ITEMID: 001-102666
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: M.S. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The applicant, M. S., is a British national who was born in 1970. He was represented before the Court by Mr P. Carlin, a solicitor with ScottMoncrieff, Harbour & Sinclair, a London law firm. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Moynihan, of the Foreign and Commonwealth Office, London.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant was born in 1970. At the time of filing his application, he was resident in a psychiatric clinic. According to an expert report drawn up during the domestic proceedings in this case, the applicant had been diagnosed as mentally impaired and, prior to the facts giving rise to this case, had been admitted to psychiatric hospitals twice. He also had a number of convictions against him, including for indecent assault, burglary and theft.
4. In the early hours of 6 December 2004, police were called out to deal with the applicant, who was sitting in a car sounding its horn repeatedly and behaving in a highly agitated manner. He was arrested at 4.20 a.m. and transferred to a police station, where it was noted that he was clearly suffering from some form of mental illness and that a doctor would be required. His detention was authorised under section 136 of the Mental Health Act 1983 (see § 24 below). The police also went to the applicant’s address, where they found his aunt with serious and extensive injuries to her face and upper body, which had been inflicted by the applicant. She was taken to hospital where a medical examination revealed cracked ribs and a collapsed lung.
5. The applicant was examined in his cell at approximately 5 a.m. by the Forensic Medical Examiner, Dr Thompson. In view of the applicant’s behaviour, speech and appearance, he assessed him as not fit to be interviewed or charged with any criminal offence. A formal assessment under the Mental Health Act was requested. This was done at approximately 7 a.m. by the psychiatric specialist registrar on call, Dr Onyon. He concluded that the applicant was suffering from a mental illness of a nature or degree warranting detention in hospital in the interests of his health and safety and for the protection of other persons.
6. A second assessment was carried out shortly after 11 a.m. by another psychiatric specialist, Dr. O’Donnell. He too advised that the applicant be formally admitted to hospital for assessment. He also advised that the applicant be observed via closed circuit television, since the presence of a police officer outside his cell was causing him to become agitated. For the remainder of his time at the police station, the applicant remained under continuous observation by this means.
7. At around midday, the applicant was visited by an approved social worker, Mr Greaves. He was also seen by a community psychiatric nurse, Mr Joye. Both noted that the applicant was displaying clear signs of mental illness. The social worker filled out the relevant form for admission to a mental hospital, omitting just one point, the name of the establishment, which had yet to be determined.
8. At around 3 p.m. two members of staff from a local psychiatric intensive care unit stated that their establishment would not be able to admit the applicant and advised that he be referred to Reaside Clinic, which had a medium secure unit. The police thereupon contacted Reaside to inform them of the situation. Shortly after 6 p.m., Dr Maganty, a consultant forensic psychiatrist at Reaside, called back and was informed of the situation concerning the applicant. According to the custody record, he stated that someone would be sent over from the clinic. According to Dr Maganty’s own notes on the situation, which the Government have provided, he then consulted with a number of colleagues. Believing that the applicant would be charged and remanded in custody and that an assessment from Reaside would be required only afterwards, they considered that there was no need for their involvement before such time. At 7.24 p.m. the police received a call from Reaside informing them that the clinic would not be sending anyone to the station, but would liaise with the social worker.
9. The custody record for the applicant’s first day at the police station refers at several points to his disturbed behaviour: clapping loudly, shouting, banging on the door, lowering his trousers and waving his testicles about, and licking the wall of his cell. Dr Thompson noted that the applicant repeatedly hit his head against the wall, causing himself bruising. He was provided with and accepted food and drink at intervals throughout the day.
10. The next day, 7 December, there were further telephone contacts between the police station and Reaside regarding the applicant’s case. The police also contacted other mental health officials, but Reaside remained the only viable arrangement. During the morning Dr Maganty spoke with the duty solicitor of the Crown Prosecution Service, who informed him that should there be any evidence of the applicant assaulting his aunt then he would be charged and remanded in custody. In the event of no charge being brought, they agreed that the matter would be referred back to the doctor and social worker who had assessed the applicant the previous day. In discussion with the clinical director of Reaside, Dr Maganty noted that at that point there was no immediate action to be taken. He was later told by Dr Onyon that the applicant would be charged with assault, and arranged an appointment to assess the applicant on 9 December at HMP Birmingham.
11. An entry in the custody record at 1.46 p.m. states that the duty solicitor of the Crown Prosecution Service had concluded that there was insufficient evidence to charge the applicant. An entry at 5.01 p.m. states that there was an “internal argument” between doctors and the social services regarding the applicant. At 8.41 p.m. an entry was made in the custody record expressing concern and frustration at the lack of progress in relation to the applicant.
12. The applicant’s behaviour was observed to deteriorate over the course of the day. By midday he had removed all of his clothing. Later he drank water from the bowl of the toilet in his cell. He accepted three meals, in the early morning, mid-morning and in the mid-afternoon. He accepted a drink at 4.17 p.m., but, according to the custody record, refused all further offers of food and drink for the remainder of the day.
13. On the third day of the applicant’s detention, 8 December, the duty Inspector made an entry in the custody record at 8.53 a.m. noting his concern at the environment in which the applicant was detained, given his obvious illness. The applicant was still naked and was observed during the morning rocking to and fro on a bench, talking to himself, banging his chest and ranting.
14. Dr Maganty arrived at the police station shortly before 11 a.m., accompanied by other mental health professionals from Reaside to assess the applicant. The police refused to open the door of the applicant’s cell on the ground that this would endanger everyone’s safety. The assessment was conducted through the hatch. Dr Maganty noted that the applicant appeared agitated and was shouting loudly, and that his naked body appeared to be smeared with food or faeces. The applicant was elated, and his speech was incoherent at times. Dr Maganty concluded that the applicant was clearly unwell and required inpatient treatment in a medium-secure setting with adequate nursing resources and a clear and effective care plan. He also advised that the applicant be charged so that he could be dealt with under the criminal justice and mental health systems. The police indicated that their advice from the Crown Prosecution Service was that there could be no charge at that point in time, given the impossibility of interviewing the applicant. Dr Maganty said he would endeavour to get a place for the applicant at Reaside, although it would not be possible to receive him there until the following morning, i.e. beyond the 72-hour limit laid down by the Mental Health Act. That afternoon, the Chief Superintendent spoke to the Medical Director of Reaside, who agreed to receive the applicant the same evening.
15. Informed of this, Dr Maganty discussed the situation with nursing staff at Reaside. He was informed that the resources needed to admit the applicant could be made available for the following morning at 8 a.m. at the earliest. He considered that an admission in the middle of the night, i.e. just before the expiry of the permitted period of detention, would pose unmanageable risks for all concerned. He suggested to the Chief Superintendent that the applicant could be transferred to Reaside at the end of the 72-hour period, but that police assistance would be required to maintain him in safe conditions until it was possible to admit him. He was informed that the presence of the police could not be guaranteed for the whole period.
16. At 7.46 p.m. a call was received from Reaside to say that the applicant could not be taken until the following morning. Late that night, an Approved Social Worker from Reaside came to the police station to complete the necessary forms for the application’s admission under the Mental Health Act.
17. The applicant was provided with food and drink at 8.18 a.m., and further drinks of water during the day (9.34 a.m. and 2.28 p.m.). At the end of the afternoon a meal was not offered because the applicant was sleeping. He requested food at 7.08 p.m., which was provided but which he dropped on the floor. He refused an offer of a meal and a drink at 10.56 p.m.
