ITEMID: 001-86798
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SAMPANIS AND OTHERS v. GREECE - [English Translation] by European Roma Rights Centre "ERRC"
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 13;Violation of Art. 14+P1-2;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicants are of Romani origin and live with their families on the area of Psari, near Aspropyrgos, a municipality in the western part of the Attica region.
6. On 24 June 2004, the Minister Delegate of Health, accompanied by the Secretary General of his ministry, visited the Roma camp in Psari. He had been informed, among other things, of the non-education of Romani children. On 2 August, the representatives of “European Roma Rights Centre” and of “Greek Helsinki Monitor” met with the Minister Delegate for National Education and Religious Affairs. Following this meeting, the Minister Delegate published a press release highlighting, among other things, the importance of integrating Romani children into the national education process.
7. The 2004-2005 school year began on 10 September 2004. On 17 September 2004, the Secretary of the Department of Education of Expatriate Greeks and Intercultural Education visited the Roma camps in Psari, in the company of two representatives of the Greek Helsinki Monitor, to register all the Romani children of schooling age. To this end, they visited the two primary schools of the municipality (the 10th and 22th primary schools of Aspropyrgos). The respective school directors encouraged Romani parents to enrol their children in primary school. The Greek Helsinki Monitor subsequently informed the competent authorities of the Ministry of Education and Religious Affairs, who gave no follow-up.
8. The applicants confirm that on 21 September 2004, they visited the premises of the Aspropyrgos primary schools, with other Romani parents, to register their children. The directors of two schools had refused to enrol their children on the grounds that they had not received instructions to this effect from the relevant ministry. They had informed the parents concerned that upon receipt of the necessary instructions, they would invite them to complete the necessary formalities. Never afterwards were the parents invited to register their children.
9. According to the document no. Φ20.3/747 delivered on 5 June 2007 by the First Bureau of Primary Education in West Attica, at the request of the State Legal Council, the applicants presented themselves to the director of the 10th primary school of Aspropyrgos to gather information on registering their children. The director reportedly showed them the documents necessary to register their children. According to the same documents, on 23 September 2004, the Departmental Director of Education of the Attica region convened an informal meeting with the competent authorities of the municipality of Aspropyrgos to address the problem of additional enrolment of students of Romani origin and the capacity of Aspropyrgos’ primary schools. On one hand, it was decided that the students who had reached the age of first schooling would be accommodated into the existing premises of the 10th and 11th primary schools in Aspropyrgos. On the other hand, the meeting considered that integration of children who had reached an age higher than that of preliminary education into normal classes would be detrimental from a psychopedagogical point of view: the difference of age would not permit them to have an effective schooling. On this basis, the informal meeting decided to provide two additional preparatory classes in preparation for the integration of these students into ordinary classes.
10. On 13 and 18 September and on 2 October 2004, the Greek Helsinki Monitor referred to the Ombudsman of the Republic on behalf of the applicants of three applications concerning the difficulties of Romani children’s access to primary education for Romani children, inviting him to intervene. On 3 January 2005, the Ombudsman replied in writing that three representatives of his cabinet had, on an unspecified date, visited the Roma camp in Psari. In his response, the Ombudsman noted that there was not, on the part of the competent services, any systematic and unjustified refusal to enrol children of Romani origin in primary education. He noted that he had already informed teachers at Aspropyrgos’ primary schools that domestic legislation provided for the possibility to enrol children in primary school with the simple declaration of those bearing parental authority, provided that they submit birth certificates in due course. The Ombudsman also referred to the conclusions of several meetings with the leaders of the municipality of Aspropyrgos and, more specifically, to their intention to build a separate building from the school closest to the Roma camp to accommodate the older Romani children in view of bringing them up to standard. The Ombudsman mentioned lastly the tensions that existed between the population of Aspropyrgos, composed mainly of those repatriated from states of the former Soviet Union, and the Romani minority, as an additional element preventing the integration of Romani children into the educational environment.
11. On the 1 October 2004, the Minister Delegate for National Education and Religious Affairs asked the company responsible for operating state real estate to grant some public land with two prefabricated cells to serve as classrooms for Romani children. On an unspecified date, the Minister rejected the request.
12. According to the Government, in November and December 2004 a delegation from teachers of primary schools no. 10 and 11 visited the Roma Camp in Psari in order to inform and convince the parents and their children, who were minors, of the necessity to enrol their children in preparatory classes. This approach would be in vain, the parents concerned not having registered their children for the current school year.
13. On 13 February 2005, the Association for the Coordination of Organisations and Communities for the Human Rights of Roma in Greece (SOKARDE) addressed an official letter to the Board of Directors of Primary Education of West Attica in which it requested information about the schooling of the Roma in Aspropyrgos.
14. On 17 February 2005, the Board of Directors replied that the case had experienced delays attributable to the Ministry of the Environment: it had been slow to resolve the issue of granting public land on which to construct rooms and prefabricated classrooms. The Board of Directors expressed its intention to make every effort to implement the enrolling of Romani children in primary school the following year.
15. On 24 May 2005, SOKARDE sent a letter to the Minister Delegate of National Education and Religious Affairs stressing the need to take all of the necessary measures to assure the successful schooling of Romani children for the 2005-2006 school year.
16. A letter dated 1 July 2005 to SOKARDE states that the school authorities took various steps to inform Aspropyrgos’ Romani families of the necessity of enrolling their children in primary school: radio messages, advertisements on the school walls informing Roma that they could register their children between 1 and 21 June 2005 and sending letters to interested parties on this subject.
17. On 9 June 2005, at the initiative of SOKARDE, twenty-three children of Romani origin, including the children of the applicants, were enrolled in the Aspropyrgos primary school for the 2005-2006 school year. According to the Government, the number of Romani children who were enrolled was fifty-four.
18. On 12 September 2005, the first day of the school year, the Romani parents, including the parents, accompanied their children to school. In front of the entrance, several non-Romani parents, most of them of Pontic origin, that is to say from the region of Pont-Euxin, on the southern shores of the Black Sea, were gathered, harassing people of Romani origin. They shouted, “There is not a single Roma child who will go to school. You will not have access here, that’s all.” Then, non-Romani parents blocked access to the school until Romani children were transferred to another building.
19. On 12 October 2005, the non-Romani parents blocked access to the school again. They hung a sign: “The school will remain closed because of the Gypsy problem; Wednesday 12.10.05”.
20. On 13 October, Romani children tried to access the school. They were once more confronted by a group of non-Romani parents. In particular, the president of the association showed, on camera of a television channel that had visited the scene, the medical files of children of Romani origin in order to prove that they had been inadequately vaccinated. Finally, with the assistance of the police, who had gone there, the Romani children were able to access the school.
21. As part of the judicial investigation of this incident, the police officer D.T. made a statement with the following passage: “On 13 September 2005, around 9.10, around two hundred parents of students of Greek Pontic origin protested outside schools against the schooling of children of Romani origin at the primary school (...). A confrontation was avoided thanks to the prompt intervention of the police of Aspropyrgos (...). On 15 and 16 September 2005, the association of parents organised a boycott of student participation in class. From the first day of the incidents, police were posted outside the school to secure the entry and exit of Romani students. On 10 October 2005, the association of parents blocked access to the school as a protest against the afternoon welcoming of Romani students in the same rooms which welcomed the other students in the morning. On 11 and 12 October, in the presence of police, students of Romani origin had access to classes without difficulty. On 13 October 2005, fifty to sixty non-Romani parents gathered to protest against the presence of Romani students and to encircle the school’s entrance in order to prevent access (...)”.
22. By a letter, dated 1 March 2006, the West Attica Police Board informed the Greek Helsinki Monitor that on 13, 14, 15, 16 and 19 September 2005 and on 10, 11, 12, 13, 17, 19, 21, 25, 26, 27, and 31 October 2005, police forces had been sent to the 10th and 11th primary schools in order to maintain order and to prevent illegal acts committed against Romani students.
