ITEMID: 001-83460
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF POPOVICI v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Nicolas Bratza
TEXT: 5. The applicant, Mr Petru Popovici, known as Micu (“the applicant”), is a Moldovan national who was born in 1962. He is presently serving a life sentence in Rezina prison.
6. In 2000 and 2001 the applicant and a group of ten other persons were accused of being members of a criminal gang and of having committed numerous offences, including ten murders and thirteen attempted murders. The applicant was arrested and placed in detention on 12 November 2001.
7. On 22 October 2002 seven members of the gang were finally convicted by the Supreme Court and sentenced to terms of imprisonment varying between ten years and life sentences. The applicant and three other co-accused (R., S. and G.D.) were tried separately.
8. The applicant was charged with founding and heading the criminal gang. In his capacity as founder and head of the gang he was charged with the attempted murder of five persons; the murder of three persons; the unlawful deprivation of liberty of three persons and possession of firearms. He was also charged in his personal capacity with use of false documents; possession and use of firearms; blackmail; theft and possession of drugs.
9. During the proceedings before the first-instance court the prosecution dropped the charges concerning two attempted murders.
10. In March 2003 the Secretary of the Superior Security Council of Moldova, Mr Valeriu Gurbulea, gave an interview to a Russian language newspaper in which he declared, inter alia:
“Людьми главы самой крупной преступной группировки - Мику - предпринимались самые энергичные попытки его освобождения из под стражи, и только личное вмешательство Президента пресекло эти попытки.”
“The men of the leader of the most important criminal gang, Micu, made very energetic attempts to get him released from detention, and only the personal involvement of the President cut short those attempts.”
11. On 7 October 2003 the Chişinău Court of Appeal acquitted the applicant of all the charges for lack of evidence. The Court of Appeal acquitted the applicant of all the charges and ordered his release from custody. It also acquitted co-accused G.D., but convicted co-accused R. and S. In its judgment the court stated, inter alia:
“...
[The applicant] is accused of, between January 1998 and February 2000, together with R. and S., founding a criminal gang and heading it....
In his capacity as founder and head of the criminal gang, he is accused of the murder of three persons, attempted murder of five persons, deprivation of liberty of three persons and purchase and possession of firearms. He is also accused of purchase and possession of firearms and drugs in his personal capacity at the time of his arrest on 12 November 2001, use of false documents, blackmail and theft.”
Both during the investigation and the court proceedings [the applicant] pleaded his innocence.
Concerning the charge of founding and heading the criminal gang, the court stated:
“[The applicant]'s indictment is of a declarative nature and is based on suppositions but not on any convincing evidence. The prosecutor did not adduce any new evidence during the [court] proceedings.
The co-accused R. and G.D. and the [seven persons convicted by the Supreme Court on 22 October 2002] did not make any statements during the investigation which would incriminate [the applicant] in founding and heading the criminal gang..., purchasing firearms, ammunition and cars, renting apartments and financing the gang.
The charges against [the applicant] are based on the statements of S. [co-accused] to the effect that [the applicant], C., L.V., L.P., and G.D. [alleged members of the criminal gang] are [the applicant]'s men and that [the applicant] would have had an interest in the murder of Gr. [victim of an attempted murder in respect of which the charges against the applicant had been dropped]; that R. [co-accused] had told him that [the applicant] had paid money [for a murder]; that L.V. [convicted by the Supreme Court on 22 October 2002] had told him that [the applicant] could not return to the city because of Gr. and that G.D. [co-accused] could execute any order given by [the applicant].
These [hearsay] statements were not confirmed by R. [co-accused] or L.V. [convicted by the Supreme Court on 22 October 2002] either at the investigation stage or during the proceedings.
Moreover, R. [co-accused] stated that the money [for a murder] was paid by another person, Pa., but not by [the applicant].
It had not been established that [the applicant] participated in meetings of the criminal gang, in the planning of the murders, or that he had had contact by telephone with the members of the criminal gang.
None of the witnesses interrogated in respect of this head of charge [founding and heading a criminal gang] as well as in respect of the charges concerning murders and attempted murders, had made any statements that would incriminate [the applicant].
According to section 17 § 3 of the Criminal Code, the founders and the heads of criminal gangs bear responsibility for all the offences committed by the gang. In the present case, the investigation body itself cast doubt on [the applicant]'s status as founder and head of the criminal gang by only charging him with three murders out of a total of ten and with five attempted murders out of a total of thirteen.
Having before it such a declarative indictment, which is based on suppositions and with no evidence having been adduced during the proceedings in support of the indictment, the court finds itself incapable of convicting [the applicant].”
As to the charges concerning the murders, attempted murders, the deprivation of liberty and the possession of firearms in the applicant's capacity as founder and head of the criminal gang, the Court of Appeal found as follows:
“... It was not proved that [the applicant] was involved in the alleged offences either as an executor, instigator or accomplice.
During the hearing the prosecutor dropped the charges against [the applicant] concerning the attempted murder of Gr. and J. while considering that there was no evidence to support those charges. At the same time he maintained the charges in respect of other co-accused, thus again casting doubt on [the applicant]'s responsibility for organising the murders and attempted murders.
In such circumstances, [the applicant] cannot be convicted either for being the organiser of the deprivation of liberty of Gr., D. and C. ... or for possession of firearms ... in the capacity as founder of the criminal gang.”
In so far as the charge concerning possession and use of false documents was concerned, the court stated, inter alia, that:
“[the applicant] is also accused of obtaining false identity documents and of using them to travel to Ukraine.
Both during the investigation and the court proceedings [the applicant] pleaded his innocence....
During his interrogation of 27 November 2000, the accused B.G. [the head of the State authority which allegedly issued false identity papers to the applicant] did not incriminate [the applicant]. Only on 18 April 2001, after the criminal proceedings against him [B.G.] had been discontinued, did he submit that [the applicant] had obtained a false identity card and passport.
In such circumstances, the court has doubts about the truthfulness of B.G.'s declarations.
Moreover, the prosecution failed to produce any of the documents allegedly forged by [the applicant] such as a birth certificate, military card, marriage certificate or other documents necessary for obtaining an identity card and a passport.
Nor have the false identity card and passport been presented to the court.
[the applicant]'s signature does not appear on the application form lodged with the passport authority for the purpose of issuance of passport no. 49001072 ...”
As to the charge of blackmail the Court of Appeal stated, inter alia, the following:
“[The applicant] is accused of, between 1998 and 2000, together with G.V. and B.I., extorting 200,000 Moldovan lei (MDL) from C. ...
[The applicant] denied having extorted money from C....
[The applicant]'s guilt was not confirmed for the following reasons:
During the hearing C. was interrogated and confronted with J. He declared that ... in 1998 he borrowed 5,000 United States dollars (USD) from J. Then he met G.V. and [the applicant]. The latter told him to repay the debt as soon as possible.
Later G.V., together with B.I. and Ca., started to pay him [C.] visits and to threaten him and to take money from him... He [C.] believes that [the applicant] was their leader. [The applicant] told him to repay the debt. C. declared that it was not [the applicant] who had sent the bandits to him but J.
