ITEMID: 001-57844
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF SIGURÐUR A. SIGURJÓNSSON v. ICELAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 11;Not necessary to examine Art. 9;Not necessary to examine Art. 10;Not necessary to examine Art. 13;Costs and expenses partial award - Convention proceedings
TEXT: 7. Mr Sigurdur A. Sigurjónsson is an Icelandic national. He is a taxi driver and resides in Reykjavik.
8. On 24 October 1984 he was granted a licence to operate a taxicab by the "licence issuers" (a body later named the Committee for Taxicab Supervision - the "Committee"; see paragraphs 18 and 20 below). The decision was taken under Law no. 36/1970 on Motor Vehicles for Public Hire ("the 1970 Law") and Regulation no. 320/1983 ("the 1983 Regulation") issued by the Minister of Transport under Article 10 of the Law (see paragraph 18 below).
The applicant had applied for a licence using a printed form addressed to the Frami Automobile Association ("Frami"). This standard form contained a statement to the effect that the applicant was aware of the obligation to pay membership fees to Frami on becoming a member.
When he was granted the licence, the applicant undertook to observe the conditions provided for in the 1983 Regulation, on the understanding that a failure to do so could lead to its suspension or revocation. One such condition was that he apply for membership of Frami (Article 8 of the 1983 Regulation), which he had done on 26 September 1984.
9. After joining Frami, the applicant paid membership fees to the association until August 1985, when he stopped doing so. As a result, Frami advised him on 5 February 1986 that it intended to exclude him and his taxicab from taxi station services until the fees were paid (Article 27 of Frami’s Articles of Association).
In reply, the applicant, by letter of 14 February 1986, indicated that he did not wish to be a member of Frami; he refused to accept the obligation to remain a member of and to pay membership fees to it. Furthermore, he explained that he had accepted the licence "without first ascertain[ing] [his] legal position with regard to membership" because he had lacked sufficient funds to take the necessary steps. Also he had preferred to avoid time-consuming litigation which would have delayed the granting of the licence.
10. On 30 June 1986 the Committee upheld a request by Frami for the revocation of the applicant’s licence, especially because he had ceased paying membership dues.
11. In a letter of 1 July 1986 to the Ministry of Transport ("the Ministry") the applicant protested against the revocation of his licence and requested the suspension of the revocation pending the decision of a court action which he intended to take.
12. In its reply dated 17 July 1986, the Ministry, referring to Articles 7 and 12 of Regulation no. 293/1985 (see paragraph 18 below), confirmed the revocation. A copy of this letter was addressed to the Reykjavik Chief of Police.
13. By letter of 28 July 1986, the applicant’s lawyer informed the Chief of Police that the applicant considered the revocation unlawful; he intended to bring the matter before the courts and asked the police not to interfere with his taxi business. However, on 1 August 1986, while driving his taxi, the applicant was stopped by the police, who removed the plates identifying his vehicle as one for public hire.
14. On 18 September 1986 the applicant instituted proceedings against both the Committee and the Ministry before the Civil Court of Reykjavik, seeking a declaration that the revocation was null and void.
The Civil Court dismissed his claim on 17 July 1987.
15. The applicant appealed to the Supreme Court.
By judgment of 15 December 1988, the Supreme Court, sitting in plenary with seven members, unanimously rejected his claim that, in view of Article 73 of the Constitution, he could not be obliged to remain a member of Frami. In its opinion, the drafting history of this Article showed that it was intended to guarantee only a right to "form associations", not a right to remain outside one. The applicant had not made out his allegation that, if construed in this manner, Article 73 conflicted with the relevant provisions of international instruments. Finally, it could not be inferred from the Article that a business licence could not lawfully be made conditional upon membership of an association.
On the other hand, the Supreme Court, by a majority of four, annulled the revocation of the applicant’s licence. It found that the provision in the 1983 Regulation imposing trade-union membership as a prerequisite for granting a licence (see paragraph 8 above) lacked a statutory basis.
16. Following the above-mentioned ruling by the Supreme Court, the Althing (the Icelandic Parliament) enacted new legislation - Law no. 77/1989 on Motor Vehicles for Public Hire ("the 1989 Law") - which made operating licences conditional upon trade-union membership. This entered into force on 1 July 1989 (see paragraph 18 below).
17. In a letter to Frami dated 4 July 1989, a copy of which was transmitted to the Ministry, the applicant stated that, in the light of the new legislation, he had no choice but to be a member of the association and that he therefore agreed to pay membership fees. At the same time he stressed that membership was contrary to his own wishes and interests; not only did Frami’s Articles contain provisions contrary to his political opinions, but the association also used the revenue from membership fees to work against his interests. In addition, he maintained that the new legislation providing for obligatory membership was incompatible with the Convention and expressed his intention to pursue the matter before the Convention institutions.
18. At the time when the applicant was granted a taxicab licence, such licences were governed by the 1970 Law on Motor Vehicles for Public Hire and the 1983 Regulation. The latter was subsequently amended by Regulation no. 293/1985 ("the 1985 Regulation"): the body previously called the "licence issuers" was thereafter to be known as the Committee for Taxicab Supervision (see paragraph 20 below).
In 1989 the 1970 Law and the 1985 Regulation were replaced by the 1989 Law on Motor Vehicles for Public Hire and Regulation no. 308/1989 ("the 1989 Regulation"). The applicant’s original complaint to the Commission was concerned only with the situation after the entry into force of the 1989 legislation on 1 July 1989 (see under the heading "Complaints", in Appendix II of the Commission’s report).
19. Under Article 4 of the 1989 Law, the Ministry may, at the request of a trade union (stéttarfélag) of automobile drivers and on the recommendation of the town council and the regional board, limit the number of motor vehicles for public hire within the trade union area.
Restrictions on the number of taxicabs are set out in Article 8 of the 1989 Regulation which provides, inter alia, that within Frami’s area, which comprises Reykjavik and six surrounding communities, the number of taxicabs is to be limited to 570. Such limitations are to be effected by the issuing of licences, each licence-holder being required, among other conditions, to own a passenger car and to use it as a taxi himself as his main occupation (Article 7 of the 1989 Law and Article 8 of the 1989 Regulation). Taxi business within the area in issue is to be carried on from a taxi station approved by the municipal council (Article 2 of the 1989 Law).
20. In a trade-union area where limitations have been placed on the number of vehicles for public hire, a Committee for Taxicab Supervision composed of three members appointed by the Minister of Transport is set up. Two of the members are nominated; one by the relevant trade union, the other by the municipality. The third member chairs the Committee (Article 10 of the 1989 Law). The Committee adopts its own rules of procedure, subject to endorsement by the Ministry; it takes its decisions by a majority and reports annually to the Ministry (Article 10 of the 1989 Law and Article 9 of the 1989 Regulation).
The Committee’s task is to "supervise and control", within the area of the trade union in question, the implementation of laws and regulations relating to the operation of vehicles for public hire; the issuing and revocation of operating licences; and the manner in which taxi stations provide their services (Article 10 of the 1989 Law).
21. Frami (until 1959 named Hreyfill) was formed in 1936 by professional automobile drivers in Reykjavik. Its Articles, which may be amended by the association itself (clause 32 of the Articles), are not subject to governmental approval. According to clause 2 of the Articles, the purpose of the association is: (1) to protect the professional interests of its members and promote solidarity among professional taxicab drivers; (2) to determine, negotiate and present demands relating to working hours, wages and rates of its members; (3) to seek to maintain limitations on the number of taxicabs and (4) to represent its members before the public authorities.
The Articles are currently under revision.
22. Under the 1989 rules, associations such as Frami have certain administrative functions, namely:
(a) they propose such limitations as mentioned in paragraph 19 above (Article 4 of the 1989 Law);
(b) they serve as a depository for licences (Article 13 of the 1989 Regulation);
(c) they approve the suitability of vehicles for use as taxicabs (Article 14 of the 1989 Regulation);
(d) within narrow limits specified in the 1989 rules, they regulate, and decide on requests for, temporary exemption from the requirement that the licence-holder personally operate his own taxicab (Article 9 of the 1989 Law and Article 16 of the 1989 Regulation).