23. As of 31 October 2005, the applicants’ children were educated in a separate building from the main primary school of Aspropyrgos and the non-Romani parents stopped blocking the school.
24. Under Act No. 39/20.9.2005 of the Peripheral Council for Primary Education, three preparatory classes were created to meet the educational needs of Romani children; the classes of one took place in the morning while the other two took place after 15.30. The Peripheral Council indicated that the Romani students of all ages who were confronted with problems pertaining to their learning capacity could take special preparatory classes, the aim being to allow their integration without hindrance into ordinary classes.
25. On 25 October 2005, the applicants signed a statement written by the teachers of Aspropyrgos School expressing their wish to have their children transferred to the building separate from the primary school. The applicants allege that they had signed the statement in question under pressure from the Minister of Education, non-Romani parents, and certain leaders of the Roma community.
26. On 31 May 2007, the first applicant swore in the Elefsina District Court that he would have preferred for his students to attend regular classes rather than special school. He clarified, however, that it was difficult for him to maintain this position when the integrity of his children was endangered by furious non-Romani residents and that the teachers indirectly encouraged him to consent to his children’s schooling in the “ghetto school”.
27. In the meantime, under Act No. 261/22.12.2005, the Prefect of Attica had decided that three classes of primary school No. 10 in Aspropyrgos would be accommodated in prefabricated rooms installed on land owned by the municipality of Aspropyrgos.
28. On 17 March 2006, the West Attica Primary Education Directorate sent a letter to the Ministry of National Education and Religious Affairs. She informed the Ministry that for the 2005-2006 school year, fifty-two new students of Romani origin had been enrolled in the 10th primary school of Aspropyrgos. She noted that “due to the lack of space in the main school building of the school, and with the parents’ agreement, pupils of Romani origin had been accommodated in an annex located near the Roma camp”.
29. On 20 June 2006, the third constituency of the West Attica Primary Education Council sent a letter to the director of the outskirts of Attica. She informed him that for the 2005-2006 school year, fifty-four students of Roma origin had been enrolled in the 10th primary school of Aspropyrgos. She stated that “preparatory classes [were] provided for the Romani students, in order to assure their adaptation to the schooling environment, given the deficiencies from which they suffered and various other reasons making it impossible for them to integrate into ordinary classes.” She added that “despite the progress made by Romani students in the preparatory classes, all of these students are not yet fit to integrate into ordinary classes.”
30. On 5 April 2007, prefabricated rooms of the 10th primary school were set on fire by unknown people. It appears from the file that in September 2007, the two rooms were replaced but because of infrastructure problems, they were not operational. In September 2007, a 12th primary school was created in Aspropyrgos, to which Romani children were transferred. The record shows that in October 2007, this school was not yet operational, because of the infrastructure problems. The Government alleges that the establishment of the 12th primary school in Aspropyrgos was intended only to relieve congestion at the 10th primary school.
31. According to Article 7 § 1 of Presidential Decree No. 201/1998,
“All pupils who have attained the legal age of schooling must be registered in the first class of primary school. Registrations take place from 1 June to 15 June of the preceding school year.”
32. Directive Φ4/350/Γ1/1028/22.8.1995 of the Ministry of National Education and Religious Affairs underlines the need “for cooperation between Romani families, heads, and school councils so that Romani children living in camps are registered in nursery and primary schools (...). The heads [of schools] must not only encourage Romani children to enrol in primary schools, but also, identify Romani children in their district and ensure their registration and attendance at classes (...)”. In addition, Directive Φ4/127/Γ1/694/1.9.1999 of the Minister of National Education and Religious Affairs and Article 7 § 8 of Presidential Decree No. 201/1998 require the competent authorities to facilitate the access of Romani children to public education.
33. The relevant articles of Legislative Decree No. 18/1989 on the “Codification of the provisions of the laws on the Council of the State” provide:
“1. An action for annulment for abuse for excess of power or violation of the law is admissible only against legally binding acts of the administrative authorities and the legal entities of public law who are not susceptible to appeal before any other jurisdiction.
(...)
4. In cases where the law requires an authority to settle a particular question by enacting an enforceable act subject to the provisions of paragraph 1, the action for annulment is admissible even against the failure of that authority to enact such an act.
The authority is presumed to refuse to enact the act either when the special period of time fixed by the law expires, or after the expiry of a period of three months from the filing of the request of the administration, who is expected to issue an acknowledgment of receipt (...) indicating the day of the said deposit. The action for annulment exercised before the expiry of the aforementioned periods is inadmissible.
An action for annulment validly lodged against an implied refusal [of the administration] is also an action against the negative act that may be subsequently adopted by the administration; however, this act may also be attacked separately.”
“( ...)
2. A committee established for the needs of the cause by the president of the Council of State or the competent section of the Council of State and composed of said president or his deputy, the reporter of the case and a councillor of State may, at the request of the author of the solution of annulment, suspend the execution of the contested act by a decision briefly reasoned and adopted in the Council Chamber (...).”
34. The LHDH, established in 1953, is the oldest non-governmental organisation in Greece. It is a member of the International Federation of Human Rights. KEMO is a non-profit organisation established in 1996. The purpose of its activity is scientific research on minority groups and languages in Greece.
35. LHDH and KEMO’s 2007 annual report on the state of racism and xenophobia in Greece observes a clear improvement in schooling conditions for people belonging to the Muslim and Roma minorities compared to those of the nineties. However, the report notes that the registration of Romani children in school continues to be a source of tension, intolerance, and violent reactions. This sometimes requires the placement of Romani children in schools specially created for the Roma, despite the strong commitment of the administration to avoid the segregation of minorities in the school environment. The report notes that the most serious incidents of intolerance concern the registration of Romani children in primary education.
36. By a letter dated 2 February 2004, the Institute of Education for People of Greek Origin and Intercultural Education had informed the representative of the Greek Helsinki Monitor that eighteen schools attended only by “Gypsy children” had been operation in Greece during the 2002-2003 school year.
37. The terms of this recommendation are as follows:
« The Committee of Ministers, in accordance with Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve a closer union among its members, and that this aim may be pursued in particular by adopting joint action in the field of education;
Recognising the urgent need to lay new foundations for future educational strategies for Roma / Gypsies in Europe, in particular because of the high rate of illiteracy or semi-illiteracy in this community, the extent of school failure, the low proportion of young people completing primary school and the persistence of factors such as school absenteeism;
Noting that the problems faced by Roma / Gypsies in the field of education are largely due to the long-standing educational policies that have led either to the assimilation or segregation of Romani / Gypsy children in school on the grounds that they suffered from a "socio-cultural handicap";
Considering that the disadvantaged position of Romani / Gypsies in European societies can only be remedied if equality of opportunity in the field of education is guaranteed to Romani / Gypsy children;
Considering that the education of Romani / Gypsy children should be a priority of national policies for Roma / Gypsies;
Bearing in mind that policies to address the problems faced by Roma / Gypsies in the field of education must be comprehensive and based on the recognition that the issue of schooling of Romani / Gypsy children is linked to a set of factors and preconditions, including economic, social and cultural aspects and the fight against racism and discrimination;
Bearing in mind that educational policies for Romani / Gypsy children should be accompanied by an active policy on adult and vocational education; (...)
Recommends the governments of member states:
to respect, in the implementation of their education policy, the principles set out in the appendix to this Recommendation;
to bring this Recommendation to the attention of the competent public authorities in their respective countries, through the appropriate national channels. "
38. The relevant parts of the Annex to Recommendation No. R (2000) 4 read as follows:
“Guiding Principles for an Education Policy for Romani/Gypsy Children in Europe”
I. Structures
1. Educational policies for Romani/Gypsy children should be accompanied by the necessary means and flexible structures to reflect the diversity of the Roma/Gypsy population in Europe and to take into account Roma/Gypsy groups’ itinerant or semi-itinerant way of life. In this respect, the use of a system of education at a distance, based on new communication technologies, could be considered.
