to Muslims fighting a jihad, or holy war. The foreign mujahedin went to Bosnia in order to help their Muslim brothers defend themselves against the Serbian aggressor and intended to leave the country once peace had been re-established. According to these same sources, the foreign mujahedin also wanted to spread their beliefs, which they felt were the most faithful expression of Islamic texts.
416. Most foreign mujahedin in Central Bosnia seem to have arrived as members of humanitarian organisations. Defence witnesses agreed that during the first phase they were involved in humanitarian activities. They provided quite significant aid to the local Muslim population, particularly food, and organised classes in religious instruction.
417. Starting in the second half of 1992 when conflicts broke out in Central Bosnia, foreign mujahedin became fighters. They furnished the local population with weapons and uniforms and provided military training. As explained below, the foreign mujahedin took part systematically in combat side by side with the ABiH.
418. Given their humanitarian involvement, the foreign mujahedin initially enjoyed a degree of trust and had the support of the local population. Young men, even minors, joined them. ABiH soldiers deserted their own units to join the ranks of the foreign mujahedin, especially in order to benefit from their material support. Some of the mujahedin married girls from the region. Over time, however, the foreign mujahedin tried to promote their view of fundamental Islam. They ordered the Bosnian women to cover their heads, condemned the consumption of alcohol and insisted that the local Muslims practice their religion. The foreign mujahedin burst into cafés and restaurants that served alcohol and if they saw a woman or young girl dressed in what they considered inappropriate fashion, they voiced their strong opposition. As a result of this rigid attitude, relations between the foreigners and the local population deteriorated.”
9. Although he had never been given citizenship or a residence permit in Bosnia and Herzegovina, on 28 December 1995 the applicant obtained a national identity card on the basis of a forged decision of 15 February 1992 granting citizenship to a certain Marvon Mufti (that national identity card was revoked in 2002). In 1997 the applicant married a citizen of Bosnia and Herzegovina. They have two children, born in 1998 and 2000. It would appear that the applicant never returned to Tunisia after the 1992-95 war.
10. On 24 April 2009, during a random check, the Aliens Service of the Ministry of Security found that the applicant was an illegal immigrant in Bosnia and Herzegovina and placed him in Istočno Sarajevo Immigration Centre for deportation purposes. On 14 May 2009 he lodged an application for judicial review through his counsel, but the application was ultimately rejected as out of time. The initial detention period was extended on a monthly basis. Each of the extension orders was then upheld by the Court of Bosnia and Herzegovina (“the State Court”) and some of them by the Constitutional Court. Appeals concerning the remaining extension orders are still pending before the Constitutional Court.
11. On 19 May 2009 the Aliens Service established that the applicant was a threat to national security, ordered his deportation and prohibited his re-entry for a period of five years. It relied on secret intelligence reports. On 22 June 2009 the Ministry of Security upheld the decision. On 10 November 2009 the State Court, having assessed the secret evidence, also upheld the deportation order. An appeal is pending before the Constitutional Court.
12. On 24 July 2009 the applicant claimed asylum. He maintained that Tunisian citizens who had joined the foreign mujahedin during the war in Bosnia and Herzegovina were treated in Tunisia as suspected terrorists and were subjected to ill-treatment. He added that Tunisian authorities had visited his family and had enquired about him shortly after the opening of his deportation proceedings. The applicant could not explain, however, how those authorities had learned about his activities in Bosnia and Herzegovina. The applicant submitted a statement by Mr Kousri, a Tunisian human-rights activist, asserting that a certain Badredine Ferchichi had been sentenced by a Tunisian military tribunal to three years’ imprisonment for having fought in the war in Bosnia and Herzegovina.
13. On 27 July 2009 the Asylum Service interviewed the applicant with the help of an interpreter since the applicant did not speak any of the official languages of Bosnia and Herzegovina. It also had regard to reports of the United States Department of State, Amnesty International and Human Rights Watch on Tunisia, which mentioned many cases of ill-treatment meted out to suspected terrorists. The practices reported included hanging from the ceiling, threats of rape, administration of electric shocks, immersion of the head in water, beatings and cigarette burns. Allegations of ill-treatment were reportedly not investigated by the Tunisian authorities.
14. On 7 August 2009 the Asylum Service refused the asylum claim. It held that it had not been shown that the applicant would indeed be treated in Tunisia as a suspected terrorist and that he therefore did not face a real risk of being subjected to ill-treatment. The statement concerning the situation of Mr Badredine Ferchichi was not admitted to the file because the applicant had failed to provide a translation into an official language of Bosnia and Herzegovina. On 10 November 2009 the State Court upheld that decision. An appeal is pending before the Constitutional Court.
