ITEMID: 001-57823
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF FIGUS MILONE v. ITALY
IMPORTANCE: 2
CONCLUSION: Preliminary objection allowed (out of time)
JUDGES: C. Russo;N. Valticos
TEXT: 7. Mrs Figus Milone, who used to work for a security firm, lives in Turin.
On 26 October 1978 she brought proceedings against her former employer, the Istituto di Vigilanza company, in the Turin magistrate’s court (pretore) for unfair dismissal.
8. At the first hearing, on 28 November 1978, the magistrate raised of his own motion the question whether certain legislative provisions were compatible with the constitutional principle of equality between men and women in the field of employment. On 19 December 1978 he stayed the proceedings pending the decision of the Constitutional Court (Article 295 of the Code of Civil Procedure).
The Constitutional Court gave judgment on 16 January 1987; the text of its judgment was filed at the registry on 22 January.
9. The applicant resumed the proceedings on 16 February 1987 and they ended on 28 May with a friendly settlement.


ITEMID: 001-82939
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: TATENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Ms Lyubov Vasilyevna Tatenko, is a Ukrainian national who was born in 1938 and lives in the city of Donetsk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, and the Head of the Government Agent’s Office, Mrs I. Shevchuk.
The facts of the case, as submitted by the parties, may be summarised as follows.
In February 2001 the applicant instituted proceedings in the Prymorsky District Court of Mariupol against the local social welfare department, challenging the refusal of the latter to increase her pension in accordance with the Constitution and the Law on Pensions.
On 22 June 2001 the court found against the applicant. In its decision the court noted in particular that:
“It is true that the Constitution of Ukraine mentions that the pension should not be lower than the minimum living standard. In this particular case, however, it is not a provision of the Constitution, but a specific legal norm on a pension matter which applies.”
The court further concluded that the applicant’s pension was in accordance with the Law of Ukraine on Increasing the Minimum Amount of Pensions and decided against the applicant.
The applicant appealed against this decision, claiming that the first instance court misapplied and misinterpreted the relevant pension law and Article 46 of the Constitution.
On 13 August 2001 the Donetsk Court of Appeal upheld the decision of the first instance court.
The applicant applied for leave to make a cassation appeal.
On 5 October 2001 the panel of three judges of the Supreme Court rejected the applicant’s request for leave to make a cassation appeal.
The relevant provisions read as follows:
“... The norms of the Constitution of Ukraine are norms of direct effect. Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of the Constitution of Ukraine are guaranteed.”
“... Pensions and other types of social payments and assistance that are the principal sources of subsistence, shall ensure a standard of living not lower than the minimum living standard (прожитковий мінімум) established by law.”
“The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine.
The Constitutional Court of Ukraine decides on issues of conformity of laws and other legal acts with the Constitution of Ukraine, and provides the official interpretation of the Constitution of Ukraine and the laws of Ukraine.”
“The jurisdiction of the Constitutional Court of Ukraine encompasses:
1) deciding on issues of conformity with the Constitution of Ukraine (the constitutionality) of the following:
- laws and other legal acts of the Verkhovna Rada of Ukraine;
- acts of the President of Ukraine;
- acts of the Cabinet of Ministers of Ukraine;
- legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea.
These issues are considered on the appeals of: the President of Ukraine; at least forty-five National Deputies of Ukraine; the Supreme Court of Ukraine; the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine; the Verkhovna Rada of the Autonomous Republic of Crimea;
2) the official interpretation of the Constitution of Ukraine and the laws of Ukraine;
On issues envisaged by this Article, the Constitutional Court of Ukraine adopts decisions that are mandatory for execution throughout the territory of Ukraine, that are final and shall not be appealed.”
Article 11 of the Code provided that courts were to decide a case on the basis of the Constitution, other legislative acts or the international treaties of Ukraine, under the procedure provided for in the Code.
By Article 202 of the Code a court decision was to set out the facts of the case established by the court, evidence on which the court’s conclusion was based, and reasons for admitting or rejecting this or that argument, as well as the laws applied by the court.
Article 19 of this Law provides as relevant:
“Old age pensions shall be established in the amount of 55% of the salary, but not less than the minimum amount of pensions (мінімальний розмір пенсії)...
The minimum amount of an old age pension shall be established in relation to the minimum consumer budget (мінімальний споживчий бюджет). In case of economic crisis and a fall in production, the minimum amount of pensions shall be established in an amount which is not lower than the basic standard of income (межа малозабезпеченості). ...
The maximum amount of an old age pension shall not exceed ... three times the minimum amount of pensions ...”
This Law set the minimum amount of pensions (мінімальний розмір пенсії) at UAH 24.9.
The relevant extracts of the Law read as follows:
“This Law in accordance with Article 46 of the Constitution of Ukraine defines the minimum living standard, gives legal basis for its fixation, approval and taking into account in realisation by the State of the constitutional guarantee to sufficient living standard for citizens...
Article 2. Use of the minimum living standard
The minimum living standard shall be used for:
- general assessment of the standard of living in Ukraine, which is a basis for realisation of social policy and development of some State social programmes;
- fixing the amounts of the minimum wage and minimum old age pension, determination of amounts of social welfare, assistance to families with children, unemployment benefit, as well as stipends and other social payments in accordance with requirements of the Constitution of Ukraine and laws of Ukraine...”
The relevant extracts of the Law read as follows:
“Article 1. The minimum living standard for 2000 per person shall be fixed at the amount of 270.1 hryvnas per month...
Article 2. The minimum living standard for 2000 shall be used for general assessment of the standard of living in Ukraine.”
The relevant parts of the Resolution read as follows:
“2. Since the Constitution of Ukraine, as stipulated in its Article 8, has the highest legal force, and its norms are norms of direct effect, the courts, in consideration of concrete cases, shall assess the content of any law or any other legal act for its compliance with the Constitution of Ukraine and, where necessary, shall apply the Constitution as an act of direct effect. The court decisions shall be based on the Constitution and the current legislation which does not contradict it.
In case of doubt as to the compliance with the Constitution of Ukraine of a particular law, as applied or applicable in a case, the court, upon the motion of the parties to the proceedings or of its own motion, shall suspend consideration of the case and apply, by way of a reasoned decision (ruling), to the Supreme Court of Ukraine which, under Article 150 of the Constitution, may raise before the Constitutional Court the issue of compliance of laws and other legal acts with the Constitution. Such decisions can be taken by the first instance court, court of cassation or the court which considers a supervisory review...”
The case concerned budgetary restrictions proposed in the State Budget of 2001 with respect to privileges, compensations and guarantees foreseen by different legislative acts. The relevant parts of the decision read as follows:
“The Constitutional Court of Ukraine ...
...2. ... considered that, since the third paragraph of Article 46 of the Constitution of Ukraine declared that “pensions and other types of social payments and assistance that are the principal sources of subsistence, shall ensure a standard of living not lower than the minimum living standard established by law”, the suspension for 2001 of privileges, compensations and guarantees provided for in the current legislation, led to a violation of constitutional rights of a significant number of Ukrainian citizens.
At the present ... the maximum amounts of an old age pension are respectively 129 and 172 hryvnas...
... At the same time, the Law of Ukraine “on Fixing the Minimum Living Standard for 2001” of 22 March 2001 approved the minimum living standard for 2001 at 311.3 hryvnas a month per person...The Law of Ukraine “on the Minimum Living Standard” of 15 July 1999 no. 966-XIV defines the minimum living standard as a cost value of set of food products sufficient for normal functioning of human body, preservation of its health, as well as minimum set of goods and minimum set of services which are necessary for main social and cultural needs of a person.
With a view to the above, the Constitutional Court considers that some of privileges, compensations and guarantees suspended for 2001 ... are not privileges, compensations and guarantees as such for the people to whom they were granted by law, since their pensions and salaries are significantly lower than the minimum living standard established by law, these privileges, compensations and guarantees serve as a particular social aid, support; supplement to the principles sources of subsistence and are aimed at realisation of a constitutional right of every citizen to sufficient living standard ...
Therefore, suspension of privileges, compensations and guarantees paid from the budgets of all levels ... violates the provisions of ... the third part of Article 46 ... of the Constitution ...”
The Constitutional Court decided that the provisions suspending the privileges, compensations and guarantees paid from the budget were unconstitutional.


ITEMID: 001-78399
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF NOGOLICA v. CROATIA (No. 3)
IMPORTANCE: 4
CONCLUSION: Preliminary objection (non-exhaustion of domestic remedies) joined to merits and dismissed;Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1962 and lives in Zagreb.
5. On 5 October 1995 the applicant filed a civil action seeking damages with the Zagreb Municipal Court (Općinski sud u Zagrebu) against the weekly magazine A. (“the respondent”), claiming that it had published a libellous article about him.
6. The court held several hearings before 5 November 1997, the date of the entry into force of the Convention in respect of Croatia.
7. At the hearing on 1 October 1998 the court heard a witness.
8. The hearing scheduled for 19 November 1998 was adjourned for 12 March 1999 when the court heard another witness and an expert.
9. At the next hearing on 2 February 2000 the court heard yet another witness and concluded the main hearing. On the same day, it gave judgment dismissing the applicant's claim. The judgment was served on the applicant on 10 April 2000.
10. On 14 April 2000 the applicant appealed against the first instance judgment. On 15 October 2002 the Zagreb County Court (Županijski sud u Zagrebu) quashed that judgment and remitted the case.
11. On 10 December 2002 the applicant filed a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining about the length of the proceedings.