2. Emphasis should be placed on better coordination at international, national, regional and local levels in order to avoid dispersion of efforts and to promote synergies.
3. Member states should, in this regard, make the Ministries of Education sensitive to the question of Romani/Gypsy children’s education.
4. Pre-school education should be widely developed and made accessible to Romani/Gypsy children, in order to ensure their access to schooling and education.
5. Special attention should also be paid to better communication with and between parents by using, when appropriate, mediators from the Roma/Gypsy community who would have the opportunity to access a specific professional career. Special information and advice would be provided to parents on the necessity for education and the support mechanisms that municipalities can offer to families. The exclusion and lack of knowledge and education (or even illiteracy) of parents also prevent children from benefiting from the education system.
6. Adequate support structures should be put in place to enable Romani/Gypsy children to benefit from equal opportunities in school, including through positive action.
7. Member states are invited to provide the necessary means to implement the aforementioned policies and measures in order to bridge the gap between Romani/Gypsy schoolchildren and those belonging to the majority population.
II. School programmes and teaching materials
8. Educational measures for Romani/Gypsy children should be part of a wider intercultural policies and take into account the characteristics of Romanini culture and the disadvantaged position of many Roma/Gypsies in the Member States.
9. School curricula, as a whole, and teaching materials should be designed in a manner to respect the cultural identity of Romani/Gypsy children. The history and culture of the Roma should therefore be introduced in the educational materials in order to reflect the cultural identity of Romani/Gypsy children. The participation of representatives from Roma/Gypsy communities in the development of material on Roma/Gypsy history, culture, and language should be encouraged.
10. Member states should, however, ensure that these practices not lead to separate school curricula that can lead to creating separate classes.
11. Member states should equally encourage the development of educational materials based on examples of successful action in order to assist teachers in their daily work with Romani/Gypsy children.
12. In countries where the Romani language is spoken, Romani/Gypsy children should be offered the opportunity to take classes in their mother tongue.
III. Recruitment and teacher training
13. Provision should be made for the introduction of specific education in programs preparing future teachers so that they can acquire the knowledge and training to better understand Romani/Gypsy schoolchildren. However, the education of Romani/Gypsy schoolchildren should remain and integral part of the overall education system.
14. The Roma/Gypsy community should be involved in the development of these programs and should be able to directly communicate this information to future teachers.
15. Recruitment and training of teachers from the Roma/Gypsy community should also be promoted (...)”.
39. The general comments in this recommendation include:
“One of the aims of the Council of Europe is to promote the formation of a true European cultural identity. Europe is home to many different cultures, all of which, including multiple minority cultures, contribute to its cultural diversity.
Gypsies hold a special place among minorities. Living dispersed throughout Europe, unable to claim a country for their own, they constitute a true European minority who do not correspond to the definitions applicable to national or linguistic minorities.
As a non-territorial minority, Gypsies contribute significantly to Europe’s cultural diversity, in multiple respects, be it through language and music or in their artisanal activities.
Following the admission of new Member States from central and eastern Europe, the number of Gypsies living in the Council of Europe area has considerably increased.
Intolerance towards Gypsies has always existed. However, outbreaks of racial or social hatred are occurring more and more regularly and strained relations between communities have contributed to creating the deplorable situation in which the majority of Gypsies live today.
Respect for the rights of Gypsies, whether for their fundamental human rights, or their rights as a minority, is an essential condition for improving their situation.
By guaranteeing equal rights, opportunities, and treatment, and by taking steps to improve the situation of Gypsies, it will be possible to revive their language and culture, thereby enriching European cultural diversity.
It is important to guarantee to Gypsies the enjoyment of rights and liberties defined in Article 14 of the European Convention of Human Rights, as this enables them to assert their rights (...).”
40. Concerning the area of education, the recommendation states:
“existing European teacher training programs for Gypsies should be expanded;
Special attention should be paid to the education of women in general and mothers with their young children;
Gifted young Gypsies should be encouraged to study and act as intermediaries for Gypsies; (...).”
41. This recommendation states in particular:
“(...)
3. Today, Roma are still subject to discrimination, marginalisation and segregation. Discrimination is widespread in all areas of public and private life, including access to public service, education, employment, heath services and housing, as well as to crossing borders and access to asylum procedures. Economic and social marginalisation and segregation of Roma are turning into ethnic discrimination, which generally affects the most vulnerable groups in society.
4. Roma constitute a special group, minority for twofold reason: ethnically minority, they also very often belong to the socially disadvantaged strata of society (...).
15. The Council of Europe can and must play an important role in improving the legal status of Roma, the level of equality they enjoy, and their living conditions. The Assembly calls on Member States to fulfil the following six general conditions, which are necessary to improve the situation of the Roma in Europe: (...)
c) guarantee equality of treatment of the Roma minority as an ethnic or national minority group or in the fields of education, employment, housing, health and public services. Member States should pay special attention:
(...)
ii. to give Roma the opportunity to integrate into all educational structures, from kindergarten to university;
iii. to develop positive measures to recruit Roma in public services of direct interest to Roma communities, such as primary and secondary schools, social welfare centres, local primary health care centres and local governments;
iv. to eliminate any practice tending towards school segregation of Romani children, in particular the practice of referring them to schools or classes reserved for students with mental disabilities;
d) to develop and implement positive action and preferential treatment for the socially disadvantaged classes, including the Roma, as a socially disadvantaged community, in the fields of education, employment, and housing (...);
e) to take specific measures and to create special institutions for the protection of Romani language, culture, traditions and identity; (...)
ii. to encourage Romani parents to send their children to primary and secondary school, and institutions of higher education and to correctly inform them of the importance of education; (...)
v. recruit Romani teachers, especially in areas where the Roma population is considerable;
f) to combat racism, xenophobia, and intolerance, and to ensure non-discriminatory treatment towards Roma on local, regional, national and international levels: (...)
vi. to pay particular attention to phenomena of discrimination against the Roma, particularly in the fields of education and employment; (...).”
42. The relevant portions of this recommendation read as follows:
“The European Commission against Racism and Intolerance:
(...)
Recalling that the fight against racism, xenophobia, anti-Semitism and intolerance is an integral part of the protection and promotion of human rights, and that these rights are universal and indivisible, and are the rights of all human beings, without distinction of any kind;
Stressing that the fight against racism, xenophobia, anti-Semitism and intolerance is aimed above all at protecting the rights of vulnerable members of society;
Convinced that any action against racism and discrimination should begin from the point of view of the victim and seek to improve his or her situation;
Noting that Roma/Gypsies throughout Europe today suffer from persistent prejudices against them, are victims of racism deeply rooted in society, are the target of demonstrations, sometimes violent, of racism and intolerance, and that their human rights are regularly violated are threatened;
Noting further that the persistent prejudices towards Roma/Gypsies drive discrimination against them in many areas of social and economic life, and that this discrimination significantly fuels the process of social exclusion from which Roma and Gypsy people suffer;
Convinced that the promotion of the principle of tolerance is a guarantee of the maintenance of open and pluralistic societies, making peaceful coexistence possible;
Recommends to the governments of the member states the following:
(...)
– To ensure that discrimination as such as well as discriminatory practices are combatted by means of adequate legislation and to ensure that specific provisions are included in civil law, in particular in the areas of employment, housing and education;
(...)
– To fight vigorously all forms of school segregation of Roma and Gypsy children and to ensure effectively equal access to education; (...).”
43. For the purposes of this recommendation, the following definitions apply:
“a) “racism” the belief that grounds such as race, colour, language, religion, nationality or ethnic or national origin justifies contempt towards a person or group of people, or the idea of one’s superiority or of a group of people
b) “direct racial discrimination” means any difference of treatment based on grounds such as race, colour, language, religion, nationality or national or ethnic origin, which lacks reasonable or objective justification. A difference of treatment lacks reasonable and objective justification if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim pursued.
c) “indirect racial discrimination” means the case where an apparently neutral factor such as a provision, criterion or practice cannot be so easily respected by persons belonging to a group distinguished by grounds such as race, colour, language, religion, nationality or national or ethnic origin, or disadvantages these persons, unless this factor has an objective and reasonable justification. This is so if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the intended purpose.