18. On the fourth day, 9 December, the applicant was released from police custody at 7.27 a.m. and escorted, in handcuffs, to Reaside. According to the Government, it took eight members of the nursing staff to restrain him once admitted. He was assessed as having pressure of speech, flight of ideas, a labile mood, thought disorder and persecutory delusions. The diagnosis of a manic episode with psychotic features was made. The applicant was put into seclusion and given rapid tranquilisation on account of his bizarre behaviour and aggressive, threatening manner. He received continued medication in the following days and showed sustained improvement.
19. On 5 June 2006, the applicant lodged claims against the Birmingham and Solihull Mental Health NHS Trust for negligence, for breaches of Articles 3 and 8 of the Convention, and for misfeasance in public office. The defendant applied for summary judgment on the ground that the applicant had no real prospect of succeeding. A hearing was held on 14 March 2007 before District Judge Knifton. The applicant’s counsel submitted a report prepared by another Consultant Forensic Psychiatrist, Dr Exworthy, who had not interviewed the applicant but had reviewed the relevant documents. Dr Exworthy considered that Dr Maganty should have assessed the applicant within 24 hours of being made aware of the situation, since by that stage the applicant had been detained for about 12 hours. The delay in assessing him and in admitting him to Reaside had in turn delayed the applicant’s treatment and recovery.
20. The judge granted the order for summary judgment. He held that although the defendant had owed the applicant a duty of care, and that that duty had been breached, it had not caused the applicant any physical or psychological injury. The action in negligence therefore failed at causation and loss. In any event, any loss had been absolutely minimal. A delay of 31 hours in the hospitalisation of the applicant could only lead to minimal damages. The judge also rejected the claim based on the Human Rights Act on the grounds that Dr Maganty could not be seen as a public authority for the purposes of the Act, and that the situation did not meet the minimum level of severity inherent in Article 3 of the Convention. The applicant’s claim for damages based on Article 8 of the Convention was also dismissed, the judge finding that this was not an exceptional case in which compensation would be justified. The claim for misfeasance in public office could only succeed if the applicant could show complete and reckless disregard on the part of the defendant, which he had not done.
21. The applicant was granted permission to appeal. The case was heard at Birmingham County Court by His Honour Judge McKenna, who dismissed the appeal in a judgment of 14 November 2007. The judge described the applicant’s claim in negligence as “hopeless”, there being no details in the medical evidence submitted of any physical or psychiatric injury caused to the applicant. It was unrealistic to suggest that a delay of a number of hours (the applicant’s counsel having conceded that the delay was considerably less than 31 hours) in some way caused that number of hours of psychosis.
22. In relation to the claim under the Human Rights Act, the judge considered that Dr Maganty should be viewed in that context as a “public authority”. However, the claim failed because the situation did not fall within Article 3. The applicant had been lawfully detained and his basic needs had been met. The fact that he had spent an extra 12-24 hours at the police station did not make the situation so appalling as to breach Article 3. The judge found that there had been no breach of Article 8 because there had been no arbitrary or deliberate interference with the applicant’s rights. As regards the claim for malfeasance, he concurred with the decision of the District Judge.
23. In light of these findings, the applicant’s legal representatives were obliged to advise him that legal aid would not be available for him to appeal the decision further.
24. Section 136 of the Mental Health Ac provides:
“Mentally disordered persons found in public places.
(1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135 above.
(2) A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care.”
A “place of safety” is defined in section 135(6) as follows:
“In this section “place of safety” means residential accommodation provided by a local social services authority..., a hospital as defined by this Act, a police station, an independent hospital or care home for mentally disordered persons or any other suitable place the occupier of which is willing temporarily to receive the patient.”
25. The Code of Practice issued under the Mental Health Act 1983 provided at the relevant time:
The place of safety
10.5 The identification of preferred places of safety is a matter for local agreement. However, as a general rule it is preferable for a person thought to be suffering from mental disorder to be detained in a hospital rather than a police station. Regard should be had to any impact different types of place of safety may have on the person held and hence on the outcome of an assessment. Once the person has been removed to a particular place of safety, they cannot be transferred to a different place of safety.
...
10.8.c. Where a police station is used as a place of safety speedy assessment is desirable to ensure that the person spends no longer than necessary in police custody but is either returned to the community or admitted to hospital.


ITEMID: 001-70179
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF AKAR AND BEÇET v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (composition of state security court);Not necessary to examine remainder;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and Convention proceedings
TEXT: 5. The applicants were born in 1971 and 1975 respectively and live in Istanbul.
6. On 11 March 1996 the Küçükyalı Police Station was informed that a poster with a bomb had been hung over the Küçükyalı Bridge. Following their arrival at the bridge, the police found a cloth-poster of 2x1 metres on which it was written “We have and will demand the account of Gazi, MLKP”, (Gazinin hesabını sorduk, soracağız, MLKP). According to the police report, the box looked as if it contained a bomb. However, it did not.
7. On 12 March 1996 the first applicant was arrested and taken into police custody on suspicion of her involvement in the hanging of the poster. On 19 March 1996 she was brought before the public prosecutor’s office at the Istanbul State Security Court and before the Istanbul State Security Court. The court remanded her in custody.
8. On 12 June 1996 the second applicant was arrested and taken into police custody on suspicion of his involvement in the above-mentioned incident. On 18 June 1996 he was brought to the public prosecutor’s office at the Istanbul State Security Court and before Istanbul the State Security Court. The court remanded him in custody.
9. On 26 March 1996 and 20 June 1996 respectively, the public prosecutor at the Istanbul State Security Court filed a bill of indictment with that court accusing the applicants of aiding and abetting an illegal organisation, namely the MLKP. The public prosecutor requested that the applicants be convicted and sentenced under Article 169 of the Criminal Code and Article 5 of Law no. 3713.
10. On 1 April 1996 the Istanbul State Security Court commenced the trial of the first applicant together with other co-accused.
11. On an unspecified date, the first and second applicants’ case files were joined and they were tried before the Istanbul State Security Court along with four other suspects accused of the same offence.
12. On 23 October 1997 the Istanbul State Security Court, relying on the statements given by the applicants and the other suspects to the police, the public prosecutor and the court, convicted the applicants as charged and sentenced them to three years and nine months’ imprisonment.
13. Following a hearing held on 21 June 1999, the Court of Cassation dismissed the applicants’ appeal and upheld the judgment of the Istanbul State Security Court. On 21 July 1999 the judgment of the Court of Cassation was deposited with the registry of the Istanbul State Security Court.
14. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002), and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-96353
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GOLUBEVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 2 (procedural aspect);Violation of Art. 2 (substantive aspect);Pecuniary damage - award;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni
TEXT: 7. The applicant was born in 1930 and lives in the town of Biysk in the Altayskiy Region.
8. The applicant stated that the residents of her block of flats were embroiled in a conflict with a group of teenagers who frequently gathered in front of the building to drink alcohol, litter the yard and make noise until late at night.
9. On 24 August 1999 several residents, including the applicant and her partner Mr Sh., tried to disperse the teenagers. A quarrel followed. One of the teenagers swore at them. Mr Sh. retorted that “youngsters like these should be killed”. The teenagers ran immediately to the nearby police station where they complained that Mr Sh. had threatened them with a gun and had fired a shot at them.
