ITEMID: 001-138519
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: ÖZEL v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: The applicant, Mr Mehmet Veysi Özel, is a Turkish national, who was born in 1971. He is currently serving a sentence in the İzmir T-Type Prison.
On 5 September 2001 the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation, namely the Hizbullah.
On 15 October 2001 the applicant was placed in detention pending trial.
On 30 December 2009 he was convicted of attempting to undermine the constitutional order under Article 146 § 1 of the former Criminal Code. On 26 January 2011 the Court of Cassation upheld his conviction.
At the time of the events giving rise to this application, the applicant was being held in detention at the Diyarbakır High Security Prison, first pending his trial, subsequently as a convict.
The applicant suffers from diabetes mellitus type-2 (formerly called noninsulin dependent diabetes).
On an unspecified date in early 2008, the prison doctor at the Diyarbakır High-Security Prison referred the applicant to a hospital for what appeared to be routine medical controls in relation to his diabetes. The prison authorities’ initial attempt to escort him to the hospital as instructed was turned down by the applicant on the ground that the relevant tests needed to be done on an empty stomach. He therefore asked the authorities to delay his transfer to the hospital until the next morning.
On 25 March 2008, when the applicant had still not been taken to the hospital despite what he alleged to be a two-month lapse since the referral by the prison doctor, he submitted a complaint to the Diyarbakır Enforcement Judge (infaz hakimliği) against the prison authorities, whom he accused of neglecting his health and treatment.
On 26 March 2008 he was taken to the Diyarbakır State Hospital for his medical consultation. The applicant has not submitted a copy of the examination report.
After reviewing the applicant’s medical file, on 11 April 2008 the Enforcement Judge confirmed that the applicant had been undergoing regular treatment for his type-2 diabetes; that he had been prescribed antidiabetic medication and been provided with a glucose measurement kit to monitor regularly his glucose levels while in the prison; and that he had been referred to the hospital at the discretion of the prison doctor despite the absence of a request from the specialist at the hospital for such control. He added that in any event, the applicant had been taken to the hospital on 4 and 26 March 2008 for his controls and concluded that there had been no negligence in the provision of medical treatment to the applicant. He also ordered that a copy of the applicant’s complaint be sent to the Diyarbakır Public Prosecutor for an assessment on whether any criminal liability arose on the facts.
On 2 May 2008 the Diyarbakır Assize Court rejected the applicant’s objection to the decision of the Enforcement Judge and similarly referred the matter to the Diyarbakır Public Prosecutor.
On 29 May 2008 the Diyarbakır Public Prosecutor decided not to bring a prosecution against the relevant prison authorities, on the grounds of lack of evidence indicating neglect. On 30 October 2008 the Siverek Assize Court upheld the public prosecutor’s decision.
According to the documents in the case-file, the applicant also suffered from a neuropathic condition, manifesting itself as intermittent numbness in his right leg, for which he was prescribed medication by a neurologist on 13 March 2009. It is not clear from the information available whether this condition was related to his type-2 diabetes.
On 23 September 2009 the applicant was taken to the Diyarbakır State Hospital for a neurological consultation. Upon reviewing the CT scan and X-ray of his head, the neurologist who examined the applicant recommended that he also see a neurosurgeon. There is no copy of the neurologist’s examination report in the case-file. While at the hospital, the applicant also consulted a specialist in internal medicine, who told him to continue with his medication and diet and requested to see him again in three months. He did not, however, see a neurosurgeon at the hospital on that day.
On 27 October 2009 the applicant lodged a complaint with the Diyarbakır Enforcement Judge against the prison authorities whom he accused of delaying his neurosurgical examination despite his earlier referral by the neurologist.
On 3 November 2009 the applicant was examined at the Diyarbakır State Hospital by a neurosurgeon, who recommended the placement of fibreboard under his mattress. It appears from the report in the case-file that the neurosurgeon did not make a new diagnosis or recommend a different course of treatment.
On 3 December 2009 the Diyarbakır Enforcement Judge held that since the applicant had already been examined by a neurosurgeon on 3 November 2009, there was no need to take a further decision on his claim. The judge, however, forwarded the applicant’s complaint to the Diyarbakır Public Prosecutor for a review of his allegations. No further information has been provided to the Court as to any decisions taken by the public prosecutor in this regard.
According to the medical reports in the file dated 31 March 2005, 8 October 2008 and 29 December 2008, the applicant was deemed capable of measuring and monitoring his own blood glucose levels with his glucose measurement kit. Furthermore, it appears from the report dated 29 December 2008, issued by an endocrinologist, that the applicant was prescribed rapid acting insulin (20 units in the morning and 14 units in the evening), by injection with an insulin pen, to complement his anti-diabetic drugs in minimising the rise in his blood sugar following meals. The categorisation of his diabetes as type-2, however, remained unchanged.
In the meantime, on 2 September 2008 the applicant filed another complaint with the Diyarbakır Enforcement Judge. He argued that despite his documented medical condition, the food that he was given in the prison did not comply with the recommended diabetic diet. He therefore requested authorisation to purchase a stove to cook his own food or, alternatively, demanded the provision of separate diet food to meet his specific needs.
On the same day, the prison management submitted a letter to the Diyarbakır Enforcement Judge, explaining that in view of the limited budget, they did not have the means to offer individualised dietary programmes to prisoners. However, the meal programme at the prison was being prepared in consultation with the prison doctor, taking also into account the needs of the inmates with special dietary requirements (who were 142 out of a total of 750). In cases where a particular meal was not appropriate for their consumption, suitable alternatives were being provided for the persons concerned; the prison canteen was also available to all inmates, who could moreover store food in the refrigerators provided in their cells. They submitted a sample weekly diet menu in support of their arguments.
Having regard to the information provided by the prison management, the applicant’s medical reports and the dietary plan prepared by Dicle University Hospital for patients with diabetes, the Diyarbakır Enforcement Judge decided on 24 September 2008 to dismiss the applicant’s request for an individualised meal plan. On 5 November 2008 the Diyarbakır Assize Court rejected the applicant’s objection to the Enforcement Judge’s decision.
While serving his prison sentence the applicant enrolled in the Faculty of International Relations at the Open University (distance learning courses).
On an unspecified date, the applicant requested authorisation from the prison management to obtain, with his own means, an “MP4 player”, a portable media player, to study English through listening to recorded language courses, which he claimed was essential for his international relations courses.
On 4 December 2009 the General Directorate of Prisons and Detention Places of the Ministry of Justice (“the General Directorate”) refused the applicant’s request, on the grounds that MP4 players were not listed amongst the goods and devices authorised in prisons under the relevant regulation. The applicant was informed that he could object to this decision before the Enforcement Judge, which he did.
On 31 December 2009 the Diyarbakır Enforcement Judge dismissed the applicant’s request on the same grounds as the General Directorate and on 14 January 2010 the Diyarbakır Assize Court upheld this decision.


ITEMID: 001-22164
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: AUERBACH v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr X.G.R. Auerbach, is fiscal consultant. He is a Dutch national, who was born in 1968 and lives in Eindhoven. He was represented before the Court by Professor M.W.C. Feteris of the Fiscal Law Department of the Rotterdam Erasmus University, who also works as a fiscal advisor in Amsterdam.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1993, the applicant’s employers provided him with a company car. The car’s catalogue price was NLG. 33,090. The applicant used this car at least three days a week for transport from his home to his office. The distance between both places was more than 30 kms. The applicant further used this car for private purposes. The distances travelled for private purposes in 1993 exceeded 1,000 kms.
On 28 February 1995, the Eindhoven Tax Inspector issued the income tax assessment (aanslag inkomstenbelasting) for 1993 in respect of the applicant. In the determination of the applicant’s taxable income for 1993, the Tax Inspector had added – pursuant to the 1964 Netherlands Income Tax Act (Wet op de Inkomstenbelasting; “ITA”) as amended in 1990 – an amount of NLG. 7,491 (i.e. 24% of the catalogue price of the applicant’s company car) to the applicant’s taxable income.
On 6 April 1995, the applicant filed an objection (bezwaar) with the Eindhoven Tax Inspector against the 1993 assessment. He complained that the 24% increase of his taxable income instead of 20% was contrary to the principle of equality (gelijkheidsbeginsel) as guaranteed by, inter alia, Article 26 of the International Covenant on Civil and Political Rights. He submitted that, under Article 42 of the ITA, there is a difference in treatment between two categories of persons who are in a same situation, namely – on the one hand – persons who, because of Article 42 § 4 of the ITA, have to add to their taxable income 24% of the catalogue price of the car placed at their disposal; these persons are taxed for their private use of this car (20%) and for their “excess” commuter travel (where a one-way journey from their home to their place of work exceeds a distance of 30 kms) (4%); and – on the other hand – persons in identical circumstances apart from the fact that they use their company car for less than 1,000 kms a year for private purposes, and are fully exempted from adding a percentage of the car’s catalogue price to their taxable income.
Thereby, according to the applicant, the taxation of the “excess” commuter travel is made dependent on the number of kilometres travelled for private purposes with a company car. He argued that this difference in treatment lacked any objective and reasonable justification and that, therefore, Article 42 § 4 of the ITA should not be applied. He requested that his taxable income be reduced by NLG. 1,323 (i.e. the difference between 20% and 24% of his company car’s catalogue value), which would result in a reduction of NLG. 661 for the income tax due for 1993.
The Tax Inspector rejected the applicant’s objection on 14 August 1995. On 8 September 1995, the applicant appealed to the ‘sHertogenbosch Court of Appeal (Gerechtshof).