12. On 22 March 2004 the Zagreb Municipal Court held a hearing and adopted a new judgment granting the applicant's claim in part. The applicant appealed against the judgment and the proceedings are still pending before the second instance court.
13. On 17 June 2004 the Constitutional Court dismissed the applicant's complaint of 10 December 2002 as ill-founded. It took into consideration the period of some five years (between the entry into force of the Convention in respect of Croatia and the filing of the constitutional complaint by the applicant), finding that the competent courts had acted expeditiously, while it observed that the proceedings had been somewhat complex.
14. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske –Official Gazette no. 49/2002 of 3 May 2002; “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant's rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72794
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF ZDANOKA v. LATVIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (lack of victim status);No violation of P1-3;Not necessary to examine Arts. 10 and 11
JUDGES: Alvina Gyulumyan;Anatoly Kovler;András Baka;Christos Rozakis;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Giovanni Bonello;Jautrite Briede;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Loukis Loucaides;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vladimiro Zagrebelsky
TEXT: 11. The applicant is a Latvian national who was born in 1950 and lives in Riga. She is currently a member of the European Parliament.
12. On 23 August 1939 the foreign ministers of Germany and the Union of the Soviet Socialist Republics (USSR) signed a non-aggression treaty (the Molotov-Ribbentrop Pact). The treaty included a secret additional protocol, approved on 23 August 1939 and amended on 28 September 1939, whereby Germany and the Soviet Union agreed to settle the map of their “spheres of influence” in the event of a future “territorial and political rearrangement” of the territories of the then independent countries of central and eastern Europe, including the three Baltic States of Lithuania, Latvia and Estonia. After Germany’s invasion of Poland on 1 September 1939 and the subsequent start of the Second World War, the Soviet Union began exerting considerable pressure on the governments of the Baltic States with a view to taking control of those countries pursuant to the Molotov-Ribbentrop Pact and its additional protocol.
13. Following an ultimatum to allow an unlimited number of Soviet troops to be stationed in the Baltic countries, on 16-17 June 1940 the Soviet army invaded Latvia and the other two independent States. The government of Latvia was removed from office, and a new government was formed under the direction of the Communist Party of the Soviet Union (“the CPSU”), the USSR’s only party. From 21 July to 3 August 1940 the Soviet Union completed the annexation of Latvia, which became part of the USSR under the name “Soviet Socialist Republic of Latvia” (“Latvian SSR”).
14. The applicant was born in Riga into a Russian-speaking family. In 1971 she joined the Communist Party of Latvia (“the CPL”) while studying at the University of Latvia in Riga. The CPL was in fact a regional branch of the CPSU. From 1972 to 1990 the applicant worked as a lecturer at the University of Latvia. Throughout this period she was a member of the CPL.
15. In the late 1980s there was considerable social pressure in Latvia, as in other east European countries, for the democratisation of political life. As a result of the newly introduced freedom of expression in the territory of the Soviet Union, mass political movements were formed in Latvia, as well as in the other Baltic States, condemning the annexation of the country, asserting the need to construct a new society based, inter alia, on Latvian identity and values, and emphasising the need to restore State independence.
16. The first independent elections under the Soviet regime took place on Latvian territory in March 1990. The applicant was elected to the Supreme Council (Augstākā Padome) of the Latvian SSR as a representative for the Pļavnieki constituency in Riga. She subsequently joined the CPL’s local branch. In April 1990 this branch selected her to attend the CPL’s 25th Congress, where she was elected to the party’s Central Committee for Supervision and Audit. According to copies of that committee’s minutes, the applicant was a member of a sub-committee responsible for supervising the implementation of decisions and activities arising from the CPL programme.
17. At the same congress, a group of delegates expressed their disagreement with the CPL’s general policy, which remained loyal to the Soviet Union and the CPSU. According to those delegates, the CPL was opposed to any democratisation of public life and sought to maintain the status quo of the Soviet rule. These delegates publicly announced their withdrawal from the CPL and established a new party, the “Independent Communist Party of Latvia”, which immediately declared its support for Latvian independence and for a multi-party political system. The applicant did not join the dissident delegates and remained with the CPL.
18. On 4 May 1990 the Supreme Council adopted a Declaration on the Restoration of the Independence of the Republic of Latvia, which declared Latvia’s incorporation into the USSR unlawful and void and restored legal force to the fundamental provisions of the Latvian Constitution (Satversme) of 1922. However, paragraph 5 of the Declaration introduced a transition period, aimed at a gradual restoration of genuine State sovereignty as each institutional tie with the USSR was severed. During that transition period, various provisions of the Constitution of the Latvian SSR would remain in force. A special governmental commission was given responsibility for negotiating with the Soviet Union on the basis of the Russo-Latvian Peace Treaty of 11 August 1920.
The above-mentioned Declaration was adopted by 139 out of a total of 201 Supreme Council members, with one abstention. Fifty-seven members of the Līdztiesība parliamentary bloc (“Equal Rights”, in fact the CPL group), including the applicant, did not vote. On the same day, 4 May 1990, the Central Committee of the CPL adopted a resolution strongly criticising the Declaration and calling on the President of the Soviet Union to intervene.
19. On 7 May 1990 the Supreme Council approved the government of the independent Republic of Latvia.
20. On the evening of 12 January 1991 the Soviet army launched military operations against the neighbouring country of Lithuania, whose government had been formed in the same way as the Latvian government. Soviet troops entered the television tower of Vilnius and the headquarters of Lithuanian public television, and also tried to take the seats of the Lithuanian parliament and other authorities. Massive crowds, made up of Lithuanian citizens, came to the rescue of the institutions of the newly independent Lithuania. Thirteen Lithuanian civilians were killed and hundreds injured during the clash with the Soviet army.
21. The parties disagree as to who was responsible for the deaths during the events in Vilnius on 12-13 January 1991. According to the respondent Government, the CPSU was directly responsible for those deaths, in that it had full and effective control of the Soviet troops. The applicant contested the Government’s version, stating that the Soviet army’s aggression against the Lithuanian government and the Lithuanian people was not a proven fact; in this connection, she submitted a copy of a Russian newspaper article which alleged that it had been the Lithuanian independence supporters themselves who fired into the crowd with the aim of discrediting the Soviet army.
22. At the same time, an attempted coup was launched in Latvia. On 13 January 1991 the plenum of the CPL Central Committee called for the resignation of the Latvian government, the dissolution of the Supreme Council and the assumption of full powers by the Latvian Public Rescue Committee (Vislatvijas Sabiedriskās glābšanas komiteja), set up on the same date by several organisations including the CPL. On 15 January 1991 this committee announced that the Supreme Council and the government were stripped of their respective powers and declared that it was assuming full powers. After causing the loss of five civilian lives and injuries to thirty-four persons during armed clashes in Riga, this attempted coup failed.
23. According to the respondent Government, it was absolutely clear that the attempted coup in Latvia was launched by the CPL against the background of the Vilnius events, in the hope that Soviet troops would also invade Riga to support the pro-Soviet coup. The applicant submitted that, at the material time, a series of public demonstrations had been held in Latvia to protest against the rise in food prices introduced by the Latvian government; those demonstrations were thus the main reason for the events of January 1991. The applicant also emphasised that, in their respective statements of 13 and 15 January 1991, the plenum of the CPL Central Committee and the Latvian Public Rescue Committee had not only called for and announced the removal of the Latvian authorities, but had also stated that early elections would be held for the Supreme Council.
24. On 3 March 1991 a national plebiscite was held on Latvian territory. Electors had to reply to a question worded as follows: “Do you support a democratic and politically independent Republic of Latvia?” According to figures supplied by the Government, 87.5% of all residents registered on the electoral roll voted, and 73.6% of them replied in the affirmative. According to the Government, this was a genuine national referendum, confirming the support of the overwhelming majority of the Latvian population for the idea of national independence. The applicant maintains that it was a simple consultative vote and contests the above-mentioned turnout, and thus the very legitimacy of the plebiscite.
25. On 19 August 1991 there was an attempted coup in Moscow. The self-proclaimed “National State of Emergency Committee” announced that Mr Gorbachev, President of the USSR, was suspended from his duties, declared itself the sole ruling authority and imposed a state of emergency “in certain regions of the USSR”.
26. On the same day the Central Committee and the Riga Committee of the CPL declared their support for the National State of Emergency Committee and set up an “operational group” to provide assistance to it. According to the Government, on 20 August 1991 the CPL, the Līdztiesība parliamentary bloc and various other organisations signed and disseminated an appeal entitled “Godājamie Latvijas iedzīvotāji!” (“Honourable residents of Latvia!”), urging the population to comply with the requirements of the state of emergency and not to oppose the measures imposed by the National State of Emergency Committee in Moscow. According to the applicant, the CPL’s participation in all those events has not been proved; in particular, the members of the Līdztiesība bloc were taking part in parliamentary debates over two consecutive days and were not even aware that such an appeal was to be issued.
27. This coup also failed. On 21 August 1991, the Latvian Supreme Council enacted a constitutional law on the status of the Republic of Latvia as a State and proclaimed the country’s immediate and absolute independence. Paragraph 5 of the Declaration of 4 May 1990, concerning the transition period, was repealed.
28. By a decision of 23 August 1991, the Supreme Council declared the CPL unconstitutional. The following day, the party’s activities were suspended and the Minister of Justice was instructed “to investigate the unlawful activities of the CPL and to put forward ... a motion on the possibility of authorising its continued operations”. On the basis of the proposal by the Minister of Justice, the Supreme Council ordered the party’s dissolution on 10 September 1991.