10. Several minutes later several police officers came running to the spot and required that Mr Sh. surrender his gun. They were drunk. Mr Sh. denied having a gun. The applicant told him to go home and he left. The policemen did not attempt to stop him.
11. After a while the police officers decided to arrest Mr Sh. and rang his doorbell. Mr Sh. refused to open it. The neighbourhood police officer (участковый) Mr T. was determined to get into the apartment through the balcony and called the fire brigade, which brought an extension ladder.
12. Mr T. and another police officer, Mr K., climbed the ladder and broke the balcony window. The applicant heard two shots. She believed that Mr T. had fired the first shot at Mr Sh. and then fired in the air. When she entered the flat she saw that Mr Sh. was dead.
13. At about 5 p.m. on 24 August 1999 the neighbourhood police officer Mr T. heard a gunshot and saw several teenagers running towards him. They said that a man had just fired a shot at them and pointed at Mr Sh. He saw Mr Sh. give something to the applicant, who then entered the building. He ran after her and made her come back. At that time other police officers arrived on the scene.
14. Mr Sh. behaved aggressively, in particular brandishing a shovel at the police officers, and Mr T. thought that he was drunk. He ordered Mr Sh. to surrender his gun. Mr Sh. denied having any weapon. Mr T. wanted to search him but was prevented from doing so by other residents of the block of flats. Mr Sh. took advantage of the situation and escaped to his flat. He locked the door and refused to let Mr T. in. Mr T. asked the applicant to open the door or give him the key, but she refused.
15. Mr T. asked one of the police officers to watch the door. He then called the police officer on duty and asked for instructions. The police officer instructed him to force the door open and arrest Mr. Sh. As he was unable to force the door open, Mr T. decided to get into the flat through the balcony and asked the officer on duty to call the fire brigade. At that moment a patrol team arrived at the scene.
16. Once the fire brigade had arrived, Mr T. and a police patrol officer Mr K. climbed the extension fire ladder. Mr Sh. attempted to prevent them from entering the balcony. He threatened to kill them and brandished a gun-like object. Mr T. ordered Mr Sh. to lay down his weapon, warned him that he would shoot and fired in the air. Mr Sh. hit Mr T. on the head with the heavy metal object he was holding. Mr K., who was standing behind Mr T. on the ladder, saved him from falling from the third floor. When Mr Sh. attempted to hit Mr T. a second time, Mr T. shot at Mr Sh., fatally wounding him. The police officers carried Mr Sh. into the bedroom and immediately called an ambulance. The doctors certified Mr Sh. dead and examined Mr T.
17. The Interior Department of the Altayskiy Region conducted an internal inquiry into the incident. Having inspected the scene of the incident and having questioned the police officers involved, it established the following facts:
- Mr T. and other police officers believed that Mr Sh. was armed as they had heard a gunshot and witnesses had stated that he had fired at them;
- Mr Sh. had been aggressive and apparently drunk;
- the residents of the block of flats prevented Mr T. from searching Mr Sh. and, by retaining the police officers, gave him an opportunity to escape to his flat;
- Mr T. called the police station of the Vostochniy District of Biysk for instructions. The police officer on duty, Major D., told him to call the Biysk police station;
- Mr T. called the Biysk police station. The police officer on duty, Major P., ordered him to force the door open and arrest Mr Sh. Mr T. explained to Major P. that he would be unable to force the door open as he did not have the requisite equipment. He further stated that it would be possible to access the flat through the balcony. Major P. called a fire brigade;
- After Mr T. and Mr K. had climbed up an extension fire ladder, Mr Sh. barred their access to the balcony and brandished a gun-like object at them;
- Mr T. ordered Mr Sh. to put down his weapon and fired a warning shot in the air;
- Mr Sh. hit Mr T. on the head and nearly threw him down from the third floor. After Mr Sh. had attempted to hit Mr T. a second time, Mr T. fired at him;
- The police officers called an ambulance. The ambulance doctors established that Mr Sh. was dead and that Mr T. had concussion.
18. In his report of 23 September 1999 an acting head of the Interior Department of the Altayskiy Region concluded that Mr T. had acted in compliance with the rules governing the conduct of the police. The use of weapon had been justified by the circumstances and lawful in accordance with section 15 (1)(2) of the Police Act. On the other hand, he found that the casualty had occurred as a result of negligence on the part of the officers on duty, Major D. and Major P., who had not recorded the information received from Mr T., had not informed their superiors about the on-going incident and had not sent reinforcements to Mr T. He ordered that Major D. be demoted and Major P. be reprimanded. He further reprimanded the head of the police station of the Vostochniy District of Biysk and the head of the Biysk police station for unsatisfactory training and poor discipline of their subordinate officers.
19. On 24 August 1999 the prosecutor's office of the Priobskiy District of Biysk opened criminal proceedings in respect of Mr Sh.'s resistance to the police.
20. On the same day the prosecutor's office inspected the flat and seized a metal pestle stained with blood. No gun was found in the flat.
21. On 25 August 1999 the case was transferred to the prosecutor's office of the Vostochniy District of Biysk. The prosecutor's office inspected the flat anew and seized a cartridge case.
22. On 25 August 1999 the experts performed an autopsy on Mr Sh.'s body. They noted a gunshot wound to his chest and several bruises and abrasions to his body and head. The experts described Mr Sh.'s position at the moment of the shot and the trajectory of the bullet. They concluded that the wound had been fatal. They further stated that it was highly probable that the bruises and abrasions on Mr Sh.'s face had been the result of his falling and hitting a hard object, while the bruises on his wrists, right arm, chest and right buttock had been caused as a result of his being gripped and dragged. All injuries had been inflicted shortly before the death, most likely while he was dying. The level of alcohol in Mr Sh.'s blood and urine showed that he had been moderately intoxicated.
23. On 7 October 1999 an expert examined Mr T.'s medical record. He noted that on 24 August 1999 Mr T. had been taken to hospital, where he had remained until 7 September 1999. He had been diagnosed with an injury to his head and concussion. The expert concluded that the injury could have been received on 24 August 1999. He also noted that there was no indication of alcohol intoxication in Mr T.'s medical record.
24. On 22 October 1999 experts carried out blood group tests. The tests revealed that the blood on the pestle could have been Mr Sh.'s. It could not have been Mr T.'s.
25. On 26 October 1999 a ballistic examination was performed.
26. The prosecutor questioned Mr T. and the applicant, who gave their versions of the incident. One of the teenagers was also questioned. She testified that Mr Sh. had been in possession of a gun and had fired at her and her friends.
27. On 24 October 1999 the prosecutor's office of the Vostochniy District discontinued the criminal proceedings, those against Mr Sh. because he was dead, and those against Mr T. for the absence of corpus delicti in his actions.
28. On 23 November 1999 the decision was annulled by a supervising prosecutor, who transferred the case to the prosecutor's office of Biysk and ordered an additional inquiry.
29. In the course of the additional inquiry the prosecutor questioned police officer Mr K. and other police officers who had participated in the incident of 24 August 1999. They confirmed Mr T.'s testimony.
30. The teenagers testified unanimously that Mr Sh. had threatened them with a gun and had fired at them. They also stated that Mr Sh. had quarrelled with the police officers and had brandished a shovel at them.