In its judgment of 18 December 1995, the Court of Appeal found in favour of the applicant. It held that the reasons stated by the legislator for creating the difference in treatment at issue could not be regarded as constituting an objective and reasonable justification. Consequently, it quashed the Tax Inspector’s decision of 14 August 1995 and reduced the determination of the applicant’s taxable income accordingly. The Court of Appeal further ordered the Tax Inspector to reimburse the applicant’s legal costs, including the court fees paid by him.
On 29 January 1996, the State Secretary of Finances (Staatssecretaris van Financiën) filed an appeal in cassation with the Supreme Court (Hoge Raad) against the judgment of 18 December 1995. In the State Secretary’s first complaint in cassation, it was argued, inter alia, that the Court of Appeal’s judgment of 18 December 1995 created in effect a new and significantly more serious inequality of treatment between, on the one hand, persons living more than 30 kms from their place of work and who commute to work either with their own car or with public transport, and, on the other, persons living more than 30 kms from their place of work and who commute to work with a company car. In the State Secretary’s third cassation complaint, it was stated that the problems concerning Article 42 ITA as identified in the Supreme Court’s judgment of 22 March 1995, reported in “Beslissingen in Belastingzaken Nederlandse Belastingrechtspraak” (Netherlands Fiscal Law Reports – “BNB”) no. 1995/140, were under discussion in the Working Group on fiscal-technical reform regarding income tax/wage tax and that, in the light of the signal given by the Supreme Court, it was to be expected that the legislative measures resulting from the Working Group’s study would also include a termination of the possible inequality of treatment identified by the Supreme Court. According to the State Secretary, it followed from a Supreme Court judgment of 6 October 1993 (BNB, no. 1993/332c*) that the judicial authorities in cases like the present refrain from interfering where a removal of an inequality in law is to be expected. On this basis, the State Secretary argued that there was no need for the judicial authorities to interfere, as there were indications that an amendment, in which the difference in treatment complained of would be removed, was being prepared.
In its judgment of 15 July 1998, the Supreme Court ruled that the applicant was treated unequally without justification. However, it upheld the Tax Inspector’s decision of 14 August 1995. Consequently, the Supreme Court quashed the judgment of 18 December 1995 with the exception of the costs order against the Tax Inspector, and further ordered the State Secretary to reimburse the applicant’s legal costs in the cassation proceedings. This judgment, insofar as relevant, reads as follows:
“3.2. In objecting to the application of this so-called increased fixed amount for car costs (verhoogde autokostenforfait), the <applicant> has argued before the Court of Appeal that the legislator unjustly subjects him to different treatment from those taxpayers to whom Article 42 § 5 ITA, fourth paragraph, is not applied, as those taxpayers, unlike the <applicant>, use their company car for private purposes for a distance of less than 1,000 kms <per year> but, like the <applicant>, live more than 30 kms from their place of work and drive with their employers’ car to and from work. ...
3.4. In answering the question whether it concerns an inequality in treatment prohibited by these Treaties [including Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1], it must be stated at the outset that they do not prohibit every inequality in treatment of equivalent cases. The legislator has a certain margin of appreciation in answering the question whether cases, for the purposes of the application of these Treaties, are to considered as equivalent and, if so, whether there is an objective and reasonable justification for nevertheless regulating those cases in a different manner.
3.5. The difference in treatment challenged by the <applicant> has been created by the Act of 4 July 1990 ... The aim of this Act was to make a contribution to both reducing commuter traffic as such (limitation of mobility) and reducing the use of cars for commuting purposes (limitation of car mobility). ...
3.7. It thus follows from the <legislative> history of the creation of the <four percent> addition ... that the legislator, as a basic premise, no longer wished to make a link between the strictly private use of the car and its use for commuting purposes. The legislator did not therefore intend to tax – through the introduction of an increased percentage of the fixed amount for car costs (autokostenforfait) – the higher sum of income considered as being derived from employment as an extra advantage, made dependent on the travel distance, on account of private use.
3.8. This entails that the addition of four percent of the catalogue price of the <company> car, though in form an increase of the fixed amount for car costs, in nature has the character of an independent addition for the cases where tax payers habitually travel at least three days a week over a one-way distance of 30 kms between their home and their work place using for this a car placed at their disposal for work purposes. The Supreme Court fails to see that, for the application of that independent addition, it is of any relevance whether or not the car, apart from commuter travel, has not or only to a limited extent been used for private purposes.
3.9. The considerations set out in 3.6. to 3.8. lead to the conclusion that the legislator, by not prescribing the addition of four percent of the catalogue price in cases where there is no or only a limited private use of the <company> car, has given preferential treatment to a limited group within a category of equivalent cases - in short: commuter travel over more than 30 kms -, and has thus treated equivalent cases unequally.
3.10. Members of the Netherlands Parliament (Staten-Generaal) have shown doubts as to the legitimacy of that unequal treatment. It has been stated in justification on the Government side that, from the point of view of transport arranged by the employer, the employees privileged by the proposed regulation are on a par with employees who, either collectively or not, are transported by their employer in minibuses and the like. That contention is, however, in all reasonability untenable. Within the group of employees whose transport is arranged by the employer, those disposing of a <company> car are in a completely different situation from those who are, either collectively or not, transported by the employer in minibuses and the like. As of old, the legislator itself has not viewed these cases as equivalents. It has long since made a difference within the relevant group of employees by including employees disposing of a <company> car as being liable to income tax for the private use of such a car. The form chosen for this, the fixed amount for car costs, prompted an addition of a fixed amount for private use <of a company car> to the taxable income in all cases where an employer has made a car available, unless the tax payer can convincingly prove that, on an annual basis, the car has been used for private purposes for less than (at present) 1,000 kms. In addition, the “employer’s car” in the latter situation is further treated differently from other transport arranged by the employer, as in that situation the value of the real private use is taxed. Also, given this long standing difference, the argument made in an earlier phase of the examination of the draft Act, that the distinction of the employees with a <company> car runs up against practical difficulties, is defective.
3.11. Moreover, the Supreme Court has not found outside this legislative history any grounds of a fiscal or non-fiscal nature that can justify the unequal treatment at issue.
3.12. Further, it cannot be said that the unequal treatment results in a quantitatively unimportant advantage as, with the addition of 4% of the catalogue price of a <company> car, quickly one finds that an increase in income of NLG. 1,500 to NLG. 2,000 is involved.
3.13. Even taking into consideration the margin of appreciation of the legislator, the above also leads to the conclusion that the legislator cannot in all reasonability have held that it concerns here unequal cases, or that there is a reasonable and objective justification for the unequal treatment of those cases. The <cassation> complaints I and II, insofar as they are based on a different opinion, fail.
3.14. The <cassation> complaint I ... is however successful insofar it points out that not to apply the rule contained in Article 42 § 4 of the ITA would result in an equally unjustifiable inequality in treatment, namely in respect of employees who habitually commute, involving a one-way travel distance of more than 30 kms, with their own car or with public transportation without having a public-transport-declaration [for fiscal deduction purposes] (openbaar vervoerverklaring). This could only be remedied by the non-application of the entire <regulation on the> “capping <of the tax allowance for commuters>” (“aftopping”). The Supreme Court considers for the time being that such a consequence of the inequality found is disproportionate. It is for legislator to remove the inequality found. The Supreme Court assumes that the Bill announced in the <cassation> complaint III will be presented <to Parliament>.”
Pursuant to Article 42 § 3 of the 1964 Netherlands Income Tax Act (Wet op de Inkomstenbelasting), employees disposing of a company car provided by their employer must add a fixed amount to their taxable income because of the use of such a car for private purposes. The wording of this provision fixes this amount, the so-called fixed amount for car costs (autokostenforfait), at 20% of the catalogue price of the car concerned.
Following the adoption of the Act of 4 July 1990 amending income tax and salaries tax [capping of the tax allowance for commuters] (Wet tot wijziging van de inkomstenbelasting en de loonbelasting [aftopping reiskostenforfait]), this fixed amount was increased by 4% (i.e. to 24%) in those cases where an employee habitually travels at least three days a week between his or her home and work place when the distance of a oneway journey between these two places exceeds 30 kms (Article 42 § 4).
Article 42 § 5 of the Income Tax Act provides that the rules contained in Article 42 §§ 2 - 4 are not applied where it appears that, on an annual basis, the company car has been used for private purposes for a total distance not exceeding 1,000 kms. In that situation no fixed amount for car costs has to be added to the taxable income, but the actual benefit must be added on the basis of a fixed amount per kilometre, e.g. 500 kilometres at 60 cents per kilometre.
The underlying rationale of the Act of 4 July 1990 was of an environmental nature, i.e. to reduce commuter traffic by encouraging employees to live closer to their place of work, as well as to reduce the use of cars for commuter travel by encouraging employees to opt either for public transport or other forms of collective transport arranged by the employer.
In the original proposal contained in the Bill, which resulted in the Act of 4 July 1990, the existing possibilities for tax deduction of costs for commuting to work and the exemption from taxes of compensation paid by employers in respect of commuting costs were limited to a maximum (aftopping). Costs for commuting to work for distances in excess of 30 kms were to be considered as “private” and no longer eligible for tax allowances.
As to the application of the fixed amount for car costs in cases concerning a company car, the commuter traffic in excess of 30 kms was to be considered as “private“ and lead to the application of a higher percentage. This would only apply, however, where a car was also being used for private purposes. If the car would only be strictly used for work purposes, including commuting, the fixed amount for car costs would not come into play.