44. In the explanatory memorandum to this recommendation, it is noted (point 8) that the definitions of these concepts of direct and indirect discrimination contained in paragraph 1(b) and 9c) of the recommendation are based on those contained in Council Directive 2000/43/EC of the Council on the implementation of the principle of equal treatment between persons irrespective of racial or ethnic origin, and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, as well as the case-law of the European Court of Human Rights.
45. ECRI recalls in its report from 8 June 2004 that in its previous report it had drawn the attention of Greek authorities to the situation of the Roma, in particular to the problems of eviction from their homes and of discrimination in access to public services and underlined the importance of overcoming local resistant to initiatives in favour of Roma.
46. After having expressed its concern, ECRI considers in its report from 8 June 2004 that, since the adoption of its second report on Greece, the situation of Roma in Greece has not fundamentally changed and that in general they experience the same difficulties – including discrimination – in housing, employment, education, and access to public services.
The final report by Mr Alvaro Gil-Robles on the human rights situation of Roma, Sinti and Travelers in Europe (dated 15 February 2006)
47. In the third part of this report, dedicated to discrimination within education, the Commissioner observes that if a significant number of Romani children do not have access to quality education equal to that offered to other children, it is also because of discriminatory practices and prejudices. In this respect, he notes that segregation within the education system is a common characteristic of many member States of the Council of Europe. In some countries, there are isolated schools in isolated camps, in others special classes for Romani children in ordinary schools, or a clear overrepresentation of Romani children in classes for children with special needs. It is frequent that Romani children are placed in classes for children with special needs, without adequate psychological or pedagogical evaluation, the real criteria being their ethnicity. Placement in special schools or classes means that these children often have a less ambitious curriculum than those in normal classes, which reduces their educational prospects and hence their chances of finding a job at a later stage. Automatic placement of Romani children in classes for children with special needs specifically reinforces social stigma by labelling Romani children as less intelligent and less capable. At the same time, segregated education deprives Romani children and non-Romani children of the opportunity to know each other and to learn to live as equal citizens. It excludes Romani children from normal society from a very early age, increasing the risk of them being caught in the vicious cycle of marginalisation.
48. In conclusion, the Commissioner makes a number of recommendations in the area of education. According to him, when segregation in education still exists in one form or another, it must be replaced by an ordinary integrated education and, if necessary, prohibited by legislation. Adequate resources should be allocated to pre-school education, language training, and the training of school assistants to ensure the success of desegregation efforts. Then, an adequate assessment should be made before placing children in special classes, so that the only criteria for placement are the objective needs of the child and not his or her ethnicity.”
VIOLATED_ARTICLES: 13
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VIOLATED_PARAGRAPHS: P1-2


ITEMID: 001-23580
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: ROSHKA v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Mark Villiger
TEXT: The applicant, Nikolay Dmitriyevich Roshka, is a Russian national, who was born in 1950 and lives in Vladivostok.
The applicant is a notary. At the beginning of 1999 the State passed the State Funds (Contributions) Laws which obliged notaries and some other categories of taxpayers to pay contributions to the State Pension Fund at a rate considerably higher than that applicable to the others. Those thus affected by the laws, including the applicant amongst 2057 notaries, alleged that the rate was discriminatory. They applied to the Constitutional Court to impugn the laws as incompatible with the Constitution. The applicant's complaint was lodged on 17 May 1999. Since all the applications concerned the same subject the court joined them.
On 23 December 1999 the Constitutional Court held a public oral hearing. The President of the Moscow City Notarial Chamber was present at the hearing. The court declared the relevant provisions of the laws unconstitutional but maintained them in force until a new law was adopted. Payments made in the meantime were to be offset against future contributions. On 19 January 2000 the decision of the court was officially published.
The court allegedly failed to inform the applicant about the date of the hearing.
No proceedings in an ordinary court involving the application of the challenged laws were brought by the applicant.
The new law was adopted on 5 August 2000 and came into force on 1 January 2001.
Article 96 of the Federal Constitutional Law on the Constitutional Court of the Russian Federation of 21 July 1994 (“the Law”) provides that citizens whose constitutional rights and freedoms are violated by a law applied or to be applied in a specific case are entitled to submit their complaint to the Constitutional Court of the Russian Federation.
By Article 97 of the Law an application is only admissible if (i) the law in question affects the constitutional rights and freedoms of citizens; (ii) the law has been applied or is to be applied in specific proceedings, finished or pending, before courts of general jurisdiction or any other authority applying the law.
Under Article 100 of the Law the Constitutional Court may: (i) confirm that the law or certain of its provisions comply with the Constitution; or (ii) establish that the law or certain of its provisions do not comply with the Constitution. In the latter case, pursuant to procedural codes in force at the material time, an application may be made to a court which applied the unconstitutional law or to a court which is hierarchically superior. The respective court may then re-open the proceedings and order a fresh examination of the case on the basis of the findings of the Constitutional Court. Where the unconstitutional law was applied by an authority other than a court, the authority re-considers the case on the basis of the findings of the Constitutional Court.
Under Articles 79 of the Law in force at the material time in case the Constitutional Court declares a law incompatible with the Constitution such a law becomes invalid.
Under Article 49 of the Law a judge rapporteur and a president of a session determine the persons to be summoned to the session and order their notification of the place and time of the session.
Under Articles 51 - 53 of the Law applicants and their representatives are notified about a hearing not later than ten days before it. Each party may have up to three representatives. Notices of hearings before the Constitutional Court are published and also placed in the building of the court in places accessible to the public.
Under Article 62 of the Law a party makes oral pleadings at a hearing.
According to Article 15 of the Constitution of the Russian Federation the Constitution has a superior legal power and direct application on the whole territory of the Russian Federation. Laws and other legal acts shall comply with the Constitution.
Article 10 of the Code of Civil Procedure of the Russian Federation in force at the material time provides that a court shall determine civil cases on the basis of the Constitution of the Russian Federation, federal constitutional laws, federal laws and other acts. Under Article 101 of the Law the court, having established non-compliance with the Constitution of a law applied or to be applied in a specific case refers a matter of constitutionality of the law to the Constitutional Court and suspends the proceedings.


ITEMID: 001-102612
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SPAHIU v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Afrim Spahiu, was born in 1966 in Terstenik, Kosovo, and lives in Arnsberg. He is represented before the Court by Mr M. Reuther, a lawyer practising in Arnsberg. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialdirigentin, Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 October 1998 the Dortmund Regional Court opened a trial against the applicant and others, as members of a joint criminal enterprise, on charges of having induced a number of people to lodge falsified asylum applications in twenty-nine cases. After a dispute as to jurisdiction between the Regional Court and the Court of Appeal, on 17 March 1999 the Federal Court of Justice ordered the Dortmund Regional Court to carry on with the proceedings.