31. The residents of the applicant's block of flats testified that Mr Sh. had not had any weapon and had not fired at the teenagers. The policemen who had been called by the teenagers had been drunk and had behaved rudely. When Mr Sh. had expressed his intention to leave, the policemen had not tried to stop him. However, subsequently they had decided to enter his flat through the balcony and arrest him. Although all the residents had assured them that Mr Sh. did not present any danger and had urged them to postpone the inquiry into the incident until the following morning, the police officers persisted in their attempt to arrest Mr Sh. immediately. In the witnesses' opinion climbing onto the balcony had been inopportune and unnecessary. They had all heard the police officer fire two shots. Some of them stated that the first shot had been aimed at Mr Sh. and the second in the air.
32. One of the applicant's neighbours, Mr G., stated that on 24 August 1999 he had been in his flat. He had heard a gunshot and looked out of the window. He had seen a man chasing a group of teenagers. A police officer had appeared and tried to arrest them. However, several women had prevented the police officer from approaching the man who had escaped to his flat. He had then seen two police officers climbing an extension ladder and attempting to access the balcony of the man's flat. He had heard one of the policemen shout a warning, fire in the air and, several moments later, fire a second shot. The police officer had then accessed the balcony. Mr G. was sure that the first shot had been fired in the air but he could not tell what the direction of the second shot had been. He stated firmly, however, that both shots had been fired while the police officer was still on the ladder and not yet on the balcony.
33. The prosecutor's office also questioned Major D. and Major P., who had been on duty on 24 August 1999 and had given instructions to Mr T. on the telephone. They denied giving any orders to Mr T. They had had the impression that Mr T. was strongly convinced that Mr Sh. was armed. They had offered to send reinforcements, but Mr T. had declined. Mr T. had asked for permission to enter the flat through the balcony, and that permission had been given to him.
34. The prosecutor studied the ambulance records. Mr T. had been examined by the ambulance doctors who had been called to the scene on 24 August 1999. The records did not contain any indication that he had been intoxicated.
35. Finally, the prosecutor questioned a ballistic expert who described the bullet trajectory. In particular, she stated that the bullet had gone upwards then ricocheted to the right and back. She also affirmed that a forensic simulation of the incident on the balcony would be inconclusive. It would be impossible to simulate identically the conditions in which the shooting had occurred, for the following reasons: firstly, blank bullets had a different trajectory as compared with live bullets; secondly, it would be necessary to simulate the position of the person who had fired the shot to within a millimetre, otherwise the bullet would ricochet differently.
36. On 10 January 2000 the prosecutor's office of Biysk discontinued the criminal proceedings for lack of corpus delicti in Mr T.'s actions. It found that Mr T. had used his weapon in lawful self-defence from an attack by Mr Sh. His actions had been in conformity with the Police Act.
37. On 25 April 2000 the decision was annulled by a supervising prosecutor who ordered an additional inquiry.
38. On 9 June 2000 the prosecutor's office of Biysk discontinued the criminal proceedings for the same reasons as before. On 8 May 2001 the supervising prosecutor ordered that the criminal proceedings be resumed. The case was transferred to the prosecutor's office of the Altayskiy Region.
39. On 21 August 2001 the prosecutor's office of the Altayskiy Region reconsidered the previous decision to discontinue the criminal proceedings against Mr Sh. It found that the proceedings should have been discontinued on the ground of lack of corpus delicti in his actions rather than on the ground of his death. There was no evidence that Mr Sh. had been armed, let alone that he had fired at the teenagers. It followed from the witness statements that he had not offered any resistance to the police officers who had arrived at the scene and that the police officers had not attempted to stop him from leaving. After he had locked himself in his flat he could no longer disturb public order, so Mr T.'s and the other police officers' attempts to enter his flat through the door or the balcony and arrest him had been unlawful and unjustified. By resisting those attempts Mr Sh. had been defending his constitutional right to respect for the privacy of his home and his liberty. Mr Sh. had been found in his underwear, which showed that he had been resting when Mr T. had tried to access his balcony. Mr T.'s statement that Mr Sh. had hit him with a pestle was open to doubt as the pestle had been found in the bedroom rather than on the balcony. Moreover, the expert examination had revealed that the blood on the pestle had been Mr Sh.'s. Accordingly, Mr Sh.'s actions had not constituted any administrative or criminal offence. Mr T. had abused his office and had unlawfully and unjustifiably used his weapon against Mr Sh.
40. On 27 August 2001 the prosecutor's office of the Altayskiy Region resumed the investigation against Mr T.
41. On 31 August 2001 the applicant was granted victim status and joined the proceedings as a civil party.
42. On 11 September 2001 Mr T. was formally charged with murder, abuse of office associated with the use of violence or entailing serious consequences, and breach of the inviolability of the home, offences under Articles 105 § 1, 286 § 3 and 139 § 3 of the Criminal Code.
43. On 15 October 2001 the prosecutor's office of the Altayskiy Region prepared a bill of indictment. It analysed the collected evidence and concluded that the use of lethal force against Mr Sh. had not been justified by the circumstances. It found that after receiving the report that Mr Sh. had fired a shot at the teenagers Mr T. should have verified that information by questioning eyewitnesses to the incident and inspecting the area in search of a cartridge case. He had failed to search the area, however. The eyewitnesses had affirmed that Mr Sh. did not have any weapon and no weapon had subsequently been found in his flat. In those circumstances, Mr T. could not have had a reasonable suspicion that Mr Sh. had committed criminal or administrative offences. Moreover, after he had locked himself in his flat he could no longer present any danger to the public. There had therefore been no reason to arrest him. In any event, before proceeding with the arrest, Mr T. should have contacted his superior to ask for detailed instructions. He had not done so. Finally, Mr T. had had no legal grounds for using his weapon against Mr Sh. Although Mr Sh. had indeed showed resistance, he had acted lawfully to protect his legitimate interests, namely, the privacy of his home and his liberty. By attempting to enter Mr Sh.'s flat through the balcony and by shooting him, Mr T. had abused his office, had trespassed on Mr Sh.'s home and had committed murder. He had committed criminal offences punishable by Articles 286 § 3, 139 § 3 and 105 § 1 of the Criminal Code. The prosecutor also examined the origin of the bruises and abrasions on Mr Sh.'s face and body. Referring to the expert opinion, he concluded that some of the injuries had been the result of Mr Sh.'s falling on the floor after being shot, while the remaining ones had been inadvertently caused when he had been carried to the bedroom by Mr T. and another police officer.
44. On the same day Mr T. was committed for trial before the Vostochniy District Court of Biysk.
45. The Vostochniy District Court of Biysk refused to admit the expert opinions of 1999 in evidence, as they had been made in the context of criminal proceedings against Mr Sh. The court commissioned additional expert opinions. The experts conducted their examination and submitted their report in April 2002 confirming the conclusions drawn by the experts in 1999.
46. During the hearing the accused and the witnesses confirmed their previous statements. The applicant was present at the hearings and made oral submissions to the court.