As this approach met with the objection that only one single kilometre driven by a company car for private purposes could result in the addition to the taxable income of the fixed amount for car costs, the Bill was amended. The fixed amount for car costs would be applied when a company car was to be used for private purposes involving a distance of 1,000 kms or more a year. In the determination of this question, the distance between the home and place of work – whether or not it was more than 30 kms – would be irrelevant. If the limit of 1,000 kms for private use were exceeded, an addition of 20% of the car’s catalogue price would be applied where the commuting to work remained limited to a distance of less than 30 kms from the home. For commuting involving a distance between the home and place of work of more than 30 kms, a percentage of 24% would be applied.
Although some critical questions were put during the parliamentary debate the system as amended was adopted by the Act of 4 July 1990.
In a judgment of 22 March 1995 (BNB no. 1995/140), the Supreme Court held that:
“In the present proceedings, the question has not been raised whether the rules contained in Article 42 §§ 4 and 5 [ITA] entail a prohibited unequal treatment in respect of those case in which a car made available by an employer is used for private purposes for less than 1,000 kms per year. That question must at present, however, remain unresolved, since its answer also requires an investigation of the facts for which there is no scope in cassation proceedings.”
The rules contained in Article 42 of the ITA remained in force until 1 January 2001 when fiscal reform legislation came into force - the Income Tax Act 2001. This Act provided that the distance between the home and place of work is no longer relevant in the determination of the addition of the fixed amount for car costs in respect of company cars. Only the distance for private purposes for which the company car is used is relevant. In case this use is less than 500 kms per year, no fixed amount has to be added to the taxable income. For a distance between 501 - 4,000 kms, 15% of the car’s catalogue value must be added to the taxable income, for distances between 4,001 - 7,000 kms, 20%, and for distances exceeding 7,000 kms, 25%. Commuter travel is considered to be work-related.
Article 1 of the Constitution (Grondwet), provides:
"All persons present in the Netherlands shall be treated in the same way in similar situations. Discrimination on the ground of religion, philosophical convictions, political leanings, race, sex, or any other ground whatsoever shall not be allowed."
Article 120 of the Constitution reads:
"The courts shall not rule on the constitutionality (grondwettigheid) of statutes and treaties."
Under Article 120 of the Constitution, as interpreted in the constant caselaw of the Supreme Court, the judiciary is not permitted to examine the lawfulness of Acts of Parliament. The courts can, however, review the lawfulness of subordinate legislation and of all other acts of the administration including the lawfulness of decisions which have a general character such as regulations, plans or directives (cf. Hoge Raad, 1 December 1993, Beslissingen in Belastingzaken 1994, no. 64).
Article 93 of the Constitution provides that provisions of international treaties and decisions of international (intergovernmental) organisations which, according to their content, may be binding on anyone shall have binding force after they have been published. Pursuant to Article 94 of the Constitution, such provisions of international treaties and decisions of international organisations take precedence over domestic statutory rules in case of conflict.
As regards the prohibition on discrimination, the Netherlands Supreme Court recognised in a judgment of 2 February 1982 (Nederlandse Jurisprudentie – “NJ”, 1982, no. 424 [corrected in NJ 1982, no. 475]), that Article 26 of the International Covenant on Civil and Political Rights is a provision of an international treaty which, according to its content, may be binding on anyone, and must therefore in principle be applied directly by the Netherlands courts.
However, in a number of judgments the Supreme Court has declined to construe Article 26 of the Covenant in such a way as to deprive national legislation of its effect even if it considered that a given measure constituted unlawful discrimination, holding that – where various options were open to the national authorities to remove such discrimination – the choice should be left to the legislator in view of the social and legal implications attending each possible course of action (Hoge Raad, 12 October 1984, NJ 1985, no. 230; and Hoge Raad, 23 October 1988, NJ 1989, no. 740).
In its judgment of 16 November 1990 (NJ 1991, no. 475), cited in the Court’s Kroon and Others v. the Netherlands judgment of 27 October 1994, the Supreme Court came to a similar finding with regard to Article 14 of the Convention taken together with Article 8 (Series A no 297-C, p. 50, § 14).


ITEMID: 001-69835
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF GRINBERG v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1937 and lives in Ulyanovsk.
9. On 6 September 2002 the Guberniya newspaper published a piece written and signed by the applicant. The entire text of the piece, entitled “[My] statement” («Заявление»), read as follows:
“The voting ballots were still being counted, but it was already clear that General V.A. Shamanov had been elected Governor of the Ulyanovsk Region. That very night he made the following verbatim statement: 'Let me tell you bluntly and frankly – the local press has to be dealt with thoroughly'.
During his electoral campaign General [Shamanov] made many promises to the residents of Ulyanovsk. But, in my opinion, he has kept only one: [he is] 'waging war' against the independent press, against journalists. The judicial proceedings in Shamanov's action against the highly talented Ulyanovsk journalist Dyomochkin are still pending. But the criminal prosecution of a journalist is exceptional. Yulia Shelamydova, editor-in-chief of the Simbirskiye Izvestia newspaper, has been sentenced to one year of correctional labour. Let us leave aside the legal aspects of that case: the full text of the court judgment has not yet been published and I hope there will be many more judicial proceedings, not only in Ulyanovsk, but also in Moscow. But there is a moral dimension to this case. How can three robust men, of whom two are Generals and one is a Hero of Russia, wage a battle against a woman who is still a young girl! This brings to mind Shamanov's support for Colonel Budanov, who killed a 18-year-old [Chechen] girl. No shame and no scruples!”
(“Еще шел подсчет голосов, но было уже ясно: губернатором Ульяновской области избран генерал Шаманов В.А. Этой же ночью он заявил буквально следующее: «С местной прессой, прямо и откровенно скажу, предстоит детально разобраться».
Во время избирательной кампании генерал обещал ульяновцам много. Но выполнил, с моей точки зрения, только одно: «воюет» с независимой прессой, с журналистами. Еще продолжаются суды по иску Шаманова В.А. к талантливейшему журналисту – ульяновцу Демочкину Г.А. Но преследование журналиста в уголовном порядке – это уникальный случай. Юлия Шеламыдова – главный редактор газеты «Симбирские известия» - осуждена на год исправительно-трудовых работ. Оставим пока в стороне юридический аспект этого дела: еще не опубликован полный текст решения суда, по этому поводу будет, надеюсь, еще много судов, причем не только в Ульяновске, но и в Москве. Но есть моральный аспект в этом деле. Как могут три здоровых мужика, из которых два – генерала, в том числе один – даже герой России, «воевать» с женщиной, более того – с молоденькой девчонкой! Почему-то вспоминается поддержка Шамановым В.А. полковника Буданова, убившего 18-летнюю девушку. Ни стыда, ни совести!”)
10. On 10 September 2002 Mr Shamanov brought a civil defamation action against the applicant, the editor's office and the newspaper's founder – the Fund for Assistance to Disenfranchised Communities Goryachev-Fond (“the Fund”). He claimed that the assertion alleging that he had no shame and no scruples was untrue and damaging to his honour and reputation. He sought 500,000 roubles ((RUR), approximately 20,000 euros (EUR)) in compensation for non-pecuniary damage.
11. On 14 November 2002 the Leninskiy District Court of Ulyanovsk found for the plaintiff. The court held as follows:
“In the article the author asserts that Shamanov, Governor of the Ulyanovsk Region, has no shame and no scruples. The very tenor of the article confirms that the contested statements contain precisely such an assertion. [The applicant's] assertion in this article that the plaintiff has no shame and no scruples is clearly damaging because it impairs his honour, dignity and professional reputation... The [applicant] did not produce before the court any evidence showing the truthfulness of that statement about the plaintiff...”
The court ruled:
“... the statement to the effect that the plaintiff has no shame and no scruples, published in [the applicant's] piece... [is] untrue and damaging to Shamanov's honour, dignity and professional reputation”.
12. The court held the Fund liable for RUR 5,000 (EUR 200) and the applicant liable for RUR 2,500 (EUR 100) in respect of non-pecuniary damage to the plaintiff. The Fund was also ordered to publish, by way of rectification, the operative part of the judgment.
13. The applicant and the Fund lodged an appeal. The applicant pointed out that the District Court had failed to distinguish “opinions” from “statements”. He submitted that his right to hold and impart opinions was guaranteed by Article 29 of the Russian Constitution and the contested statement was his personal assessment of Mr Shamanov's actions. Furthermore, he argued that the contested expression was an idiom in the Russian language, and was commonly used to give an ethical appraisal of a person's deeds.
14. On 24 December 2002 the Ulyanovsk Regional Court upheld the judgment of 14 November 2002. The court endorsed the conclusions of the first-instance court and added:
“The arguments... about the court's confusion of the term 'opinions' and the term 'statements' (сведения) cannot be taken into account because [the applicant's] opinion had been printed in a public medium and from the moment of publication it became a statement.”
15. The applicant's subsequent attempts to initiate supervisory review proceedings proved unsuccessful. On 22 August 2003 the Supreme Court of the Russian Federation dismissed his application for the institution of supervisory-review proceedings.
16. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.
17. Article 152 provides that an individual may apply to a court with a request for the rectification of “statements” (“сведения”) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements.