On 20 November 2000 the Dortmund Regional Court, the Grand Criminal Division (Große Strafkammer) sitting as a Jury Court (Schwurgericht) and presided over by Judge F., who had been appointed to the Dortmund Regional Court a year earlier, convicted S.-S. and R, two German co-accused of the applicant, of having helped people in ten cases to lodge falsified asylum applications, S.-S. as a member of a joint criminal enterprise comprising, notably, the applicant. The proceedings against the co-accused had been severed after they had confessed to the offences. The applicant, who had been summoned as a witness in these proceedings, had refused to give evidence. The judgment contained references to the applicant’s role in the offences. The main passages in this respect read as follows:
“Spahiu had the idea of helping asylum seekers, against payment of a considerable fee, to increase their prospects of success by submitting false statements. ... Spahiu had told the accused, S.-S., about a secret organisation called ‘the Anti-Serbian Movement’ (‘the ASM’), founded in Kosovo, but also active in Germany and other European countries. According to Spahiu, he was a high-ranking member of this organisation. ... The accused, S.-S., did not doubt the truth of Spahiu’s story and assumed that the ASM actually existed ... The chamber did not investigate whether the ASM really existed or whether it was just a sham organisation. According to Spahiu, the prospects of success of an application for asylum could be increased if the applicant referred to his or her membership of the ASM, as well as to the holding of senior office within it. ... According to Spahiu’s plan, membership certificates, as well as documentation regarding the holding of senior office, should be submitted in the asylum proceedings by the accused, R., on stationery seemingly from the ASM and signed by him [Spahiu], H., who is also being prosecuted, and the accused, S.-S. ... According to Spahiu’s plan, the applicants would pay fees of up to 20,000 German marks for such assistance in the asylum proceedings. ... First of all, a counselling interview was arranged with each applicant. During this interview, in which Spahiu and S., and, in some cases, the accused, S.-S., took part, the applicant seeking help was informed about the requirements of a successful application for asylum. ... In all the cases which are the subject of the verdict, Spahiu, S. and the accused, S.-S., invented posts in senior positions within the ASM which were allegedly held by the asylum seekers. In order to prove the alleged position of the applicants to the administrative authority or the administrative court Spahiu, using a computer, developed a standard form. ... This statement was then stamped ‘Anti-Serbian Movement’. This stamp had been designed by Spahiu, who had also had it made. The statements were usually signed by Spahiu. ... Furthermore, Spahiu created another statement [donation receipt]. ... This statement was signed either by the accused, S.-S., as secretary general or, once S. S. no longer held this position, by Afrim Spahiu as secretary general and by H., who is also being prosecuted ... In 1996, at the request of Afrim Spahiu, the accused, R, agreed to handle the applications of the members of the ASM. ... When further enquiries needed to be made, the accused, R., contacted Spahiu and S. rather than the asylum seekers.”
In the subsequent summaries of the different cases of falsified asylum applications the applicant was generally referred to as “the separately prosecuted” (der gesondert Verfolgte). Regarding the criminal liability of the accused S.-S. the Regional Court found that she had acted as a member of a joint criminal enterprise and had conspired with the separately prosecuted Afrim Spahiu and M.S. to commit such crimes in the future. Regarding the sentence of S.-S. the trial court took into consideration, inter alia, that together with the other members of the joint criminal enterprise she had “taken advantage of the vulnerable situation of the asylum seekers”.
The judgment did not include an assessment of evidence because it had become final and could therefore be abridged by virtue of Article 267 § 4 of the Criminal Code of Procedure (see “B. Relevant domestic law” below). From the circumstances, which were found to be decisive in assessing the penalty, it follows, however, that both co-accused had confessed to the offences with which they had been charged.
On 22 March 2001 the trial against the applicant continued before a Grand Criminal Division sitting as a Jury Court and Judge F. presiding. Throughout the proceedings, the applicant lodged numerous applications for the removal of F. and other judges of the Dortmund Regional Court from sitting in the case on grounds of bias: between May and October 2000 he submitted thirteen such applications. Inter alia, on 22 January 2001 he alleged that F. had already determined the extent of the applicant’s involvement in the offence (Vorwegentscheidung) with the judgment against the co-accused so as to be able to convict him more easily. The Criminal Division, including F., dismissed the application on 25 January 2001 as inadmissible, finding that it contained no evidence of bias. In his application dated 17 May 2001 the applicant challenged Judge F., inter alia, because he had participated in the proceedings against the two co-accused. On 21 May 2001 this application was dismissed as having been lodged late (verspätet).
On 17 January 2002 the Regional Court convicted the applicant of participating in a joint criminal enterprise to induce asylum seekers to lodge falsified asylum applications in thirteen cases and sentenced him to five years’ imprisonment. Six of these cases had also led to the conviction of the co-accused. The applicant’s conviction was based, in particular, on the testimony of the former co-accused S.-S., the witness statements of the individual asylum seekers and relevant documents. The applicant had exercised his right not to testify. The judgment comprised 99 pages and contained a detailed assessment of the evidence before the court, in particular also regarding the credibility of S.-S’s statements. As regards the description of the circumstances of the offence, the statement of facts contained similar and partly identical wording to the statement of facts in the judgment against the co-accused.
The applicant lodged an appeal on points of law with the Federal Court of Justice in which he submitted, inter alia, that F. should have been excluded from sitting in the case by operation of law, namely by application of Article 23 of the Code of Criminal Procedure (see “B. Relevant domestic law” below) mutatis mutandis, since he had sat on the bench trying the case against the co-accused. In its reply the Federal Prosecutor General’s office pointed out that Article 23 of the Code of Criminal Procedure could not be applied mutatis mutandis in this situation. On 3 April 2003 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill founded.
In the constitutional complaint dated 16 July 2003 the applicant’s lawyer gave an account of the preliminary investigation proceedings and the trial against his client. Regarding the merits he firstly maintained that the criminal provisions the conviction was based on were unconstitutional. He further alleged that F. had been appointed to the Dortmund Regional Court specifically for the trial against the applicant. Also, after having presided over the trial of the co-accused F. should have been excluded from the applicant’s trial by operation of law. It was further submitted that F. had lacked the necessary impartiality. At the trial against the co-accused, which was linked to the applicant’s trial, F. had determined the extent of the applicant’s participation in the offences. Because the two proceedings dealt with the same offences and the same offenders the applicant alleged that F. could not view him with the necessary neutrality, objectivity and distance. He finally submitted that
“a realistic examination of the procedural provisions concerning exclusion of judges ipso jure, taking into consideration the values of the Basic Law and established knowledge in the area of psychology, leads to the conclusion that it is no longer appropriate that the Criminal Code of Procedure assumes that an issue of bias will not generally arise if a trial judge has previously participated in a decision related to the proceedings at hand.”
The applicant submitted that F.’s bias was evidenced in particular by the dismissal of all of his applications for the removal of judges from sitting in the case as inadmissible.
On 24 October 2003 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint. It held that the applicant had not sufficiently substantiated the complaint that F. should have been legally barred from adjudicating on his case because he had been involved in criminal proceedings directly related to it. By claiming that F. had participated in the proceedings against him contrary to Article 23 § 2 of the Code of Criminal Procedure (see “B. Relevant domestic law” below) he had simply reiterated the submissions he had made before the Federal Court of Justice. The Federal Constitutional Court further reasoned:
“... the applicant failed to demonstrate that the decision not to consider the presiding judge to be legally barred from sitting in his case – thus applying a narrow interpretation of Article 23 of the Code of Criminal Procedure – had been arbitrary, i.e. based on an interpretation and application of Article 23 of the Code of Criminal Procedure which was not legally arguable under any aspect of the provision.”
On 24 November 2004 the second set of proceedings (opened in April 2002 before the Regional Court) against the applicant for having induced a number of people to lodge falsified asylum applications in thirteen more cases were provisionally stayed in accordance with Article 154 of the Code of Criminal Procedure (see “B. Relevant domestic law” below) in view of the prior conviction of the applicant.
From 12 November 1997 to 26 April 1999, when the arrest warrant was quashed and the applicant released, the applicant was placed in pre-trial detention for the first time on suspicion of having committed the asylum related offences with which he had been charged in the first set of proceedings. On 4 February 2000 the Federal Constitutional Court found that the applicant’s prolonged detention, as ordered by the Federal Court of Justice on 17 February 1999, had violated his right to liberty.
On 19 April 2001 the Regional Court, having consulted three doctors, ordered the applicant’s second arrest and detention, finding that he had intentionally rendered himself unfit to plead by taking an overdose of analgesics. On 18 October 2001 the Hamm Court of Appeal quashed the arrest warrant and the applicant was released. The Hamm Court of Appeal found that the applicant’s right to liberty, having regard to the overall length of his detention, now prevailed over the State’s interest in securing the proper continuation of the proceedings. On 13 December 2001 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant.