47. On 19 June 2002 the Vostochniy District Court of Biysk acquitted Mr T. of all charges. The court was convinced by the teenagers' and the police officers' testimony and Mr G.'s statements that Mr Sh. had indeed possessed a gun and had used it, and that he had offered resistance to the police officers who were trying to search him and stop him from escaping to his flat. Although the gun had never been found, the court surmised that Mr Sh. could have thrown it away after he had left the scene. As the prosecution had not searched the surroundings, such a possibility could not be excluded. The court gave the accused the benefit of the doubt and assumed that Mr Sh. had been armed. More importantly, after questioning the teenagers Mr T. had formed the conviction that Mr Sh. had been in possession of a weapon and had been a danger to the public. In those circumstances, his decision to arrest Mr Sh. immediately had been reasonable and justified. As Mr Sh. had refused to let Mr T. in, the applicant had refused to give the key to the police officers and it had been impossible to force the door open, Mr T. had taken a correct and lawful decision to climb up onto the balcony. That decision had been approved by the duty officer of the Vostochniy District of Byisk and the duty officer at Byisk police station.
48. The court further found that the use of lethal force had been necessary in the circumstances as Mr Sh. had offered resistance and put Mr T.'s life in danger. The court established that after Mr T. had climbed up the extension fire ladder onto the balcony on the third floor Mr Sh. had barred his access to the balcony and attempted to throw him down. In accordance with the rules governing the conduct of policemen, Mr T. had fired a warning shot. Given that Mr Sh. had attempted to push him down again, Mr T. had fired at him. The court found that Mr T.'s life had been in peril and that he had acted in reasonable self-defence and in compliance with the Police Act. The court finally noted that an internal inquiry by the Interior Department of the Altayskiy Region had concluded that Mr T. had been sober. The court refused to hear a civil claim by the applicant.
49. The prosecutor appealed to the Altayskiy Regional Court. The applicant also lodged an appeal, but the Altayskiy Regional Court refused to hear it, finding that the applicant did not have victim status.
50. On 15 August 2002 the Altayskiy Regional Court examined the prosecutor's appeal and dismissed it. It endorsed the reasoning of the trial court and upheld the acquittal.
51. Murder is punishable by six to fifteen years' imprisonment (Article 105 § 1 of the Criminal Code).
52. Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of up to ten years' imprisonment (Article 286 § 3 of the Criminal Code).
53. Breach of the inviolability of the home, that is, unlawful entry into a home against the will of its occupants, associated with abuse of office, is punishable with a fine, a prohibition on occupying certain positions, or up to three years' imprisonment (Article 139 § 3 of the Criminal Code).
54. Anyone who has caused damage to an attacker when acting in legitimate defence, that is, in self-defence or in defence of another person or the public interest, is exempted from criminal liability provided that he has not exceeded the bounds of legitimate defence. Anyone, irrespective of his or her professional or other special training or position, is entitled to exercise legitimate defence. A person is entitled to exercise legitimate defence even in situations where it is possible to avoid the dangerous attack or ask for help from other persons or authorities. The bounds of legitimate defence are exceeded if a person deliberately commits actions that are clearly disproportionate to the nature and degree of dangerousness of the attack (Article 37).
55. Anyone who has caused damage to a perpetrator of a criminal offence when arresting that person for the purpose of bringing him or her before the competent authorities or preventing him or her from committing a further criminal offence is exempted from criminal liability, provided that it was impossible to arrest the offender by other means and the force used did not exceed what was necessary in the circumstances. The force used may not be considered necessary if it is clearly disproportionate to the nature and degree of dangerousness of the criminal offence committed and the circumstances in which the arrest is effected, or if the damage caused is clearly excessive and unwarranted by the circumstances. Criminal liability arises only if such damage has been deliberately caused (Article 38).
56. The Police Act (no. 1026-I of 18 April 1991 with further amendments) provides that the duties of the police are, among others, the prevention and suppression of criminal and administrative offences and the protection of public order and public safety (section 2).
57. Section 11 of the Police Act provides that when discharging their duties the police may, in particular:
(2) search citizens and their belongings if there are sufficient reasons to believe that they possess weapons, ammunition, explosives or drugs;
(7) arrest persons suspected of a criminal offence or persons who have been remanded in custody by a judicial order;
(18) enter property or land belonging to citizens or companies and search it in pursuit of a person suspected of a criminal offence or if there are sufficient grounds to believe that a criminal offence has been or is being committed there or an accident has happened there, or in order to protect public order and the personal security of citizens in cases of natural or anthropogenic disaster, or epidemic, epizootic or public disorder. A prosecutor must be informed within twenty-four hours of any entry into private premises or land performed against the will of the owner;
(20) cordon off, following a decision by the head or a deputy head of the relevant police station, a specific area for the purpose, inter alia, of catching a person suspected of a criminal offence;
(22) temporarily limit or bar access of vehicles and pedestrians to a specific area, or require them to leave a specific area for the purpose of protecting citizens' life, health and property or conducting a search or investigative measures (section 11).
58. The police may use physical force, special equipment or a weapon only in the circumstances specified in the Police Act and in accordance with the rules prescribed by that Act. Police officers must undergo specific training and be periodically tested for their fitness to act in conditions requiring use of physical force, special equipment or a weapon (section 12(1) and (2))
59. Before using physical force, special equipment or a weapon the police officer must:
- warn of his intention to use physical force, special equipment or a weapon and give the person concerned sufficient time to comply with his order, except in cases where the delay in using physical force, special equipment or a weapon creates an immediate danger for the life and health of citizens and police officers, is likely to cause other serious consequences or where the warning is impossible or impracticable in the circumstances;
- endeavour to minimise the damage caused by the use of physical force, special equipment or a weapon, to the extent possible depending on the nature and seriousness of the offence, dangerousness of the person who has committed it and degree of resistance offered;
- ensure that anyone who has been injured as a result of use of physical force, special equipment or a weapon receives first aid and that their relatives are informed without delay;
- inform a prosecutor of any use of physical force, special equipment or a weapon involving injuries or death (section 12(3)).
60. Abuse of the power to use physical force, special equipment or a weapon is punishable by law (section 12(4)).
61. Police officers may use physical force, including martial arts, to stop a criminal or administrative offence being committed, arrest persons who have committed a criminal or administrative offence or overcome resistance to a lawful order, if non-violent methods are insufficient to ensure discharge of the police duties (section 13).
62. Special equipment (truncheons, handcuffs, tear gas, electroshock devices, equipment for destroying barriers, etc.) may be used, inter alia, to overcome a person's resistance to the police, arrest a person caught in the act of committing a crime against life, health or property and attempting to escape, or a person who is reasonably suspected of intending to offer armed resistance to the police (section 14).
63. Police officers may use weapons, inter alia, to repel an attack on a police officer if his life and health are in danger (section 15(1)(2)) or to arrest a person caught in the act of committing a serious crime against life, health or property and attempting to escape or a person offering armed resistance (section 15(1)(4)). The head of the relevant police station must be informed, within twenty-four hours, of any use of a weapon (section 15(4)). It is prohibited to use weapons which may cause unnecessarily serious injuries or involve unjustifiably high risks (section 15(6)).
64. A police officer may pull out his weapon and prepare it for use if he believes that circumstances referred to in section 15 may arise in the situation. If the arrestee attempts to come closer to the armed police officer than the latter allows or attempts to touch his weapon, the police officer may use his weapon in accordance with section 15(1)(2) (section 16).
65. Police officers are not liable for any physical, pecuniary or non-pecuniary damage caused to the offender as a result of the use, in accordance with this Act, of physical force, special equipment or a weapon if that damage is proportionate to the resistance offered (section 23(3)).
66. The provisions of the Criminal Code concerning exemption from criminal liability for damage caused, in particular, in legitimate defence, when arresting a person who has committed a criminal offence or in pursuance of a lawful order are applicable to police officers (section 24).