29. In the meantime, on 22 August 1991 the Supreme Council set up a parliamentary committee to investigate the involvement of members of the Līdztiesība bloc in the coup. On the basis of that committee’s final report, on 9 July 1992 the Supreme Council revoked fifteen members’ right to sit in Parliament. The applicant was not one of those concerned.
30. In February 1993 the applicant became chairperson of the Movement for Social Justice and Equal Rights in Latvia (Kustība par sociālo taisnīgumu un līdztiesību Latvijā), which later became a political party, Līdztiesība (“Equal rights”).
31. On 5 and 6 June 1993 parliamentary elections were held in accordance with the restored Constitution of 1922. For the first time since Latvian independence had been regained, the population elected the parliament (Saeima), which took over from the Supreme Council. It was at that point that the applicant’s term of office as a member of parliament expired. As a result of the Latvian authorities’ refusal to include her on the residents’ register as a Latvian citizen, she was unable to take part in those elections, in the following parliamentary elections held in 1995, or in the municipal elections of 1994. Following an appeal by the applicant, the courts recognised her as holding Latvian nationality by right in January 1996, on the ground of her being a descendant of a person who had possessed Latvian nationality before 1940. The courts therefore instructed the electoral authorities to register the applicant and to supply her with the appropriate documents.
32. By a final judgment of the Supreme Court of 27 July 1995, A.R. and O.P., formerly the most senior officials of the CPL, were found guilty of attempting to overthrow the legitimate authorities of independent Latvia by violent means. The judgment accepted, inter alia, the following circumstances as historical facts:
(a) Having failed to obtain a majority on the Supreme Council in the democratic elections of March 1990, the CPL and the other organisations listed in section 5(6) of the Parliamentary Elections Act decided to take the unconstitutional route and set up the Latvian Public Rescue Committee, which attempted to usurp power and to dissolve the Supreme Council and the legitimate government of Latvia. Such actions were contrary not only to Article 2 of the 1922 Constitution, which stated that sovereign power was vested in the people, but also to Article 2 of the Constitution of the Latvian SSR, which conferred authority to act on behalf of the people on elected councils (soviets) alone.
(b) The Central Committee of the CPL provided financial support to the special unit of the Soviet police which was entirely responsible for the fatal incidents of January 1991 (see paragraphs 22-23 above); at the same time, the Latvian Public Rescue Committee publicly expressed its support for this militarised body.
(c) During the coup of August 1991 the Central Committee of the CPL openly declared its support for the National State of Emergency Committee, set up an “operational group” with a view to providing assistance to it and published an appeal calling on the public to comply with the regime imposed by this self-proclaimed and unconstitutional body.
33. On 25 January 1997 the Movement for Social Justice and Equal Rights in Latvia submitted to the Riga Electoral Commission a list of ten candidates for the forthcoming municipal elections of 9 March 1997. The applicant was one of those candidates. In accordance with the requirements of the Municipal Elections Act, she signed the list and attached a written statement confirming that she was not one of the persons referred to in section 9 of that Act. Under the terms of the Act, individuals who had “actively participated” (darbojušās) in the CPSU, the CPL and several other named organisations after 13 January 1991 were not entitled to stand for office. In a letter sent on the same day, the applicant informed the Electoral Commission that she had been a member of the CPL’s Pļavnieki branch and of its Central Committee for Supervision and Audit until 10 September 1991, the date of the CPL’s official dissolution. However, she argued that the restrictions mentioned above were not applicable to her, since they were contrary to Articles 2 and 25 of the International Covenant on Civil and Political Rights.
34. By a decision of 11 February 1997, the Riga Electoral Commission registered the list submitted by the applicant. At the elections of 9 March 1997 this list obtained four of the sixty seats on Riga City Council (Rīgas Dome). The applicant was one of those elected.
35. With a view to participating in the parliamentary elections of 3 October 1998, the Movement for Social Justice and Equal Rights in Latvia formed a coalition with the Party of National Harmony (Tautas Saskaņas partija), the Latvian Socialist Party (Latvijas Sociālistiskā partija) and the Russian Party (Krievu partija). The four parties formed a united list entitled “Party of National Harmony”. The applicant appeared on this list as a candidate for the constituencies of Riga and Vidzeme.
On 28 July 1998 the list was submitted to the Central Electoral Commission for registration. In accordance with the requirements of the Parliamentary Elections Act, the applicant signed the list and attached to it a written statement identical to the one she had submitted prior to the municipal elections. As she had done for the 1997 elections, she likewise sent a letter to the Central Electoral Commission explaining her situation and arguing that the restrictions in question were incompatible with the International Covenant on Civil and Political Rights and with Article 3 of Protocol No. 1 to the Convention.
36. On 29 July 1998 the Central Electoral Commission suspended registration of the list on the ground that the applicant’s candidacy did not meet the requirements of the Parliamentary Elections Act. Not wishing to jeopardise the entire list’s prospects of being registered, the applicant withdrew her candidacy, after which the list was immediately registered.
37. By a letter of 7 August 1998, the President of the Central Electoral Commission asked the Prosecutor General to examine the legitimacy of the applicant’s election to the Riga City Council.
38. By a decision of 31 August 1998, a copy of which was sent to the Central Electoral Commission, the Office of the Prosecutor General (Ģenerālprokuratūra) noted that the applicant had not committed any act defined as an offence in the Criminal Code. The decision stated that, although the applicant had provided false information to the Riga Electoral Commission regarding her participation in the CPL, there was nothing to prove that she had done so with the specific objective of misleading the commission. In that connection, the prosecutors considered that the statement by the applicant, appended to the list of candidates for the elections of 9 March 1997, was to be read in conjunction with her explanatory letter of 25 January 1997.
39. On 14 January 1999 the Office of the Prosecutor General applied to the Riga Regional Court for a finding that the applicant had participated in the activities of the CPL after 13 January 1991. The prosecutors attached the following documents to their submission: the applicant’s letter of 25 January 1997; the minutes of the meeting of 26 January 1991 of the CPL’s Central Committee for Supervision and Audit; the minutes of the joint meeting of 27 March 1991 of the Central Committee for Supervision and Audit and the municipal and regional committees for supervision and audit; and the annexes to those minutes, indicating the structure and composition of the said committee and a list of the members of the Audit Committee at 1 July 1991.
40. Following adversarial proceedings, the Riga Regional Court allowed the prosecutors’ request in a judgment of 15 February 1999. It considered that the documents in its possession clearly attested to the applicant’s active participation in the party’s activities after the critical date, and that the evidence provided by the applicant was insufficient to refute this finding. Consequently, the court dismissed the applicant’s arguments to the effect that she was only formally a member of the CPL, did not participate in the meetings of its Central Committee for Supervision and Audit and that, accordingly, she could not be held to have “acted”, “been a militant” or “actively participated” (darboties) in the party’s activities.
41. The applicant appealed against this judgment to the Civil Division of the Supreme Court. On 12 November 1999 the Civil Division began examining the appeal. At the oral hearing, the applicant submitted that the content of the above-mentioned minutes of 26 January and 27 March 1991, referring to her by name, could not be held against her since on both those dates she had been carrying out her duties in the Latvian Supreme Council and not in the CPL. After hearing evidence from two witnesses who stated that the applicant had indeed been present at the Supreme Council, the Division suspended examination of the case in order to enable the applicant to submit more cogent evidence in support of her statements, such as a record of parliamentary debates or minutes of the Līdztiesība parliamentary bloc’s meetings. However, as the above-mentioned minutes had not been preserved by the Parliamentary Record Office, the applicant was never able to produce such evidence.
42. By a judgment of 15 December 1999, the Civil Division dismissed the applicant’s appeal. It stated that the evidence gathered by the Office of the Prosecutor General was sufficient to conclude that the applicant had actively taken part in the CPL’s activities after 13 January 1991. The Division further noted that the CPL’s dissolution had been ordered “in accordance with the interests of the Latvian State in a specific historical and political situation” and that the international conventions relied on by the applicant allowed for justified limitations on the exercise of electoral rights.
43. Following the Civil Division’s judgment, enforceable from the date of its delivery, the applicant was disqualified from electoral office and lost her seat as a member of Riga City Council.
44. The applicant applied to the Senate of the Supreme Court to have the Civil Division’s judgment quashed. She stressed, inter alia, the restriction’s incompatibility with Article 11 of the Convention. By a final order of 7 February 2000 the Senate declared the appeal inadmissible. In the Senate’s opinion, the proceedings in question were limited to a single strictly-defined objective, namely a finding as to whether or not the applicant had actively taken part in the CPL’s activities after 13 January 1991. The Senate concluded that it did not have jurisdiction to analyse the legal consequences of this finding, on the ground that this was irrelevant to the finding itself. In addition, the Senate noted that any such analysis would involve an examination of the Latvian legislation’s compatibility with constitutional and international law, which did not come within the final appeal court’s jurisdiction.
45. Proceedings similar to those against the applicant were also instituted against a small number of other CPL activists, not all of whom were recognised by the courts as having “actively participated” in the activities of the CPL after January 1991.
46. The next parliamentary elections took place on 5 October 2002. With a view to taking part in those elections, the Līdztiesība party, chaired by the applicant, formed an alliance entitled “For Human Rights in a United Latvia” (Par cilvēka tiesībām vienotā Latvijā, abbreviated to PCTVL) with two other parties, the Party of National Harmony and the Socialist Party. The alliance’s electoral manifesto expressly referred to the need to abolish the restrictions on the electoral rights of persons who had been actively involved in the CPL after 13 January 1991.