23. In addition to the above, according to material submitted by the Government, Frami carries out the following tasks:
(a) it supervises the performance of taxi services;
(b) it reports to the Committee instances of failure by a licence-holder to observe the licence conditions;
(c) it regulates the operation of taxicabs to ensure that the level of services corresponds to the significantly higher demand at weekends;
(d) it monitors the fulfilment by licence-holders of registration and insurance requirements and payment by them of requisite charges;
(e) it fixes the rates for taxi services, subject to approval by the price-control authorities.
Frami does not engage in collective bargaining on behalf of its members and is therefore not affiliated to the Icelandic Federation of Labour.
24. Article 5 of the 1989 Law provides that within a trade-union area where a limitation on the number of vehicles for public hire applies (see paragraph 19 above), operators of vehicles of the same category are to be members of the same trade union. If there is a trade union of taxicab operators for a particular area, persons not possessing an operating licence are prohibited from carrying out taxi services in that area.
Pursuant to Article 8 of the 1989 Law, an operating licence may be granted only to a person who is a member, or has applied for membership, of the relevant trade union. It follows from Article 8 of the 1989 Regulation (see paragraph 19 above) that Frami is the relevant association for taxi licence-holders in Reykjavik. The membership condition continues to apply after a licence has been granted.
25. In the case of violations by a licence-holder of laws or regulations relating to motor vehicles for public hire, he may receive an admonition from the Committee, his licence may be suspended or, in the event of serious or recurring violations, revoked by the Committee and the licence-holder may be liable to pay a fine; if it is revoked, he may, on certain conditions, reapply for a licence after five years (Articles 9 and 13 of the 1989 Law and Article 18 of the 1989 Regulation).
VIOLATED_ARTICLES: 11


ITEMID: 001-108576
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF IGOR SHEVCHENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Article 35-3 - Ratione materiae;Ratione temporis);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy
TEXT: 5. The applicant was born in 1979.
6. On 26 January 1993 the applicant, in the presence of numerous witnesses, was hit by a car on a pedestrian crossing. He sustained grievous bodily injuries and was diagnosed, inter alia, with serious head injury, concussion, spinal cord haematoma, a broken lower jaw, and other serious injuries. From that time on, and until his death on 24 March 2010, he was severely disabled. In particular, between 1993 and 1996 he was in a coma and later he had been suffering from persistent after-effects of the head injury, was unable to take care of himself and in 2005 was declared legally incapable by the court.
7. On 5 February 1993 the Investigation Unit of the Kharkiv State Department of the Ministry of Internal Affairs (слідчий відділ ХДУ УМВС України в м. Харкові) (hereinafter “the Investigation Unit”) instituted criminal proceedings against the driver, K., for a violation of traffic rules.
8. On 27 October 1993 the applicant’s mother was declared a victim of the alleged crime, since the applicant was a minor and had serious health problems.
9. On 30 November 1994 the investigation was completed and the case was transferred to the Frunzenskyy District Court, Kharkiv.
10. On 9 December 1994 the case was returned by the court for additional investigation.
11. On 25 January 1995 the Investigation Unit terminated the criminal proceedings in the case for absence of proof of K.’s guilt.
12. On 7 April 1995 the Kharkiv Prosecutor quashed this decision.
13. On 23 October 1995 the Investigation Unit terminated the criminal proceedings on the same grounds as before.
14. On 16 April 1997 this decision was quashed by the Kharkiv Prosecutor and the case was sent for further investigation.
15. On 28 January 1998 the investigation was completed and the case was transferred to the Frunzenskiy District Court, Kharkiv. It was later transferred to the Kominternovskiy District Court, also Kharkiv.
16. On 22 March 2000 the court returned the case for further investigation.
17. On 25 April 2000 the Kharkiv Regional Court, upon an application for review lodged by the Kharkiv Prosecutor, quashed the decision of 22 March 2000 and transferred the case to the Kominternovskiy District Court for consideration on the merits.
18. On 10 August 2001 the latter court returned the case for further investigation.
19. On 26 September 2001 the Kharkiv Regional Court of Appeal (formerly the Kharkiv Regional Court) upheld this decision.
20. On 19 June 2002 the case was sent back to the court after additional investigation.
21. On 27 July 2002 the Kominternovskiy District Court returned the case for further investigation.
22. On 15 August 2002 the case was transferred for investigation to the Poltava Regional Police Department (слідче управління УМВС України в Полтавській області).
23. By a letter of 10 December 2002 the General Prosecutor’s Office informed the applicant’s mother that, in order to clarify inconsistencies in previous expert conclusions, a new technical forensic examination of K.’s car had been ordered. It stated that it would be conducted in spring 2003.
24. On 7 November 2003 the investigation was terminated and the case transferred to the Kharkiv Regional Prosecutor for further transfer to a court.
25. On 12 November 2003 the case was sent back to the Poltava Regional Police Department.
26. On 30 December 2003 the case was transferred to the Central Department of the Ministry of Internal Affairs of Ukraine in order to determine its territorial jurisdiction.
27. On 21 August 2004 K. died.
28. On 23 September 2004 the Investigation Unit terminated the criminal proceedings on account of K.’s death.
29. No copies of the above decisions were submitted by the parties. Copies are available only of the decisions of 5 February 1993 and 23 September 2004.
30. On 20 December 2005 the applicant’s mother instituted proceedings in the Frunzenskiy District Court, Kharkiv, against the Frunzenskiy District Department of the Pension Fund of Ukraine and against the Labour and Social Security Department of the Frunzenskiy District Council, Kharkiv, claiming various payments allegedly due to the applicant and compensation for non-pecuniary damage. On 17 February 2006 the court dismissed the applicant’s mother’s claims. On 6 April 2006 the Kharkiv Regional Court of Appeal upheld this decision. No appeal was lodged on points of law.
31. According to Article 215 of the Criminal Code of Ukraine of 1960 a driver, who, having breached the rules of road safety or of operation and maintenance of his vehicle, has caused a human death or inflicted grievous bodily harm, may be divested of his driver’s licence and sentenced to a term of imprisonment of up to ten years. Article 286 of the Criminal Code of Ukraine of 2001, which replaced the above provision, reduced the maximum term of imprisonment for the same offence to eight years.
32. The relevant provisions of the Constitution of Ukraine and the Code of Criminal Procedure of Ukraine can be found in the judgment in the case of Muravskaya v. Ukraine (no. 249/03, §§ 35-36, 13 November 2008).
33. The relevant provisions of the Civil Code of Ukraine and the Code of Civil Procedure of Ukraine can be found in the judgment in the case of Fedina v. Ukraine (no. 17185/02, §§ 43-45, 2 September 2010).
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-5909
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: LEINONEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Finnish national, born in 1921 and living in Helsinki. He is represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The respondent Government are represented by Mr Holger Rotkirch, Director General for Legal Affairs, and Mr Arto Kosonen, Director, both of the Ministry for Foreign Affairs.
On 11 February 1985 the State Treasury (valtiokonttori, statskontoret) of the Ministry of Finance awarded the applicant a full state pension based on his public service. The pension amount would be reviewed annually by the Ministry of Social Welfare and Health with reference to an index based on the national salary and price level. Such index adjustments took place up to and including 1992.
On 25 February 1986 the applicant was awarded, as from 1 April 1986, a national old-age pension with a supplementary award for his war-time service.
In 1992 and 1993 Parliament exceptionally amended the legislation on the index-based protection of pension benefits (Acts nos. 1343/1992 and 1074/1993). With these amendments the index figure to be used for 1993 and 1994 was 1688, as opposed to the respective figures fixed by ministerial order (1714 and 1736).
On 30 July 1993 the State Treasury refused the applicant's demand that the amount of his state pension be adjusted with reference to the index fixed by the Ministry for 1993. Reference was made to the exceptional legislation enacted in 1992. According to the notice of appeal attached to the decision, it could be challenged before the State Pension Board (valtion eläkelautakunta, statens pensionsnämnd). The applicant's appeal was refused on 9 March 1994. The State Pension Board considered that the notice of appeal had been incorrect but nonetheless examined the merits of the appeal, finding that the State Treasury had correctly applied the exceptional legislation in force. On the applicant's further appeal the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), on 4 June 1996, quashed and nullified the decision of the State Pension Board to which the applicant had incorrectly been advised to appeal. The Supreme Administrative Court nevertheless found that the State Treasury had had to refuse the applicant's demand on the grounds stated in its decision and with reference to the legal provisions invoked therein. The Supreme Administrative Court was furthermore of the view that the decision in question could not be considered to violate provisions of the Convention. The applicant was later informed by the legal secretary on his case that, in 1994, an opinion on his appeal had been obtained from the State Pension Board.