On 14 January 2002 – by which date the applicant had still not appeared for trial – the Regional Court ordered the applicant’s arrest on the ground that he might attempt to flee and confirmed this arrest warrant when delivering a judgment on 17 January 2002. On 21 March 2002 the Court of Appeal quashed the arrest warrant.
On 15 January 2002 the Dortmund District Court issued an arrest warrant in respect of the other offences with which the applicant had been charged in the second set of proceedings. It argued that he was likely to flee if released owing to the considerable sentence he risked being given if convicted and considering that he had already tried to evade trial by deliberately rendering himself unfit to plead and by fleeing to Albania.
On 16 March 2002 the applicant was arrested when re-entering Germany and detained for a third time.
On 18 April 2002, endorsing the reasons given by the District Court, the Court of Appeal upheld the arrest warrant of 15 January 2002. On 2 May and 12 June 2002 the Federal Constitutional Court declined to consider constitutional complaints lodged by the applicant in this regard.
On 25 September 2002 the Regional Court quashed the arrest warrant of 15 January 2002.
“(1) A judge who has participated in a decision which has been contested on appeal shall be barred by law from participating in the decision of a higher level of jurisdiction.
(2) A judge who has participated in a decision contested by an application for reopening of the proceedings shall be barred by law from participating in decisions in the proceedings to reopen the case. If the contested decision has been given at a higher level of jurisdiction, a judge who has participated in an original decision at a lower level shall be barred. The first and second sentences shall apply mutatis mutandis to the participation in decisions to prepare the reopening of the proceedings.”
“(1) A judge may be challenged both where he is barred by law from exercising judicial office and on grounds of bias.
(2) A challenge on grounds of bias shall be justified if there is reason to doubt the impartiality of a judge. ...”
“(1) A challenge to a judge shall be rejected by the court as being inadmissible if:
1. the challenge is not made in time;
2. there is no disclosure of the ground for the challenge or of the means by which the challenge could be substantiated ...
(2) The court shall give its decision rejecting the challenge pursuant to paragraph 1 without the judge in question being excluded from the bench. ...”
“...
(2) Once proceedings have been instituted, the court may provisionally stay them at any stage at the request of the Public Prosecutor’s Office.
...
(4) If the proceedings have been provisionally terminated on account of a penalty or measure of reform and prevention which is to be expected for another offence, the proceedings may be resumed, unless barred by limitation in the meantime, within three months after the judgment imposed for the other offence has entered into force.
(5) If the court has provisionally terminated the proceedings, a court order is required for their resumption.”
“...
(4) If all parties entitled to lodge an appeal waive their right of appeal or if no appeal is lodged within a certain time-limit, the proven facts establishing the statutory elements of the criminal offence and the criminal provision applied must be indicated; ... The further content of the reasons for the judgment shall be determined by the court taking into consideration - at its discretion - the circumstances of the individual case. ...”
“(1) The criminal divisions shall be composed of three judges, including the presiding judge, and two lay judges (grand criminal divisions) ...
(2) At the opening of the main proceedings, the grand criminal division shall rule that it will be composed of two judges, including the presiding judge, and two lay judges during the main hearing unless a criminal division in the composition of three judges and two lay judges (Schwurgericht) has jurisdiction or the participation of a third judge appears necessary due to the scale or complexity of the case ...”
Article 101, § 1, second sentence, of the German Basic Law provides that no one shall be deprived of his right to a decision rendered by a legally competent judge (gesetzlicher Richter). In its case-law, the Federal Constitutional Court has consistently dealt with the issue of whether a judge must be excluded for suspicion of bias in the framework of the right to a decision rendered by a legally competent judge.


ITEMID: 001-98293
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KACINARI v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Anton Kačinari, is a Croatian citizen of Albanian origin who was born in 1952 and lives in Zagreb. He was represented before the Court by Mr Zlatko Kušan and Mrs Lovorka Kušan, lawyers practising in Ivanić Grad. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 March 1992 the applicant reported to the police that on that same day at about 11 a.m. he had had a fight with a certain P.G. and that P.G. had fired two shots. Several other individuals had joined P.G. and together they had hit and kicked the applicant who, according to the medical documentation submitted, suffered grave injuries such as concussion, a broken nose, lacerations to his head and broken teeth. On 17 March 1992 the police lodged a criminal complaint with the Zagreb State Attorney’s Office.
The Government submitted that on 24 June 1998 the competent State Attorney’s Office had dropped the charges and that the case file had meanwhile been destroyed.
The applicant submitted that he had never been informed of the said decision to drop the charges.
On 6 July 2004 the applicant lodged a criminal complaint against K.G. and P.G., alleging that at the beginning of 2004 K.G. had threatened to kill him and that in May 2004 both K.G. and P.G. had threatened to kill him. On 7 July 2004 he lodged a further complaint stating that on 6 July 2004 K.G. had said in front of one M.M. that he would kill the applicant.
On 20 July 2004 the Zagreb State Attorney’s Office ordered the police to collect information in relation to the applicant’s allegations. In their report of 24 October 2004 the police informed the State Attorney’s Office that they had interviewed the applicant and two witnesses. On 7 March 2005 the State Attorney’s Office ordered the police to interview P.G. and K.G. On 9 June 2005 the police submitted a report and enclosed the record of the interviews with the alleged perpetrators.
On 13 July 2005 the State Attorney’s Office requested an investigating judge of the Zagreb County Court (istražni sudac Županijskog suda u Zagrebu) to hear evidence from the perpetrators. The investigating judge heard their evidence on 27 September and 17 October 2005 respectively.
On 28 November 2005 the State Attorney’s Office indicted P.G. and K.G. in the Zagreb Municipal Court (Općinski sud u Zagrebu) on charges of uttering threats against the applicant. Hearings before that court were held on 19 November 2007 and 7 January, 11 February, 2 April and 20 May 2008. The court heard evidence from five witnesses and the defendants and on the last-mentioned date gave a judgment acquitting K.G. for lack of evidence. P.G. was found guilty of making death threats to the applicant and was given a suspended sentence of three months’ imprisonment with a probation period of two years. The State Attorney lodged an appeal which was dismissed by the Zagreb County Court on 3 March 2009.
On 25 July 2005 the applicant lodged a criminal complaint against B.Š., alleging that at around 6 p.m. on that same day B.Š. had threatened to kill him, telling him that he was a “newcomer” and a “shiptar”, a derogatory term for persons of Albanian origin. He had also warned the applicant that he had “warrior experience” and “was in the war”.
On 12 October 2005 the Zagreb State Attorney’s Office requested an investigating judge of the Zagreb County Court to hear evidence from the defendant and the applicant. The investigating judge heard their evidence on 27 January and 20 March 2006 respectively.
On 14 April 2006 the Zagreb State Attorney’s Office indicted B.Š. in the Klanjec Municipal Court on the charge of making death threats to the applicant. The factual basis of the offence as described in the indictment reads:
“... that on 25 July 2005 in Zagreb, ..., with the intention of scaring him, [B.Š.] told Anton Kačinari that he had “war experience”, that he had participated in the Homeland War, that he knew how to kill and that he was going to kill him and that he had no rights as an Albanian because this was Croatia and he was a Croat, which caused Anton Kačinari to fear for his personal safety”
After the indictment, the Zabok State Attorney’s Office took over the prosecution. The Klanjec Municipal Court held hearings on 6 June, 4 July, 12 September, 15 October and 14 November 2007 and on 19 February 2008. It heard evidence from seven witnesses, the defendant and the applicant.