18. The Resolution (in force at the material time) provided that, in order to be considered damaging, statements (“сведения”) had to be untrue and contain allegations of a breach, by a person or legal entity, of laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of statements was understood as the publication of statements or their broadcasting, inclusion in professional references, public speeches, applications to State officials and communication in other forms, including oral, to at least one another person (section 2).
19. Section 7 of the Resolution governed the distribution of the burden of proof in defamation cases. The plaintiff was to show that the statements had indeed been disseminated by the defendant. The defendant was to prove that the disseminated statements had been true and accurate.
VIOLATED_ARTICLES: 10


ITEMID: 001-5083
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: STAWICKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish citizen, born in 1933 and living in Szczecin.
A.
On 22 April 1996 the Szczecin Regional Court dismissed the applicant’s appeal against a decision of the Social Insurance Board by which the latter had refused to grant him retirement pension for persons working in difficult conditions. On 10 June 1996 the applicant lodged an appeal against this decision with the Szczecin Regional Court, which transmitted it to the Court of Appeal.
On 25 June 1996 the Regional Court, following an order of the Court of Appeal, requested the applicant to supplement his appeal by indicating what errors of fact and law had allegedly been committed by the court during the examination of the case. This order was served on the applicant on 27 June 1996 and he was informed that he should comply with it within seven days from its service.
On 1 July 1996 the applicant submitted pleadings to the court explaining the grounds of his appeal. The date of submitting the pleadings to the court is clearly certified by a stamp of the court’s registry on a copy of the document.
By a decision of 2 July 1996 the Szczecin Regional Court rejected the applicant’s appeal, finding that he had failed to comply with its order of 25 June 1996.
In 1998 the applicant requested assistance from his local MP, complaining that the Regional Court had rejected his appeal, having failed to take into consideration his pleadings of 1 July 1996. In reply to the MP’s enquiry as to circumstances in which the applicant’s appeal had been rejected, the Regional Court informed him by a letter of 7 July 1998 that the judgment of 22 April 1996 had became final since the applicant had failed to complement his appeal within the time-limit fixed by the court for that purpose.
In reply, by a letter to the President of the Court of 14 July 1998, the MP referred to information he had received on 13 July 1998 in a telephone conversation with the Regional Court’s registry, according to which the applicant had failed to pick up the court’s decision of 2 July 1996 at the post office. The MP reiterated his request that the applicant’s complaint be thoroughly investigated.
By a letter of 22 July 1996 the President of the Labour Law Division of the Regional Court informed the MP that on 1 July 1996 the applicant had complemented his appeal, but, since his appeal so complemented still did not comply with the requirements that the law attached to an appeal against a first-instance judicial decision, the court rejected it on 2 July 1996. This decision was later duly served on the applicant, in a manner compatible with the requirements of the Code of Civil Procedure.
On 3 September 1998 the applicant lodged an appeal against the decision of 2 July 1996. He submitted that the court, when rejecting his appeal on 2 July 1996, must have been unaware that he had complied with its order to complement it by detailed arguments. Thus, his appeal had been rejected erroneously.
He further submitted that this decision had been served on him only in August 1998. He also stated that he did not pick up the decision of 2 July 1996 at the post office, as in July 1996 he had been on holidays for a month. It had only been in 1998 that he had enquired about the further course of the proceedings. He had received a copy of the decision from which it transpired that it had been taken on the erroneous ground of his alleged failure to comply with the court’s order to supplement his appeal.
On 17 September 1998 the Szczecin Regional Court rejected the applicant’s appeal. The court found that the decision of 2 July 1996 had been sent to the applicant by registered letter. It could not be served on him because of his absence. On 11 July 1996, the decision was deposited at the post office. As the applicant did not pick it up at the post office within the seven-days’ time-limit provided for by law, it was not delivered to him. On 19 July 1996 the decision was returned to the court and deposited in the case-file. Pursuant to Article 136 § 2 of the Code of Civil Procedure, it should therefore be regarded as having been duly served. Thus, the applicant’s appeal had to be rejected, having been lodged out of time.
B. Relevant domestic law
Article 168 § 1 of the Code of Civil Procedure, insofar as relevant, provides that if a party to proceedings fails to comply with the prescribed time-limit without its fault, the court shall, on that party’s request, grant leave to appeal out of time.
Article 136 of the Code of Civil Procedure provides that the parties to proceedings are under an obligation to inform the court about any changes in their addresses. Under § 2 of this provision, if they fail to do so, a decision to be served on the party shall be filed in the case-file and shall be regarded as having been duly served, unless the court knows the new address of that party.


ITEMID: 001-67578
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF BAKALOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Zoryana Bortnovska
TEXT: 5. The applicant, Mr Vadim Fedorovych Bakalov, is a Ukrainian national, who was born on 23 February 1970 and currently resides in Odessa. He is represented before the Court by Aleksandr Kazarnovskiy, a lawyer practicing in Odessa.
6. On 24 September 1997 the applicant was apprehended by police officers of the Leninskiy District Police Department of Odessa.
7. On 25 September 1997 the applicant's house was searched, during which ammunition was found.
8. On 30 September 1997 the applicant was charged with storing ammunition (Article 222-1 of the Criminal Code) and a criminal investigation was initiated against him.
9. On 26 December 1997 the investigation was terminated due to lack of proof.
10. On 25 August 1998 the applicant lodged complaints with the Kievsky District Court of Odessa, claiming unlawful detention, and the unlawful search and seizure of some of his property. The applicant alleged that the search was conducted without a warrant and that no ammunition had been found. He also sought compensation for moral damage caused by the unlawful police action.
11. On 16 August 1999 the Kievsky District Court of Odessa allowed the applicant's claims and ordered the State Treasury to pay the applicant UAH 82,472 in compensation.
12. On 6 June 2000 the Odessa Regional Court partly quashed this decision as regards compensation for material damage, which it remitted for fresh consideration to the Kievsky District Court of Odessa, which at a later date awarded the applicant UAH 2,020 in compensation for pecuniary damage. It also ordered the State Treasury to pay the applicant UAH 50,000 in compensation for moral damage.
13. On 31 October 2001 the applicant complained to the State Treasury about the non-execution of the judgment of 6 June 2000 given in his favour.
14. On 15 November 2001 the State Treasury informed the applicant that no funds were available for such payments in the 1999-2001 State budgets.
15. On 29 January 2002 the applicant requested the State Treasury to execute the judgment of 6 June 2000.
16. On 26 February 2002 the State Treasury informed the applicant there was no statutory procedure for the payment of compensation and therefore no payment was possible.
17. On 15 May 2002 the National Bank transferred UAH 2,020 to the applicant in compensation for pecuniary damage.
18. On 10 December 2002 the National Bank transferred UAH 50,000 to the applicant in compensation for non-pecuniary damage.
19. The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99732
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF HAĐI v. CROATIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-1;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1985 and lives in Osijek.
5. On 19 September 2007 the applicant was indicted in the Osijek Municipal Court (Općinski sud u Osijeku) on charges of aggravated larceny. On 6 December 2007 the Osijek Municipal Court appointed D. Omrčen as defence counsel for the applicant.
6. On 12 December 2007 the Osijek Municipal Court ordered the applicant's pre-trial detention in connection with the criminal proceedings instituted against him. The relevant part of the decision reads:
“... the defendant Ðerđet Hađi has been charged with repeated criminal offences of aggravated larceny under Article 217 § 1(1) of the C[riminal] C[ode] which he committed on fifteen occasions between 17 December 2006 and 27 August 2007.
In view of the following facts: that the defendant Ðerđet Hađi has been charged with repeated criminal offences of aggravated larceny over a period of eight months; that according to the criminal records he has already been convicted of that same offence; that before this court several sets of criminal proceedings are pending [against him on charges] of the criminal offence under Article 217 of the C[riminal] C[ode]; that he has neither income nor property – this panel finds that these circumstances justify the suspicion that he could commit the same or similar criminal offence were he to remain at large, which makes ordering his detention under Article 102 § 1(3) of the Code of Criminal Procedure justified.”
7. The applicant was arrested and remanded in custody on 14 December 2007. He lodged an appeal against the decision of 12 December 2007. On 27 December 2007 the Osijek County Court (Županijski sud u Osijeku) allowed the applicant's appeal and quashed the decision of 12 December 2007, but did not lift the applicant's detention.
The operative part of this decision reads:
“the appeal by the defendant Ðerđet Hađi is allowed, the first-instance decision (but not the applicant's detention) is quashed and the case is to be remitted to that court for fresh deliberation.”
The relevant part of the reasoning reads:
“The appeal is well-founded.
The defendant's allegations that the impugned decision was adopted in breach of the provisions of criminal procedure under Article 367 § 1 in conjunction with Article 105 § 1 of the C[ode of] C[riminal] P[rocedure] are well-founded. The reasoning of the impugned decision states that the meeting, held after the indictment had been lodged, at which the panel deliberated on [the defendant's] detention, was held in the absence of D.O., the defence lawyer officially appointed for the defendant Ðerđet Hađi, in accordance with Article 105 § 2 of the CCP. However, the defendant questioned the finding of the first-instance court that defence counsel had been properly summoned to the panel meeting in question, pursuant to Article 105 § 1 of the CCP. The defendant alleged in his appeal that his officially appointed defence counsel had not been served with the decision of his appointment prior to the panel meeting of 12 December 2007 where [the panel] had been deliberating on his detention. Defence counsel had not been summoned to the panel meeting in question. The defendant maintained that the summons for the panel meeting had been sent to his defence counsel by fax on 12 December 2007 at 10.55 a.m. He enclosed a copy of the minutes of a different hearing held before the Slavonski Brod Municipal Court on 12 December 2007 in proceedings no. P-1831/00 showing that [the lawyer appointed for him] had been present at that hearing between 9.30 a.m. and 10.30. a.m. and that, therefore, since the panel meeting was held at 1 p.m., his defence counsel had not been properly summoned to that meeting.