67. The Instruction on duties and responsibilities of a neighbourhood police officer, adopted by the Interior Ministry on 14 July 1992 (Order no. 231), provides that a neighbourhood police officer (участковый) is a representative of a town or district police office in a neighbourhood. His duties include, inter alia, the protection of the personal safety and property of citizens, the protection of public order and public safety and the prevention and suppression of criminal and administrative offences within the neighbourhood for which he is responsible (paragraphs 1.2 and 1.3).
68. If a neighbourhood police officer receives information about a criminal or administrative offence or other events endangering personal or public safety he must immediately inform the police officer on duty at the relevant police station and take the measures required by law. In particular, he must take measures to guard the crime scene, find witnesses, administer first aid to victims, find and arrest the suspected offender, and find and seize stolen property, the instruments of the crime and other material evidence (paragraph 3.4).
69. A neighbourhood police officer may order that citizens and officials cease committing a criminal or administrative offence or any other activity hindering the police's lawful actions (paragraph 4.1). In cases specified by law he may arrest and search a person or his/her belongings and may also seize weapons and other objects and documents found during the search (paragraph 4.5). A neighbourhood police officer may enter residential or other premises and land belonging to citizens or companies and search them in pursuit of a person suspected of having committed a criminal offence or if there are sufficient grounds to believe that a criminal offence has been or is being committed there or an accident has happened there, or in order to protect public order and the personal security of citizens in cases of natural or anthropogenic disaster, or epidemic, epizootic or public disorder. A prosecutor must be informed within twenty-four hours of any entry into private premises or land performed against the will of the owner (paragraph 4.9). A neighbourhood police officer may arrest and bring to a police station a person suspected of having committed a criminal offence or other persons in the cases prescribed by law (paragraph 4.10). He may carry a weapon and other special equipment and use them in the cases specified in the Police Act (paragraphs 4.19 and 4.20).
70. The Instruction on cooperation between interior departments and services in investigation of crimes, adopted by the Interior Ministry on 20 June 1996 (Order no. 334), provides that if a police officer on duty at a police station receives information about a criminal offence he must send a quick reaction team and a patrol team to guard the crime scene, to cut off the offenders' escape routes or block off their hiding places, to arrest the offenders and to take witness evidence. He must also send an investigation team supplied with the requisite communication facilities, investigative equipment and vehicles. The duty police officer must keep in contact with the police officers at the scene in order to receive up-to-date information about the situation and make decisions about additional measures, and to inform the police officers at the scene of any relevant data contained in the police databases. The duty police officer must immediately inform his superior and the officer on duty at the higher-level police station of the criminal offence and then keep them informed of the measures taken (paragraph 2.1).
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 2


ITEMID: 001-107937
LANGUAGEISOCODE: ENG
RESPONDENT: MNE;SRB
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF LAKIĆEVIĆ AND OTHERS v. MONTENEGRO AND SERBIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of P1-1;Pecuniary and non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicants - Ms Nevenka Lakićević (the first applicant), Mr Borislav Vukašinović (the second applicant), Mr Veselin Budeč (the third applicant), and Mr Vlado Rajković (the fourth applicant) - are all Montenegrin nationals who were born in 1947, 1937, 1924, and 1944 respectively. They live in Herceg-Novi (the first and third applicants) and Podgorica (the second and fourth applicants).
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. Between November 1989 and June 2002 the applicants closed their private law firms and submitted papers to begin their retirements.
8. Between August 1990 and September 2002 their old-age and disability pension entitlements, as well as the exact amount of their pensions (starosna i invalidska penzija), were established by decisions of the Pension and Disability Insurance Fund (Republički fond penzijskog i invalidskog osiguranja; hereinafter “the Pension Fund”). The decisions, as submitted by the second and fourth applicants, allowed the applicants to resume working on a part-time basis.
9. Between April 1996 and June 2002 the applicants reopened their own legal practices on a part-time basis.
10. On 1 April 2004, 20 July 2005, 3 June 2005 and 24 November 2005 the Pension Fund suspended (obustavlja) payment of the applicants’ pensions respectively, until such time as they ceased professional activity. These decisions were all “deemed to be applicable as of 1 January 2004”, which was when section 112 of the Pension and Disability Insurance Act 2003 (hereinafter “the Pension Act 2003”) entered into force (see paragraphs 23 and 25 below).
11. The Pension Fund’s rulings were subsequently upheld by the Ministry of Labour and Social Welfare (Ministarstvo rada i socijalnog staranja), as well as, ultimately, by the Administrative Court (Upravni sud) on 6 December 2005, 4 April 2006, 18 April 2006 and 7 February 2007 in respect of the first, second, third and fourth applicants respectively. The Administrative Court explained, inter alia, that the applicants had not been deprived of their pension entitlements as such, but that the payment of their pensions had instead been suspended on the basis of the relevant domestic legislation.
12. Finally, on 13 June 2006, 27 June 2006 and 28 May 2007 respectively, the Supreme Court (Vrhovni sud) in Podgorica dismissed the second, third and fourth applicants’ requests for judicial review of their cases (zahtjev za vanredno preispitivanje sudske odluke). In so doing, the Supreme Court essentially endorsed the reasons given by the Administrative Court.
13. The first applicant did not attempt to make use of the judicial review avenue, in view of the fact that the other applicants’ identical requests had already been rejected by the Supreme Court.
14. Payment of the second applicant’s pension was resumed with effect from 1 December 2007, which is when he ceased his professional activity. The payment of the second, third and fourth applicants’ pensions was resumed with effect from 1 January 2009, which is when the Amendments to the Pension Act entered into force, repealing section 112 of the Pension Act 2003 (see paragraph 26 below).
15. On 30 June 2004 the Pension Fund lodged a compensation claim against the first applicant, seeking repayment of the pension payments she had received for January and February 2004 in the total amount of 425.74 euros (EUR). In response, the first applicant lodged a counterclaim seeking payment of the pension which had not been paid to her between March 2004 and December 2008 due to the suspension of her pension rights, amounting in total to EUR 15,332.45.
16. On 4 November 2009 the Court of First Instance (Osnovni sud) in Herceg Novi, after joining the two proceedings, ruled in favour of the first applicant, referring, in particular, to section 6 of the Amendments to the Pension and Disability Insurance Act 2003 (hereinafter “the Amendments to the Pension Act”), section 193 of the Pension Act 2003 as well as a decision of the Constitutional Court of Montenegro (see paragraphs 26, 24 and 28 below). On 19 January 2010 the High Court (Viši sud) in Podgorica overturned this judgment and ruled against the first applicant, relying on sections 112 and 222 of the Pension Act 2003 and considering that their application was not retroactive. This judgment was upheld by the Supreme Court on 3 June 2010, which court mainly endorsed the reasons of the High Court. In doing so, the Supreme Court in particular referred to section 112 of the Pension Act 2003.
17. On 29 July 2010 the Court of First Instance issued an enforcement order providing that the Pension Fund would retain half the first applicant’s pension until the entire sum owed had been paid. On 4 November 2010 this decision was upheld by the High Court.
18. On 17 January 2007 and an unspecified date the Pension Fund lodged compensation claims against the second and third applicants respectively, seeking repayment of the pension they had received from 1 January 2004 onwards.
19. On 20 June 2007 the Court of First Instance in Podgorica ruled against the second applicant, which judgment was upheld by the High Court in Podgorica on 13 February 2009. It would appear from the case file that this decision has been enforced.