47. In spring 2002 the Executive Council of the Līdztiesība party put the applicant forward as a candidate for the 2002 elections; the Council of the PCTVL alliance approved this nomination. Shortly afterwards, however, on 16 May 2002, the outgoing parliament rejected a motion to repeal section 5(6) of the Parliamentary Elections Act. The alliance’s council, which was fully aware of the applicant’s situation and feared that her candidacy would prevent registration of the PCTVL’s entire list, changed its opinion and decided not to include her name on the list of candidates. The applicant then decided to submit a separate list containing only one name, her own, entitled “Party of National Harmony”.
48. On 23 July 2002 the PCTVL electoral alliance submitted its list to the Central Electoral Commission. In all, it contained the names of seventy-seven candidates for Latvia’s five constituencies. On the same date the applicant asked the commission to register her own list, for the constituency of Kurzeme alone. As she had done for the 1998 elections, she attached to her list a written statement to the effect that the disputed restrictions were incompatible with the Constitution and with Latvia’s international undertakings. On 25 July 2002 the commission registered both lists.
49. By a decision of 7 August 2002, the Central Electoral Commission, referring to the Civil Division’s judgment of 15 December 1999, removed the applicant from its list. In addition, having noted that the applicant had been the only candidate on the “Party of National Harmony” list and that, following her removal, there were no other names, the commission decided to cancel the registration of that list.
50. At the elections of 5 October 2002, the PCTVL alliance’s list obtained 18.94% of the votes and won twenty-five seats in Parliament.
51. Latvia became a member of the European Union on 1 May 2004. Prior to that date, on the basis of the European Parliament Elections Act (Eiropas Parlamenta vēlēšanu likums) of 12 February 2004, the applicant was granted permission to run in those elections. They were held on 12 June 2004 and the applicant was elected as a member of the European Parliament.
52. The operative provisions of the Declaration of 4 May 1990 on the Restoration of the Independence of the Republic of Latvia read as follows:
“The Supreme Council of the Latvian SSR decides:
(1) in recognition of the supremacy of international law over the provisions of national law, to consider illegal the Pact of 23 August 1939 between the USSR and Germany and the subsequent liquidation of the sovereignty of the Republic of Latvia through the USSR’s military aggression on 17 June 1940;
(2) to declare null and void the Declaration by the Parliament [Saeima] of Latvia, adopted on 21 July 1940, on Latvia’s integration into the Union of Soviet Socialist Republics;
(3) to restore the legal effect of the Constitution [Satversme] of the Republic of Latvia, adopted on 15 February 1922 by the Constituent Assembly [Satversmes sapulce], throughout the entire territory of Latvia. The official name of the Latvian State shall be the REPUBLIC of LATVIA, abbreviated to LATVIA;
(4) to suspend the Constitution of the Republic of Latvia pending the adoption of a new version of the Constitution, with the exception of those Articles which define the constitutional and legal foundation of the Latvian State and which, in accordance with Article 77 of the same Constitution, may only be amended by referendum, namely:
Article 1 – Latvia is an independent and democratic republic.
Article 2 – The sovereign power of the State of Latvia is vested in the Latvian people.
Article 3 – The territory of the State of Latvia, as established by international agreements, consists of Vidzeme, Latgale, Kurzeme and Zemgale.
Article 6 – Parliament [Saeima] shall be elected in general, equal, direct and secret elections, based on proportional representation.
Article 6 of the Constitution shall be applied after the restoration of the State and administrative structures of the independent Republic of Latvia, which will guarantee free elections;
(5) to introduce a transition period for the re-establishment of the Republic of Latvia’s de facto sovereignty, which will end with the convening of the Parliament of the Republic of Latvia. During the transition period, supreme power shall be exercised by the Supreme Council of the Republic of Latvia;
(6) during the transition period, to accept the application of those constitutional and other legal provisions of the Latvian SSR which are in force in the territory of the Latvian SSR when the present Declaration is adopted, in so far as those provisions do not contradict Articles 1, 2, 3 and 6 of the Constitution of the Republic of Latvia.
Disputes on matters relating to the application of legislative texts will be referred to the Constitutional Court of the Republic of Latvia.
During the transition period, only the Supreme Council of the Republic of Latvia shall adopt new legislation or amend existing legislation;
(7) to set up a commission to draft a new version of the Constitution of the Republic of Latvia that will correspond to the current political, economic and social situation in Latvia;
(8) to guarantee social, economic and cultural rights, as well as universally recognised political freedoms compatible with international instruments of human rights, to citizens of the Republic of Latvia and citizens of other States permanently residing in Latvia. This shall apply to citizens of the USSR who wish to live in Latvia without acquiring Latvian nationality;
(9) to base relations between the Republic of Latvia and the USSR on the Peace Treaty of 11 August 1920 between Latvia and Russia, which is still in force and which recognises the independence of the Latvian State for all time. A governmental commission shall be set up to conduct the negotiations with the USSR.”
53. The operative provisions of the Constitutional Law of 21 August 1991 on the status of the Republic of Latvia as a State (Konstitucionālais likums “Par Latvijas Republikas valstisko statusu”) read as follows:
“The Supreme Council of the Republic of Latvia decides:
(1) to declare that Latvia is an independent and democratic republic in which the sovereign power of the State of Latvia belongs to the Latvian people, the status of which as a State is defined by the Constitution of 15 February 1922;
(2) to repeal paragraph 5 of the Declaration of 4 May 1990 on the Restoration of the Independence of the Republic of Latvia, establishing a transition period for the de facto restoration of the Republic of Latvia’s State sovereignty;
(3) until such time as the occupation and annexation is ended and Parliament is convened, supreme State power in the Republic of Latvia shall be fully exercised by the Supreme Council of the Republic of Latvia. Only those laws and decrees enacted by the supreme governing and administrative authorities of the Republic of Latvia shall be in force in its territory;
(4) this constitutional law shall enter into force on the date of its enactment.”
54. The role of the CPSU in the former Soviet Union was defined in Article 6 of the Constitution of the USSR (1977) and in Article 6 of the Constitution of the Latvian SSR (1978), which were worded along identical lines. Those provisions stated:
“The leading and guiding force of Soviet society and the nucleus of its political system and of all State organisations and public organisations is the Communist Party of the Soviet Union. The CPSU exists for the people and serves the people.
The Communist Party, armed with Marxism-Leninism, determines the general perspectives of the development of society and the course of the USSR’s domestic and foreign policy, directs the great constructive work of the Soviet people, and imparts a planned, systematic and theoretically substantiated character to their struggle for the victory of communism.
All party organisations shall function within the framework of the Constitution of the USSR.”
55. The Supreme Council’s decision of 24 August 1991 on the suspension of the activities of certain non-governmental and political organisations was worded as follows:
“On 20 August 1991 the Internationalist Front of Workers of the Latvian SSR, the United Council of Labour Collectives, the Republican Council of War and Labour Veterans, the Central Committee of the Communist Party of Latvia and the Central Committee of the Latvian Union of Communist Youth issued a proclamation informing the Republic’s population that a state of emergency had been decreed in Latvia and encouraging all private individuals to oppose those who did not submit to the orders of the National State of Emergency Committee. In so doing, the above-mentioned organisations ... declared their support for the organisers of the coup d’état and encouraged other individuals to do the same.
The actions of those organisations are contrary to Articles 4, 6 and 49 of the Latvian Constitution, which state that Latvian citizens are entitled to form parties and other associations only if their objectives and practical activities are not aimed at the violent transformation or overthrow of the existing constitutional order ... and that associations must observe the Constitution and legislation and act in accordance with their provisions.
The Supreme Council of the Republic of Latvia decrees:
1. The activities of the Communist Party of Latvia [and of the other above-mentioned organisations] are hereby suspended ...”
56. The relevant parts of the Supreme Council’s decision of 10 September 1991 on the dissolution of the above-mentioned organisations read as follows:
“... In May 1990 the Communist Party of Latvia, the Internationalist Front of Workers of the Latvian SSR, the United Council of Labour Collectives and the Republican Council of War and Labour Veterans set up the Committee for the Defence of the Constitution of the USSR and the Latvian SSR and the Rights of Citizens, which was renamed the Latvian Public Rescue Committee on 25 November 1990 ...
On 15 January 1991 the Latvian Public Rescue Committee declared that it was seizing power and dissolving the Supreme Council and the Government of the Republic of Latvia.
In August 1991 the Central Committee of the Communist Party of Latvia [and the other above-mentioned organisations] supported the coup ...
Having regard to the preceding, the Supreme Council of the Republic of Latvia decrees:
1. The Communist Party of Latvia [and the other above-mentioned organisations], together with the coalition of these organisations, the Latvian Public Rescue Committee, are hereby dissolved on the ground that they have acted against the Constitution ...
2. Former members of the Communist Party of Latvia [and of the other above-mentioned organisations] are informed that they are entitled to associate within parties and other associations whose objectives and practical activities are not aimed at the violent transformation or overthrow of the existing constitutional order, and which are not otherwise contrary to the Constitution and the laws of the Republic of Latvia ...”
57. The relevant provisions of the Constitution (Satversme) of the Republic of Latvia, adopted in 1922 and amended by the Law of 15 October 1998, are worded as follows:
“All citizens of Latvia who enjoy full civic rights and who have reached the age of 21 on the day of the elections may be elected to Parliament.”
“Legislative power lies with Parliament and with the people, in the conditions and to the extent provided for by this Constitution.”