J. declared that he lent C. USD 6,000 and that C. did not pay it back for a long time. He sold his claim to G.V. for approximately USD 1,800. During the investigation he was forced to make statements incriminating [the applicant], under threat of reprisals by the police...
It does not follow from the declarations made by C. and J. that [the applicant] threatened anyone or extorted money.
Moreover, by an order of 21 May 2003... the criminal case against G.V. and B.I. concerning the extortion of money from C. had been discontinued for lack of evidence.
By an order of 28 July 2003 the prosecutor quashed the order to discontinue the case...
Accordingly, there is another criminal case pending against other persons in respect of the alleged blackmail...”
Concerning the theft charge, the Court of Appeal found, inter alia:
“[The applicant] is accused of, in August 1999, together with other unidentified persons, overtly stealing C.E.'s car...
[The applicant] denied his guilt and declared that he did not know C.E.
The evidence adduced by the prosecutor does not confirm [the applicant]'s guilt...
C.E. declared to the court that the car... was registered in his name when he worked as a cashier for company S. After the death of his uncle ... who was the head of the company... the uncle's partner requested that he [C.E.] bring the car back to the company. He brought the car, but kept a set of documents for himself...
Once he took the car and travelled abroad with it. After his return, R. told him that [the applicant] told him to bring back the car.
After a while he was stopped by another car... Two persons assaulted him and took his car. They went to a restaurant together, where [the applicant] asked him why he had taken the car and they both agreed to sell it. C.E. argues that his uncle left him the car, but that no documents were issued to that effect.
It was not confirmed that [the applicant] dispossessed C.E. of the car. It was not established who the persons who assaulted C.E. were.
In assessing C.E.'s depositions, the court considers that he is interested in the outcome of the case, since he has claims over the car. Moreover, the Botanica District Court found in a judgment of 30 January 2002 that it was company S. which was the owner of the car and not C.E.
It is not possible to rely on C.E.'s statements alone for the purpose of convicting [the applicant]....”
As to the charge concerning the possession (in his personal capacity) of firearms and drugs during his arrest in a pharmacy, the Court of Appeal stated, inter alia, the following:
“...[the applicant] pleaded not guilty and ... argued that he did not have any firearms or drugs on him during his arrest...
... The [six] police officers ... who participated in [the applicant]'s arrest in November 2001 declared that they had found a pistol on him ... and a bag of drugs.
Witness G.F. declared that ... when she entered the pharmacy, [the applicant] was already on the floor. She saw a pistol and a bag of powder. [The applicant] was shouting that the pistol had been planted by the policemen three minutes earlier. She heard two gun shots.
Witness B.I. declared that ... when she came to work the pharmacy was surrounded. [The applicant] was seated on a chair. She saw a pistol on the floor. She did not see where the bag [of drugs] had come from.
Witness E.A. declared that ... she was at her place of work in the pharmacy. Two armed persons entered the pharmacy and ordered everybody to lie down. When she was in the corridor, she heard two gunshots. When she entered the main room, she saw a crowd and a pistol on the ground. [The applicant] was shouting that nothing was to be put in his pockets.
Witness L.A. declared that she was at work and that she heard noise. The police entered the pharmacy and ordered everybody to lie down. When [the applicant] was lying down, she heard shouts and two gunshots coming from outside.
Witness I. declared that ... she was at work. She heard noise. She saw a man on the floor and a gun near him. She heard gunshots as she was going to the main room.
The court has carefully examined the video-audio recording and noted that during the arrest [the applicant] was shouting that no guns or other objects were to be put in his pockets.
The video-audio recordings were not made in accordance with the law.
The video film is not continuous and on occasion the camera is directed away from [the applicant]. During the search, only [the applicant]'s head was filmed, but not the objects which were taken from his pockets.
... the witnesses to the arrest declared that they had not seen a bag [of drugs]. Witnesses L. and I. declared that the gunshots had gone off when [the applicant] was on the floor.
According to the ballistic report ... it appears that the gunshots came from [the applicant]'s pistol.
No witness declared that the shots were fired by [the applicant], and in any event it would have been impossible for him to have fired, because when the gunshots were heard, he was in the [main room of the pharmacy], according to witnesses L. and I.
The court considers that the testimonies of the police officers who arrested [the applicant] have no probative value, since they were involved in his arrest...
Since there are doubts in respect of [the applicant]'s guilt, and since any doubts should be interpreted in favour of the accused, he should be acquitted...”
12. The prosecution appealed against this judgment on the basis of the same accusations and the same arguments in favour of the applicant's conviction.
13. On the same date, 7 October 2003, at the door of the court room, the applicant was arrested by officers from the General Directorate for Fighting Corruption and Organised Crime and Corruption of the Ministry of Internal Affairs (“GDFOCC”) and placed in detention.
14. The next day, 8 October 2003, the applicant was taken to the Centru District Court, where he was convicted and sentenced to thirty days' administrative arrest for disobeying a police officer, forcible resistance of police officers on duty and insulting a police officer, contrary to Articles 174 § 1, 174 § 5 and 174 § 6 of the Code of Administrative Offences respectively. It appears that the applicant was not assisted by a lawyer during the administrative proceedings.
15. On 13 October 2003 the applicant's lawyer lodged an appeal against the conviction, in which he argued that the applicant had not committed any administrative offence. He did not complain of the fact that the applicant was not assisted by a lawyer during the administrative proceedings.
16. On 22 October 2003 the Chişinău Court of Appeal heard the applicant's appeal in his absence and in the absence of his lawyer and dismissed it as unfounded. Meanwhile, the applicant was detained in the detention centre of the Ministry of Internal Affairs in Chişinău. According to him, the conditions of detention were inhuman and degrading. He submitted a detailed description of the conditions of detention and argued that the same description could be found in the 2001 report of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning Moldova. The Government disputed the applicant's allegations about the conditions of detention.
17. On 6 November 2003, after the expiry of the thirty-day period of administrative detention, the applicant was not released but arrested again on charges of a new offence of blackmail.
18. On 9 November 2003 the Buiucani District Court issued an order for the applicant's remand in custody for ten days. The court's reasoning was the following:
“[The applicant] is suspected of having committed an offence which is punishable by more than two years' imprisonment, has been previously convicted and might try to avoid criminal responsibility. His release could impede the discovery of the truth”.
19. The applicant appealed and asked to be given access to the criminal case file; however, he was only given a copy of the complaint lodged by the alleged victim.
20. On 14 November 2003 the Chişinău Court of Appeal dismissed the applicant's appeal.
21. On 17 November 2003, contrary to the submissions of the applicant and his lawyer, a meeting between them took place in the presence of an investigator.
22. On 18 November 2003 the applicant's lawyer complained about this to a judge and asked him to find a violation of the relevant domestic law and of Article 8 of the Convention. He also asked the court to issue an order to the investigating authority to the effect that the meetings with his client be held in conditions of confidentiality.
23. On 24 November 2003 a judge from the Buiucani District Court upheld the lawyer's complaint by finding a violation of the domestic legislation governing the conduct of criminal investigations and guaranteeing the confidentiality of lawyer-client meetings. The court ordered the investigating authority to ensure conditions of confidentiality for the applicant and his lawyers.