20. On 25 February 2010 the Court of First Instance in Herceg Novi ruled in favour of the third applicant. On 16 April 2010 the High Court in Podgorica overturned this decision and ruled against him. In doing so, it referred to the above decisions of the Administrative Court and the Supreme Court (see paragraphs 11 and 12 above). It would appear from the case file that this decision has been enforced in subsequent enforcement proceedings.
21. There is no information in the case file as to whether the Pension Fund instituted civil proceedings against the fourth applicant.
22. Article 9 § 1 of the Constitutional Charter provided that both member States shall regulate, safeguard and protect human rights in its territory.
23. Section 112 paragraph 1 provided that a person’s pension shall be suspended should he or she resume working or establish a private practice, for as long as this activity continues.
24. Section 193 paragraph 1 provided that beneficiaries of, inter alia, old-age pension (starosna penzija) and disability pension (invalidska penzija), who obtained these rights in accordance with the relevant legislation in force before this Act entered into force, shall preserve these rights afterwards at the same level (u istom obimu) with appropriate adjustments [on the basis of living expenses and average salaries].
25. Section 222 provided that this Act would enter into force on 1 January 2004.
26. Section 6 repealed section 112 paragraph 1 of the Pension Act 2003. These Amendments entered into force on 1 January 2009.
27. On 12 July 2002 the Federal Constitutional Court of Yugoslavia, Yugoslavia being comprised of Montenegro and Serbia at the time, held that section 32 of the Federal Pension and Disability Insurance Act, which essentially corresponded to section 112 paragraph 1 of the Pension Act 2003, was in breach of the Constitution of the Federal Republic of Yugoslavia. In particular, once pension entitlements had been acquired they could not be repealed or restricted by subsequent measures. Further, there was a lack of proportionality between the public interest, protection of which was allegedly the intention of the provisions in question on the one hand and the interests of individuals in respect of their property rights on the other. Lastly, the court held that the section in question was indeed retroactive in nature, since it had also been applied to pensioners who had resumed professional activities before its entry into force.
28. On 10 November 2004 the Constitutional Court of the Republic of Montenegro rejected an initiative to assess the constitutionality of section 112 paragraph 1 of the Pension Act 2003. In so doing, it held, inter alia, that it was a matter of legislative judgment whether or not to allow a person to simultaneously receive pension and resume working, and that therefore this matter fell outside the jurisdiction of the Constitutional Court. It further held:
“According to the ...Constitutional Court, Article 112 § 1 of the 2003 Act does not have retroactive effect, as it does not apply to situations which came into existence before its entry into force, but only as regards those ... which have arisen ... [thereafter] ...”.
29. Articles 40-46 provide details concerning a request for judicial review (zahtjev za vanredno preispitivanje sudske odluke).
30. In particular, Articles 40-42 provide that parties may file a request for judicial review with the Supreme Court. They may do so within a period of 30 days following receipt of a final decision rendered by the Administrative Court, and only if the relevant legislation, procedural or substantive, has been breached by the lower court.
31. In accordance with Article 46, the Supreme Court shall, should it accept a request for judicial review lodged by one of the parties concerned, have the power to overturn the impugned judgment or quash it and order a re-trial before the Administrative Court.


ITEMID: 001-23848
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: IVANOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mrs Nataliya Nikolayevna Ivanova, is a Russian national, who was born in 1953 and lives in Novokuznetsk. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 May 1994 the applicant's husband was killed in a sobering-up centre No. 4 in Novokuznetsk (медвытрезвитель № 4 г. Новокузнецка) by negligent behaviour of Mr G., another detainee.
On 9 September 1996 Mr G. was convicted by the Zavodskoy District Court of Novokuznetsk of the negligent manslaughter.
Shortly after the conviction the applicant brought civil proceedings for damages against Mr G.
On 3 December 1996 the Zavodskoy District Court of Novokuznetsk awarded her a lump-sum compensation and monthly payments. The Zavodskoy District Prosecutor appealed.
On 4 February 1997 the Kemerovo Regional Court reversed the judgment of 3 December 1996 and remitted the case for fresh examination by the district court.
On 10 April 1998, in the new proceedings, the applicant requested the Zavodskoy District Court of Novokuznetsk to replace the defendant by the Internal Affairs Department of Novokuznetsk (Управление внутренних дел г. Новокузнецка) which was in charge of the sobering-up centre. In its judgment of the same date the court decided that the damages should be paid by Mr G. and the Internal Affairs Department of Novokuznetsk in equal shares.
On 16 July 1998 the Kemerovo Regional Court reversed on appeal the judgment of 10 April 1998 due to incorrect calculation and a lack of legal grounds for civil liability of the sobering-up centre. It remitted the case for fresh examination by the first instance court.
On 6 October 1998 the Zavodskoy District Court of Novokuznetsk ordered the Internal Affairs Department of Novokuznetsk to pay the damages to the applicant. This judgment was appealed against by the Zavodskoy District Prosecutor of Novokuznetsk.
On 24 November 1998 the Kemerovo Regional Court reversed on appeal the judgment of 6 October 1998 and remitted the case for fresh examination by the first instance court.
On 8 June 1999 the Zavodskoy District Court of Novokuznetsk awarded the applicant damages to be paid both by the State (70%) and by Mr G. (30%). The Ministry of Finance appealed, claiming that the damages were to be charged from the municipal, not federal budget. Mr G. also appealed.
On 26 August 1999 the Kemerovo Regional Court upheld on appeal the judgment of 8 June 1999.
On 13 October 1999 the applicant was informed that the enforcement of the judgment was stayed pending the supervisory review proceedings.
On 12 April 2000 the President of the Kemerovo Regional Court lodged a request for a supervisory review of the judgment (протест на решение суда, вступившее в законную силу, an extraordinary appeal).
On 16 June 2000 the Presidium of the Kemerovo Regional Court granted the extraordinary appeal and quashed the judgment as it had found the State's liability in this case “disputable”. It remitted the case for fresh examination by the district court.
On 19 December 2000 the Zavodskoy District Court of Novokuznetsk awarded a part of the damages to be paid to by the State (60%) and another part by Mr G. (40%).
On 10 July 2001 the Kemerovo Regional Court reversed on appeal the judgment of 19 December 2000 for lack of legal grounds for civil liability of the sobering-up centre. It remitted the case for fresh examination by the first instance court.
On 23 August 2001 Zavodskoy District Court of Novokuznetsk granted the applicant's request to stay the proceedings.
On 6 May 2003 the applicant sent a letter to the Zavodskoy District Court of Novokuznetsk. It follows from its context that the court had notified the applicant about the resumption of the proceedings. The applicant, however, was opposed to the continuation of the trial and insisted that the proceedings would remain stayed until the Strasbourg Court had decided on the admissibility and the merits of her application.
On 10 July 2003 the Novoilyinskiy District Court of Kemerovo nevertheless resumed the proceedings. The applicant expressly waived any claims against Mr G. but reiterated her claims against the State. In its judgment of the same day the court found that no fault or negligence of the sobering-up centre staff had been established in the criminal proceedings concerning the death of the applicant's husband, hence there were no statutory grounds to impose civil liability on the State. The court refused to award damages against the State and found that they could be awarded against Mr. G, but for the applicant's express refusal to sue him.