“All persons in Latvia shall be equal before the law and the courts. Human rights shall be exercised without discrimination of any kind.”
“All citizens of Latvia are entitled to participate, in accordance with the law, in the activities of the State and of local government ...”
58. The relevant provisions of the Parliamentary Elections Act (Saeimas vēlēšanu likums) of 25 May 1995 provide:
“All Latvian citizens who have reached the age of 21 on the date of the elections may be elected to Parliament, on condition that they are not concerned by one of the restrictions provided for in section 5 of the present Act.”
“The following may not stand as candidates in elections or be elected to Parliament:
...
(6) persons who actively participated [darbojušās] after 13 January 1991 in the CPSU (CPL), the Internationalist Front of Workers of the Latvian SSR, the United Council of Labour Collectives, the Organisation of War and Labour Veterans or the Latvian Public Rescue Committee, or in their regional committees; ...”
“The following documents must be appended to the list of candidates:
...
(3) a signed declaration by each candidate on the list confirming that he or she meets the requirements of section 4 of this Act and that he or she is not concerned by section 5(1)-(6) of the present Act; ...”
“...
(2) Once registered, the candidate lists are definitive, and the Central Electoral Commission may make only the following corrections:
1. removal of a candidate from the list, where: ...
(a) the candidate is not a citizen enjoying full civic rights (sections 4 and 5 above);
...
(3) ... [A] candidate shall be removed from the list on the basis of a statement from the relevant authority or of a court decision. The fact that the candidate:
...
6. actively participated after 13 January 1991 in the CPSU (CPL), the Internationalist Front of Workers of the Latvian SSR, the United Council of Labour Collectives, the Organisation of War and Labour Veterans or the Latvian Public Rescue Committee, or in their regional committees, shall be attested by a judgment of the relevant court; ...”
59. The Law of 13 January 1994 on elections to municipal councils and city councils (Pilsētas domes un pagasta padomes vēlēšanu likums) contains similar provisions to the provisions of the Parliamentary Elections Act cited above. In particular, section 9(5) is identical to section 5(6) of that Act.
60. The procedure for obtaining a judicial statement attesting to an individual’s participation or non-participation in the above-mentioned organisations is governed by Chapter 23-A of the Code of Civil Procedure (Civilprocesa kodekss), which was inserted by a law of 3 September 1998 and is entitled “Examination of cases concerning the attestation of restrictions on electoral rights”. The provisions of that chapter read as follows:
“A request for a statement of restriction on electoral rights may be submitted by the prosecutor ...
The request must be submitted to the court in whose territorial jurisdiction is situated the home of the person in respect of whom the attestation of a restriction on electoral rights is requested.
The request may be submitted where an electoral commission has registered a list of candidates which includes ... a citizen in respect of whom there is evidence that, subsequent to 13 January 1991, he or she actively participated in the CPSU (in the CPL) ... A request concerning a person included in the list of candidates may also be submitted once the elections have taken place.
The request must be accompanied by a statement from the electoral commission confirming that the person in question has stood as a candidate in elections and that the list in question has been registered, as well as by evidence confirming the allegations made in the request.”
“After examining the request, the court shall give its judgment:
(1) finding that, after 13 January 1991, the person concerned did actively participate in the CPSU (in the CPL) ...;
(2) declaring the request ill-founded and dismissing it ...”
61. The Parliamentary Elections Act was enacted on 25 May 1995 by the first parliament elected after the restoration of Latvia’s independence, otherwise known as the “Fifth Legislature” (the first four legislatures having operated between 1922 and 1934). The following legislature (the Sixth), elected in October 1995, examined three different proposals seeking to repeal section 5(6) of the above-mentioned Act. At the plenary session of 9 October 1997, the three proposals were rejected by large majorities after lengthy debates. Likewise, on 18 December 1997, during a debate on a proposal to restrict section 5(6), the provision’s current wording was confirmed. Elected in October 1998, the following legislature (the Seventh) examined a proposal to repeal section 5(6) at a plenary session on 16 May 2002. After lengthy discussions, the majority of members of parliament refused to accept the proposal. Finally, the Eighth Legislature, elected in October 2002, examined a similar proposal on 15 January 2004. It was also rejected.
62. In a judgment of 30 August 2000 in case no. 2000-03-01, the Constitutional Court (Satversmes tiesa) found that the restrictions imposed by section 5(6) of the Parliamentary Elections Act and section 9(5) of the Municipal Elections Act were compatible with the Latvian Constitution and with Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1.
In that judgment, adopted by four votes to three, the Constitutional Court first reiterated the general principles laid down in the settled case-law of the Convention institutions in applying Article 14 of the Convention and Article 3 of Protocol No. 1. It further held:
“4. The argument that the provisions complained of, forbidding certain Latvian citizens from standing as candidates or being elected to Parliament and municipal councils, discriminate against them on the basis of their political allegiance is without foundation ... The impugned provisions do not provide for a difference in treatment on the basis of an individual’s political convictions (opinions) but for a restriction on electoral rights for having acted against the re-established democratic order after 13 January 1991 ...
Accordingly, Parliament limited the restrictions to the degree of each individual’s personal responsibility [individuālās atbildības pakāpe] in carrying out those organisations’ objectives and programmes, and the restriction on the right to be elected to Parliament or to a municipal council ... is related to the specific individual’s activities in the respective ... associations.
In itself, formal membership of the above-mentioned organisations cannot serve as a basis for preventing an individual from standing as candidate or being elected to Parliament ...
Consequently, the impugned provisions are directed only against those who attempted, subsequent to 13 January 1991 and in the presence of the army of occupation, to re-establish the former regime through active participation [ar aktīvu darbību]; on the other hand, they do not affect persons who have differing political convictions (opinions). The tendency of certain courts to concentrate solely on the finding of the fact of formal membership and not to evaluate the person’s behaviour is inconsistent with the objectives sought by Parliament in enacting the provision in issue ...
6. ... Given that those organisations’ objectives were linked to the overthrow of the existing State regime [pastāvošās valsts iekārtas graušana], they were essentially unconstitutional ...
Consequently, the aim of the restrictions on passive electoral rights is to protect the democratic State order, national security and territorial integrity of Latvia. The impugned provisions are not directed against pluralism of ideas in Latvia or against a person’s political opinions, but against those who, through their active participation, have attempted to overthrow the democratic State order ... The exercise of human rights may not be directed against democracy as such ...
The substance and effectiveness of law is demonstrated in its ethical nature [ētiskums]. A democratic society has a legitimate interest in requiring loyalty to democracy from its political representatives. In establishing restrictions, the candidates’ honour and reputation is not challenged, in the sense of personal legal benefit [personisks tiesisks labums]; what is challenged is the worthiness of the persons in question to represent the people in Parliament or in the relevant municipal council. These restrictions concern persons who were permanent agents of the occupying power’s repressive regime, or who, after 13 January 1991, participated in the organisations mentioned in the impugned provisions and actively fought against the re-established Latvian Constitution and State ...
The argument ... that democratic State order must be protected against individuals who are not ethically qualified to become representatives of a democratic State at political or administrative level ... is well-founded ...
... The removal from the list of a candidate who was involved in the above-mentioned organisations is not an arbitrary administrative decision; it is based on an individual judgment by a court. In accordance with the law, evaluation of individual responsibility comes under the jurisdiction of the courts ...
7. ... In order to determine whether the measure applied, namely the restrictions on passive electoral rights, is proportionate to the objectives being pursued, namely the protection, firstly, of democratic State order and, secondly, of the national security and integrity of the Latvian State, it is necessary to assess the political situation in the country and other related circumstances. Parliament having evaluated the historical and political circumstances of the development of democracy on several occasions ... the Court does not consider that at this stage there would be grounds for challenging the proportionality between the measure applied and its aim.
However, Parliament, by periodically examining the political situation in the State and the necessity and merits of the restrictions, should decide to establish a time-limit on these restrictions ... since such limitations on passive electoral rights may exist only for a specific period.”
63. Three of the Constitutional Court’s seven judges who examined the above-mentioned case gave a dissenting opinion in which they expressed their disagreement with the majority’s conclusions. Referring, inter alia, to Vogt v. Germany (26 September 1995, Series A no. 323) and Rekvényi v. Hungary ([GC], no. 25390/94, ECHR 1999-III), they argued that the disputed restrictions could be more extensive with regard to civil servants than to elected representatives. According to those judges, Latvia’s democratic regime and institutional system had become sufficiently stable in the years since 1991 for individuals who had campaigned against the system ten years previously no longer to represent a real threat to the State. Consequently, the restriction on those persons’ electoral rights was not proportionate to the legitimate aim pursued.
64. Prior to Latvia becoming a member of the European Union, the Latvian parliament adopted the European Parliament Elections Act (Eiropas Parlamenta vēlēšanu likums), which was enacted on 29 January 2004 and came into force on 12 February 2004. The Act contains no provision similar to section 5(6) of the Parliamentary Elections Act. Consequently, the applicant was free to stand as a candidate in the elections to the European Parliament.


ITEMID: 001-105773
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF FABRIS v. FRANCE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 14+P1-1
JUDGES: Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Jean-Paul Costa;Mark Villiger
TEXT: 5. The applicant was born in 1943 and lives in Orleans.
6. He was recognised at birth by his father, Mr F.
7. At the time of the applicant’s conception, his mother – Mrs M., née R – was married and two children had been born of that marriage: A., born in 1923, and J., born in 1941.