On 18 April 1994 the State Treasury, relying on the exceptional legislation enacted in 1993, refused the applicant's demand that the amount of his state pension be based on the index figure fixed by the Ministry for 1994. On 4 June 1996 his appeal was refused by the Supreme Administrative Court essentially for the same reasons as those stated in its decision of the same date with regard to the requested index adjustment for 1993. The applicant was later informed that, in 1994, an opinion on his appeal had been obtained from the State Treasury.
In the beginning of 1994 the applicant requested the Helsinki Taxation Board (verotuksen oikaisulautakunta, skatterättelsenämnden) to review the imposition on him of a national social insurance fee for 1992. He argued that no such fee had been provided by the 1986 decision to grant him old-age pension. The imposition of the fee was upheld on 14 April 1994. The applicant's appeal was refused by the County Administrative Court (lääninoikeus, länsrätten) of Uusimaa on 27 July 1995 with reference to Act no. 1697/1991 which had temporarily amended the National Pension Act (kansaneläkelaki, folkpensionslagen 347/1956) by no longer excluding pensioners from the imposition of a national insurance fee. The applicant sought leave to appeal to the Supreme Administrative Court, arguing, inter alia, that his annual fee was higher than his old-age pension. The imposition of the fee, taken together with the exceptional legislation blocking index-based increases in his state pension, was effectively depriving him of yet further property to which he had a legitimate claim. Having granted leave to appeal, the Supreme Administrative Court, on 28 October 1996, refused the appeal, considering that the 1986 pension decision had been silent as to the conditions for imposing a national social insurance fee on a pensioner who had reached the age of 63. Act no. 1697/1991, which provided for such imposition, had been enacted on 30 December 1991 and had been applied during 1992. Its wording had not been ambiguous and its application could not be affected by the constitutional provisions protecting private property and prohibiting discrimination. Nor did Article 1 of Protocol No. 1 to the Convention have any impact on the collection of a fee with the character of a tax.
On 17 January 1996 the Helsinki Taxation Board refused the applicant's demand that the national social insurance fee imposed on him for 1993 be lifted as being unconstitutional. On 19 June 1997 his appeal was refused by the County Administrative Court with reference to Act no. 1660/1992, which had prolonged the temporary amendment to the National Pension Act (Act no. 1697/1991), and on the grounds of principle relied on by the Supreme Administrative Court in its decision of 28 October 1996 concerning the imposition of the insurance fee for 1992. On 26 November 1997 the Supreme Administrative Court refused the applicant leave to appeal.
In 1995 the National Pension Act was amended to the effect that, in 1997, the national pension (e.g., the old-age pension) was to be replaced by a pension calculated with reference to new criteria. Those whose total income in the form of other pensions and various compensations exceeded certain ceilings would no longer be entitled to a national pension. In such a case the so-called basic amount (pohja-osa, basdel) of their national pension would be reduced by 20 per cent annually between 1996 and 2001 (Act no. 1491/1995).
On 24 May 1996 the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) refused the applicant's demand that he should continue receiving the basic amount of his old-age pension as adjusted in accordance with the relevant index figure to be applied according to the provisions in force when the pension was granted. On 28 November 1996 the Appellate Board for Social Insurance (tarkastuslautakunta, prövningsnämnden) dismissed his appeal with reference to Act 1491/1995. The decision further referred to an opinion obtained from the Social Insurance Institution. This opinion was not communicated to the applicant for possible comments. No further appeal lay open.


ITEMID: 001-90430
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ZAKRIYEVA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicants are:
(1) Ms Tamara Adnanovna Zakriyeva, who was born in 1951;
(2) Ms Amnat Khasiyevna Khakimova, who was born in 1978;
(3) Ms Movsar Aslanbekovich Khamzayev, who was born in 1999;
(4) Ms Iman Aslanbekovna Khamzayeva, who was born in 2002;
(5) Mr Ilyas Aslanbekovich Khamzayev, who was born in 2003;
(6) Mr Duk-Vakha Esikayevich Khamzayev, who was born in 1972;
(7) Mr Aslan Esikovich Khamzayev, who was born in 1980; and
(8) Mr Khavazh Esikovich Khamzayev, who was born in 1983.
The second applicant lives in the village of Achkhoy-Martan, in the Chechen Republic. The other applicants live in the village of Gekhi, the Urus-Martan District, in the Chechen Republic.
7. The first applicant is the mother of the sixth, seventh and eighth applicants and of Mr Aslanbek Esikovich Khamzayev, who was born in 1974. Aslanbek Khamzayev was married to the second applicant; they are the parents of the third, fourth and fifth applicants.
8. The applicants did not witness the disappearance of Aslanbek Khamzayev. The account below is based on statements by third parties submitted by the applicants.
9. On 25 June 2002 Aslanbek Khamzayev was visiting his aunt, Ms Yu., in Grozny. At about 3 p.m., while driving a car in the direction of his home village, he was stopped by a group of armed men at a Russian military checkpoint near the village of Aldy. The servicemen ordered Aslanbek Khamzayev to get out of the car and then put him into one of several armoured personnel carriers (“APCs”) parked next to the checkpoint. That APC’s registration number was covered with mud so that only two figures, “2” and “8”, out of three were visible. Then all the APCs drove off in the direction of Grozny.
10. Meanwhile a rumour spread that Russian military units were carrying out a special operation on the outskirts of Grozny. Ms Yu. was concerned for her nephew’s safety and drove towards Gekhi to meet him. Near the Aldy checkpoint she encountered a group of women who had witnessed Aslanbek Khamzayev’s abduction and told her about it. Ms Yu. drove to Grozny in pursuit of the APCs, which she eventually overtook and followed to the secured courtyard of the military commander’s office of the Zavodskoy District of Grozny (“the Zavodskoy military commander’s office”).
11. Later the same day the applicants visited the Zavodskoy military commander’s office and enquired about Aslanbek Khamzayev’s whereabouts but received no information.
12. Some eighteen months later the applicants were told by unknown persons that not all of the APCs had arrived at the Zavodskoy military commander’s office on 25 July 2002 as one of them had left the group and driven in the direction of the Oktyabrskiy District of Grozny.
13. The Government stated that on 25 June 2002 unidentified persons in camouflage uniforms had kidnapped Aslanbek Khamzayev in the village of Aldy in the Zavodskiy District of Grozny in the Chechen Republic.
14. On 28 June 2002 the second applicant wrote to the Memorial Human Rights Centre (“Memorial”), an NGO based in Moscow, informing it that her husband had been arrested by Russian servicemen and asking for its help in searching for him. On the same date lawyers from Memorial wrote to the Grozny prosecutor’s office (“the city prosecutor’s office”) requesting that criminal proceedings be instituted in respect of Aslanbek Khamzayev’s disappearance.
15. On 6 August 2002 the city prosecutor’s office instituted an investigation into Aslanbek Khamzayev’s disappearance under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned number 50115.
16. On 22 August 2002 the city prosecutor’s office granted the first applicant victim status in the case.
17. On 6 November 2002 the city prosecutor’s office suspended the investigation on the grounds that it had not been possible to identify those responsible for the crime.
18. On 6 March 2003 the first applicant sent a letter to the prosecutor’s office of the Chechen Republic with a copy to the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms. She said that her son had been arrested by Russian servicemen in the course of a “sweeping” operation in the village of Aldy and taken away in an APC. She requested that the crime be investigated.
19. On 3 June 2003 the Main Military Prosecutor’s Office forwarded the first applicant’s complaint to the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”).
20. On 7 July 2003 the prosecutor’s office of the Chechen Republic resumed the investigation into Aslanbek Khamzayev’s kidnapping and informed the first applicant accordingly. They also invited her to send any further queries to the prosecutor’s office of the Zavodskoy District of Grozny (“the district prosecutor’s office”).
21. On 11 July 2003 the UGA prosecutor’s office forwarded the first applicant’s complaint to the military prosecutor’s office of military unit no. 20102 (“the unit prosecutor’s office”).
22. On 21 July 2003 the department of the interior of the Zavodskoy District of Grozny (“ROVD”) issued a certificate confirming that Aslanbek Khamzayev had been missing since 25 June 2002 and that search case no. 02027 was pending before the ROVD.