The above circumstances show that the defence lawyer was not properly summoned to the panel meeting at which the defendant's detention was deliberated upon, despite the fact that, pursuant to Article 105 § 1 of the CCP, he should have received the summons in time in order to be able to appear. Therefore, the right of the defendant to be defended by officially appointed counsel, who could only be a practising lawyer, at a panel meeting at which the decision on his detention was to be taken, and [whose absence] might influence that decision, was infringed.
It is also important to point out that the facts concerning the question whether the appointed lawyer received the decision of his appointment and whether he was properly summoned to the panel meeting at which the question of the defendant's detention was to be deliberated upon could not be taken to have been correctly and sufficiently established, in view of the reasons stated above.
The first-instance court must establish whether the lawyer D.O. from Osijek received, and if so, when, the decision on his appointment as defence counsel and it must then properly summon him to a fresh panel meeting where the possibility of [implementing] a custodial measure is to be deliberated.
In view of the above considerations, the appeal of the defendant Ðerđet Hađi is to be allowed, the impugned decision quashed (but not the detention) and the case remitted to the first-instance court for fresh deliberation (Article 398 § 3 of the CCP).”
8. On 2 January 2008 the Osijek Municipal Court ordered the applicant's detention under Article 102 § 1(3) of the Code of Criminal Procedure. On 11 January 2008 an appeal lodged by the applicant was dismissed by the Osijek County Court.
9. On 15 January 2008 the applicant lodged a constitutional complaint against the decision of 27 December 2007, arguing that, although the decision on his detention had been quashed, his detention had not been lifted.
10. On 30 January 2008 the Osijek Municipal Court dismissed the charges against the applicant because the State Attorney had dropped the charges on the ground that there was no evidence that the applicant had committed the criminal offence in question. On the same date the same court lifted the applicant's detention and the applicant was immediately released.
11. On 18 February 2008 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant's constitutional complaint of 15 January 2008 inadmissible on the grounds that the impugned decision was no longer operative since, in the meantime, on 2 January 2008, the Osijek Municipal Court had issued a fresh decision ordering the applicant's detention. The relevant part of the decision reads:
“5. ... the Constitutional Court has established that in the fresh proceedings the Osijek Municipal Court adopted a new decision no. Kv-544/07-7 (K-688/07-22) of 2 January 2008 ordering the applicant's detention.
6. Since the new decision ordered the applicant's detention and practically set aside the impugned decision, the conditions for considering the merits of the complaint had ceased to exist by the time the Constitutional Court was deciding on the applicant's constitutional complaint,.”
12. On an unspecified date the applicant brought a civil action against the State before the Osijek Municipal Court, seeking 23,500 Croatian kuna (HRK) on account of damages he had suffered owing to his “unfounded” detention. On 17 November 2008 the Municipal Court allowed the claim and granted the applicant HRK 16,400. On an unspecified date the State Attorney's Office lodged an appeal and the appeal proceedings are currently pending.
13. Section 62(1) of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu, Official Gazette no. 29/2002) reads:
“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt) of a State body, a body of local and regional self-government, or a legal person with public authority, which has decided on his or her rights and obligations, or on a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...”
14. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku – Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003, 178/2004 and 115/2006) provide as follows:
“...
(4) A three-judge panel of a Municipal Court adopts decisions out of a hearing.”
(1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure.
(2) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist.
(3) When deciding on detention, in particular its duration, the court shall take into consideration the proportionality between the gravity of the offence, the sentence which ... may be expected to be imposed, and the need to order and determine the duration of detention.
(4) The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist, in which case detention shall immediately be lifted.
“(1) Where reasonable suspicion exists that a person has committed a criminal offence, he or she may be placed in detention if:
...
3. special circumstances justify the suspicion that the person concerned might reoffend ...”
“(1) Detention may be ordered only in a written decision of the competent judicial authority.
...”
“...
(3) After the indictment has been lodged ... the detention is ordered, extended and lifted by a judicial panel under Article 18(4) of this Code. At the hearing ... the detention is ordered, extended and lifted by a judicial panel or a single judge conducting the hearing.
...”
“(1) The State Attorney and defence counsel and, if needed, also the defendant, shall be invited to the panel meeting ... at which the court decides on ordering, lifting or extending the detention ...
...”
“...
(2) After the indictment has been lodged ... a [judicial] panel ... shall examine every two months whether the statutory conditions for detention continue to exist ...”
Article 367 paragraph 1 enlists grave breaches of the provisions of criminal procedure.
“...
(3) When deciding on an appeal [against a decision] a court may declare it inadmissible as being lodged out of time or as impermissible; dismiss it as unfounded; or accept it and reverse or quash it and remit the case for fresh examination.
...”
“Compensation may be awarded to a person who
1. was detained but the criminal proceedings against him or her were never instituted or were terminated by a final decision; or [a person] who was acquitted by a final judgment or where the charges were dismissed by a final judgment.
...”
15. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005 and 42/2008) read as follows:
“(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act.
(2) The right to respect for one's personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, the right to respect for one's name and privacy of personal and family life, freedom et alia.
...”
“Damage is ... infringement of the right to respect for one's personal dignity (non-pecuniary damage).”
16. The relevant part of section 186(a) of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03) reads as follows:
“A person intending to bring a civil suit against the Republic of Croatia shall first submit a request for a settlement to the competent State Attorney's Office.
...
Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court.
...”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-101674
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KRIVOVA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 5. The applicant was born in 1961 and lives in Chervonograd, Lviv region, Ukraine.
6. On 30 November 1998 several schools organised a collective visit by pupils to a local cinema, which was owned by the municipal company E., for a film showing. The applicant's daughter, Ms Galyna Igorivna Krivova, born in 1985, was among the pupils who visited that cinema. While the first group of pupils was still watching the film, another group of pupils for the next showing entered the auditorium. As a result of a lack of control of entry to the auditorium during the film, there was a stampede in which four children were trampled to death and fourteen children, including the applicant's daughter, received varying degrees of injury. The applicant's daughter, in particular, was diagnosed with, inter alia, severe post-traumatic hypoxic damage to the central nervous system (посттравматичне постгіпоксичне ураження центральної нервової системи важкого ступеню), a right sided pneumothorax, and other injuries. According to the applicant, her daughter was in a coma for two months.
7. On 17 January 1999 the applicant's daughter was classified as temporarily Category 1 disabled. Three years later, on 17 January 2002, she was classified as permanently disabled.
8. The applicant's daughter underwent inpatient medical treatment at least until 18 February 1999, after which she periodically had medical treatment and rehabilitation therapy.
9. By a judgment of 13 March 2004 the Chervonograd Town Court (“the Town Court”) declared the applicant's daughter incapacitated. Apparently that judgment became final and on 29 April 2004 the Chervonograd Town Council appointed the applicant as the legal guardian of her disabled daughter.
10. At the present time the applicant's daughter still suffers the consequences of post-traumatic consequences and needs medical assistance and nursing.
11. On 30 November 1998 the Prosecutor's Office instituted criminal proceedings and on an unspecified date indicted S., the head of the E. company (it appears from the submitted documents that criminal proceedings against other persons were also instituted but were subsequently abandoned for various reasons).
12. On 2 December 1998 a medical expert reported on the aforesaid injuries to the applicant's daughter and identified them as serious.
13. Meanwhile, on 1 December 1998 a special administrative committee composed of nine experts was set up to investigate the accident of 30 November 1998. On 10 December 1998 that committee drew up a report which recommended that six persons be dismissed and five others subjected to disciplinary sanctions.
14. According to the applicant, the pre-trial investigation was completed by 22 September 2000 and the case was transferred to the Town Court.
15. On 20 March 2001 the applicant lodged a civil claim against S., seeking compensation for pecuniary and non-pecuniary damage. Five other claims were also lodged with the court by other victims.
16. On 10 October 2003 the Town Court found S. guilty of abuse of authority and forgery and sentenced him to seven years' imprisonment. The court also banned S. from holding managerial positions for one year. As to the civil claims, the court allowed them in part, awarding, in particular, the applicant 15,000 Ukrainian hryvnias (UAH; about 2,464.91 Euros (EUR) at the material time) in respect of non-pecuniary damage, to be paid by S.
17. On 27 April 2004 the Lviv Regional Court of Appeal (“the Court of Appeal”) quashed that judgment because of procedural shortcomings of the trial before the first-instance court. On 1 July 2004, having held a re-trial, it found S. guilty of forgery in office (he had forged the documents stating that he had taken necessary accident prevention measures and instructed his subordinates) and negligence that had had serious consequences, finding that the cinema personnel had not been instructed and lacked relevant expertise, the auditorium had not been properly equipped and the cinema tickets had been sold without indication of time, row and seat. The court thus sentenced S. to five years' imprisonment and banned him from holding managerial positions for three years. However, in view of the Amnesty Act, the court exempted S. from these punishments. Finally, the court awarded the applicant UAH 143,556.69 (about EUR 22,771.80) in respect of pecuniary damage and UAH 12,000 (about EUR 1,903.51) in respect of non-pecuniary damage, to be paid by Chervonograd Town Council, as well as UAH 6,000 (about EUR 951.75) in respect of non-pecuniary damage, to be paid by S.