On 5 May 2008 the Zabok State Attorney’s Office informed the Municipal Court that it no longer wished to continue the prosecution of B.Š. on the grounds that the evidence of the witnesses heard had not shown that B.Š. had seriously threatened to kill the applicant. Accordingly, on 8 May 2008 the Klanjec Municipal Court terminated the proceedings because the State Attorney’s Office had dropped the charges. The applicant was informed that he could take over the prosecution within eight days of the date on which the decision was served on him. He did not pursue the prosecution nor did he appeal against the decision to terminate the proceedings.
On 11 June 2007 the applicant lodged a criminal complaint against P.G., alleging that on 8 March 2007 at about 10 p.m. he had met P.G. in the street. P.G. had made a gesture as if he were going to pull a gun on the applicant, saying that he was going to kill him.
On 21 June 2007 the Zagreb State Attorney’s Office ordered the police to collect information about the applicant’s allegations. The police submitted their report on 2 August 2007.
On 23 August 2007 the Zagreb State Attorney’s office indicted P.G. in the Zagreb Municipal Court on the charge of threatening behaviour against the applicant. These proceedings are currently pending.
The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide as follows:
“(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ...
(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor.
(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.
(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.”


ITEMID: 001-4522
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: PRANJKO v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall
TEXT: The applicant, born in 1971, presently resides in Karlskrona, Sweden. In his application form, he states that he has Croatian nationality.

a.
On 11 December 1992 the applicant arrived in Sweden with his wife and requested asylum. His wife being unhappy with the living conditions in the refugee camp where they were placed, they withdrew the asylum request on 14 April 1993 and left Sweden on 12 May 1993. They went to Croatia where his wife’s father lived. The wife later left the applicant and went to Germany with her father. The applicant was left in Croatia without any income or a place to live. He received no help from the Croatian authorities. Before leaving for Sweden he had been active in the defence organisation in his hometown Jajce in BosniaHercegovina. Following disagreements he left the organisation and joined the Bosnian-Croatian army in which he served until 28 October 1992 when Serbian forces took over Jajce. He deserted from the army and, on a second attempt, he was able to cross the border to Croatia. After his return to Croatia from Sweden he was allegedly afraid of being arrested and sent back to Bosnia-Hercegovina to be put on trial for desertion. He therefore left for Sweden a second time. He arrived on 8 January 1994 and requested asylum. He claimed that he could not return to Bosnia-Hercegovina as he could not get any protection there. Nor could he return to Croatia where he would be drafted for military service or punished for desertion. Further, he would be at risk of being sent back to Bosnia-Hercegovina. Despite the fact that he held a Croatian passport, he could not be considered a citizen of that country as he had not applied for Croatian citizenship.
On 20 September 1994 the National Immigration Board (Statens invandrarverk) rejected the applicant’s request and ordered his deportation to Croatia. The Board found that the applicant held both Bosnian and Croatian citizenship. Noting that the prevailing situation in Bosnia-Hercegovina rendered a deportation to that country impossible, the Board examined the applicant’s situation with respect to Croatia. The Board found that he did not risk to be sent from Croatia to Bosnia-Hercegovina. Further, he did not risk harassment or persecution in Croatia and he would not be forced to take part in any armed conflict.
The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 11 September 1995 the Appeals Board granted the applicant a temporary residence permit until 1 December 1995 and quashed the deportation order. In so doing, the Board referred to a Government decision of 5 May 1995 according to which the worsened situation in Croatia constituted an impediment to the deportation of asylum seekers to that country.
On 7 November 1995 the applicant submitted a new application for a residence permit. He referred to his previous statements and added the following. He is wanted for desertion by the Bosnian-Croatian army and might be forced to rejoin his military unit and take part in the conflict in Bosnia-Hercegovina. In this respect, he invoked a Bosnian arrest warrant and a Croatian draft order. He claimed further that he feared reprisals for comments he had made to Swedish newspapers about people profiting from the war and for having participated in demonstrations and other actions against Croatia in Sweden. Moreover, having had special assignments within the Bosnian-Croatian army, he was in possession of sensitive information and could thus be in great danger if caught by “the wrong people”. He stated also that his mental health was failing due to his experiences from the war and that he regularly saw a psychologist. His medical journals showed that he was in great need of psychiatric help on account of those experiences. According to two district nurses whom the applicant had been seeing, the applicant had suicidal thoughts. Moreover, the applicant invoked family ties in Sweden: one of his brothers lived there and his mother and another brother had applied for asylum in the country. His parents were divorced and his father had returned from Sweden to Jajce in October 1995. The applicant claimed also that he had integrated well into Swedish society and that he should be given a residence permit on humanitarian grounds.
In a decision of 23 July 1997 the Immigration Board rejected the applicant’s new application and ordered that he be deported to either Bosnia-Hercegovina or Croatia. The Board referred to a guiding decision taken by the Swedish Government on 28 November 1996 according to which the possibility of returning to one’s home district in Bosnia-Hercegovina was dependent on the prevailing ethnic composition of the population in the district. In the Government’s view, it was possible to return to the home district where one’s own ethnic group was in the majority. The Board noted that the majority of the population in Jajce were Croats. Consequently, the applicant could return to Jajce without having to fear any harassment or outrage. As regards the possible deportation of the applicant to Croatia, the Board considered that there was no reason to assume that Croatia would not afford him protection. In this respect, the Board referred to information available from the Swedish Government and the United Nations High Commissioner for Refugees (UNHCR). This view had been confirmed also by the Croatian Government. With respect to the applicant’s alleged actions against Croatia, the Board noted that the applicant had not been politically active in his home country and that there was no indication that his activities in Sweden had attracted the attention of Croatian authorities. The Board further called into question the veracity of the applicant’s statements as to his being in possession of sensitive information since he had not made this allegation until 17 July 1997. Moreover, having regard to the amnesty laws enacted in Bosnia-Hercegovina and Croatia, it was not likely that the applicant would be punished for desertion. Finally, the Board considered that the applicant’s mental problems, his alleged integration into Swedish society and his family ties did not constitute sufficient reasons to grant him a residence permit on humanitarian grounds.
The applicant appealed to the Aliens Appeals Board. He invoked a statement by psychologist L.S. who claimed that the applicant showed signs of suffering from a posttraumatic stress syndrome and that it had been considered whether to admit the applicant for institutional care due to the risk of suicide attempts.
On 18 May 1998 the Appeals Board upheld the Immigration Board’s decision.
By a decision of 30 July 1998 the Appeals Board granted the applicant’s mother a permanent residence permit in Sweden on account of her family ties. The Board recalled that, under Swedish law, a residence permit could be given to a foreigner who used to share a home with a relative living in Sweden, if it could be shown that the persons in question were in a state of dependence vis-à-vis each other. As regards the circumstances of the particular case, the Board noted that the applicant’s mother had been living with her three sons – including the applicant – in Jajce until the autumn of 1992. Her son B had left for Sweden in December 1992 and had been granted a permanent residence permit on 20 October 1993. Another son, S, had arrived in Sweden in February 1994. On 3 July 1997 he had been granted a residence permit based on his ties with his Swedish wife with whom he had a child. The Board noted further that the applicant had been refused a residence permit. The applicant’s mother had arrived in Sweden in March 1994 and had been living with S until, in November 1995, he moved in with his wife. The Board concluded that there was such a state of dependence between the applicant’s mother and her sons living in Sweden that she was entitled to a residence permit.
Following the decision concerning his mother, the applicant submitted another application for a residence permit. He claimed that he had been living with his mother in Croatia and that they had continued to live together after her arrival in Sweden in March 1994. On 4 September 1998 the Aliens Appeals Board rejected the application, finding that no new circumstances had been invoked in the case.
On 27 October 1998 the applicant submitted yet another application. Again, he referred to his ties with his mother and claimed that these circumstances had not properly been taken into account by the Appeals Board. By a decision of 3 November 1998 the Board suspended the enforcement of the applicant’s deportation order. The examination of the merits of the latest application is still pending before the Board.