23. On 15 August 2003 the unit prosecutor’s office informed the first applicant that an inquiry into Aslanbek Khamzayev’s disappearance had established that her son had not been arrested in the course of “sweeping” operations on 25 June 2002. No implication of the Russian military in the crime had been established. They also noted that her complaint had been forwarded to the prosecutor’s office of the Urus-Martan District.
24. On 20 August 2003 the Prosecutor General’s Office for the Southern Federal Circuit informed the first applicant that her complaint had been forwarded to the prosecutor’s office of the Chechen Republic.
25. On 4 September 2003 the unit prosecutor’s office forwarded the first applicant’s complaint to the military commander of the Urus-Martan District.
26. On 25 November 2003 the SRJI requested the district prosecutor’s office to inform them whether an investigation into Aslabek Khamzayev’s kidnapping by Russian servicemen had been opened and what investigative measures, if any, had been taken. They also requested the investigators to interrogate certain witnesses of the crime.
27. On 27 November 2003 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s letter to the district prosecutor’s office ordering that it be included in the investigation file in case no. 50115.
28. On 2 February 2005 the SRJI requested the district prosecutor’s office to inform them of progress in the investigation in case no. 50115.
29. On 5 August 2002 the first applicant complained about her son’s abduction to the city prosecutor’s office.
30. On 6 August 2002 the city prosecutor’s office instituted an investigation into Aslanbek Khamzayev’s abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned number 50115.
31. On 22 August 2002 the first applicant was granted victim status and questioned. She submitted that Aslanbek Khamzayev had resided in the village of Gekhi. On 24 July 2002 he had gone to the Zavodskoy District to visit his relative, Ms Yu. On 25 July 2002 Ms Yu. had told the first applicant that earlier that day federal servicemen carrying out a “sweeping” security operation had checked Aslanbek Khamzayev’s identity papers and then let him go. He had then left for his home village. At about 5 p.m. a woman had told Ms Yu. that unknown men in camouflage uniforms had apprehended a young man near a dam. To protect the young man, the woman had told the men that she was his mother. The men in camouflage uniforms had proved that that was not the case by showing her identity papers in the name of A. Khamzayev and left.
32. On 27 July 2003 Ms V. was questioned as a witness. She stated that on 25 July 2002 she had overheard an elderly lady saying that she had witnessed the arrest of a young man by federal servicemen. When the lady told the servicemen that the arrested man was her son, they had produced identity papers in the name of Aslambek Khamzayev. The lady had also mentioned that she had seen an APC with numbers “2” and “8” on a muddied registration number plate.
33. On 31 July 2003 Ms Yu. was questioned and stated that on 25 July 2005 she had seen a large group of people at a bus stop being subjected to an identity check. Her nephew Aslanbek Khamzayev was among them. An hour later he had come to her home, packed his belongings and gone home. Later that day her sister, Ms R.Yu., had told her that according to an unknown woman then nephew had been taken away by armed men in an APC.
34. On 3 August 2003 Mr Kh., Aslanbek Khamzayev’s father, was questioned. He said that on 24 July 2002 his son had gone to the village of Aldy. On 25 July 2003 Ms Yu. had informed him that earlier that day servicemen had checked his son’s identity papers. Later Ms Yu. had been told that at 5 p.m. unidentified persons had taken a young man away in an APC.
35. On 18 May 2004 Ms R.Yu. was questioned and stated that on 25 July 2002 she, her son and Ms Yu. had been travelling on a bus, which had broken down and stopped near the dam in the village of Chernorechye. Servicemen had taken Ms R.Yu.’s son away for an identity check; her sister had gone with them. On her return, her sister had told Ms R.Yu. that an acquaintance had informed her that their nephew Aslanbek Khamzayev had been arrested by unknown servicemen and taken away in an APC in the direction of school no. 39 in the Zavodskoy District of Grozny.
36. On 18 May 2004 Ms Yu. was again questioned. She stated that on 25 July 2002 she and her sister Mrs R. Yu. had been travelling on a bus which had broken down near the dam. She had approached a crowd standing at the bus stop, where servicemen were carrying out identity checks. Her nephew Aslanbek Khamzayev had been there. Ms Yu. had observed the servicemen checking his identity using a computer before returning his identity papers. A half an hour later her nephew had returned to her house and then fallen asleep. Ms Yu. and her husband had driven back to the bus stop to give a lift to her sister who had been waiting by the bus. Her sister had shown them a piece of paper marked with the words “Khamzayev Aslanbek” which she explained an unknown woman had given her after saying that she had witnessed servicemen placing Aslanbek Khamzayev in an APC and driving away. Ms Yu. had immediately asked servicemen standing near the dam about her nephew, but they had replied that they knew nothing about him.
37. On 19 May 2004 Mr Yu., Ms Yu.’s husband, was questioned. He is said that in June 2002 his wife had told him that servicemen had arrested her nephew and taken him away in an APC. On the same day he and his wife had gone to the village of Chernorechye. They had overtaken a motorcade consisting of APCs and asked the servicemen about Aslanbek Khamzayev but they had given them no information. Mr Yu. had taken a look inside several APCs but found nobody there.
38. On an unspecified date Ms E. was questioned. She stated that on 25 July 2002 in the village of Aldy she had seen an APC and servicemen standing next to it. She had looked into through the window of one of the APCs and noticed a young man; she had not seen his face. Ms E. had asked the servicemen to let the young man go, claiming that he was her son. The servicemen had asked her the man’s name and she had said “Magomed”. One of the servicemen had shown her identity papers in the name of Aslambek Yesikovich Khamzayev. The APC’s registration number plate was covered in mud and illegible.
39. On 28 August 2007 the first applicant was questioned and submitted that her son had been kidnapped not on 25 July 2002, but on 25 June 2002.
40. The Government stated that the investigating authorities had sent a number of queries to various State bodies and had taken other investigative measures, but did not specify what those measures had been. According to various law-enforcement agencies of the Chechen Republic, no special operations had been carried out on 25 June 2002 in the village of Aldy.
41. The investigation failed to identify the perpetrators. The implication of any law-enforcement agencies in the crime had not been established. Aslanbek Khamzayev had not been prosecuted, arrested or placed in a temporary detention facility in the Chechen Republic.
42. The investigation had been suspended on several occasions for failure to identify the perpetrators and then resumed. The applicants had been duly informed of all decisions taken during the investigation, which was still pending under the supervision of the Russian Prosecutor General’s Office.
43. Despite specific requests by the Court the Government did not disclose any documents from the investigation file in case no. 50115. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.
44. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 2


ITEMID: 001-107379
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: SAFARIK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 1. The applicant, Mr Tibor Šafárik, is a Slovak national who was born in 1942 and lives in Košice.
2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant, a practising lawyer, is a member of the Bar of the Slovak Republic (Slovenská advokátska komora).
4. On 10 July 2003 the Košice-okolie District Court (Okresný súd) appointed the applicant as representative for the claimant in a libel action.
In the same decision, the District Court exempted the claimant from the obligation to pay court fees on account of his indigence.
5. The action was aimed, among other things, at obtaining the equivalent of some 241,000 euros (EUR) in damages.
6. On 10 November 2005 the action was dismissed and this decision became final and binding.
7. On 30 November 2005 the applicant submitted a claim to the District Court for the remuneration of his services in the above-mentioned action in the amount equivalent to some EUR 4,480.
8. The applicant based his claim on the premise that the action of his client was pecuniary in nature and that its value for the purposes of calculating the amount of his costs was the amount of the damages sought (see paragraph 5 above).
9. On 20 November 2006 the District Court dismissed the applicant’s claim except for an amount equivalent to some EUR 185.
10. The District Court held that the action of the applicant’s client was by definition without a pecuniary basis and that, consequently, the amount of the applicant’s remuneration was to be determined under section 13(6) of the 2002 Decree on Remuneration and Compensation of Advocates (Ministry of Justice Decree no. 163/2002 Coll.) with reference to an economic index rather than the amount of his client’s claim.
11. The applicant appealed, arguing that the District Court’s decision was contrary to the law and established practice and that he should be paid the same as lawyers appointed by choice, that is to say, on the basis of the financial amount of the claim they assert.
The applicant drew a parallel according to which, in the circumstances, he should have been considered a sui generis client of the court and entitled to remuneration on the same basis as any lawyer acting upon a contract.