24. It appears that the applicant's pre-trial detention was periodically renewed on the basis of the same grounds as in the decision of 9 November 2003 (see paragraph 18 above) and that he was detained until 1 March 2004, when the Supreme Court of Justice examined the appeal lodged by the Prosecutor's Office against the judgment of acquittal of 7 October 2003.
25. He was detained in the detention centre of the GDFOCC. According to him, the conditions of detention were similar to those in which he had been detained following his administrative arrest except that he had been detained in solitary confinement. He submits that the conditions of detention in that facility have also been described in the CPT report mentioned above. The Government disputed that the conditions of detention were as described by the applicant.
26. It appears that the new criminal proceedings against the applicant ended with the final judgment of the Supreme Court of 23 February 2006, by which the applicant was found guilty of blackmail and sentenced to seven years' imprisonment.
27. On 1 March 2004 a panel of three judges of the Supreme Court, composed of Judges M. Plămădeală, V. Timofti and S. Furdui, examined the appeal lodged by the Prosecutor's Office against the applicant's acquittal. The appeal was examined in the applicant's absence, although his lawyers were present.
28. In their pleadings, the defence essentially endorsed the reasons given by the first-instance court in its judgment of 7 October 2003 acquitting the applicant.
In so far as the charges concerning the founding and heading of a criminal gang and the offences allegedly committed in the applicant's capacity as head of that gang, the defence submitted, inter alia, that the hearsay statements made by the co-accused, S., had no probative value since their alleged source denied having made such declarations. Moreover, S.'s declarations were based on his own suppositions, as he himself had admitted during his interrogation.
The defence also argued that there was no evidence that the applicant had attended the meetings of the criminal gang or had been involved in the planning of the murders or that he had even had telephone contact with any of the members of the gang.
The applicant's innocence was also confirmed, according to the defence, by the fact that he was not charged with all the offences committed by the criminal gang, which normally should have been the case had the prosecution genuinely believed him to be the head of the gang. In this connection the defence relied, exactly as the first-instance court had done, on the provisions of section 17 of the Criminal Code, which stated that the head of a criminal gang bears responsibility for all the offences perpetrated by the gang. The defence also relied on the fact that the prosecution had dropped the charges relating to two attempted murders.
In so far as the charge concerning the use of false documents was concerned, the defence submitted essentially the same arguments which had been used by the first-instance court for the applicant's acquittal. Besides that, the defence also argued that it was obvious from a video recording that the main witness, B., (the clerk who had allegedly issued the false passport), and who had allegedly recognised the applicant's photograph, had been shown by a police officer which photograph to pick out.
As to the charge concerning the theft of a car, blackmail and the possession of drugs, the defence used essentially the same arguments as used by the first-instance court in its acquittal judgment.
29. The Supreme Court of Justice upheld the prosecutor's appeal, and found the applicant guilty of all the offences as charged, with the exception of possession of a pistol during his arrest on 12 November 2001 and possession of firearms in his capacity as head of the criminal gang (see below).
As to the charge concerning two attempted murders (of F. and Po.), the court endorsed the prosecution's version of the facts according to which the applicant, R. and S., together with other members of the criminal gang, had elaborated a plan to do away with their rival, F. For that purpose, a group of three members of the gang had waited for the victim near his house. Mistakenly, the person who was supposed to carry out the killing had fired at F.'s bodyguard. The bodyguard had been wounded and F. had managed to escape. The court used the following evidence to find the applicant guilty:
“... [Co-accused] S. stated that F. was preventing [the applicant] from returning to the city...
[Co-accused] R. stated [during the proceedings which ended with the judgment of the Supreme Court of 22 October 2002, in which seven members of the criminal gang were convicted] that L.V. [one of the participants in the attempted murder of F. and Po.] had good relations with a leading figure in the criminal world named Micu and that L.V. asked him to kill F. since he was a nuisance to Micu....”
In so far as the charges concerning the murder of G. and the illegal deprivation of liberty of his bodyguards (D. and C.) were concerned, the court accepted the prosecution's version of the facts according to which [the applicant], G.D., R., S., O., L.V., L.P. and several other persons had devised a plan to murder a gang leader named G. For that purpose a group of seven persons, dressed in police uniforms, shoved G. and his bodyguards into a minivan. They drove them outside the city, where they killed G. The court used the following evidence to find the applicant guilty:
“...[Co-accused] S. declared that [co-accused] R. had told him that [the applicant] had given him USD 30,000 for the murder of G....
The participation [of the applicant] and his role as organiser in the murder of G. and in the illegal deprivation of liberty of D. and C. are confirmed by [co-accused] S., who declared during the proceedings that his testimonies during the investigation stage were true and that he maintained them...
[Co-accused] S. stated that he was introduced to [the applicant]'s men L.V. and L.P. by G.D., who was close to [the applicant].
S.E. [a member of the criminal gang convicted on 22 October 2002] had told [co-accused] S. that G. should be abducted ... because he was a nuisance to the criminal activity of [the applicant]....
[Co-accused S. also declared that] for G.'s murder USD 30,000 were paid and that the money was brought by G.D. (a person close to [the applicant]). [Co-accused] R. told him that [the applicant] had provided the money....
During the confrontation between [co-accused] S. and O., in the presence of lawyers, the former declared that [co-accused] R. had told him that G. should be abducted in order for [the applicant] to 'deal with him'....
The evidence in the court's possession is indicative of the fact that [the applicant] ordered the murder of G. and paid for it through [co-accused] G.D.
[The applicant] and G.D. organised the illegal deprivation of liberty of G., D. and C.”
As to the charge concerning the murder of R. and G.I. and the attempted murder of C.V., the court accepted the version of the facts presented by the prosecution, namely that the applicant, S., R., G.D. and L.I. had devised a plan to murder the gang leader R. For that purpose they also involved O., L.V., C.O. and C.S. In the evening of 10 February 2000, after following R.'s car, one of the accused (L.V.) fired at the car from a machine gun and killed R. and his bodyguard G.I. The other bodyguard, C.V., was wounded. The court used the following evidence to find the applicant guilty:
“...During the confrontation between [co-accused] S. and O., in the presence of lawyers, the former declared that he had received USD 2,500 from G.D. for the murder of R....
...During his interrogation, which was video recorded, [co-accused] S. declared that G.D. was the one who had had a fight with P.A., who was [friends] with the L. brothers and [the applicant]....
...[co-accused] S. declared that G.D. was part of [the applicant]'s team and that he could not order [the applicant] to do anything....
[Conclusion] [the applicant] organised the murder of R. and G.I. ... and the attempted murder [of C.V.].
In so far as the charge concerning the possession of firearms in his capacity as founder and head of the criminal gang, the court concluded that this charge should not be treated separately but as part of the charge concerning the founding and heading of the criminal gang.
As to the charge concerning possession of a gun in his personal capacity at the time of his arrest in a pharmacy on 12 November 2001, the court dismissed the testimonies of the policemen, who declared that the gun and a bag of heroin had been found in his pocket, and concluded that the guilt of the applicant had not been established, since according to the witnesses he could not have fired the gun in the corridor of the pharmacy as at that time he had been lying in the main room of the pharmacy.