On the last-mentioned day the Court of Appeal issued a special ruling (окрема постанова) informing its head and the head of State Judges' Administration of the delays in the case caused by the first-instance court.
18. On 18 January 2005 the Supreme Court of Ukraine amended the judgment of 1 July 2004, replacing the amnesty with statutory limitation, as the reason for S.'s exemption from the punishment. The court also quashed the judgment in part related to the civil claims, casting doubts on the liability of Chervonograd Town Council. Accordingly, it remitted that matter for fresh consideration.
19. It appears from the documents submitted that, at this stage of the proceedings, the applicant and another civil claimant requested the Court of Appeal to join to the proceedings a number of legal persons (such as the schools which had organised the pupils' collective visit to the cinema, the E. company, the local department of education, etc.). For these reasons, on 31 March 2005 the Court of Appeal decided to remit the case to the Town Court.
20. Subsequently, a clinic which had treated the applicant's daughter brought its claim against the defendants and joined the proceedings; the other claimants (some other victims of the accident) withdrew their claims as being settled extra-judicially. In the course of the proceedings the claimants modified their claims on several occasions.
21. On 31 March 2008 the Town Court found in part for the applicant and other civil claimants. In particular, it ordered the Chervonograd Town Council, the education and culture departments of the Chervonograd Town Executive Committee and S. to pay the applicant, who was acting on her own behalf and on behalf of her daughter, in the specified proportions the total amount of UAH 85,411.97 (about EUR 11,033.40 at the material time) in respect of the care, medical, legal and other expenses she had incurred from the date of the accident to 1 April 2008 and 175% of the statutory minimum salary after 1 April 2008, monthly. Additionally, the court awarded the applicant the total amount of UAH 58,500 (about EUR 7,556.96 at the material time) in respect of non-pecuniary damage to be paid by Chervonograd Town Council and the education and culture departments of the Chervonograd Town Executive Committee. The court also awarded damages to other victims of the accident, as well as to the clinic in reimbursement of medical and other expenses for treating the applicant's daughter.
22. On 4 March 2009 the Court of Appeal allowed the defendants' appeals in part and quashed the judgment in part concerning the reimbursement to the clinic of medical and other expenses for treating the applicant's daughter because it had been claimed by the applicant, not the clinic, and the applicant's legal expenses regarding the publication in a newspaper of details of the court's hearings; consequently, it remitted these parts of the case for fresh examination. It also reduced the awards to other victims of the accident and upheld the remainder of the judgment.
23. On 14 August 2009 the Supreme Court of Ukraine rejected the requests for leave to appeal in cassation lodged by the Chervonograd Town Council and the education and culture departments of the Chervonograd Town Executive Committee.
24. Apparently, the proceedings in the remitted part are still pending before the first-instance court.
25. On 6 July 2009 the State Bailiffs' Service instituted proceedings to enforce the judgment of 31 March 2008, as amended on 4 March 2009.
26. The Chervonograd Town Council and the education and culture departments of the Chervonograd Town Executive Committee requested adjournment of the enforcement for six months, referring to a lack of relevant funds. On 28 September 2009 the Town Court allowed these requests.
27. On 1 December 1998 the victims of the accident were paid ex gratia by the local authorities the total amount of UAH 30,000, out of which the applicant was paid UAH 1,500 (about 394.74 United States Dollars at the material time). She was further paid:
on 26 January 1999 – UAH 2,000 (about EUR 438.54);
on 5 March 1999 – UAH 12,000 (about EUR 2,789.21);
on 23 September 1999 – UAH 238 (about EUR 50.51);
on 2 September 2004 – UAH 2,000 (about EUR 300.39).
28. Articles 27, 55, and 56 of the Constitution on the right to life and right to compensation for damage caused by authorities are set out in Kats and Others v. Ukraine (no. 29971/04, § 75, 18 December 2008).
29. Article 366 (forgery in office) of the Code provides as follows:
“1. Forgery in office, that is putting any knowingly false information in official documents, any other fabrication of documents, and also making and issuing knowingly false documents, by an official, –
shall punishable by a fine of up to 50 tax-free minimum incomes, or restraint of liberty for a term of up to three years, with the deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years. ...”
30. Article 367 (neglect of official duty) of the Code provides as follows:
“1. Neglect of official duty, that is the failure of an official to perform, or the improper performance of, his/her official duties due to negligence, where it caused significant damage to the legally protected rights and interests of individual citizens, or state and public interests, or interests of legal entities, –
shall be punishable by a fine of 50 to 150 tax-free minimum incomes, or correctional labour for a term of up to two years, or restraint of liberty for a term of up to three years, with the deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.
2. The same act that caused any grave consequences, –
shall be punishable by imprisonment for a term of two to five years with the deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years and with or without a fine of 100 to 250 tax-free minimum incomes.”
31. Under Articles 49 § 1 (3) and 74 § 5 of the Code, a person convicted for an offense of medium gravity can be exempted from the punishment if a period of five years has elapsed from the date of the criminal offense to the effective date of the judgment. An offense of medium gravity is punishable by imprisonment for a term of up to five years (Article 12 of the Code).
32. Articles 4401 (compensation for moral (non-pecuniary) damage) and 441 (liability of an organisation for damage caused through the fault of its employees) of the Code are set out in Lovygina v. Ukraine ((dec.), no. 16074/03, 22 September 2009).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91302
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF NOLAN AND K. v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion;Manifest religion or belief);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens (Article 1 para. 1 of Protocol No. 7 - Expulsion of an alien;Lawfully resident);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. Mr Nolan and K. were born in 1967 and 2001 respectively and live in Tbilisi, Georgia. Mr Nolan is the father and sole custodial parent of K.
6. Since 1988 the applicant has been a member of the Unification Church (“the Church”), a spiritual movement founded by Mr Sun Myung Moon in 1954.
7. On 21 May 1991 the Unification Church was officially registered as a religious association in the Russian Socialist Federative Soviet Republic.
8. On 29 December 2000 the Ministry of Justice of the Russian Federation granted State re-registration to the Unification Church at federal level as a centralised religious organisation. It did so on the basis of an expert opinion from the Expert Council for Conducting State Expert Examinations in Religious Studies, which stated, inter alia, the following:
“In the Russian Federation neither the Unification Church nor its leaders have ever been held criminally liable. No violations of the federal law on freedom of conscience and religious associations on the part of the Unification Church or its various representatives have been established. Thus, (1) the Unification Church is a religious, non-commercial organisation and, accordingly, has the characteristics of a religious association within the meaning of section 6 § 1 of the federal law on freedom of conscience and religious associations; and (2) no indication of unlawful activities has been uncovered in its religious teachings and corresponding practice.”
9. In 1994 the Church invited the applicant to assist its activities in Russia. The Ministry of Foreign Affairs of the Russian Federation granted the applicant leave to stay in Russia. His leave to stay was subsequently renewed by the Ministry on a yearly basis through invitations issued by the registered religious organisation of the Unification Church in Moscow and an associated social organisation in St Petersburg, the Family Federation for World Peace and Unification (FFWPU).
10. The applicant lived primarily in Rostov-on-Don in southern Russia, where he worked with local branches of the FFWPU and the Youth Federation for World Peace (YFWP). He explains that, while the Unification Church, the FFWPU and the YFWP and other associations operating in Russia maintain legal independence from one another, they cooperate with one another in pursuit of similar goals. According to the applicant, these organisations acknowledge their origin in the Unification Movement founded by Rev. Moon; their different titles and legal forms reflect the specific focus of their activities and the fact that the social organisations are open to members of other faiths.
11. On 21 May 1999 the FFWPU established a local organisation in Rostov. Since the applicant’s host organisation in Russia was responsible for processing his residence registration with the police during the term of his stay, this was subsequently arranged through the Rostov FFWPU.
12. On 10 January 2000 the acting President of the Russian Federation amended, by Decree no. 24, the Concept of National Security of the Russian Federation, adopted in 1997. The relevant paragraph of Chapter IV, “Ensuring the National Security of the Russian Federation”, was amended to read:
“Ensuring the national security of the Russian Federation also includes the protection of its ... spiritual and moral heritage ... the forming of a State policy in the field of spiritual and moral education of the population ... and also includes opposing the negative influence of foreign religious organisations and missionaries ...”
13. On 25 July 2000 the Promyshlenniy District Court of Stavropol, on an application by the acting Stavropol regional prosecutor, decided to dissolve the Stavropol regional branch of the FFWPU and ban its activities “irrespective of State registration” on the ground that it was “engaged in religious activities under the guise of a registered social organisation”. On 25 October 2000 the Stavropol Regional Court upheld the judgment of 25 July 2000.
14. On 3 August 2000 the Rossiyskaya Gazeta newspaper ran an article on the Unification Church’s activities in southern Russia which – according to the applicant – described in general terms the grounds subsequently endorsed by the Federal Security Service in favour of his expulsion. It was entitled “Caramels from Moon will drive to debility” («‘Гуцулочки’ от Муна до маразма доведут»):
“The prosecutor’s office of the Stavropol Region has banned the activity of social organisations under the protection of which the Korean Moon ... was buying souls for $500 a piece.
Once there were two public organisations registered by the Stavropol Department of Justice: the Youth Federation for World Peace (YFWP) and the Family Federation for World Peace and Unification (FFWPU). As it turned out, these so-called public movements preach one of the most dangerous religions of the past century...