In support of this contention, the applicant also submitted that libel actions combined with a claim for damages were clearly treated as having a pecuniary basis for the purposes of calculating court fees.
In addition to the above legal arguments, the applicant considered that his full remuneration was also justified by factual circumstances in that his client was difficult and the applicant had had to put great effort into controlling his client’s numerous non-meritorious requests and bringing the case to an end.
12. On 16 February 2007 the Košice Regional Court (Krajský súd) upheld the first-instance decision, merely correcting an error in the calculation of the amount of the remuneration to be paid to the applicant.
13. The Regional Court found that there was no dispute as to the essence of the applicant’s claim for remuneration. However, what remained to be determined was the amount of that remuneration.
14. To that end, the Regional Court observed that the essence of libel actions was the protection of the claimant’s personal integrity. It held that, consequently, such actions had to be considered as not having a pecuniary basis irrespective of a claim for damages that may possibly be attached to them.
Therefore, the amount of a lawyer’s remuneration for bringing a libel action was to be calculated under section 13(6) of the 2002 Decree or, as the case may be, section 11(1) of the 2004 Decree (Ministry of Justice Decree on Remuneration and Compensation of Advocates no. 655/2004 Coll.) on the basis of the economic index, as opposed to the amount of the claim for damages.
15. On 30 March 2007 the applicant challenged the decisions of 20 November 2006 and 16 February 2007 by way of a complaint under Article 127 of the Constitution (see paragraph 19 in the “Relevant domestic law below).
16. Relying on the right to peaceful enjoyment of his possessions, the right to equal treatment and fairness in judicial proceedings, and the prohibition of discrimination, the applicant contended that the impugned decisions had been unlawful, arbitrary and lacking adequate reasoning.
17. The applicant essentially raised the same arguments as mentioned above and, in addition, submitted that the ordinary courts had erred by confusing the value of the subject-matter of the proceedings, which is a philosophical category, with the value of the claim, which is a procedural category.
18. On 17 May 2007 the Constitutional Court declared the complaint inadmissible. To the extent that it fell within the Constitutional Court’s jurisdiction, the complaint was manifestly ill-founded as there was no indication of any constitutionally relevant arbitrariness or error of fact, law or procedure committed by the ordinary courts.
The decision was served on the applicant on 13 August 2007.
19. Article 127 provides that:
“1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such a decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.”
20. Article 30 provides:
“1. A party to the proceedings who meets the requirements for being exempted by a court from the obligation to pay court fees may have a representative appointed upon his or her request, if it is necessary for the protection of his or her interests.
2. Should the protection of the party’s interests so require, the President of the Division shall appoint a representative from the Bar.”
21. Article 31 stipulates:
“1. A court-appointed representative shall have the same status as a representative on the basis of a power of attorney for the whole proceedings, provided that he or she has not been appointed solely for particular acts.
2. Should the court-appointed representative be an advocate, he or she shall have the same status as an advocate to whom a party has given a power of attorney.”
22. Under the relevant part of Article 138:
“1. At the request [of the party concerned], a court may exempt [that] party fully or partly from the obligation to pay court fees if it is justified by the situation of that party and provided that it is not a matter of the frivolous or clearly hopeless assertion or defence of a right.
...
3. If a representative has been appointed [by a court] to a party who has been exempted from the obligation to pay court fees, the exemption, to the extent it has been granted, shall extend to the actual expenses of the representative and remuneration for the representation.”
23. Under Article 140 § 2:
“If a party has been assigned an advocate as a representative, the latter’s actual expenses and remuneration for the representation shall be paid by the State; if it is justified, upon the advocate’s request, the court may make an appropriate advance.”
24. Without providing a copy of the decision itself, the applicant submitted that on 12 September 2006, in an unrelated libel action registered under file number 12C 95/04, the Bratislava V District Court had held that the lawyer’s remuneration was to be calculated on the basis of the amount of damages that had been claimed in that action.
25. In a judgment of 30 January 2007, file no. 2 M Cdo 3/2006, the Supreme Court (Najvyšší súd) ruled on an extraordinary appeal on points of law (mimoriadne dovolanie) lodged by the Prosecutor General against the lower courts’ ruling on costs in an unrelated matter concerning a claim for indemnity in respect of reduced capacity to work (sťaženie spoločenského uplatnenia) due to damage to health caused by a work-related injury.
The subject matter of the Supreme Court’s judgment was the interpretation and application of the rules embodied in Article 142 of the Code of Civil Procedure on awarding costs on the basis of parties’ success in proceedings.
Although it was not directly relevant to the subject matter of the Supreme Court’s judgment, it noted that in proceedings such as those at hand claimants were bound to identify in financial terms the indemnity sought but that the final determination of its amount was at the court’s discretion. The Supreme Court held that, in such circumstances, rulings on costs were to be based on the amount awarded and not with reference to the ratio of success between the amount sought and the amount awarded.


ITEMID: 001-69445
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: PARLANTI v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Mr Carlo Parlanti, is an Italian national who was born in 1964, and is currently detained in prison in Düsseldorf. He was represented before the Court by Mr C. G. Bulgheroni, a lawyer practising in Milan.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 6 August 2002 the Ventura County Superior Court (California) issued an international warrant for the arrest of the applicant on suspicion of having committed the offences of forcible rape, corporal injury to a co-habitant, and false imprisonment by violence, as defined in sections 261(a)(2), 273.5(a) and 236 of the California Penal Code and punishable by respectively eight, six and three years' imprisonment. An investigation by the County Sheriff's Department had revealed in particular that on 29 June 2002 the applicant drank two litres of wine, became violent with his live-in girlfriend, kicked her chest fracturing her ribs before dragging her to the bedroom, where he bound her wrists to her ankles with plastic straps and raped her. A short time later he removed the straps and raped her again.
On 5 July 2004 the applicant was arrested at the Düsseldorf airport. On 6 July 2004 he was heard before the Düsseldorf District Court (Amtsgericht) and remanded in custody pending extradition proceedings.
On 19 July 2004 the Washington Bureau of Interpol requested the applicant's provisional arrest. On 23 July 2004 the Düsseldorf Court of Appeal (Oberlandesgericht) ordered the applicant's detention pending a ruling on his extradition.
On 27 August 2004 the Government of the United States of America requested the applicant's extradition under the terms of the Extradition Treaty between the United States and the Federal Republic of Germany of 20 June 1978.
The Düsseldorf Court of Appeal ordered the applicant's continued detention with a view to extradition on 2 September 2004.
At a hearing held on 4 October 2004 before the Düsseldorf District Court, the applicant, assisted by a German and an Italian lawyer, indicated his refusal to be extradited.
On 26 October 2004 the Düsseldorf Court of Appeal declared the applicant's extradition admissible. It considered that the evidence furnished in support of the request for the applicant's extradition was sufficient to give rise to a reasonable suspicion and that in the absence of any exceptional circumstances it was not necessary to examine this question more in depth. The Court of Appeal held that it was not for it to determine the question of the applicant's guilt in respect of the charges brought against him in the United States, but only to examine whether the formal extradition requirements had been fulfilled. It noted that the applicant was charged with offences which were punishable under the laws of both Contracting Parties by deprivation of liberty for a maximum period exceeding one year. The Court of Appeal did not consider it necessary to take into account the applicant's allegation that, if extradited to the United States, there was a serious likelihood that he would be given a life sentence, since, according to the relevant provisions of the California Penal Code accompanying the extradition request, the maximum sentence possible did not exceed eight years' imprisonment.
The applicant applied for judicial review on 29 October 2004.
On 24 November 2004 the Düsseldorf Court of Appeal confirmed its previous decision. It found that the applicant's extradition was admissible, even if, at worst, the charges brought against him would be qualified as two offences of rape with the aggravated circumstances of tying a person up and inflicting corporal injury and the applicant be sentenced to life imprisonment pursuant to section 667.61(a), (c)(1), (e)(3) and (6) of the California State Penal Code. According to the Court of Appeal, an extradition could only be objected to, if a life sentence as such would be contrary to the rule of law and inadequate under all possible aspects. Rape under section 667.61 (e)(3) and (6) of the California State Penal Code constituted severe wrongdoing and was punishable in Germany by five to fifteen years' imprisonment, pursuant to section 177 § 4 no. 2 (a) of the German Penal Code. Moreover, a life sentence did not mean that the applicant would have no possibility of early release. Under section 667.61(a) and (j) of the California State Penal Code a convicted person was eligible for release on parole after having served 25 years' imprisonment. This period could be reduced by 15 % on account of good conduct.