8. By a decree of 28 February 1967, the applicant’s mother and her husband, Mr M., were pronounced judicially separated.
9. By a deed of 24 January 1970, Mr and Mrs M. divided their property inter vivos between their two legitimate children, A. and J. Under the terms of the deed, which was signed before a notary, they retained a life interest by which the legitimate children agreed to let Mr and Mrs M. continue to enjoy possession of their property as life tenants for the rest of their lives. The deed also contained a provision for revoking the gift for the purposes of ensuring that the terms and conditions were complied with. Lastly, when the deed was signed Mr and Mrs M. declared that the two donees were their only offspring.
10. Mr M. died in 1981.
11. In a judgment of 24 November 1983 the Montpellier tribunal de grande instance declared the applicant to be the illegitimate child of Mrs M., after finding that his status of illegitimate child had been fully established.
12. The 1970 deed of inter vivos division (donation-partage) was challenged by the applicant on 26 January 1984 after it had been established in 1983 that he was Mrs M.’s son. No details have been provided regarding the outcome of that procedure.
13. The applicant’s mother died on 28 July 1994. The notary administering the estate informed the applicant by letter of 7 September 1994 that his rights were confined to the reserved portion of his mother’s estate since she had made a will bequeathing the disposable portion, that is, one quarter, to her son J. The notary told him that, as a child born of adultery, he was entitled to only half the share he would have received if he had been a legitimate child – namely, one eighth. He added that the applicant’s brother and sister, A. and J., were willing to pay him 298,311 French francs (FRF) in cash. He pointed out in that regard that in the event of the subsequent birth of a child, only a monetary abatement was possible and in no circumstances an abatement in kind. He asked the applicant to inform him whether A. and J.’s proposal was acceptable to him.
14. No agreement was reached between the three children.
15. By a writ of action dated 5 January 1998, the applicant brought proceedings in the Béziers tribunal de grande instance against the two children born of his mother’s marriage: A. and J. Relying on Article 1077-1 of the Civil Code, he sought an abatement of the inter vivos division, claiming a reserved portion of his mother’s estate equal to the share payable to his joint heirs from the assets of his mother’s estate, namely, one quarter of that estate, which was one eighth of Mr and Mrs M.’s joint estate.
16. After the Court had found against France in the case of Mazurek v. France, on 1 February 2000, France passed Law no. 2001-1135 of 3 December 2001, amending its legislation and granting children born of adultery identical inheritance rights to those of legitimate children. That new Law came into force before the dispute that is the subject of the instant case was decided. It stipulated that its provisions were of immediate application to successions were already open on the date on which it came into force. Section 25(2)(2) of the Law specified that, subject to any prior agreement between the parties or final court decision, the provisions relating to the new inheritance rights of illegitimate children whose father or mother was, at the time of their conception, bound by marriage to another person were applicable to successions that were already open on the date of publication of the Law in the Official Gazette of the French Republic and had not given rise to division prior to that date.
17. In his recapitulatory pleading of 20 February 2003, the applicant relied on the provisions of the Law of 3 December 2001. In his submission, that Law repealed the provisions of the Law of 3 January 1972 stipulating that the rights of heirs entitled as a result of that Law to a reserved portion of the estate could not be exercised to the detriment of inter vivos gifts granted prior to the date on which it came into force. He argued that as those provisions of the Law of 1972 had been repealed, he was entitled to bring an action for abatement under Article 1077-1 of the Civil Code even though the deed of inter vivos division had been signed on 24 January 1970.
18. In a judgment of 6 September 2004, the Béziers tribunal de grande instance held that the applicant was entitled to bring an action for abatement of the inter vivos division made by Mr and Mrs M. in 1970. It observed, inter alia, that section 14 of the Law of 3 January 1972, which had the effect of depriving illegitimate children of their inheritance rights where their parent had made gifts prior to the date on which that Law came into force, was contrary to Articles 8 and 14 of the Convention. The court held that that provision was also contrary to the Law of 3 December 2001, even if the latter had not expressly repealed the aforesaid section 14 of the Law of 1972. The court also found as follows:
“Section 25(1) of the Law of 3 December 2001 provides that this Law is applicable to successions already open on the date on which it comes into force; subject to any prior agreement between the parties or final court decision, the provisions of this Law are applicable to successions already open on the date of publication of the Law in the French Official Gazette where these have not given rise to division prior to that date.
In the present case there has not yet been division of Mrs M.’s estate; accordingly, the provisions relating to the new inheritance rights of illegitimate children whose father or mother was, at the time of their conception, bound by marriage to another person will apply.
Consequently, the repeal by the Law of 3 December 2001 of the provisions of the Civil Code introduced by the Law of 3 January 1972 render the new provisions incompatible with section 14 of the Law of 1972, this latter provision being already contrary to Article 14 and Article 8 of the European Convention on Human Rights.
Indeed, it cannot reasonably be argued that the legislature, in enacting the Law of 3 December 2001, intended to maintain a provision contrary to the spirit and aim of the new Law.
Mr Fabris must therefore be deemed entitled to bring an action for abatement under Article 1077-1 of the Civil Code even though the deed of inter vivos division was signed on 21 January 1970.
... This court must therefore hold, in accordance with section 1 of the Law of 3 December 2001, that Mr Fabris has the same inheritance rights as his brother and sister with regard to his mother’s estate. ...”
19. The children born of the applicant’s mother’s marriage appealed. In a judgment of 14 February 2006, the Montpellier Court of Appeal set aside the lower court’s judgment and declared that the applicant was not entitled to bring an action for abatement of the inter vivos division made on 24 January 1970 by Mr and Mrs M. between their legitimate children. It held that such a ruling was not inconsistent with the general principle of equality of rights regardless of birth, as guaranteed by Article 1 of Protocol No. 1 and Articles 8 and 14 of the Convention. It observed that the sole purpose of section 14 of the Law of 1972 was to prohibit heirs who had acquired rights to a reserved portion of the estate under that Law – and extended by the Law of 3 December 2001 – from exercising them to the detriment of inter vivos gifts granted prior to 1 August 1972, without depriving the said heirs of their inheritance rights. It considered, above all, that there was objective and reasonable justification for section 14 of the Law of 1972 in the light of the legitimate aim pursued, namely, ensuring peaceful family relations by securing rights acquired in that context – sometimes long-standing ones – without at the same time creating an excessive imbalance between heirs. It pointed out that the provisions of the impugned section 14 were of limited scope both in terms of time and the type of voluntary disposition concerned.
20. The applicant lodged an appeal on points of law. In his opinion, which was communicated to the parties, the advocate-general at the Court of Cassation recommended dismissing the appeal. He made the following submissions to the judges of the First Civil Division of the Court of Cassation:
“... The difficulty submitted for your examination does indeed arise from the different approach proposed by the transitional provisions of the Laws of 1972 and 2001. Whilst neither successions already opened, nor inter vivos gifts granted prior to the coming into force of the Law of 1972, could be challenged under that Law, the Law of 2001 allows illegitimate children whose father or mother was, at the time of conception, bound by marriage to another person to assert inheritance rights in respect of successions already open prior to publication of that Law.
That difference justifies a non-restrictive application of the provisions of the Law of 2001. Only where there has been actual division, or an agreement has been reached between the parties or a final court decision delivered can the new inheritance rights of such children be excluded where the succession has already been opened. On account of the action for an abatement, the succession already opened on the date of publication of the Law of 2001 cannot have “given rise to division” on the date of publication of that Law.
I therefore find the submission that the Law of 3 December 2001 is not applicable difficult to sustain. The terms of section 14 of the Law of 3 January 1972, however, are entirely unambiguous. Heirs who have acquired rights under this Law to the reserved portion of the estate cannot exercise those rights “to the detriment of inter vivos gifts granted before the Law came into force”. Should, then, these provisions be deemed to have been tacitly repealed?
Without having regard to the time factor, the applicant maintains in his supplementary pleadings that it must be concluded from the clear contradiction between the transitional provisions of the two Laws that those governing the Law of 1972 have been tacitly repealed. Whilst the approach is different between the transitional provisions enacted in 1972 and those enacted in 2001, they do not, however, appear to me to conflict.
By excluding any challenge to inter vivos gifts granted prior to the coming into force of the Law of 1972, the legislature intended to guarantee the legal security required by such gifts. There is nothing to justify calling that legal security into question in 2002, since the earlier transitional provisions complement those laid down by the Law of 2002.
It is on those grounds that I invite you to dismiss the first ground of the appeal: the inter vivos gift made on 24 January 1970 cannot be called into question on account of inheritance rights arising from new rules concerning the determination of filiation. In that connection, whilst it remains debatable whether there had actually been division prior to publication of the Law of 3 December 2001, the existence of an inter vivos gift granted prior to the coming into force of the Law of 3 January 1972 is not in dispute. ...”
21. The Court of Cassation dismissed the appeal in a judgment of 14 November 2007. It found that the effect of section 25(2)(2) of the Law of 3 December 2001, in the version applicable to the facts of the present case, was that, subject to any prior agreement between the parties or a final court decision, the provisions relating to the new inheritance rights of illegitimate children whose father or mother was, at the time of conception, bound by marriage to another person were applicable only to successions that were already open on 4 December 2001 and had not given rise to division before that date. It found that as there had been division on Mrs M.’s death – that is, prior to 4 December 2001 – the above-mentioned provisions were not applicable.