At the same time, the court found the applicant guilty of possession of 0.08 grams of heroin which were allegedly in his pocket together with the gun, according to the same declarations of the policemen. The court argued, inter alia, that:
“...According to the minutes of the search of 12 November 2001, which was video recorded, a bag of drugs was found in [the applicant]'s pocket...
According to the report... the packet contained 0.08 grams of heroin...”
In so far as the charge concerning the use of false documents was concerned, the court found that in 1999 the applicant obtained an identity card and a passport with a false identity. The court stated, inter alia, that:
“[Co-accused] S. declared that he maintained his statements made during the investigation...
[Co-accused] S. also declared that in 1999 he had obtained a passport with a false identity. At the same time, [the applicant] had also obtained false documents.
B. [the clerk who had allegedly issued the false passport] identified [co-accused] S. as being the person who had asked him to make a false passport for [the applicant]....
It follows from the minutes of the confrontation between B. and [the applicant], with the participation of a lawyer, that B. identified [the applicant] and confirmed that [the applicant] ... obtained a passport with a false identity...
... S. identified [the applicant]... and confirmed that he knew him...
It appears ... that there were two applications for identity papers, one bearing the name of [the applicant] and another bearing the name of S.I.B.
According to the expert's report ... the signatures on both applications belong to the same person... the pictures on the both applications are of the same person but were taken at different times...
The use of the false identity papers by [the applicant] is confirmed by the ... fact that he travelled by aeroplane from Bucharest to Kiev using a passport bearing the name S.I.B.”
As to the charge concerning the blackmail of C., the court found that between 1998 and 2000, the applicant and two other persons extorted MDL 200,000 and other goods from C. It was also found that C. owed USD 5,000 to a businessman named J., who declared during the proceedings that he had sold the debt to one of the persons who allegedly later extorted money from C. with the applicant. In convicting the applicant, the court relied solely on the declarations of C., who accused the applicant of blackmail. It did not give any assessment of the statements of J., or of the statements in the applicant's defence.
In so far as the charge concerning the theft of a car was concerned, the court found that in 1999, following a dispute between a private company and one of its former employees concerning proprietary rights over a car, the applicant organised the theft of the car. In particular, the victim (the former employee) was stopped and assaulted by two men and his car was taken away. The applicant denied any involvement in the offence and argued that he had never seen the victim of the alleged offence before the hearing. In convicting the applicant, the court relied solely on the declarations of the victim.
The Supreme Court concluded that on the basis of all the evidence adduced in support of the charges against the applicant, it could be deduced that he was the founder and leader of the criminal gang. It therefore found the applicant guilty of founding and heading a criminal gang and held that:
“...The fact that some offences (murders and attempted murders) have not been imputed to one of the founders of the criminal gang [the applicant], cannot serve as a reason for acquitting him....”
30. The judgment of the Supreme Court contained no reference to the findings of the first-instance court in respect of the evidence and the applicant's guilt. Nor did it contain any reference to the submissions of the defence made before it.
31. The applicant was convicted and sentenced as follows:
For founding and heading a criminal gang – to twenty-four years' imprisonment;
For attempted murder in his capacity as founder and head of the criminal gang – to eighteen years' imprisonment;
For murder in his capacity as founder and head of the criminal gang – to life imprisonment;
For illegal deprivation of liberty in his capacity as founder and head of the criminal gang – to four years' imprisonment;
For possession of false identity papers – to three years' imprisonment;
For theft of a car – to twelve years' imprisonment;
For blackmail – to thirteen years' imprisonment;
For possession of drugs – to two years' imprisonment
On the basis of the principle of absorption of the lesser punishment into the greater punishment, he received a final sentence of life imprisonment.
32. One of the members of the panel of the Supreme Court which convicted the applicant disagreed partially with the opinion of the majority and wrote a dissenting opinion. He stated, inter alia:
“The evidence presented by the prosecution is not sufficient to prove [the applicant]'s guilt in respect of the offences [enumerated below]. ... The court has not established the role, the degree and the manner [of involvement] of [the applicant] in:
- the founding and heading of the criminal gang;
- the commission of the murders;
- the commission of the attempted murders;
- the illegal deprivation of liberty;
- the possession of drugs;
Nor has it established the nature of the [structure of the] criminal relationship between him and the rest of the convicted persons.
[The applicant]'s accusation in respect of the above offences relies in essence on the declarations of [co-accused] S. The latter did not incriminate [the applicant] as being a co-participant in the commission of the offences by the criminal gang. His declarations do not confirm the facts and the circumstances which result from the totality of the evidence from the case file in respect of [the applicant]. They represent suppositions or are based on hearsay statements, which in their turn have not been confirmed by the alleged sources.
It is important to note that the court gave different assessments of similar evidence concerning the possession of a gun and the possession of drugs during [the applicant]'s arrest in a pharmacy on 12 November 2001....
I express my conviction that it was not correct to sentence [the applicant] to life imprisonment without hearing evidence from him in person, in the circumstances in which he was acquitted [by the judgment of 7 October 2003] and was remanded in custody [prior to his conviction by the Supreme Court]. This is all the more so since the judgment of the Supreme Court is final and there is no appeal against it.
In the light of the above, I believe that ... the provisions of Article 6 of the Convention were disregarded...”
33. Section 17 of the Criminal Code in force at the material time read as follows:
“...
The founders and the heads of a criminal gang are responsible for ... all the offences committed by the criminal gang.
...”
34. Article 449 of the Code of Criminal Procedure reads as follows:
“After examining an appeal on points of law (recurs) [in respect of certain offences there is only one level of appellate jurisdiction (recurs), rather than two levels (apel followed by recurs), before a final judgment is delivered], the court shall adopt one of the following decisions:
...
2) allow the recurs, set aside the judgment entirely or partially and adopt one of the following solutions:
a) order the acquittal of the accused person and the termination of the criminal proceedings in his or her respect;
b) re-examine the case and adopt a new judgment;
c) order a re examination of the case by the first-instance court if the Supreme Court of Justice allows the recurs and it is necessary to examine new evidence.”
According to Article 451 the procedure of re-examination is regulated by Article 436 of the Code. The latter Article states that after the setting aside of a judgment in recurs, the re-examination shall be carried out in accordance with the general rules of examining a criminal case.
35. In a letter dated 12 August 2006 addressed by a Deputy Prosecutor General to the President's Office, it was stated, inter alia, that due to lack of funds the Moldovan prisons were not sufficiently provided with meat, fish and dairy products.
36. The relevant findings of the CPT, (unofficial translation) read as follows:
“
4. Conditions of detention.
a. Institutions of the Ministry of Internal Affairs
41. Since 1998, when it first visited Moldova, the CPT has serious concern for the conditions of detention in the institutions of the Ministry of Internal Affairs.
The CPT notes that 32 out of 39 EDPs have been subjected to “cosmetic” repair and that 30 have been equipped with places for daily walks. Nevertheless, the 2004 visit did not allow the concern of the Committee to be alleviated. In fact, most recommendations made have not been implemented.