15. On 3 December 2009 the applicant lodged an application for interim measures with the Constitutional Court asking that his deportation be stayed pending the Constitutional Court’s decision on the merits of the case.
16. Removal directions for 10 December 2009 at about 2 p.m., issued on 8 December, were served on the applicant on 10 December at about 10 a.m. The applicant immediately applied for interim measures with the Court and the President of the Fourth Section of the Court granted an interim measure the same day at about 1 p.m. (see paragraphs 4-6 above).
17. On 12 January 2010 the Constitutional Court refused the applicant’s application for interim measures. The decision was notified to the applicant on 1 February 2010.
18. The applicant is still in Istočno Sarajevo Immigration Centre.
19. The Secret Data Act 2005 (Zakon o zaštiti tajnih podataka, Official Gazette of Bosnia and Herzegovina nos. 54/05 and 12/09) entered into force on 17 August 2005. Section 5 of that Act provides that the judges of the State Court and the Constitutional Court have access to all levels of secret data without any formalities (such as security clearance or special authorisation), if such access is required for exercising their duties.
20. The Aliens Act 2008 (Zakon o kretanju i boravku stranaca i azilu, Official Gazette of Bosnia and Herzegovina no. 36/08) entered into force on 14 May 2008. Section 105 thereof provides that a refugee is an alien who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside his or her country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside the country of former habitual residence, is unable or, owing to such fear, is unwilling to return to it. The same provision defines a person eligible for subsidiary protection as an alien who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that he or she would face a real risk of the death penalty or execution, torture or inhuman or degrading treatment or punishment in the country of origin or in the country of habitual residence, or there is a serious, individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict, and who is unable, or, owing to fear, is unwilling to avail himself or herself of the protection of that country.
The principle of non-refoulement is incorporated in section 91 of the Act, which reads as follows:
“An alien shall not be returned or expelled in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion, regardless of whether or not the person concerned has been granted international protection. The prohibition of return or expulsion (non-refoulement) shall also apply to persons in respect of whom there is a reasonable suspicion for believing that they would be in danger of being subjected to torture or other inhuman or degrading treatment or punishment. An alien may not be returned or expelled to a country where he or she is not protected from being sent to such a territory either.”
Pursuant to section 118 of the Act, an alien whose claim for international protection has been refused will nevertheless be granted leave to remain on humanitarian grounds, if his or her removal would breach the principle of non-refoulement. However, the alien concerned must be placed in detention if it has been established that he or she constitutes a threat to public order or national security.
21. An appeal against a deportation order suspends deportation (section 87 of that Act). A claim for international protection and an application for judicial review against a refusal of such a claim equally suspend deportation (sections 92, 109(9) and 117 of that Act). Pursuant to section 93 of that Act, once an alien has become expellable, removal directions are issued within seven days. An appeal against removal directions does not suspend deportation.
22. Pursuant to section 99(2)(b) of that Act, an alien must be detained if it has been established that he or she constitutes a threat to public order or national security. Sections 100(3) and 102 of that Act provide that an initial detention order is valid for thirty days, but it may be extended any number of times for up to thirty days at a time. The total period of detention, however, may exceed 180 days only in exceptional circumstances, such as if an alien prevents his or her removal or if it is impossible to remove an alien within 180 days for other reasons.
23. The General Framework Agreement for Peace, which put an end to the 1992-95 war in Bosnia and Herzegovina, was initialled at a military base near Dayton, the United States, on 21 November 1995 and signed in Paris, France, on 14 December 1995. It entered into force on the latter date.
24. Pursuant to Article III of Annex 1A to that Agreement, all foreign forces, including individual advisors, freedom fighters, trainers, volunteers, and personnel from neighbouring and other States, irrespective of whether they were legally and militarily subordinated to any of the local forces, had to be withdrawn from Bosnia and Herzegovina by 13 January 1996.
25. As to the situation in Tunisia before the recent change of regime, see Saadi v. Italy [GC], no. 37201/06, §§ 65-93, 28 February 2008.
26. The Parliamentary Assembly of the Council of Europe has recently looked at the situation in Tunisia after the change of regime (document no.12624 of 1 June 2011). The pertinent part of the explanatory memorandum reads as follows:
“12. For several weeks after the revolution of 14 January 2011, the political situation in Tunisia remained very unstable. The first provisional government, formed by the former Prime Minister Ghannouchi on 17 January with the participation of representatives of the ‘legal’ opposition parties (the few political formations that existed under the former regime) and independents, succeeded in making a number of decisions tending towards democratisation. But that government soon found itself under pressure from the demonstrators, who demanded the resignation of ministers who had served under Ben Ali.