22. An inter vivos division (donation-partage) is a deed by which a person divides his or her property during his lifetime among all his presumptive heirs (including, since the Law of 3 January 1972, children born of adultery). The deed must be drawn up before a notary and an inter vivos division can concern only present, not future, property. All the heirs must participate in the inter vivos division. The property being divided is valued on the date of the gift, and cannot subsequently be revalued.
When making an inter vivos division, the donor determines the share of property to be distributed to his or her heirs. He or she can either divide the property into equal shares or give a larger share to one of his or her children, provided that this does not reduce the portion statutorily reserved to the heirs.
Each child is entitled to a minimum share (the “reserved portion”) in his or her parents’ estate and can bring an “action for abatement” (Article 1077-1 of the Civil Code) if the division of the estate at the time of death infringes that right.
The relevant provisions of the Civil Code read as follows:
“Anyone shall be entitled to divide and distribute his assets and his rights among his presumptive heirs.
This voluntary disposition may be made in the form of an inter vivos division or a will. It is subject to the formalities, conditions and rules prescribed for inter vivos gifts in the former case and those prescribed for wills in the latter case.”
“If not all the assets or rights left by the donor or testator on the date of his death have been included in the division, those assets or rights not included shall be assigned or distributed in accordance with the law.”
“An inter vivos division shall concern only present property.
The gift and the division can be done by separate deeds provided that the donor signs both deeds.”
23. Law no. 71-523 of 3 July 1971 introduced Articles 1077-1 et seq. of the Civil Code, instituting the possibility of an action for abatement, and came into force on 1 January 1972.
“A descendant who has not participated in the inter vivos division of the estate, or has received a lower share than his or her reserved portion, may bring an action for abatement if, when the succession is opened, there are insufficient assets not included in the division of the estate to constitute or complete his or her reserved portion, regard being had to any voluntary dispositions from which he may have benefited.”
“Inter vivos divisions are subject to the rules governing inter vivos gifts as regards determination of the amount, calculation of the reserved portion and reductions.
An action for abatement cannot be brought until after the death of the ascendant who has made the division or the surviving ascendant in the event of a division by the mother and father of their estate among all their issue. Such an action shall become time-barred five years after the death.
A child not yet conceived at the time of the inter vivos division may bring a similar action for the purpose of constituting or supplementing his or her reserved portion.”
Section 13 of the Law of 3 July 1971 provided:
“The provisions of this Law shall be directly applicable, irrespective of the date of the voluntary disposition in question, to successions opened after it comes into force. They shall also apply, subject to any contrary agreement, to estates that have not yet been liquidated, where no request for division of the estate has been lodged before 15 April 1971. ...”
24. The relevant provisions of the Civil Code, introduced by Law no. 72-3 of 3 January 1972 on filiation, provide:
“Children or their issue shall inherit from their father and mother, grandfathers, grandmothers or other ancestors, irrespective of sex or primogeniture, and even if they are born of different marriages.
The estate shall devolve upon them in equal portions and per capita if they are all first-degree issue and heirs in their own right; they shall inherit per stirpes if all or some of them inherit through their ascendants.”
“Children born out of wedlock shall, in general, inherit from their father and mother or other ancestors, as well as from their brothers and sisters or other collateral relatives, on the same terms as legitimate children.”
“Children born out of wedlock whose father or mother was, at the time of their conception, bound by a marriage of which legitimate children were born are entitled to inherit from that parent in competition with the legitimate children; however, they shall each receive only half of the share to which they would have been entitled if all the children of the deceased, including themselves, had been legitimate.
The children born of the marriage injured by the adultery shall inherit in addition the fraction by which the adulterine child’s share of the estate is thus reduced; it shall be divided between them in proportion to their share in the estate.”
Section 14 of the Law of 3 January 1972 provided:
“The inheritance rights instituted by the present Law or resulting from the new rules regarding determination of filiation shall not be exercised in respect of successions that have been opened before it came into force.
The rights statutorily reserved to heirs that are instituted by the present Law or result from the new rules regarding determination of filiation shall not be exercised to the detriment of inter vivos gifts made before it came into force. ...”
25. On 4 December 2001 Law no. 20011135 of 3 December 2001 “on the rights of the surviving spouse and children born of adultery and modernising various provisions of the law of succession” was published in the Official Gazette. It abolished any difference in treatment of illegitimate children whose father or mother was, at the time of their conception, bound by marriage to another person. Section 25 is worded as follows:
“II. - The present Law shall apply to successions that are already open as of the date provided for in I, subject to the following exceptions:
... 2o Subject to any prior agreement between the parties or final court decision, the following shall apply to successions already open on the date of publication of the present Law in the Official Gazette of the French Republic and not having given rise to division prior to that date:
the provisions relating to the new inheritance rights of illegitimate children whose father or mother was, at the time of conception, bound by marriage to another person; ...”
26. According to the case-law of the Court of Cassation, an inter vivos division is a division of property in advance by which the donor’s property is divided between the joint donees and becomes a division of an inheritance on the donor’s death (Cass. Civ. I, 5 October 1994, Bull. 1994, I, no. 27). The First Civil Division of the Court of Cassation held that where an agreed division of property was challenged before a notary the inheritance was disputed and the estate could not therefore be regarded as having been liquidated (Cass. Civ. I, 7 February 1989, Bull. 1989, I, no. 66, appeal no. 86-19.537).
27. In a judgment of 15 May 2008, delivered after the judgment that is the subject of this case, the Court of Cassation held that the provisions of the Law of 3 December 2001 relating to the new inheritance rights of children born of adultery were applicable to a succession opened before 1 August 1972 where this had not given rise to a division prior to 4 December 2001. In that case, which concerned Polynesia, the succession had opened in 1962 (Cass. Civ. I, 15 May 2008, Bull. 2008, I, no. 139, appeal no. 06-19.331). The court gave the following reasons for its judgment:
“Tafae X... died on 11 September 1962 leaving provision in his will for Mr Etienne F..., his son adopted under Tahitian law, as universal legatee, with a condition that he care for the two children conceived whilst he was bound by marriage to a person other than their mother: Mr Monoihere X... and Rita X..., the latter deceased on 19 April 1996, and whom he had recognised after the death of his wife. During the proceedings brought by Mr F... for recognition of his ownership of a plot of land known as “Atioro”, situated in Teahupoo, which he claimed belonged to Tafae X... and for division of that land into three shares, Mr Monoïhere X ... sought an abatement of the legacy on grounds of an infringement of the rights of the heirs entitled to a reserved portion of the estate.
In dismissing Mr X’s claim, the Court of Appeal noted that the children born of adultery prior to the date on which the Law of 3 January 1972 came into force had no inheritance rights in respect of their parent’s estate, so had no legal basis for disputing the legacy left by Tafae X ... to Mr Etienne F ....
In ruling thus, whereas the provisions relating to the new rights of children born of adultery were applicable to Tafae X’s estate ... as the division had not been made before 4 December 2001, the Court of Appeal, which added a condition to the Law not contained therein, infringed the above-mentioned provisions.” ...
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-105289
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF IPATE v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 5. The applicant was born in 1971 and lives in Chişinău.
6. According to the applicant, he was in pre-trial detention in Prison no. 13 in Chişinău (previously known as Prison no. 3) when he was approached on 2 May 2006 by a prison officer and requested to move to cell 121. The applicant refused to do so until he was given an explanation for the reason for his transfer.
7. On 3 May 2006 three officers approached him and requested him to follow them. As they reached cell 121 he was ordered to go into that cell, which was empty. He refused, asking for an explanation from the prison administration, but was then allegedly assaulted by the officers, helped by two other staff members, who punched and kicked him and hit him with rubber truncheons, then banged his head against the wall, causing him severe pain. They swore at him and told him that they were fed up with his complaints about various alleged violations of his rights. When he could no longer resist, he was pushed into cell 121, where he ran to the window and broke it, took a piece of glass and slit his wrist in the hope that that would stop the ill-treatment and would ensure a visit from a doctor. However, the assailants continued to beat him up in the cell, and then took him to a psychiatrist.
8. According to the Government, the applicant refused all medical assistance on 3 May 2006. According to the applicant, he refused assistance from the doctors of Prison no. 13, who were his attackers’ colleagues and could not be trusted to be independent and impartial in their findings.
9. On 4 May 2006 the applicant complained to the governor of Prison no. 13 that he had been ill-treated by prison staff and asked to be seen by medical experts and by representatives of Amnesty International. He declared himself to be on hunger strike until those visits took place. On the same day, the prison administration informed the Ministry of Justice that the applicant was on hunger strike and of the reasons for that form of protest, namely a request to be visited by Amnesty International and a medical expert.
10. On 5 May 2006 the applicant’s complaint of ill-treatment was registered with the Prosecutor General’s Office.
11. On 12 May 2006 the applicant stopped his hunger strike, informing the prison administration that the reason was his poor state of health. He referred to the failure to allow him to be seen by a medical expert or Amnesty International. On the same day, the prison administration informed the Ministry of Justice that the applicant had stopped his hunger strike.
12. Also on 12 May 2006 the applicant complained to the Ministry of Justice that he had been ill-treated. In reply, the head of the Prison Department of the Ministry of Justice informed the applicant that his complaint had been examined and found to be untrue. In fact, owing to his refusal to comply with the lawful order to move to cell 121, he had been taken there after being handcuffed.
13. On 15 May 2006 the applicant was transferred to Criuleni police station so that he could attend a hearing of his criminal case on 18 May 2006 in that town. Excerpts from his medical file from his stay in that prison included the following statements:
On 16 May 2006: multiple cuts on his left hand; the applicant complains of pain in the thoracic region and the back; need for an examination by a traumatology doctor and a neurologist and for an X-ray of the thoracic region.