42. Whether one refers to the police stations or EDPs visited, the material conditions are invariably subject to the same criticism as in the past. Detention cells had no access to daylight or a very limited access; artificial light – with rare exceptions – was mediocre. Nowhere did the persons obliged to spend the night in detention receive mattresses and blankets, even those detained for prolonged periods. Those who had such items could only have obtained them from their relatives...
45. As for food ... in the EDPs the arrangements made were the same as those criticised in 2001 (see paragraph 57 of the report on that visit): generally three modest distributions of food per day including tea and a slice of bread in the morning, a bowl of cereal at noon and tea or warm water in the evening. Sometimes there was only one distribution of food per day. Fortunately, the rules for receiving parcels have been relaxed, which allowed detainees with relatives outside to slightly improve these meagre daily portions.
...
47. In sum, the material conditions remain problematic in the police stations; they remain disastrous in EDPs, continuing in many aspects to amount, for the detainees, to inhuman and degrading treatment.”
“B. Establishments visited
... - EDP of Chişinău Police Inspectorate
... b. remand centres (EDPs)
53. In its report on the 1998 visit (paragraph 56), the CPT was forced to conclude that material conditions of detention in the remand centres (EDPs) visited amounted in many respects to inhuman and degrading treatment and, in addition, constituted a significant risk to the health of persons detained. While recognising that it was not possible to transform the current situation in these establishments overnight, the CPT recommended a certain number of immediate palliative measures to guarantee basic conditions of detention that respect the fundamental requirements of life and human dignity.
54. Unfortunately, during the 2001 visit, the delegation found barely any traces of such palliative measures, in fact quite the opposite. For example, the renovation and reconstruction of the cells of the EDP of the Department for the fight against organised crime and corruption in Chişinău (reopened in 2000), which were supposed to reflect the CPT's 1998 recommendations, turned out to have had quite the contrary effect. All the conceptual and organisational shortcomings highlighted by the CPT at the time had been faithfully reproduced: cells without access to natural light, artificial lighting of low intensity and permanently switched on, inadequate ventilation and furnishings consisting exclusively of platforms without mattresses (although certain prisoners did have their own blankets). A similar conclusion can be drawn about the new section of the Bălţi EDP set aside for administrative detainees.
55. One can only regret that in their efforts to renovate these premises - which under the current economic circumstances deserve praise - the Moldovan authorities have paid no attention to the CPT recommendations. In fact, this state of affairs strongly suggests that, setting aside economic considerations, the issue of material conditions of detention in police establishments remains influenced by an outdated concept of deprivation of liberty.
56. Turning to the other EDPs visited across Moldova, with very few exceptions the delegation observed the same types of disastrous and insalubrious material conditions. A detailed description is superfluous, since it has all been highlighted already in paragraphs 53 to 55 of the report on the 1998 visit.
In Chişinău EDP, these conditions were exacerbated by serious overcrowding. At the time of the visit, there were 248 prisoners for 80 places, requiring nine persons to cram into a cell measuring 7 m² and between eleven and fourteen persons into cells of 10 to 15 m².
57. The delegation also received numerous complaints about the quantity of food in the EDPs visited. This normally comprised tea without sugar and a slice of bread in the morning, cereal porridge at lunch time and hot water in the evening. In some establishments, food was served just once a day and was confined to a piece of bread and soup. ...
... Concerning the issue of access to toilets in due time, the CPT wishes to stress that it considers that the practice according to which detainees comply with the needs of nature by using receptacles in the presence of one or several other persons, in a confined space such as the EDP cells which also serve as their living space, is in itself degrading, not only for the individual concerned but also for those forced to witness what is happening. Consequently, the CPT recommends that clear instructions be given to surveillance staff that detainees placed in cells without toilets should – if they so request – be taken out of their cell without delay during the day in order to go to the toilet.
59. The CPT also recommends that steps be taken to:
- reduce the overcrowding in Chişinău EDP as rapidly as possible and to comply with the official occupancy level;
- supply persons in custody with clean mattresses and clean blankets;
- authorise persons detained in all EDPs to receive packages from the outset of their custody and to have access to reading matter.
In the light of certain observations made, particularly in the EDP of the Chişinău Police Inspectorate, the CPT also reiterates its recommendation concerning strict compliance, in all circumstances, with the rules governing separation of adults and minors.”
37. One of the applicant's co-accused, G.D., who was also sentenced to life imprisonment, G.D., escaped from Moldova and currently resides in Germany. On an unspecified date the Moldovan authorities requested the German authorities to extradite him in view of serving the sentence. The application for extradition was examined by the German courts and a final verdict was adopted by the Supreme Court of the Land of Thuringia in a judgment of 25 January 2007.
The court decided to reject the application for extradition on grounds of serious suspicion that the proceedings leading to G.D.'s conviction had not complied with the basic rules of fairness. In particular, the court found that the applicant and other co-accused were subjected to torture and pressure in order to confess to the offences imputed to them or to incriminate other co-accused. In finding the above, the court relied on witness testimonies to the effect that G.D. had signs of violence on his body during the court hearings. The allegations of ill-treatment were consistent with reports of German and International bodies specialised in the protection of human rights. The court relied, inter alia, on a report of the German Government concerning the Republic of Moldova, in which it was stated that the Moldovan justice system lacked independence from the Government and that ill-treatment and torture by police was a wide spread practice in Moldova. The court also relied on several other reports from Amnesty International and UN and EU bodies specialised in the prevention of torture with similar allegations concerning Moldova. The court also noted that the judge of the Court of Appeal who acquitted G.D. (see paragraph 11 above) was subsequently dissmissed.
The court also expressed concern about G.D.'s conviction by the Supreme Court of Moldova in his absence but only on the basis of the documents in the file and expressed the view that there were no guarantees that if extradited to Moldova, G.D. would not be subjected to inhuman treatment.
VIOLATED_ARTICLES: 13
3
5
6
VIOLATED_PARAGRAPHS: 5-3
6-1
6-2


ITEMID: 001-97073
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: PAEFGEN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Thomas Christian Paefgen, is a German national who was born in 1958. He has currently no fixed domicile. He was represented before the Court by Mr P. Carstensen, a lawyer practising in Schleswig.
The applicant is the father of a daughter born in 1999. The parents, who had lived in Monaco, separated in January 2001. On 3 July 2003 the Monaco District Court (Tribunal de Première Instance) decreed the parents' divorce and transferred sole parental authority on the mother, who is a German national. With regard to contacts, that court ruled that the applicant should have extensive visiting rights which, in the absence of a more favourable agreement reached between the parties, should be exercised every second Sunday between 9.00 a. m. and 6.00 p. m.
On 9 July 2004 the applicant, who was at the time residing in Switzerland, instituted contact proceedings before the District Court (Amtsgericht) in Husum, where mother and daughter were residing. He requested to be granted contact rights during the first week of each month from Saturday 10.00 a. m. until the following Saturday 7.00 p. m. The mother requested a suspension of contact rights.
The applicant last saw his daughter on 24 September 2004 following a court hearing.