On 10 September 2003 the Kemerovo Regional Court upheld on appeal the judgment of 10 July 2003.


ITEMID: 001-5347
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SKORDAS v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a Greek national, born in 1928 and living in Athens. He is represented before the Court by Mr D. Papoutsidakis, a lawyer practising in Athens.
The applicant is a Greek Orthodox priest belonging to the ecclesiastical jurisdiction of the Bishop of Nea Smirni. On 7 March 1995 the bishop exempted the applicant from his duties as president of the ecclesiastical council of his parish.
Following this incident the applicant asked his bishop to allow him to transfer to the Bishopric of Piraeus, the head of which was willing to have him. However, the Bishop of Nea Smirni refused without giving any reasons. The Bishop of Nea Smirni also instituted disciplinary proceedings against the applicant before the local ecclesiastical tribunal on the ground that he had stopped publishing a journal.
On 11 October 1995 the Bishop of Nea Smirni ordered the applicant not to celebrate mass pending the outcome of the disciplinary proceedings. On 22 November 1995 the applicant challenged the bishop’s decision before the Council of State.
On 24 January 1996 the applicant retired by virtue of a decision of the competent State authorities. However, the Bishop of Nea Smirni continued refusing him permission to transfer to another bishopric in which he could continue to act as a priest on an unremunerated basis.
On 6 June 1996 the ecclesiastical court of the Bishopric of Nea Smirni ordered the applicant, by way of disciplinary penalty, to refrain from all activities as a priest during six months.
On 31 July 1996 the applicant challenged the refusal of the bishop to give him permission to transfer to Piraeus before the multi-member first instance civil court (polimeles protodikio) of Athens.
On 31 October 1996 the Council of State quashed the decision of 11 October 1995 of the Bishop of Nea Smirni on the ground that it was issued without the applicant having been heard.
On 27 January 1997 the public prosecutor of the first instance criminal court (isangeleas plimmeliodikon) of Athens refused to institute criminal proceedings against the Bishop of Nea Smirni, as the applicant had requested him to do, finding, inter alia, that the refusal of the bishop to grant the applicant permission to transfer was not subject to review.
On 28 February 1997 the public prosecutor of the Court of Appeal (isangeleas efeton) of Athens upheld the decision of 27 January 1997 of the public prosecutor of the first instance criminal court.
On 31 July 1997 the civil court of Athens decided that it could not review the refusal of the bishop to give the applicant permission to transfer because this was a “spiritual” matter.
On 20 October 1998 the ecclesiastical court of the Bishopric of Nea Smirni found, inter alia, that the applicant had defied its previous decision of 6 June 1996 because he had celebrated mass with the permission of the local bishops in other bishoprics on specific occasions. It ordered the applicant, by way of disciplinary penalty, to refrain from all church activities during six months. The applicant challenged this decision before the Council of State. The proceedings before the Council of State are still pending.
In the meantime the Bishop of Nea Smirni instituted a fresh set of disciplinary proceedings against the applicant on the ground that he had given an interview to the press. On 5 July 1999 the ecclesiastical court of the Bishopric of Nea Smirni referred the case to the Holy Synod first instance court (Protovathmio Sinodiko Dikastirio).
On 18 August 1999 the Bishop of Nea Smirni ordered the applicant not to celebrate mass pending the outcome of the disciplinary proceedings.


ITEMID: 001-93151
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: DITZ v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicants, Ms Nicole Ditz and Mr Sebastian Ditz, are German nationals who were born in 1978 and 1977 respectively and live in Hamelin. They were represented before the Court by Ms Eva Beate Bäumler, a lawyer practising in Hanover.
On 19 August 2000 the applicants’ first child was born with severe physical disabilities, having, inter alia, no arms and hands, a shortened thigh and serious hip dysplasia.
The applicants brought a civil action in the Hanover Regional Court, seeking alimony and compensation for non-pecuniary damage from the attending gynaecologist. They argued that, had the mother been informed about the disability, she would have opted for an abortion.
During a hearing, the Regional Court conveyed to the parties its intention to first take evidence on the question of whether the gynaecologist had committed a grave diagnostic error. On 6 November 2003 the Regional Court informed the applicants that, contrary to its earlier intention, the taking of evidence would commence with the issue of whether an abortion would have been legally possible.
On 17 March 2005 the Regional Court dismissed the action in its entirety. It considered that it could leave open the question of whether the gynaecologist had committed a grave diagnostic error as the alimony claim required proof of whether, had the parents been informed of the disability, an abortion would have been legally possible. The court found that, for the abortion to be legal, the applicants had to demonstrate that it would have been the only reasonable means to avert a risk for the mother’s life or severe interference with her physical or mental integrity. Referring to an expert report, the court found that the mother had not demonstrated that an abortion could have been legally possible. The expert had noted in his report that the applicants had failed to submit sufficient documents and provide sufficient facts from the time of the pregnancy to allow him to come to the conclusion that the requirements for a legal abortion were met. The applicants appealed against the judgment.
On 28 July 2005 the Celle Court of Appeal notified the applicants of its intention to decide the appeal without conducting a hearing, giving the applicants two weeks to make further submissions. It informed the applicants that it was of the opinion that the Regional Court had correctly desisted from taking evidence on the alleged grave diagnostic error. As to their claim in respect of non-pecuniary damage, the Court of Appeal considered that the applicants had failed to sufficiently substantiate it; in particular, they had not explained how the shock had manifested itself and had not described the psychological condition of the mother after the birth of the child. With respect to the alimony claim, the Court of Appeal also confirmed that the Regional Court had been under no obligation to hear evidence on the alleged grave diagnostic error, as the lack of proof of the abortion’s legality already meant that the claim was unfounded and that an expert opinion on the existence of the grave diagnostic error was redundant. It also rejected the applicants’ complaint that they had not been granted a hearing as to the Regional Court’s decision to first take evidence on the question of whether the child could have been legally aborted. It observed that the applicants had had plenty of time to object to the Regional Court’s decision of 6 November 2003, but had chosen not to. In so far as the applicants challenged the expert report, the Court of Appeal held that the expert’s conclusions, though not clearly distinguishing between issues of law and fact, had been sufficiently clear. The expert had found that no documents or indications existed that demonstrated an elevated risk of grave interference with the mother’s mental integrity, either during the pregnancy or after the delivery. The Court of Appeal noted in that context that the parents had failed to submit further documentation, despite having been asked by the Regional Court to do so. Furthermore, the expert had sufficiently explained that an examination of the mother, four years after the delivery of the baby, would have been inconclusive without further documentary proof.
On 22 August 2005 the applicants made further submissions to the Court of Appeal.
On 6 September 2005 the Court of Appeal, referring to the reasoning set out in its decision of 28 July 2005, dismissed the appeal without holding a hearing, also dismissing the applicants’ further submissions contesting the expert report.
On 31 October 2005 the Court of Appeal dismissed an objection alleging a violation of the right to be heard (Anhörungsrüge) as being manifestly illfounded. The applicants had been informed of the reasons why it intended to dismiss the appeal. It had addressed all the arguments put forward by the applicants, in particular the submissions concerning the claim for damages, the requirements of the legality of the abortion, the challenges against the expert report, and the alleged denial of the right to be heard.
On 10 January 2006 the Federal Constitutional Court held that the constitutional complaint by the applicants had no prospect of success as there was no appearance of a violation of the right to be heard or the principle of equality of arms.