13. At the same time, the political forces close to the former regime, from Ben Ali’s RCD party (Constitutional Democratic Rally) and the security services, tried to stir up trouble in the country in order to shift the transition process towards a new authoritarianism under the guise of ‘controlled’ political liberalisation.
14. Faced with these attempts, the elements in favour of democratic change, particularly the unions and the active members of civil society, continued to exert pressure on the provisional government through demonstrations. They also began to form a National Council to Defend the Revolution, which demanded the calling of a constituent assembly and the dissolution of all institutions inherited from the Ben Ali era, namely Parliament, the RCD and the political police.
15. At the beginning of February, the two Chambers of Parliament passed a law allowing the Interim President, Fouad Mebazaa, to govern by legislative decree. Parliament was then suspended and dissolved. Moreover, on 19 February the Interim President issued a legislative decree declaring an amnesty for all political prisoners.
16. Among the main decisions of the Ghannouchi government should be noted the banning of the old ruling party, the RCD, as well as the establishment of a commission to reform texts and institutions which was supposed to prepare the democratic transformation of the country.
17. Mention should also be made of the dissolution of the Ministry of Communication (which it would be more accurate to call the ministry of propaganda and censorship) and a degree of liberalisation of the media. Reform of the press still remains to be carried out, however. Indeed, we have been informed that non-governmental organisations (NGOs) encounter problems if they want to obtain radio frequencies.
18. On 27 February, the second government presided over by former Prime Minister Ghannouchi was forced to resign as a result of pressure from the protesters. The new transition government, headed by Mr Beji Caïd Essebsi, had no members who had been close to the Ben Ali regime and positioned itself as a cabinet of technocrats whose objective was to guarantee calm and stability during the transition period.
19. On 3 March, the Interim President set 24 July 2011 as the date for elections to a Constituent Assembly by direct universal suffrage according to a new electoral code. A specific body called the Higher Authority for Realisation of the Objectives of the Revolution, Political Reform and Democratic Transition was set up to prepare the elections to the Constituent Assembly. Mr Yadh Ben Achour, former Dean of the Tunis Faculty of Legal, Political and Social Sciences, who had resigned from the Constitutional Council in 1992 and was an opponent of the Ben Ali regime, was appointed president of the new body.
20. The Higher Authority, which is composed of 161 members, many of whom are representatives of the political world and civil society, as well as professional lawyers, prepared and submitted to the government in mid-April draft laws on the organisation of the elections and on the electoral commission.
21. In addition, two other independent commissions of inquiry were set up in order to shed light on corruption, the misappropriation of funds by the former regime and abuses committed by the security forces during the events of December 2010-January 2011.
22. On 7 March 2011, the Minister for the Interior announced the dissolution of the State Security Service and the political police.
23. There now seems to be relative, if fragile, political and institutional stability in Tunisia, enabling the provisional authorities to be fairly optimistic about the possibility of preparing the elections. The authorities have, however, let it be known that they may be postponed if all the conditions for a ballot that complies with democratic standards are not met.
24. The fragile nature of the stability was demonstrated by the events of 5 May, which were provoked by statements by the former Tunisian Minister of the Interior, Farhat Rajhi, who announced a ‘military coup d’état’ was being prepared in the event of the Islamists’ winning the elections. The government condemned these statements, calling them an attack on public order. The demonstrations that followed this incident turned into a riot, with young Tunisians demanding the resignation of the transitional government and ‘a new revolution’. The police had to use teargas and then weapons in order to quell the riot. Several shops and houses were looted. On 7 May, the authorities introduced a curfew in Tunis. Some 600 people were arrested. The curfew was lifted on 18 May 2011.”
27. On 21 May 2011, in conclusion of his visit to Tunisia undertaken on invitation of the Government, Juan Mendez, the UN Special Rapporteur on torture and other forms of cruel, inhuman, degrading treatment or punishment, delivered the following statement:
“...
The interim Government has undertaken a series of positive steps, including, considering reforming the State security apparatus and dismantling the so-called political police, initiating security sector reforms, reviewing the national legislation in line with international standards, including inter alia removing legal obstacles to reopening the cases of homicide and torture of the past, dismissing a number of high- and mid-ranking officials from the Ministry of Interior and the Ministry of Justice. I am also heartened by the discussions about the establishment of transitional justice mechanisms to address the legacy of past abuses. Encouragingly, the Government has established three advisory commissions.
...