On 29 October 2004 the Husum District Court, having heard both parents and the child in person, modified the contact regulations contained in the divorce decree and granted the applicant visiting rights on every second weekend on Saturdays from 3.00 p. m. to 6.00 p.m. and on Sundays from 10.00 a. m. to 2.00 p. m. It further ruled that contacts should take place in the presence of a person the child confided in.
The District Court considered that the contact regulations had to be modified in the child's best interests. There was no reason completely to suspend contact rights. The court considered, however, that unaccompanied contacts would jeopardise the child's welfare. While the District Court did not consider that there was a risk of the applicant's abducting the child, as the applicant would not want to risk criminal prosecution in Switzerland, the child's considerable fears necessitated the presence of a trusted person. When personally heard by the court, the child had described her father as being evil and expressed the wish not to be left alone with him. The court further noted that the child had seen the applicant only twice within the two preceding years. Accordingly, she had to be given sufficient time to get to know her father before unaccompanied visits could be envisaged. The District Court considered that there were clear indications that the mother had influenced the child against her father. However, once the child's fears existed, they could not be ignored without jeopardising the child's welfare.
The court further noted that it was not possible to make more precise provisions as to the person who should accompany the visits, as the mother intended to move to England and it was not possible to determine which person would be available. It followed that the choice of person had to be left to the parties or to a later court decision. The District Court finally considered that it had not been necessary to hear expert opinion by a children's psychologist, as the child had expressed her fears during the hearing and there was no need for further examination.
The applicant lodged an appeal complaining, in particular, about the imposition of accompanied visits. He alleged that the persons proposed by the mother had been hostile towards him. He further complained that the granted contact time was too short.
On 29 June 2005 the Schleswig Holstein Court of Appeal (Oberlandesgericht) scheduled a hearing for 28 September 2005 and ordered the parties to appear in person.
At the beginning of the hearing the mother's representative submitted a message alleging that mother and child had been unable to appear before that court because of delays of their flights from the Bahamas. The applicant contested these submissions.
On 19 October 2005 the Court of Appeal rejected the applicant's appeal. The court noted that mother and child had moved to England in October 2004, but returned to Germany in December 2004. From March to August 2005 they stayed in Monaco. Since September 2005 they were staying on the Bahamas. The Court of Appeal considered that the child's place of residence remained in Germany, as the mother, who appeared to be staying in a hotel, had not established a fixed place of residence on the Bahamas.
The Court of Appeal considered that the limitation of the contacts and the presence of a third person had been and remained necessary in order to safeguard the child's welfare. The Court of Appeal confirmed that it was necessary to rebuild a relationship of trust between father and child before unaccompanied visits could be envisaged. The court further noted that the applicant, who had in the meantime given up his Swiss place of residence, had declared during the hearing that he was constantly travelling and currently could not make up his mind to establish a new place of residence. The court considered that such person could not be entrusted with unaccompanied contacts to a six-year old child nor with contacts extending over several days because the danger of his abducting the child was unacceptably high.
On 3 November 2005 the applicant lodged an appeal on the ground that his submissions had not been sufficiently taken into account (Anhörungsrüge), which was rejected on 21 December 2005.
On 19 January 2006 the applicant lodged a constitutional complaint and filed a request for an interim order.
On 28 August 2006 the applicant informed the Federal Constitutional Court that the child's mother was currently of unknown residence.
On 6 September 2006 the Federal Constitutional Court refused to admit the applicant's complaint and his joint request for an interim order for adjudication. This decision was served on the applicant's counsel on 20 September 2006.
According to Article 1684 subsection 1 of the Civil Code, a child is entitled to have contact with its parents; each parent is obliged to have contact with, and is entitled to such contact with, the child.
Pursuant to subsection 2, each parent is obliged to refrain from any actions which could disturb the relationship of the other parent with the child.
The family courts can restrict or suspend a parent's rights of contact if such a measure is necessary for the child's welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child's welfare would be jeopardised (Article 1684 § 4).


ITEMID: 001-69239
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ZNAMENSKAYA v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1955 and lives in Moscow.
9. In 1997 the applicant became pregnant.
10. In the night of 1 August 1997, in the thirty-fifth week of pregnancy, the embryo asphyxiated in the womb. On 4 August 1997 the applicant gave birth to a stillborn baby boy and decided to bury him.
11. On 13 August 1997 the stillbirth was registered by the Chertanovskiy branch of the Civil Acts Registration Service (Чертановский отдел ЗАГС). Mr Z., who had been the applicant's husband until their divorce on 25 March 1997, was entered as the stillbirth's father in the birth certificate (акт о рождении) and in the birth register (книга записей рождений).
12. The applicant submitted that the biological father of the stillbirth had been Mr G., with whom she had been living as man and wife since 1994. Mr G. had expected the child and talked about their future son as his own. They could not, however, file a joint declaration establishing the child's paternity because Mr G. had been placed in a detention facility on 20 June 1997. It appears that the applicant had no access to her partner after that date. On 12 October 1997 Mr G. died in custody.
13. The applicant refused to put her former husband's surname on the stillborn child's tombstone and left it empty.
14. On 10 August 2000 the applicant requested the Chertanovskiy District Court of Moscow to establish Mr G.'s paternity in respect of the stillbirth and amend the child's surname and patronymic name accordingly. In Russian, patronymic names are normally formed from the father's forename and a special ending, -ovich for sons or -ovna for daughters. The applicant relied on Article 49 of the Family Code.
15. On 21 November 2000 the applicant's former husband died.
16. On 16 March 2001 the Chertanovskiy District Court of Moscow gave its decision. It held that the stillborn child had not acquired civil rights, whereas Article 49 of the Family Code only applied to living children. It ordered the discontinuation of the proceedings because “[the applicant's claim] was not fit for examination and determination in the framework of civil proceedings”.
17. On 18 May 2001 the Moscow City Court, on an appeal by the applicant, upheld the decision of 16 March 2001. The court repeated that “the case could not be examined as a civil action because the child had not acquired civil rights”.
18. The Russian Civil Code (Law of 30 November 1994) provides that a person's legal capacity shall begin at the moment of birth and terminate on death (Article 17 § 2).
19. The Russian Family Code (Law of 29 December 1995) provides:
“2. If a child is born to parents who are married to each other or within three hundred days of their divorce... or the death of the spouse of the child's mother, the spouse (former spouse) of the mother shall be deemed to be the father of the child unless proved otherwise...
3. If the child's mother declares that her spouse (former spouse) is not the child's father, the child's paternity shall be established in accordance with paragraph 4 of this Article or Article 49 of this Code.
4. The paternity of a person who is not married to the child's mother shall be established on the basis of a joint declaration filed by the father and mother of the child...”
“If a child is born to parents who are not married to each other and there is no joint declaration or declaration by the child's father (Article 48 § 4 of this Code), the paternity of the child shall be established in court proceedings on the application of either parent... [In such proceedings] the court shall have regard to any evidence that establishes the child's paternity with certainty.”
“If the person who acknowledged the paternity of the child but was not married to his/her mother dies, the fact of his having acknowledged paternity may be established by a court in accordance with the rules on civil procedure.”