The applicant requested again that the warrant of arrest pending extradition be set aside and his extradition declared inadmissible on 3 January 2005.
On 26 January 2005 the Düsseldorf Court of Appeal refused to reverse its decision of 24 November 2004. It noted that the warrant of arrest issued by the Ventura County Superior Court on 6 August 2002 and the indictment of the same day charged the applicant with one count of forcible rape, pursuant to Section 261(a)(2) of the California State Penal Code (maximum possible sentence up to eight years' imprisonment). According to the Court of Appeal, it could not be inferred from these charges that there would be a sufficient legal basis for imposing two life sentences. The investigations carried out in the United States gave no reason to assume that the applicant had inflicted bodily injury “in the commission” of the sexual offences, as required by Section 667.61 (e) (3) of the California State Penal Code. Furthermore, in respect of the second sexual offence, no aggravating circumstance had been established, since the victim had not any longer been tied up. The Court of Appeal concluded that no substantial grounds had been shown for believing that the applicant, if extradited, would be exposed, as alleged, to two consecutive life sentences, amounting to 42 years' and six months' imprisonment.
On 8 March 2005 the Federal Constitutional Court refused to admit the applicant's constitutional complaint for adjudication.
Article 14.3a of the Extradition Treaty between Germany and the United States of America of 20 June 1978 as amended on 21 October 1986 allows the verification of the facts on which the extradition claim is based, the ordinary courts are, however, not obliged to make use of this possibility.
Section 10 § 2 of the German Law on International Judicial Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen) provides that, if exceptional circumstances require to examine the question of the existence of a reasonable suspicion, facts must be furnished which are sufficient to support the conclusion that there was a reasonable suspicion that an offence has been committed.
The relevant provisions of the Penal Code of California provide as follows:
Section 236
“False imprisonment is the unlawful violation of the personal liberty of another.”
Section 237. (a)
“False imprisonment is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail for not more than one year, or by both that fine and imprisonment. If the false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison.”
Section 261. (a)
“Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
...
(2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.”
Section 273.5. (a)
“Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.”
Section 667.61
“(a) A person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years except as provided in subdivision (j).
(b) Except as provided in subdivision (a), a person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years except as provided in subdivision (j).
(c) This section shall apply to any of the following offenses:
(1) A violation of paragraph (2) of subdivision (a) of Section 261.
...
e) The following circumstances shall apply to the offenses specified in subdivision (c):
...
(3) The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section ... 12022.53.8.
...
(6) The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense.
(j) Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the minimum term of 25 years in the state prison imposed pursuant to subdivision (a) or 15 years in the state prison imposed pursuant to subdivision (b). However, in no case shall the minimum term of 25 or 15 years be reduced by more than 15 percent for credits granted pursuant to Section 2933, 4019, or any other law providing for conduct credit reduction. In no case shall any person who is punished under this section be released on parole prior to serving at least 85 percent of the minimum term of 25 or 15 years in the state prison.”
Section 12022.53
“(a) This section applies to the following felonies:
...
(8) Section 261 or 262 (rape).”


ITEMID: 001-61075
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2003
DOCNAME: CASE OF PERNA v. ITALY
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1 and 6-3-d;No violation of Art. 10
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 11. The applicant was born in 1940 and lives in Rome.
12. He is a journalist by profession and on 21 November 1993 he published in the Italian daily newspaper Il Giornale an article about Mr G. Caselli, who was at that time the Principal Public Prosecutor in Palermo. The article was entitled “Caselli, the judge with the white quiff” and subtitled “Catholic schooling, communist militancy like his friend Violante – Are the charges against Andreotti the start of a new Sogno case?”.
13. In the article the applicant, after referring to the proceedings brought by Mr Caselli against Mr G. Andreotti, a very well-known Italian statesman accused of aiding and abetting the Mafia (appoggio esterno alla mafia) who has in the meantime been acquitted at first instance, expressed himself as follows:
“In the last few days Giulio Andreotti has told an Israeli newspaper that he fears he is to be eliminated.
If I may be permitted to begin with a digression, I wonder why he was talking to a foreign paper rather than the Italian press. He’s not the only one. It’s getting to be an epidemic. During the same period the industrialist Carlo De Benedetti chose an English newspaper in which to say that Italy is his Siberia. Even Bettino Craxi, when he feels like uttering threats or complaints, generally does so via the Spanish papers. This might be a form of gratuitous snobbery. But it might also be a victimisation syndrome of the type ‘We’re foreigners in our own country and are obliged to raise our voices abroad in order to make ourselves heard at home.’
That’s what Andreotti is suggesting when he adds that he feels like an exile and the victim of a plot, but he doesn’t exactly know what kind of plot. Those who have seen him recently say that he’s pale, his pointed ears are drooping and he’s bent forward to the point of being hunchbacked. He’s worried about his wife Lidia, who’s been plunged in a kind of cataleptic trance since that fateful 27 March. That was the day when the official notification that he was under investigation – a document running to some 250 typewritten pages – turned the most well known Italian politician into the number one godfather of the Sicilian Mafia. Now Andreotti is bewildered. He tries to understand but he can’t. He thinks there must have been some sort of spur-of-the-moment conspiracy.
But the antibody that’s eating away at him has been there for some time. It’s been cultured for years in precisely those religious environments that Andreotti likes best. While he was already dominating Rome in the 1950s Giancarlo Caselli, the Principal Public Prosecutor in Palermo, author of the 250 pages which have annihilated him, was learning his lessons at the school of the Salesian brothers in Turin.
Giancarlo was a fine, studious boy. Turin is full of people like that because it’s a rainy city and the houses have no balconies to watch the street from, so there’s nothing else for a boy to do but get his head down over his books. That’s why the place specialises in the mass-production of intellectuals. From Bobbio to Conso, the Minister of Justice. It’s a puritan brotherhood.
The more Giancarlo progressed towards self-knowledge the heavier his complex about his father weighed on him. The father was a very worthy man but only the chauffeur of a captain of industry. While driving he breathed in the air of the bourgeoisie and then he blew it out again over his son. The boy decided that when he grew up he would pass over to the other side of the fence. No longer subservient like dad, but keeping the upper hand.
At university, he drew close to the PCI [the Italian Communist Party], the party which exalts the frustrated. When he was admitted to the State legal service he swore a threefold oath of obedience – to God, to the Law and to via Botteghe Oscure [formerly the headquarters of the PCI, now those of the PDS – the Democratic Party of the Left]. And Giancarlo became the judge he has remained for the last thirty years – pious, stern and partisan.
But he cannot really be understood without a mention here of his alter ego Luciano Violante, Caselli’s twin brother. Both from Turin; the same age – 52; both raised by the Catholic teaching orders; both communist militants; both judicial officers; and a deep understanding between them: when Violante, the head, calls, Caselli, the arm, responds.
Luciano has always been one step ahead of Giancarlo. In the mid-1970s he indicted for an attempted coup d’état Edgardo Sogno, a former member of the Resistance, but also an anti-communist. It was a typical political trial which led nowhere. Instead of facing a judicial inquiry, Violante found that his career began to take off. In 1979 he was elected as a Communist MP. And ever since then he has been the via Botteghe Oscure’s shadow Minister of Justice. Today he’s the chairman of Parliament’s anti-Mafia committee, the great choreographer of the to-ing and fro-ing of the pentiti [criminals-turned-informers] and the PDS’s strongman.
While Violante was climbing the ladder, Caselli had turned into a handsome figure with the shock of prematurely white hair he’s so proud of. If he goes away anywhere, even on a short trip, he always takes his hairdryer with him. During breaks in proceedings he pats his quiff into place on his forehead and pushes his hair over his ears. Afterwards, as you will have noticed on TV, he moves his head the bare minimum, so as not to ruin his handiwork.
Vain – he’s vain. When Giancarlo was a member of the National Council of the Judiciary, from 1986 to 1990, his colleagues used to make fun of him, saying ‘Under his hair there’s nothing there’. That’s true up to a point, as a comment on his narcissism and his ideological blinkers. But it’s not true as regards his intelligence, which cannot be faulted. So far, as can be seen, there’s nothing to suggest that one day Caselli’s and Andreotti’s paths would cross.