Outwardly inoffensive ‘pedlars’ who sell or give away the ‘New Families’ newspaper and cheap caramels lure young men and women into Moon’s family ... Young missionaries who were freely permitted to lecture to senior students at Stavropol schools introduced themselves as volunteers from the International Education Fund (IEF), [which is] one of Moon’s many ‘parishes’ ...
The self-proclaimed lecturers had no documents authorising them to talk to students. To ‘sweeten’ the lectures, they distributed caramels. Later, a panel of experts from the Stavropol clinic for borderline states gave a negative appraisal of Gutsulka caramels that Moonies distributed to children and adults alike. As it turned out, an outwardly inoffensive caramel destroys the human being’s energy-information profile. Simply speaking, such caramels with little-known inclusions – in some of them small holes are visible – facilitate the conversion of neophytes into zombies.
The contents of Moonies’ lectures leave a strong aftertaste of debility. It is sufficient to read the briefing materials [prepared by] the IEF – an outline of the lecture on ‘Preparation of a Secure Marriage’. Citation: ‘The genitals belong to a spouse and they only serve their purpose in a marital relationship ... Until the marriage you are the guardian of your genitals for your future spouse ...’
After some time ... [a certain young man] was introduced to the head Moonie in the Northern Caucasus, Patrick Nolan. To the newcomers he was presented as an American professor who periodically came to them from Rostov-on-Don ...
In Russia, a mass of associations belong to the Moonie movement – professors, women and even mass-media employees, including cultural foundations and the aforementioned YFWP and FFWPU. All these socialites are preachers of the Unification Church. Meanwhile, as early as three years ago the [upper chamber of the Russian Parliament] declared the Unification Church a totalitarian sect and a destructive cult ...
At long last the prosecutor’s office and the Federal Security Service of the Stavropol Region have started working on the Moonies. The regional prosecutor has filed an application ... for dissolution of the YFWP and banning of its activities. The same goes for the FFWPU ...
One question is still open: why does such a tenacious businessman as Rev. Moon spend [resources] on Russians? There are several theories. Not long ago... addresses were confiscated from one Moonie ... Among them – the address of an American, Patrick Nolan, who passes his time in Rostov, and two e-mail addresses of the CIA. Why shouldn’t we imagine that Moon’s aim ... is to catch our homeland in a spy net consisting of millions of agents – teachers, scholars, engineers, students and servicemen ...?” [italics as in the original]
15. On 26 June 2001 the applicant’s leave to stay in Russia was renewed for another year by the Ministry of Foreign Affairs on the basis of an invitation from the FFWPU. As before, the applicant registered his residence with the police upon arrival in Rostov, through the Rostov branch of the FFWPU.
16. On 12 July 2001 the applicant’s son, K., was born. On 2 October 2001 the applicant and his wife separated; the applicant’s wife returned to the United States and the applicant retained sole custody of the child.
17. On 31 August 2001 the Kirovskiy District Court of Rostov-on-Don, on an application by the Rostov Department of Justice, decided to dissolve the Rostov FFWPU on the ground that it had failed to notify the registration authorities of the continuation of its activities for more than three consecutive years. According to the applicant, by that time the Rostov FFWPU had been incorporated for only two years and three months and had been issued with a new registration certificate by the Rostov Department of Justice just eight months previously, after undergoing re-registration. According to the judgment, the Rostov FFWPU was incorporated on 21 May 1998 or 21 May 1999, both dates being mentioned as the incorporation date. The hearing was held in the absence of both parties and the FFPWU learned of the decision after it had come into force on 17 September 2001, with no further right of appeal.
18. On 10 October 2001 the Rostov police summoned the applicant and demanded his passport. They added a stamp to the effect that his registration was “terminated”, orally notifying him that the Rostov FFWPU had been dissolved by a court order.
19. Thereafter the applicant obtained registration with the police through other FFWPU branches, first in Novorossiysk and then in Krasnodar. His residence registration in Krasnodar was valid for the entire term of his leave to stay under his current visa, that is, until 19 June 2002.
20. On 19 May 2002 the applicant travelled to Cyprus. His son stayed in Russia with his nanny.
21. At 11 p.m. on 2 June 2002 the applicant arrived at Sheremetyevo-1 Airport in Moscow on a flight from Cyprus. When he reached the passport control booth, two officers – one male and the other female – examined his passport and visa insert. The male officer left with his documents, while the other told him to wait.
22. At about 0.30 a.m. on 3 June 2002 the applicant was allowed to cross the border to collect his baggage. Border officials conducted an extensive search of his belongings. Then he was directed back through passport control and out through the passenger entry doors from the tarmac to a flight transfer bus, which took him to the airport transit hall.
23. Upon his arrival at the transit hall, officials directed the applicant to wait in a small room adjacent to their office with a desk and a sofa, but no phone, ventilation or windows. Once he entered the room, the officials locked him in from outside. Initially the applicant thought that this would be just for a few minutes, but after half an hour he realised that he was being held in an improvised detention cell. He began knocking on the door, asking to be let out. The female officer responded through the door that he would not be let out until the morning, and told him to lie down and sleep. Ten minutes after that a male officer came with the applicant’s visa stapled to a one-page document. He told the applicant that his visa had been cancelled and asked him to sign the document. The applicant did as he was requested, although he could not read the document, which was handwritten in Russian.
24. At 8.30 a.m., after knocking and shouting for twenty minutes, the applicant was allowed to leave under guard and use the toilet.
25. At 10 a.m. a man in civilian clothing came to the room and introduced himself as the official in charge of passport control officers. The applicant was told that he would not be allowed to cross the Russian border and that border officials were only following orders and were not responsible for the decision. The man said that he did not know the reason for the decision and could not disclose where the order had come from. The man apologised that the applicant had been held overnight in the room, stating that “the night crew is not too bright”.
26. The applicant bought a ticket to Tallinn, Estonia. A border guard continued to accompany the applicant until he boarded his flight at 11.30 a.m., returning his passport, but not his visa, only before he entered the aeroplane.
27. On 26 June 2002 the applicant sent letters, through his legal representatives in Russia, by registered mail to:
- the Ministry of Foreign Affairs;
- the Federal Security Service (FSB) and its department in the Krasnodar Region;
- the Federal Border Service, the military prosecutor’s office of that service and the Moscow Border Control;
- the Ministry of the Interior and its Krasnodar department of passports and visas; and
- the Ombudsman and Presidential Envoy for the Central Circuit.
28. In these letters the applicant asked why he had been denied entry and detained even though he had committed no violation and why no procedural documents had been compiled or given to him. He also complained that he had been detained for over nine hours, and that as a result of the exclusion his eleven-month-old son had been left behind in Russia without either of his parents. The applicant also requested assistance to be reunited with his son.
29. On 4 July 2002 the applicant received a new invitation issued through the Russian Ministry of Foreign Affairs. On 5 July 2002 he applied for a visa to enter Russia at the Russian consulate in Tallinn and on the same day he was issued a multiple-entry visa valid until 3 July 2003.
30. On 7 July 2002, while he was crossing the border from Finland to Russia, Russian border guards at passport control twice stamped the applicant’s visa “annulled” and denied him entry into Russia. No explanation was given. The consulate in Tallinn referred him to the Ministry’s office in Moscow.
31. On 12 April 2003 the applicant was reunited with his son whom his nanny, a Ukrainian national, had brought to Ukraine.
32. Many of the applicant’s complaints sent on 26 June 2002 did not receive a response. Of those that did, none addressed the substance of his complaints. Responses from the Moscow Border Control of the Federal Border Service of 9 July and 22 August 2002 indicated that he had been denied entry into Russia on the basis of section 27 § 1 of the Entry Procedure Act, in implementation of an order given by another (unnamed) State body. The military prosecutor’s office responded that the applicant “had not been placed in administrative detention and therefore no detention record had been drawn up”.
33. On 8 August 2002 the applicant, through his legal representative in Moscow, challenged the decision refusing his return to Russia before the Khimki Town Court of the Moscow Region. He filed the challenge on behalf of himself and his son K., listing the Moscow Border Control as defendant.
34. On 29 August 2002, at the directions hearing, the defendants disclosed that they had acted on the orders of the Federal Security Service (FSB). The court joined the FSB as a co-defendant.
35. On 5 September 2002 the defendant requested that jurisdiction be transferred to the Moscow Regional Court because matters involving State secrets could only be examined by regional courts. The court granted their request in an interim decision.
36. On 25 March 2003, after repeated adjournments, the hearing was held in camera before the Moscow Regional Court. The applicant and K. were represented by counsel and an officer of the Unification Church in Russia, both of whom were required to give an undertaking not to disclose the contents of the proceedings.
37. The Moscow Regional Court dismissed the complaint. On the issue of whether the applicant had posed a threat to national security, the judgment stated as following:
“The representative of the first deputy head of the Department for the Protection of the Constitutional Order and the Fight against Terrorism, of the Russian FSB Directorate ... did not accept the appellants’ claims, and presented a written defence to the complaint ... In support of his position the representative pointed out that his client had approved the report to deny US citizen Patrick Francis Nolan entry into the Russian Federation, which was prepared by the Stavropol Regional Branch of the Federal Security Service on the basis of materials obtained as a result of operational and search measures. In the opinion of Russian FSB experts participating in the preparation of the report, the [applicant’s] activities in our country are of a destructive nature and pose a threat to the security of the Russian Federation. The representative ... emphasised that the threat to State security is created by the activities, not the religious beliefs of [the applicant].”