I was told by officials that the practice of torture and ill-treatment has decreased following respective instructions issued by the officials of the security services. This I realised is true as far as the notorious and endemic practice of torture committed during the Ben Ali regime is concerned. However, I have heard credible testimonies regarding beatings of detainees upon arrest or within the first hours of pre-trial detention (garde a vue) as well as during interrogation. Such episodes reflect the fact that old habits of police agents are not easily eradicated. Whether they are isolated or more frequent, beatings inflicted as a form of punishment or intimidation reflects complete disrespect for the presumption of innocence and the dignity of persons suspected of crimes. For that reason, every single act of torture is intolerable and elicits the obligation of the State under international law to investigate, prosecute and punish it. I heard testimonies according to which the safeguards during arrest and detention, such as rules governing warrant, compulsory medical examination upon arrest and transfer, notification to the family, access to a lawyer, interrogation in the presence of witnesses, as well as the right against self-incrimination were not respected in practice. Sadly, some of those testimonies were about events that have taken place after the January 14 Revolution.
For example, I learned that in early May the police reacted heavy-handedly to a demonstration by scores of youths. Riot police clashed with protesters and representatives of the media. I heard allegations of arbitrary arrest, and beating, of a group of young people that included more than 20 minors. Together with about 46 adults, they were arbitrarily detained and taken to a detention centre without any access to a lawyer or notification to their families despite clear provisions in the Tunisian law regarding juvenile criminal law and procedure they were set free at 4:00 a.m. in one of the most dangerous areas in Tunis. During about 12 hours of detention they were forced to kneel and remain in uncomfortable positions. I welcome the initiative of the Ministry of Interior to issue a statement apologising to ‘journalists and citizens involuntarily assaulted’ and to open an inquiry into these incidents. This goes on to suggest that riot police and law-enforcement bodies engage in ill-treatment and excessive use of force to hold situations under control.
Given the lack of effective safeguards during arrest, persons deprived of their liberty are extremely vulnerable to torture and ill-treatment, moreover, given the legacy of abusive treatment by law-enforcement agents in the past, the lack of sufficiently speedy investigations into allegations of torture and ill-treatment, as well as the use of prosecutions affecting public officials, it can not be said that the culture of impunity no longer prevails, even though the current authorities have undoubtedly and sincerely pledged to respect the law. I have received several allegations of being kicked, beaten and burned with cigarettes. Many of these cases were supported by forensic medical evidence.
I learned from the Ministry of Interior that from 1999 to 2009, there were only seven criminal convictions against law-enforcement and prison officials for acts of torture and ill-treatment out of 246 prosecutions initiated. According to Tunisian law, anyone who claims to have been subjected to torture can file a complaint either with officers of the Police Judiciaire or the Prosecutor. These mechanisms are inadequate as the complaint is essentially addressed to the same body that is alleged to have perpetrated the ill-treatment. Moreover, under Tunisian legislation, judges are not obliged to exclude any evidence or statements obtained under torture, despite the fact that, as a party to the CAT, Tunisia is internationally obliged to exclude such evidence. This inevitably creates an environment conducive to impunity.
Admissibility of confessions is left to the discretion and appraisal of the judge in accordance with Articles 150 and 152 of the Criminal Procedure Code. I welcome the initiative of the Ministry of Justice to amend the definition of torture contained in the Criminal Code in order to bring it in full conformity with the definition of Article 1 of the CAT and to provide for penalties reflecting the severity of the offense. I also support an initiative to amend the laws to ensure that no statement obtained through torture shall be admitted as evidence in judicial proceedings against the defendant, except in a case presenting torture and to show that the statement was made.
It is my understanding that several agents of security forces attached in the past to the Presidency and to the Ministry of the Interior have not been removed even though they are thought to be at the heart of the serious violations of human rights that took place in the past.
The conditions of prisons and detention centres visited vary from being adequate to unsatisfactory as far as hygienic conditions, availability of medical assistance, access to telephone, and the length of family visits are concerned. Medical centres although available, do not seem to be always and adequately equipped. Dental and psychiatric assistance do not presently exist in the detention centres visited.
As far as the investigation launched into the past allegations of torture and recent abuses are concerned, I welcome the establishment of the fact-finding Commission, while recognising that its function is complementary to judiciary and should be clarified. I heard an explanation about the thorough and comprehensive way in which it has approached its mandate. However, I have learned that the number of prosecutions and initial judicial inquiries related to torture and disproportionate use of force remain low, despite the fact that the Commission’s work does not substitute the role of prosecutors and judges. The slow pace of investigation and general lack of clear signals that these cases are seriously considered provokes frustration and anger among victims and general public. It is encouraging to learn that preliminary monetary compensation has been offered to victims and their families of December and January events. It remains unclear how the amount of compensation was defined as adequate and whether any measures are undertaken to provide the victims and their families with rehabilitation services.