Apart from his spell at the National Council of the Judiciary, Giancarlo continued to live in Turin. He was a judge in the public eye and in the first line of the battle against terrorism. It was he who obtained the confession of Patrizio Peci, whose evidence as a witness for the prosecution devastated the Red Brigades.
In the meantime, the PCI set in motion its strategy for gaining control of the public prosecutors’ offices of every city in Italy. That campaign is still going on, as the PDS has picked up the baton. The whole thing was the product of two linked but very very simple ideas Violante had. The first idea was that if the Communists could not manage to gain power through the ballot box, they could do so through the courts. There was no shortage of material. The Christian Democrats and the Socialists were nothing but thieves and it would be easy to catch them out. The second idea was more brilliant than the first: the opening of a judicial investigation was sufficient to shatter people’s careers; there was no need to go to the trouble of a trial, it was enough to put someone in the pillory. And to do that it was necessary to control the entire network of public prosecutors’ offices.
And that was the start of Tangentopoli. The Craxis, De Lorenzos and others were immediately caught with their hands in the till and destroyed. But Andreotti was needed to complete the picture. More cunning than the rest, or not so greedy, the sly old Christian Democrat nearly always avoided getting caught up in corruption cases.
It was at that precise moment that Giancarlo was getting ready to leave the rain of Turin for the sun of Palermo. A campaign of unsubstantiated allegations saw off the incumbent public prosecutor Giammanco, who crept away with his tail between his legs. And at the start of this year the handsome judge was able to take Giammanco’s place and finally place Violante’s seal on the Palermo prosecution service.
Before he took up his new post Caselli was summoned to the Quirinale [the President’s official residence]. President Scalfaro, knowing the type, was concerned. When he had Caselli in front of him he said: ‘Do whatever you think is right, but be objective.’
Once in Palermo his fate and Andreotti’s, which had remained separate for years, became intertwined. Less than two months later the senator-for-life was suddenly accused of belonging to the Mafia. The file was an implausible rag-bag containing statements by pentiti, old and new documents and information given by the same old Buscetta [a pentito] to Violante and the anti-Mafia committee, now used by Caselli as evidence in a kind of game of ping-pong between the two twins. To cut a long story short, even the most long-lived brontosaurus in the Palazzo [i.e. Palazzo Madama – the Senate-House] was destroyed, thanks to the principle that an accusation is sufficient to destroy anyone.
In April Caselli flew off to the United States, where he met Buscetta. He offered the informer 11,000,000 lire a month to continue to cooperate. Buscetta could still be useful to him during the investigation, even if the outcome was no longer of much importance. The result sought had already been achieved.
What will happen next is already predictable. In six to eight months’ time the investigation will be closed. But Andreotti will not be able to resurrect his political career. What a stroke of luck. Caselli, on the other hand, will be portrayed as an objective judge whose duty obliged him to prosecute but who realised he had been in the wrong. He will become a hero. And that, if there is a God, cries out for vengeance.”
14. On 10 March 1994, acting on a complaint by Mr Caselli, the judge responsible for preliminary investigations committed the applicant and the manager of Il Giornale for trial in the Monza District Court. The applicant was accused of defamation through the medium of the press (diffamazione a mezzo stampa), aggravated by the fact that the offence had been committed to the detriment of a civil servant in the performance of his official duties.
15. At the trial on 10 January 1996 the civil party asked for the report on the evidence given by Buscetta to the New York judicial authorities and a copy of the Italian weekly newspaper l’Espresso in which that evidence had been published to be added to the file.
The defence asked for two press articles concerning Mr Caselli’s professional relations with the pentito Buscetta to be added to the file and for the complainant to be required to give evidence. In an order made on the same day the District Court refused these requests on the grounds that the documents in question were not relevant to the object of the proceedings (defamation) and that there was no point taking evidence from Mr Caselli in view of the tenor of the article written by the applicant.
16. On the same day, applying Article 57, Article 595 §§ 1 and 2 and Article 61 § 10 of the Criminal Code and section 13 of the Press Act (Law no. 47 of 8 February 1948), the District Court sentenced the manager of Il Giornale and the applicant to fines of 1,000,000 and 1,500,000 Italian lire (ITL) respectively, payment of damages and costs in the sum of ITL 60,000,000, payment of the civil party’s costs and publication of the judgment in Il Giornale. In its reasoning the District Court included the following considerations:
“...
The author of this article, taking as his theme the case against Senator Giulio Andreotti, gave a biography of the complainant in terms which emphasised his cultural background and above all his ideological leanings – allegedly close to the PCI (now the PDS) – contending that these leanings had decisively influenced [the complainant’s] professional activity to the extent of making him the instrument of a grand design of that party, namely to take control of the judicial organs, particularly the public prosecutors’ offices.
Mr Perna stressed the long-standing friendship between the complainant and the MP Violante, asserting that the latter acted as the head in a strategy where Mr Caselli was the arm. He added to his summary biography phrases with a particularly striking literal meaning such as: ‘When he was admitted to the State Legal Service he swore a threefold oath of obedience – to God, to the Law and to via Botteghe Oscure. And Giancarlo became the judge he has remained for the last thirty years – pious, stern and partisan.’
He accused Mr Caselli of having managed ‘the Andreotti investigation’ in furtherance of a grand political design hatched by Violante on behalf of the PCI/PDS, which was to break up by judicial process the dominant political class at the time, so that the favoured party could take power by non-electoral means.
He suggested that the charges against Mr Andreotti, the last politician of any standing not to have been laid low by the ‘clean hands’ [mani pulite] inquiries in progress, should be seen in the context of that exploitation of the investigation.
...
The defamatory nature of the article ... is absolutely manifest, given that the text categorically excluded the possibility that Mr Caselli might be faithful to the deontological obligations of his duties as an officer in the State legal service and denied that he possessed the qualities of impartiality, independence, objectivity and probity which characterise the exercise of judicial functions, an activity which the complainant was even alleged to have used for political ends, according to the author of the article.
In the present case exercise of the right to report current events cannot be pleaded as an extenuating circumstance, Mr Perna not having adduced the slightest evidence in support of his very serious allegations. Nor can he rely on exercise of the right to comment on them – a right which would certainly be enjoyed by a journalist who, in reporting court proceedings, criticises this or that measure – given that the offending assertions in the article amount to nothing more than an unjustified attack on the complainant, which foully besmirched his honour and reputation. ...”
17. The applicant appealed. Relying on the freedom of the press, and in particular the right to report and comment on current events, he contended, among other arguments, that what he had written about Mr Caselli’s political leanings was true and that the court could have verified that by agreeing to take evidence from the complainant himself; that Caselli and Violante were indeed friends; and that it was likewise true that Caselli had used the help of the pentito Buscetta in the proceedings against Andreotti, and, as the representative of the State, had paid him sums of money, all pentiti being remunerated by the Italian State. Describing himself in addition as an opinion columnist (opinionista), he asserted that he had not intended to give a biography of Caselli but rather to express his critical opinions, in a figurative and forceful way. More precisely, he had made critical judgments, which were admittedly more or less well founded and with which readers might or might not agree, but which were explicitly derived from the factual premise, namely Caselli’s political activity. Lastly, he demanded that evidence be taken from the complainant and from certain journalists and figures in Italian politics who, like Mr Caselli, had been Communist Party militants. In particular, he asked for evidence to be taken from Mr S. Vertone and Mr G. Ferrara and for press articles on interviews in which the two men had confirmed the complainant’s active political militancy to be added to the file. In particular, in an interview published in the daily newspaper Corriere della Sera on 11 December 1994, extracts from which were quoted in the applicant’s appeal, Mr Vertone had stated, inter alia, that the complainant was a brave man of great integrity but that he was influenced by the cultural and political model of communism, that his relations with the former Communist Party had been very close and that he had later all but joined the party. In an interview given to another daily newspaper, La Stampa, which published it on 9 December 1994, Mr Ferrara had asserted that he had taken part in dozens of political meetings with Caselli and Violante among others during the 1970s in the Turin federation of the former Communist Party. He had gone on to say that although Caselli, a man of integrity, had done good work against terrorism as an officer of the State legal service, he was heavily politicised and should therefore avoid speaking like a tribune of the people.