38. Nowhere else in the nine-page text of the judgment did the Regional Court indicate what “activities” had posed a threat to national security. It may, however, be inferred from the judgment that the applicant’s phone conversations had been intercepted by the FSB pursuant to a certain earlier court order.
39. It also appears that the Regional Court examined an information letter from the Federal Security Service of 29 May 2000, entitled “Information on the activities of representatives of non-traditional religious associations on Russian territory”, which stated, in particular, as follows:
“Representatives of such foreign sectarian communities as the Jehovah’s Witnesses, Moon’s Unification Church ... under the cover of religion establish extensive governing structures which they use for gathering socio-political, economic, military and other information about ongoing events in Russia, indoctrinate the citizens and incite separatist tendencies ... Missionary organisations purposefully work towards implementing the goals set by certain Western circles with a view to creating the conditions in Russia and perfecting the procedure for practical implementation of the idea of replacing the ‘socio-psychological code’ of the population, which will automatically lead to the erasing from the people’s memory of the over a thousand-year-long history of the Russian State and the questioning of such concepts as national self-identification, patriotism, Motherland and spiritual heritage ...”
40. As to the applicant’s overnight detention, the officers of the Moscow Border Control denied in court that the applicant had been “detained” and claimed that he had bought a ticket to Tallinn and merely waited for his flight scheduled for the following day. Although the Regional Court established that the ticket had been in fact bought in the morning of 3 June 2002, it held that this fact was “of no legal significance” and ruled that the applicant had not been deprived of his liberty.
41. The Regional Court also noted that the Russian authorities had not prevented the applicant from reuniting with his son in any country other than Russia. His allegations about interference with his family life were therefore rejected as manifestly ill-founded.
42. The applicant appealed, citing as grounds, inter alia, that the Regional Court had failed to examine whether the FSB had any legitimate basis in fact for its “conclusions”. He relied on Articles 5, 8, 9 and 14 of the Convention.
43. On 19 June 2003 the Supreme Court of the Russian Federation, sitting in camera in a three-judge formation, dismissed the appeal. It held that there had been no violations of the applicant’s Convention rights. The judgment was based on the administrative competence of the FSB and the Border Control to take decisions in the field of national security and border control. It did not indicate what activities of the applicant were alleged to pose a threat to national security:
“The decision on the issue whether or not the activities of a citizen (in respect of whom a conclusion barring entry into Russia has been issued) pose a threat to State security ... comes within the competence of the Russian authorities ... this right of the State is one of the basic elements of its sovereignty. Therefore, the [regional] court’s conclusion that the claims of the appellant and his representatives that the Russian FSB acted ultra vires are unfounded in the present case.” [so in the original]
44. A competent authority, such as the Ministry of Foreign Affairs or the Federal Security Service, may issue a decision that a foreign national’s presence on Russian territory is undesirable. Such decision may be issued if a foreign national is unlawfully residing on Russian territory, or if his or her residence is lawful but creates a real threat to the defensive capacity or security of the State, to public order or health, etc. If such a decision has been given, the foreign national has to leave Russia or will otherwise be deported. The decision also forms the legal basis for subsequent refusal of re-entry into Russia (section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation, no. 114-FZ of 15 August 1996, as amended on 10 January 2003 – “the Entry Procedure Act”).
45. A foreign national will be refused entry into Russia if this is necessary for the purposes of ensuring the defensive capacity or security of the State, or protecting public order or health (section 27 § 1 of the Entry Procedure Act).
46. The Guidelines on checking the documents of persons crossing the border of the Russian Federation, ratified by order no. 0234 of the Federal Border Service of 4 August 2000 (“the Border Crossing Guidelines”), were not published or accessible to the public. The applicant submitted that they contained the following provisions, the authenticity of which was not disputed by the Government:
“...upon discovery of [persons whose entry into Russia is prohibited], officials of the border control shall notify them of the grounds for refusing them entry across the border, escort them to isolated premises and place them under guard, and take measures towards deportation of such persons from the territory of the Russian Federation.”
47. The State or regional treasury is liable – irrespective of any fault by State officials – for the damage sustained by an individual on account of, in particular, unlawful criminal prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1070 § 1 of the Civil Code). A court may hold the tortfeasor liable for non-pecuniary damage incurred by an individual through actions impairing his or her personal non-property rights, such as the right to personal integrity and the right to liberty of movement (Articles 150 and 151 of the Civil Code). Non-pecuniary damage must be compensated for irrespective of the tortfeasor’s fault in the event of, in particular, unlawful conviction or prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1100 § 2).
48. The Explanatory Report to Protocol No. 7 (ETS No. 117) defines the scope of application of Article 1 of Protocol No. 7 in the following manner:
“9. The word ‘resident’ is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non-residential purpose...
The word lawfully refers to the domestic law of the State concerned. It is therefore for domestic law to determine the conditions which must be fulfilled for a person’s presence in the territory to be considered ‘lawful’.
... [A]n alien whose admission and stay were subject to certain conditions, for example a fixed period, and who no longer complies with these conditions cannot be regarded as being still ‘lawfully’ present.”
49. The Report further cites definitions of the notion of “lawful residence” contained in other international instruments:
“a. Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside therein...
b. Lawful residence shall become unlawful from the date of any deportation order made out against the person concerned, unless a stay of execution is granted.”
“a. Regulations governing the admission, residence and movement of aliens and also their right to engage in gainful occupations shall be unaffected by this Convention insofar as they are not inconsistent with it;
b. Nationals of a Contracting Party shall be considered as lawfully residing in the territory of another Party if they have conformed to the said regulations.”
50. The Report clarifies the notion of “expulsion” as follows:
“10. The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition. Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation. Nevertheless, for the reasons explained in paragraph 9 above, it does not apply to the refoulement of aliens who have entered the territory unlawfully, unless their position has been subsequently regularised.
11. Paragraph 1 of this article provides first that the person concerned may be expelled only ‘in pursuance of a decision reached in accordance with law’. No exceptions may be made to this rule. However, again, ‘law’ refers to the domestic law of the State concerned. The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules.”
VIOLATED_ARTICLES: 38
5
8
9
P7
VIOLATED_PARAGRAPHS: 5-1
5-5
8-1
9-1
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VIOLATED_BULLETPOINTS: P7-1-1


ITEMID: 001-68377
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: DEVINE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Josephine Devine, is an Irish national, who was born in 1976 and lives in Belfast. She is represented before the Court by Ms A. Ritchie, a lawyer practising in Belfast.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 October 1996 the applicant was arrested by the police in connection with allegations that she was involved in financially assisting a terrorist organisation. The allegation was that the applicant's bank account had been used as a means of retaining the proceeds of a robbery carried out by other people in order to finance terrorism.
On 6 December 1996 the police made an ex parte application under the Proceeds of Crime (Northern Ireland) Order 1996 (“the 1996 Order”) for a financial investigator to assist their investigation. The Recorder of Belfast authorised the appointment of an investigator known under a pseudonym to exercise the powers under the 1996 Order.
On 9 December 1996, the financial investigator issued a requirement that the applicant attend an interview on 17 December 1996. The applicant attended the interview with her solicitor but failed to answer all the questions put to her. The applicant was released without charge. As a result of the applicant's failure to answer all questions a summons was issued in accordance with paragraph 5(1) of Schedule 2 of the 1996 order.
On 22 September 1997, the applicant was convicted at Belfast Magistrates Court of an offence contrary to paragraph 5(1). The applicant was fined 750 pounds sterling (GBP). The applicant unsuccessfully appealed against her conviction and the appeal judge substituted a term of one month's imprisonment suspended for 12 months.
On 12 March 1998, the investigator issued a second requirement under the 1996 Order obliging the applicant to attend another interview at a different police station. The applicant attended the police station on 17 April 1998 but refused to be interviewed or answer any questions because of her then pending judicial review application.
On 14 May 1998 the applicant's application to set aside the permission obtained by police on 6 December 1996 was dismissed. The applicant then lodged two sets of judicial review proceedings challenging the initial order obtained by the police, her conviction, the judge's decision dismissing the applicant's appeal against the granting of the order, and the investigator's request that she attend a second interview.
The applicant's application for judicial review was dismissed in a written judgment on 26 March 1999 by the High Court, which held inter alia that there was no prima facie evidence that the investigator had abused his statutory powers and that the decision to appoint an investigator acting under a pseudonym had been taken after a conscientious balancing exercise of the conflicting interests.
The applicant's appeal to the Court of Appeal was heard on 23 June 1999 and was dismissed in an ex tempore judgment. Leave to appeal to the House of Lords was refused by the Court of Appeal on 1 July 1999. On 17 August 2001, the applicant lodged a petition out of time with the House of Lords which refused permission to appeal on 12 March 2002.
The Proceeds of Crime (Northern Ireland) Order 1996 inter alia provides for investigatory measures and powers in respect of the tracing and confiscation of proceeds of criminal conduct.
Pursuant to paragraph 5(1) of Schedule 2, it was an offence for a person to fail, without reasonable excuse, to attend to answer questions by a Financial Investigator appointed under the Order. Paragraph 6 restricted the use that could be made of the statements made to three situations: two related to the questioning itself, namely prosecution for perjury or an offence under the order, and the third exception was prosecution for an offence where evidence inconsistent with any such answers or information was relied on by the defence (paragraph 6(b)). On 14 April 2000, paragraph 6(b) was amended by the Youth Justice and Criminal Evidence Act 1999 to cover use of the statements as evidence adduced by the defence only.