Relevant domestic law
Under Section 29 of the Act on Compulsory Mental Care (Lagen om psykiatrisk tvångsvård, 1991:1128), such care shall be terminated at the request of the competent police authority whenever the person placed in care is ordered to be deported. This presupposes, however, that the chief physician finds that the alien’s condition allows that the deportation takes place. According to Section 33, no appeal lies against the chief physician’s decision.


ITEMID: 001-69286
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: WITKOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Marian Witkowski, is a Polish national who was born in 1952 and lives in Biłgoraj. He is represented before the Court by Mr A. Włoch, a lawyer practising in Cracow.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 27 April 1993 the applicant was charged with the offence of trafficking in children and detained on remand. On 30 June 1994 he was indicted before the Zamość Regional Court (Sąd Wojewódzki w Zamościu) on the charges of trafficking in children and inciting third parties to give false testimony.
The proceedings were terminated by the judgment of the Warsaw Regional Court of 23 September 2004, after the entry into force of the 2004 Act. On 29 September 1999, the date on which the application was lodged with the Court, they were pending before the Warsaw Regional Court.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-58922
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF A.D.T. v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant is a practising homosexual. On 1 April 1996, at approximately 7.50 p.m., police officers conducted a search under warrant of the applicant's home. As a result of the search, various items were seized including photographs and a list of videotapes. The applicant was arrested at about 8.23 p.m. and taken to the local police station. A further search of the applicant's house was conducted the following day and further items, including videotapes, were seized.
9. The applicant was interviewed by the police on 2 April 1996. During the interview the applicant admitted that some of the videotapes found would contain footage of the applicant and up to four other adult men, engaging in acts, mainly of oral sex, in the applicant's home. On 2 April 1996 the applicant was charged with gross indecency between men contrary to section 13 of the Sexual Offences Act 1956 (“gross indecency”). The charge related to the commission of the sexual acts depicted in one of the videotapes, which consisted of oral sex and mutual masturbation. It did not relate to the making or distribution of the tapes themselves.
10. On 30 October 1996 the applicant appeared before a magistrates' court. The principal evidence adduced by the Crown consisted of a single specimen video containing footage of the applicant and up to four other men engaging in acts of oral sex and mutual masturbation. The acts which formed the basis of the charge involved consenting adult men, took place in the applicant's home and were not visible to anyone other than the participants. There was no element of sado-masochism or physical harm involved in the activities depicted on the videotape. The applicant was convicted of the offence of gross indecency. On 20 November 1996 the applicant was sentenced and conditionally discharged for two years. An order was made for the confiscation and destruction of the seized material.
11. The applicant was subsequently advised by counsel that an appeal against conviction would enjoy no prospect of success since the provisions of the relevant legislation were clear and mandatory. The applicant did not appeal against the conviction.
12. Section 13 of the Sexual Offences Act 1956 provides:
“It is an offence for a man to commit an act of gross indecency with another man, whether in public or private, or to be a party to the commission by a man of an act of gross indecency with another man, or to procure the commission by a man of an act of gross indecency with another man.”
13. By section 37 of, and paragraph 16 of the Second Schedule to, the Sexual Offences Act 1956, the offence of gross indecency between men is punishable on indictment by up to five years' imprisonment if committed by a man of, or over the age of, 21 with a man under the age of 18, and otherwise by a maximum of two years' imprisonment.
14. If, as in the present case, the offence is tried summarily by magistrates, the maximum penalty is six months' imprisonment and/or a fine of 5,000 pounds sterling (Magistrates' Courts Act 1980, sections 17 and 32 and Schedule 1, paragraph 23(b)).
15. There is no statutory definition of “gross indecency”. However, in its 1957 report, the Committee on Homosexual Offences and Prostitution (Wolfenden Committee) noted:
“104. 'Gross indecency' is not defined by statute. It appears, however, to cover any act involving sexual indecency between two male persons. If two male persons acting in concert behave in an indecent manner the offence is committed even though there has been no actual physical contact (R. v. Hunt 34 Cr App R 135).
105. From the police reports we have seen and the other evidence we have received it appears that the offence usually takes one of three forms; either there is mutual masturbation; or there is some form of intercrural contact; or oral-genital contact (with or without emission) takes place. Occasionally the offence may take a more recondite form; techniques in heterosexual relations vary considerably, and the same is true of homosexual relations.”
16. The Sexual Offences Act 1967 introduced a qualification to the legislation regulating male homosexual conduct. It provided that homosexual acts in private between consenting adult men were no longer an offence. Homosexual acts are defined as buggery with another man or gross indecency between men (section 1(7)). By virtue of section 1(2), an act is not done in private if, inter alia, more than two persons take part or are present.
17. Section 1 of the Sexual Offences Act 1967, in its relevant part, provides:
“(1) Notwithstanding any statutory or common law provision, but subject to the provisos of the next following section, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of eighteen years.
(2) An act which would otherwise be treated for the purposes of this Act as being done in private shall not be so treated if done –
(a) when more than two persons take part or are present; or
(b) in a lavatory to which the public have or are permitted to have access, whether on payment or otherwise. ...
(7) For the purposes of this section a man shall be treated as doing a homosexual act if, and only if, he commits buggery with another man or commits an act of gross indecency with another man or is a party to the commission by a man of such an act.”
18. There are no provisions under domestic law for the regulation of private homosexual acts between consenting adult women.
19. Likewise, there are no provisions under domestic legislation affecting heterosexual behaviour which correspond to section 13 of the Sexual Offences Act 1956. Thus, acts of oral sex and mutual masturbation between more than two consenting adult heterosexuals (as long as there are no homosexual acts between any two males) do not constitute an offence.
VIOLATED_ARTICLES: 8


ITEMID: 001-113453
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: KATAJEVS v. LATVIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Mr Sergejs Katajevs, is a Latvian national who was born in 1984 and is currently serving his sentence in Jelgava Prison. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 12 April 2004 the applicant was arrested and placed in a short-term detention facility in the Ventspils Police Department.
4. The applicant remained in that facility for the following periods:
- from 12 April to 29 May 2004;
- from 14 to 29 October 2004;
- from 14 to 22 December 2004; and
- from 22 January to 14 February 2005.
5. According to the applicant, the conditions in that detention facility were inhuman and degrading on several accounts. There was no daylight, no toilet, no access to water and no ventilation. He had to sleep on the concrete floor without a mattress or blanket. The cell was damp, and was infested with insects.
6. According to the applicant, he was not able to correspond with his relatives while in that detention facility.
7. On 2 December 2005 the applicant complained about the conditions of his detention to the Ventspils Police Department. On 8 December 2005 they replied that they were not in a position to ensure better conditions for detainees.
8. On 3 February 2006 the applicant complained to the Ventspils Police Department that he was not allowed to correspond with his relatives. On 20 February 2006 they replied that private correspondence was not allowed.
9. The relevant laws have been summarised in Ņikitenko v. Latvia (dec.), (no. 62609/00, 11 May 2006, and Melnītis v. Latvia (no. 30779/05, §§ 2426, 28 February 2012).
10. Since the entry into force of the new Law of Criminal Procedure (Kriminālprocesa likums) on 1 October 2005 several normative acts concerning detention have been adopted. Initially, the Parliament passed a law on procedure for keeping detainees in short-term detention facilities in police departments (Aizturēto personu turēšanas kārtības likums); it does not specify if detainees held in those facilities have the right of correspondence. After that the Government issued a regulation that was later replaced by another law (Apcietinājumā turēšanas kārtības likums) applicable to detainees held in investigative wings of prisons and to detainees held in the short-term detention facilities in police departments. The law expressly provides for the right of correspondence.
11. In addition, section 1635 of the Civil Law provides that every wrongful act as a result of which damage has been suffered shall give the victim the right to claim compensation from the perpetrator, in so far as he or she may be held culpable for that act. The later amendments to that law, which took effect on 1 March 2006, expressly specify that it includes non-pecuniary damage.