I welcome the initiative of the interim Government to release political prisoners and prisoners of conscience; and to grant conditional release on a case by case basis to those convicted for security related offenses. Many, if not most, of these were convicted in unfair trials, so amnesties and pardons are a partial remedy to the violations they have suffered.
I would like to welcome the commitment expressed by all levels of the Government regarding the abhorrence of torture and its determination to eradicate it...”
28. On 26 May 2011, at the conclusion of his official follow-up visit to Tunisia, the United Nations Special Rapporteur on human rights and counter-terrorism, Martin Scheinin, gave the following statement:
“...
Since my last visit to Tunisia in early 2010, the world has witnessed how the negation of human rights by oppressive regimes, including under the pretext of countering terrorism, can bring together a critical mass of people from very different walks of life to pursue their aspirations for a free and democratic society and a Government that respects human rights. Tunisia has become a symbol of this lesson.
My mandate focuses on the protection of human rights while countering terrorism. In this context I have seen initial steps that indicate a break with Tunisia’s past. I was pleased to hear that many of my interlocutors confirm that the abusive anti-terrorism law of 2003 has not been used since the events of 14 January, including against the Tunisian people that demanded change. However, in Al Mornaguia Prison I learned that individual judges sometimes still order persons detained under the 2003 law. This now mostly dormant law did not do what it was supposed to do. It did not provide more security to the Tunisian people, but was used as a tool of oppression against any form of political or other dissent. The Transitional Government has acknowledged this by adopting an amnesty law covering those who were convicted or held under this law. In order to provide the Tunisian people with the security they deserve, I offer the assistance of my mandate to replace the 2003 law with a proper legislative framework which regulates Tunisia’s anti-terrorism efforts in line with international conventions and protocols on countering terrorism, while fully respecting human rights and fundamental freedoms. The global threat of terrorism is real and can only be responded to through properly targeted and lawful measures, instead of using the notion of terrorism to suppress dissent.
In my previous report I expressed grave concern about the activities of various entities of the security apparatus, and the secrecy and impunity in which they operated. My report singled out the Directorate for State Security as a crucial entity that was responsible for activities of torture and arbitrary and even secret detention. I commend therefore the abolishment of this entity by the Transitional Government. However, in my previous report I also highlighted the lack of publicly available information on several security organs of the Tunisian State. This secrecy was an important element that contributed to the shield of impunity under which these actors could operate. All security organs’ functions and powers must be regulated by publicly available laws. Such transparency avoids not only the creation of myths about what these agencies do, but also ensures accountability of these agencies if they commit illegal acts. In this context I have noted statements that the ‘political police’ in Tunisia has been abolished. Such a ‘police’ did not exist in the law, but it was used as term by the public, and now also by officials, to describe those elements in the security organs related to the Ministry of the Interior that were responsible for cracking down on political and human rights activists and other dissent.
Changes in the way Tunisia’s security organs operate should not be limited to slogans, but should result in concrete measures. The first steps have been taken to establish accountability for those who attacked the demonstrators in January of this year. I welcome this positive development, but want to stress that in order to look truly forward towards a new Tunisia, it has to come to terms with dark remnants of its past. During my first visit in 2010 the existence of secret facilities in the premises of the Ministry of the Interior was flatly denied. This time officials at the Ministry of the Interior agreed to show me the former secret detention facilities. However, some officials still denied the use of Ministry offices as interrogation and torture rooms. I learned that until now 60 security officials have been arrested, 7 persons in the highest ranks prosecuted, and 42 officials forced to retire, or went into retirement voluntarily. Tunisia should continue to investigate ex officio allegations of torture and illegal detention, often committed under the pretext of the fight against terrorism. Investigating, prosecuting and trying those responsible for the crimes in question can also help rebuilding trust between the population and the security forces in the country.
While I commend Tunisia’s decision to ratify the International Convention against Disappearances, the Optional Protocols to the Convention against Torture and the Covenant on Civil and Political Rights, and the Rome Statute of the International Criminal Court, I must emphasise that these promises turn into real rights only when implemented by depositing the international instrument of accession. Further, I call for rapid measures to strengthen the independence of the judiciary which as of today has not lived up to its task to secure compliance with the law, including human rights. I was also disappointed to learn that the most important safeguard against abuse in police custody, effective access to a lawyer of one’s own choice from the moment of arrest, including presence in every interrogation, is not yet in place.
These are the preliminary findings of my follow-up mission. A full report will be presented to the United Nations Human Rights Council in 2012...”
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