“1. If the father and mother are married to each other they shall be entered as the child's parents in the birth register on the basis of an application lodged by either of them.
2. If the parents are not married to each other the mother's particulars shall be entered on an application by her, and the father's particulars entered on a joint application by the father and mother of the child, or on an application by the father of the child (paragraph 4 of Article 48) or pursuant to a judicial decision...”
VIOLATED_ARTICLES: 8


ITEMID: 001-121067
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: ZUZANE v. LATVIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Ms Zoja Zuzane, is a Latvian national who was born in 1952 and lives in Skulte parish (Latvia). She is represented before the Court by Mr A. Zvejsalnieks, a lawyer practising in Rīga. The Latvian Government (“the Government”) are represented by their Agents, Mrs I. Reine and subsequently by Mrs K. Līce.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant acquired an oil press in 1995 for 5,000 Latvian lati (LVL) from a private individual, V.R. The applicant subsequently leased that press to two companies.
4. On 20 July 1997 the applicant concluded a sales agreement with a farm for LVL 6,000, which she received on condition that she would deliver the press by 22 August 1997. Meanwhile, on 10 August 1997 K.O., the chairman of a co-operative organisation, seized the press and took it to its premises. The applicant found out about the seizure on the next day and reported it to the police.
5. The applicant did not fulfil her contractual obligation to deliver the press and thus incurred a contractual penalty of LVL 12,000; she paid it on 26 August 1997.
6. On 12 April 1999 the press was returned to the applicant.
7. On 1 September 1997 criminal proceedings were instituted in relation to arbitrary seizure under section 195 of the former Criminal Code (patvarība). On 3 September 1997 the applicant was joined as a civil party (civilprasītājs) in the criminal proceedings.
8. On 30 March 1998 K.O. was charged with aggravated abuse of official authority (dienesta stāvokļa ļaunprātīga izmantošana) under section 162, paragraph 2 of the former Criminal Code.
9. On 1 June 1998 that charge was dropped and K.O. was charged with exceeding official authority (dienesta pilnvaru pārsniegšana) under section 162.1, paragraph 1 of the former Criminal Code.
10. On 23 July 1998 the case was sent to the Ogre District Court for adjudication. That court, in its first hearing on 27 August 1998, granted the request by defence counsel to send the case for additional investigation.
11. The criminal proceedings were terminated on several occasions, namely on 4 May 1999, 9 November 1999 and 10 August 2000, on grounds that no crime had been committed. All these decisions were subsequently quashed because V.R., whose testimony was crucial to establish the truth in the proceedings, had not been questioned. In fact, she did not co-operate and the police could not forcibly transport her; her whereabouts were not known. Finally, on an unspecified date before August 2000, V.R. submitted a written testimony. She refused to appear before the prosecutor in person.
12. On 30 January 2001 the last decision to terminate the criminal proceedings was quashed on grounds that witness V.R. had not been questioned contrary to previous instructions. The case was sent for additional investigation.
13. On 5 July 2001 another decision to terminate the criminal proceedings was adopted on grounds that no crime had been committed.
14. On 5 October 2001 a superior prosecutor quashed that decision because he saw arbitrariness in the actions of K.O. but brought no charges against him due to statute of limitations. Thus, the legal grounds for terminating the criminal proceedings were twofold: no elements of crime as concerns exceeding official authority and statute of limitations as concerns arbitrary seizure.
15. With a final decision of 5 November 2001, replying to the applicant’s complaint, another prosecutor upheld the decision to terminate the criminal proceedings. The prosecutor noted that the applicant had a right to seek damages in civil proceedings.
16. On 23 September 1997 the applicant lodged an application with the Ogre District Court to secure her eventual civil claim against K.O. On 26 September 1997 the court ordered an attachment on the respondent’s property (real estate, assets and money). On 8 September 2000, following an application lodged by K.O., this decision was revoked and an attachment on a land plot was ordered instead.
17. On 28 October 1997 the applicant lodged a civil claim against K.O. with the Ogre District Court for pecuniary damages in the amount of LVL 6,000.
18. On 6 February 1998 the civil proceedings were stayed, upon the applicant’s request, pending the outcome of criminal proceedings.
19. On 15 March 2002, on the applicant’s request, the Ogre District Court renewed the civil proceedings and scheduled a hearing.
20. On 20 May 2002 the Ogre District Court held a hearing. The applicant increased her claim of damages to LVL 66,264.93. The proceedings were adjourned upon the respondent’s request to add the criminal case-material. Another hearing was adjourned on 29 November 2002 at the request of the respondent.
21. On 6 December 2002 the Ogre District Court held a third hearing. The applicant maintained her claim of damages. The district court decided to forward the case to a higher court since it lacked competence to hear cases involving determination of claims above LVL 30,000.
22. On 31 March 2003 the Rīga Regional Court examined the case; the applicant retracted her increased claim of damages and maintained her claim only in the amount of LVL 6,000. The regional court upheld the applicant’s claim in full and ordered the respondent to pay LVL 6,000 in damages.
23. On 16 October 2003 the Civil Chamber of the Supreme Court, upon an appeal lodged by the respondent, upheld the ruling of the regional court and upheld the applicant’s claim. The Supreme Court in its ruling referred to the 5 October 2001 decision to terminate the criminal proceedings on grounds of statute of limitations as concerns actions of K.O., which the prosecutor had deemed arbitrary. The court found that there were no legal grounds to seize the press and thus K.O.’s actions were unlawful. Thus, he incurred liability for damage.
24. The ruling took effect on 16 October 2003; the parties did not lodge an appeal on points of law. A writ of execution was issued on the same date.
25. On 22 September 2000, following the decision to remove the attachment on the respondent’s property, a bailiff addressed the competent domestic register (Zemesgrāmata) to record that removal. At the same time, she did not proceed to register the newly ordered attachment – on the respondent’s land plot – with that register.
26. On 25 September 2000 K.O. registered a mortgage in favour of a bank on the land plot as collateral for a loan. Henceforth, the land plot could not be sold.
27. On 11 November 2003 the applicant submitted the writ of execution regarding the 16 October 2003 judgment to another bailiff. The respondent agreed to comply with the ruling voluntarily and to repay the debt until 20 December 2004.
28. On 27 February 2004 the Civil Chamber of the Supreme Court rejected K.O.’s application to pay damages in instalments by 31 March 2005.
29. By 26 November 2004 the applicant received the whole amount due in at least two separate instalments.
30. On 25 October 2004 criminal proceedings were instituted against the bailiff, who had failed to record the changes in the attachment of the respondent’s property, for having not executed her official duties.
31. On 1 December 2005 the criminal proceedings were terminated for lack of crime. The police concluded that the whole debt had been settled; the applicant’s argument that she had suffered substantive damage (a constitutive element of the crime) as a result of the bailiff’s actions was dismissed.
32. The former Code of Civil Procedure (Civilprocesa kodekss), in force until 1 March 1999, provided that a court was under an obligation to stay civil proceedings if it could not adjudicate a case until such time when another criminal case was to be determined. The civil proceedings were stayed until a decision was taken in the criminal proceedings (section 218, paragraph 4).