18. In a judgment of 28 October 1997 the Milan Court of Appeal dismissed the applicant’s appeal, ruling as follows:
“... the statements noted in the charges ... are undeniably seriously damaging to the reputation of the injured party. They go further than casting doubt – as the charges say – on Mr Caselli’s loyalty to the country’s institutions, his faithfulness to the principle of legality, his objectivity and his independence; they categorically deny that he possesses those qualities and even attribute to him, among other accusations, instances of conduct which constitute disciplinary and criminal offences.”
The Court of Appeal held that it was evident that the article essentially referred to facts, some of which were not in the least defamatory and were therefore not relevant to the decision to be taken.
“In particular, the following elements are undeniably facts (not judgments), and one of the appeal pleadings (from lawyer D’A.) refers to them as such:
(i) Giancarlo Caselli’s political leanings;
(ii) the friendship between Mr Caselli and MP Violante;
(iii) the information that as public prosecutor in Palermo Mr Caselli used the statements of the criminal-turned-informer Buscetta in the investigation concerning Mr Andreotti, and the information that the same Buscetta, like other pentiti, is paid by the State.
Those elements are facts and in itself merely stating them is not in the least defamatory; they are therefore not relevant to the decision this Court has to take. That seems quite obvious as regards the last two pieces of information above, but is also true of the first (Giancarlo Caselli’s political leanings), since the State guarantees not only freedom of thought and the freedom to express thoughts but also the freedom of association in political parties.
It is therefore not relevant to try to ascertain what political beliefs Giancarlo Caselli holds and whether or not he expressed them in specific circumstances (and at all events outside the judicial sphere and the performance of his duties) since that information could not in any case be considered defamatory in itself...
There is therefore no basis for the request that the proceedings be reopened, firstly so that Giancarlo Caselli can be heard as a witness, and secondly to obtain the production of the press articles of Saverio Vertone and Giuliano Ferrara, but also so that witness evidence can be taken from them, once again on the subject of [Caselli’s] political militancy or at any rate of [his] ... political participation in the PCI/PDS. First of all, that information, as has already been said, is barely touched upon in the article, and in the second place it cannot in any event be regarded as damaging to the complainant’s reputation and accordingly does not need to be verified.”
19. Other facts imputed to the complainant were, on the contrary, undeniably defamatory. First of all, there was the oath of obedience, which, beyond its symbolic import, bore the precise accusation that Mr Caselli had given a personal and lasting undertaking to “obey”, in the course of his duties, the law, his religious beliefs and “the instructions of the leaders” of a political party.
The Court of Appeal continued:
“The remainder of the article, which gives a highly defamatory account of Mr Caselli’s alleged obedience to the Communist Party, confirms that the journalist was not expressing judgments or personal opinions but imputing specific conduct to Mr Caselli.
Further on the article asserts
(i) that Mr Caselli is Mr Violante’s twin brother, ...
(ii) that the PCI ... set in motion a strategy of seizing control of all the public prosecutors’ offices in Italy by applying two of the MP’s ideas, the first being to gain power ... by using the judicial machine and the second to resort simply to opening a judicial investigation ... in order to destroy the careers [of political opponents] since there was no need to go to the trouble of a trial, it was enough to put someone in the pillory.
It is in that context that the journalist referred to two actions by Giancarlo Caselli: his request for a transfer to the Palermo public prosecutor’s office and subsequent appointment to the post of public prosecutor there and his notification to Mr Andreotti that he faced prosecution for belonging to a Mafia-type organisation.
...
The journalist Perna did not therefore express opinions or judgments but attributed to the complainant Giancarlo Caselli in a highly defamatory manner conduct and acts about which – and here we can only repeat what the District Court said – he did not adduce a scrap of evidence; he did not even seek to prove his case, as his lawyers argue that he was merely expressing opinions.
... The journalist [having] attributed specific acts to public prosecutor Giancarlo Caselli without verifying his assertions in any way and in a totally gratuitous manner, his conduct cannot be explained by errors or misunderstandings, but only as a deliberate act.
That is confirmed by the literal content of the whole article, in which the person of Giancarlo Caselli is constantly and subtly denigrated, even though a few positive remarks are skilfully mixed in with the attacks. ...
The content of the whole article shows that there was no unintentional fault on the defendant’s part but that he was fully aware that he was damaging another’s reputation and even that he intended to do so.”
20. In a judgment of 9 October 1998, deposited with the registry on 3 December 1998, the Court of Cassation upheld the Court of Appeal’s judgment, ruling that it was quite correct both as regards the merits and from the procedural point of view.
“...
Contrary to what has been alleged, the requests for leave to adduce evidence filed by the defence were interpreted in accordance with their exact significance and probative value and were rightly refused because they were totally devoid of relevance to the decision.
The appeal written and signed jointly by the defendant Perna and his lawyer Mr Caiazza contains a request for the proceedings to be reopened, with a view, firstly, to ‘taking witness evidence from the civil party’, in particular ‘about the forms and modalities of his militancy, or at least of his political participation in the activities of the PCI/PDS during the period when he was already a public prosecutor, and about all the other points which offended the complainant’. The absolutely vague and irrelevant nature of the request is manifest in the light of the tenor of the phrases used by Mr Perna (in whose article the allusion to Mr Caselli’s militancy is by no means limited, as Mr Caiazza argued in the grounds of appeal, to the assertion that Mr Caselli associated himself with the Communist Party while he was at university, an assertion which would, incidentally, not constitute an insult); the article set out to give a detailed account of the forms taken by that militancy by imputing certain acts to Mr Caselli with the aim of proving that his militancy existed. Consequently, either this point remains vague or the problem is resolved by trying to make the complainant admit the facts noted in the charges, with the result that the burden of proof is shifted away from [Mr Perna and Mr Montanelli]. ...
Moreover, the ‘direct witnesses’, Giuliano Ferrara and Saverio Vertone, are mentioned in connection with the above point [the forms taken by the complainant’s militancy]; what has just been said about the vagueness and irrelevance of that point therefore applies equally to those persons. Furthermore, giving further details about facts of which they had direct knowledge would have had no bearing on the trial since these were assertions which the trial court did not consider offensive and to speak of this as exculpatory evidence is accordingly meaningless.
Lastly, Mr Caselli’s militancy within the PCI has nothing to do with the specific facts attributed to him, and therefore with his alleged oath of obedience to via Botteghe Oscure (to which, however, this ground of appeal makes no allusion), with the relations between Caselli and Violante and above all with an alleged link with Buscetta.
Apart from the procedural aspect of the question, it should be stated at the outset that even the argument that the content of the article was not objectively offensive is absolutely devoid of foundation, as the judgment given by the trial court was justified in every respect as regards the offensive nature, for a man even more than for an officer of the State legal service, of imputations of specific facts implying a lack of personality, dignity, independent thought, coherence and moral honesty, and conduct signifying explicitly that there have been instances of dereliction of professional duty. ...
The trial court’s reasoning on the extenuating circumstances of the right to report current events and the right to comment on them is also correct, as evidenced by an appropriate statement of the reasons which was free of mistakes in law and errors of logic.
No link can be established, and moreover no link was established by the Court of Appeal, between the personality [of Mr Caselli] and an alleged right to report current events exercised through the offensive imputation of facts which have not been proved to be true and play no informative role.
The essential point in the judgment is its categorical exclusion of the idea that the article expressed a critical judgment, hence the rejection of the plea that the right to freedom of expression constituted an extenuating circumstance. And in fact it is precisely by virtue of this comparative parameter and of its accessory powers of cognition that this court must repeat that the reasons given [by the Court of Appeal] are immune to criticism: the article is quite clearly a bare list of acts and conduct imputed to Mr Caselli in which there cannot be seen, even in veiled form, the slightest contribution to thought which might be regarded as a critical judgment, or even the attempt at irony which is said to be hidden in the elusive ‘caustic phrases’ referred to in the grounds of appeal. As the Court of Appeal concluded, this case was not about respect for the limits of formal propriety.
It follows from all of the foregoing considerations that, as it is impossible to speak of critical comment, there is no cause to expatiate about exercise of the right to comment, still less about the extenuating circumstance of gross negligence in the exercise of the right to comment or about the hypothetical exercise of that right.
...”
NON_VIOLATED_ARTICLES: 10
6
NON_VIOLATED_PARAGRAPHS: 6-1