On 21 May 2006: the patient declares that three weeks ago he was ill-treated by the staff of Prison no. 3 in Chişinău, when he was kicked in the ribs and liver. At present he complains of pain in the region of ribs nos. V-IX on the right side, with greater pain when breathing in or during physical effort. Recommendation: X-ray of the thoracic region in order to exclude broken bones.
On 26 May 2006: the applicant complains of pain in the left leg, where there is a brownish-grey haematoma measuring 14 x 7cm. On the left hand there is a haematoma measuring 3 x 2 cm and a moderately severe graze measuring 3.2 x 0.2 cm covered with a brown-red crust under the skin.
14. During the court hearing on 18 May 2006 the applicant complained of ill-treatment on 3 May 2006 and asked to be seen by a medical expert to have his injuries confirmed. The court decided to request the doctor from the Criuleni police station to examine the applicant. It also instructed the applicant to ask for a medical examination at Prison no. 13 on his return there.
15. On 30 May 2006 the applicant made another complaint of ill-treatment to the Prosecutor General’s Office. He mentioned, inter alia, his request to be seen by a medical expert, which had been refused. He also stated that he had at least seven witnesses who could confirm his statements.
16. According to excerpts from the applicant’s medical file in Prison no. 13, on 3 May 2006 a medical report was produced which stated “the applicant categorically refused to undergo a medical examination”. On 30 June 2006 another medical report was produced, which stated that the applicant had six cuts on his hand.
17. According to documents submitted by the Government, the applicant is considered a violent person prone to conflicts with the prison administration and other detainees, due to which conduct he has been disciplined on many occasions. One such disciplinary measure was applied in February 2006, after the applicant had attacked another detainee. All other disciplinary measures concern the events of 3 May 2006 and thereafter. In their subsequent observations, the Government acknowledged that a number of the decisions to discipline the applicant had been overturned, on procedural grounds, by the courts.
18. On 15 August 2006 the prosecutor’s office informed the applicant that on 14 August 2006 it had decided not to initiate criminal proceedings concerning his complaint of ill-treatment, since no crime had been committed.
19. On 4 December 2006 Criuleni District Court overturned the prosecutor’s decision of 14 August 2006 and ordered a re-examination of the case by the prosecutor. The court found, inter alia, that the prosecutor had not heard detainees identified by the applicant as having witnessed the ill-treatment. Moreover, no request had been made to Criuleni police station for the medical documents concerning the injuries noted on the applicant’s body when he was transferred to that prison on 15 May 2006.
20. On 2 February 2007 the prosecutor adopted another decision, refusing to initiate a criminal investigation into the applicant’s alleged ill-treatment. He noted that the applicant’s complaint had been received on 28 July 2006. He relied on the medical documents produced in Prison no. 13, which did not confirm the applicant’s allegation of ill-treatment on 3 May 2006. He also referred to the fact that the applicant was considered hostile to the prison administration, for which attitude he had been punished many times. Moreover, his resistance to the lawful orders of the prison staff on 3 May 2006, during which he had threatened the lives of prison staff, was the subject of an ongoing criminal investigation.
21. On 3 May 2007 the applicant asked the governor of Prison no. 13 for the video recording of the events of 3 May 2006. He submitted that he had made similar requests on 18 September, 30 October and 13 November 2006, but had received no response.
22. On 8 June 2007 Rîşcani District Court quashed the decision of 2 February 2007, finding that the prosecutor had disregarded the court decision of 4 December 2006 by failing to ask for the medical documents and not hearing the witnesses identified by the applicant. Moreover, the applicant had submitted transcripts of court hearings during which those witnesses had confirmed the applicant’s statements concerning ill-treatment. The court ordered a re-examination of the case by the prosecutor.
23. On 13 July 2007 the prosecutor adopted another decision, refusing to initiate a criminal investigation into the applicant’s alleged ill-treatment. The prosecutor relied on the same arguments as those in his decision of 2 February 2007. In addition, he referred to two witnesses (A.F. and I.C.) who had declared that they and others had been asked by the applicant to sign a petition declaring that they had witnessed his ill-treatment. They had not seen any ill-treatment, but had signed “to do him a favour”. Since the applicant was being examined by a psychiatric panel, it had been impossible to obtain further details from him.
24. On 15 November 2007 Rîşcani District Court rejected the applicant’of the staff of Prison no. 13 and examining the applicant’s medical reports from that prison. Also, two witnesses (referred to in the previous paragraph) stated that they and everybody else in the cell had signed the petition supporting the applicant to do him a favour, but they had not seen any ill-treatment. One of them added that he had been in a cell near cell 121 and had heard screams, which had made him think that the applicant had been ill-treated, but he had not witnessed any ill-treatment. As for the alleged ill-treatment at Criuleni police station, that had already been investigated in a previous case and did not need to be investigated again.
25. Moreover, the applicant was considered hostile to the prison administration, an attitude for which he had been punished many times. In addition, his resistance to the lawful orders of the prison staff on 3 May 2006, during which he had threatened the lives of prison staff, was the subject of an ongoing criminal investigation.
26. On 2 May 2007 the applicant complained to the governor of Prison no. 13, asking for access to the video recordings made on 3 May 2006. In reply he was informed that such video materials were routinely destroyed thirty to forty-five days after the day of filming.
27. On an unknown date after the events on 3 May 2006 mentioned above, a prosecutor initiated criminal proceedings against the applicant for threatening officers of Prison no. 13 with violence. That case was joined with another case against the applicant, in which he was accused of murder.
28. During court hearings on 1 December 2006 and 16 and 18 January 2007 six witnesses were heard, who had been detainees in Prison no. 13 at the time of the events. Witness M.I. stated that he had been detained in cell 123b near cell 121, and had seen the applicant being kicked while on the ground by several prison staff members. He did not hear the applicant swear or throw anything; he had only been shouting at them to stop beating him and asking to be seen by the prison governor. Some ten detainees in his cell signed a petition in which they confirmed the applicant’s ill-treatment. Thereafter the prison staff started intimidating them. M.I. was personally threatened to induce him to declare that he had not seen anything.
29. Witness V.Gh. was detained in Criuleni police station when the applicant was detained there in a neighbouring cell. He could see the applicant when the latter was taken to the toilet, half naked, and saw that the applicant had several “apple-size” haematomas on his body.
30. Witness P.I. stated that on 3 May 2006 he was returning together with other detainees from outside the prison under escort and saw a detainee on the floor of cell 121, covered in blood, and being kicked by five or six prison officers. In the evening he was able to approach cell 121 and ask the person inside whether he needed anything. The person replied that he needed to be seen by a doctor. However, when P.I. told the doctor about that, the latter replied that he had been ordered not to go to cell 121. Another staff member then told him that the applicant was in cell 121.
31. Witness Z.Gh. stated that he had seen the applicant being taken somewhere by two prison staff members, with his hands behind his back, his face almost on the ground, and being beaten on the way.
32. Witness G.I. stated that he had been transferred to Criuleni police station on the same day as the applicant, and that they were placed together in the same cell. The applicant then told him about the ill-treatment and showed the signs of ill-treatment on his body. He was in a bad shape and could not sleep.
33. Witness S.N. had not seen the applicant in the relevant period and had only heard from another detainee that the latter had witnessed the applicant’s ill-treatment.
34. On 29 March 2007 the applicant was convicted of the murder of one person and the attempted murder of another. He was also convicted of threatening with violence five officers of Prison no. 13 who had been escorting him to another cell. In this latter respect, the court summarised the witness statements made by various prison officers and detainees (see paragraphs 28-33 above). The court considered that the detainees who had confirmed the applicant’s statements concerning his ill-treatment by the prison officers who accused him of threatening them, had made the statements to protect the applicant from criminal liability.
35. On 6 December 2007 the Chişinău Court of Appeal upheld the lower court’s judgment. In respect of the events of 3 May 2006 the court referred to the applicant’s punishment for breaching prison regulations on 3 May 2006 and the results of the medical examination of some of the staff attacked by the applicant on that day. It considered, like the lower court, that the statements by other detainees had been made with the aim of helping the applicant avoid criminal responsibility. The court added that the applicant’s complaints of ill-treatment had been the subject of a separate investigation, and that similar complaints were being examined.
36. On 16 April 2008 the Supreme Court of Justice upheld the lower courts’ judgments. That judgment was final.
37. On 20 October 2007 the applicant lodged a civil court action against Prison no. 13, the Prisons Department, the Prosecutor General’s Office and the Ministry of Finance, asking them to determine that he had been ill-treated on 3 May 2006 in Prison no. 13, and claiming damages.
38. On 22 May 2008 Botanica District Court rejected the applicant’s action as unfounded, finding that he could not claim any compensation without a criminal conviction of the prison officers he had accused of ill-treatment. During the hearing on that day the applicant noted that the prosecutor had been well aware of the existence of video materials, as well as that they had been destroyed very soon afterwards, but had done nothing to obtain the materials in order to substantiate his complaint of ill-treatment. In reply, a prosecutor representing the Prosecutor General’s Office informed the court that the prosecution had been aware of the fact that Prison no. 13 was under video surveillance, but had decided at that time that video recording was not necessary in view of the other materials in the file, which were sufficient to adopt a lawful decision. Moreover, the materials had been destroyed by the time the verification had taken place.
39. On 15 December 2008 the Chişinău Court of Appeal upheld the first-instance court judgment.
VIOLATED_ARTICLES: 3