33. Under section 220 of the same code, a court had to renew the civil proceedings on the application by one of the parties or proprio motu.
34. Under section 632, paragraph 1 of the Law of Civil Procedure (Civilprocesa likums), in force since 1 March 1999, bailiff’s actions concerning enforcement can be appealed against by submitting an application to a district (city) court within a ten-day time-limit from the date on which a person has learned about the impugned actions.


ITEMID: 001-90759
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF NICOLESCU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 6 - Right to a fair trial
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1926 and lives in Bîra.
5. On 21 November 1990 the applicant brought an action against the Bîra agricultural cooperative for the recovery of possession of 5,000 sq. m of land.
6. On 16 July 1991 the Roman Court of First Instance authorised the applicant to recover possession of a 5,000 sq. m plot of land situated in Bîra village at a place called “Cimitir” (“the cemetery”). The land had boundaries with the cemetery (to the north), a road (to the south), pastureland (to the east) and land belonging to B.A., a third party (to the west). The court ordered the agricultural cooperative to enable the applicant to take possession of the land. That judgment became final.
On 5 December 1991 the bailiff certified in an official record that the applicant had been able to take possession of the land and that some constructions built by the former agricultural cooperative, including a stable and part of a shed, were situated on it.
7. On 9 August 1991 the county commission in Neamţ for the application of Law no. 18/1991 (“the county commission”) authorised the applicant to recover possession of 52,600 sq. m of land.
8. On 5 October 1992 the applicant contested the administrative decision before the court on the ground that he was also entitled to recover possession of a further 11,200 sq. m approximately of land.
9. On 15 December 1992 the Court of First Instance allowed the applicant’s action, taking the view that he was entitled to recover possession of a total surface area of 63,800 sq. m of land, and ordered the administrative authorities to issue him with a document of title for that land, situated in Bîra village. That judgment became final.
10. On 17 January 1994 the local commission in Bîra for the application of Law no. 18/1991 (“the local commission”) certified in an official record that the applicant had been able to take possession of a 6,152 sq. m plot of land at Cimitir. The applicant signed the official record.
11. On 18 September 1997 the applicant brought an administrative action against the local commission seeking to have it perform the procedure for enabling him to take possession of the land and to prepare the documentation pertaining to the issuance of a document of title for the 63,800 sq. m of land.
12. On 26 January 1998 the Neamţ Regional Court upheld the applicant’s action and ordered the local commission to implement the procedure for enabling him to take possession of the 63,800 sq. m of land situated in Bîra village, to issue the official record and to provide him with a title document, in accordance with the judgment of 15 December 1992. That judgment became final.
13. On 3 April 2000 the applicant brought an administrative action against the local commission seeking a daily pecuniary penalty for the refusal to enable him to take possession of the entire surface area of 63,800 sq. m of land in Bîra village, and to prepare the documentation pertaining to the acquisition of title, as ordered by the judgment of 26 January 1998.
14. On 27 November 2000 the Regional Court, by an enforceable decision, upheld the applicant’s action and ordered the local commission to pay a daily pecuniary penalty of 100,000 Romanian lei (ROL). The court noted that the applicant had taken possession of 59,400 sq. m of land and that the local commission had refused to enable him to take possession of the plot of 5,000 sq. m of land situated at Cimitir, thus preventing the preparation of the necessary documentation for the acquisition of title. The court also noted that the plot of 5,000 sq. m of land had been leased by Bîra town council to a private company.
The expert report produced during the proceedings mentioned the plot of 5,000 sq. m of land at Cimitir, which was expressly referred to in the judgment of 16 July 1991, as part of the total of 63,800 sq. m of land for which the authorities were supposed to prepare the documentation pertaining to the acquisition of title. It also mentioned that on 5 December 1991 the applicant had been able to take possession of the land in question at Cimitir, in a location situated in the yard of the former agricultural cooperative, but that subsequently the local commission had allocated to him a 5,000 sq. m plot of land next to the yard.
15. On 28 December 2000 the town council invited the applicant to take possession of a plot of 5,000 sq. m of land as provided for by the judgment of 27 November 2000, in one of three locations proposed by the authorities, none of them at Cimitir.
16. On 10 January 2001 the local commission certified in an official record that the applicant had been able to take possession of a 5,000 sq. m plot of land in a place called “Arie”, which was not one of the three abovementioned locations. The applicant refused to sign the official record, as it did not relate to the original location.
17. On 11 and 22 January 2001 the town council invited the applicant to sign the official record and the forms for the issuance of the document of title. The applicant refused, claiming the land in the original location.
18. On 28 July 2005 the Neamţ prefecture, in a written note following an interview with the applicant, acknowledged that the latter’s right of ownership over the plot of 5,000 sq. m had been certified by the judgment of 16 July 1991 and that the bailiff had enabled him to take possession in 1991. The prefecture further admitted that the applicant could not enjoy possession, as the local authorities had refused several times to take that judgment into account. Hence, the buildings on the land had been systematically leased out, without the question of ownership of the land being examined, and were currently leased to a third party, with the town council receiving a lease tax for the land. Finally, the note mentioned that the prefecture had informed the mayor that according to the law it was the applicant who should have entered into the lease contract as the owner of the land and of the buildings on it. Therefore, the applicant was directed to lodge either an application for determination of ownership or an application concerning the obligation to take action.
19. On 7 November 2002 the bailiff, at the applicant’s request, directed the local commission to execute the judgment of 27 November 2000 and to pay the daily pecuniary penalty with effect from 1 January 2001.
20. On 19 November 2002 the local commission lodged an objection to execution, alleging that the failure to enable the applicant to take possession of 63,800 sq. m of land and to issue him with a document of title was due to his own refusal.
21. On 3 December 2002 the Court of First Instance dismissed the objection as groundless, stating that the acts performed by the local commission were not in conformity with the judgments given in the applicant’s favour and that his claim to take possession of the 5,000 sq. m plot of land in the original location at Cimitir was justified.
22. On 6 March 2003 the Regional Court, by a final decision, upheld an appeal by the local commission and annulled the bailiff’s injunction. The court noted that the establishment of the location of plots of land fell within the exclusive competence of the local commission and that the authorities had made several proposals to the applicant with a view to providing him with equivalent land in compensation. It also considered that the evidence proved that the applicant was already in possession of a 5,400 sq. m plot of land at Cimitir, in accordance with the judgment of 16 July 1991.
23. On 12 April 2005 the applicant brought proceedings against the local authorities seeking to obtain a document of title for the 5,000 sq. m plot of land at Cimitir as granted by the judgment of 16 July 1991, with the following boundaries: the road (to the north and south), pastureland (to the east) and buildings belonging to the town council (to the west). He submitted that he was the owner of that land according to the judgment of 16 July 1991 and that he had been granted possession by the bailiff on 5 December 1991, but that the authorities were planning to prepare documentation for the acquisition of title for land in other locations.
24. On 30 November 2005 the Court of First Instance, taking into consideration an expert report produced in the proceedings and refusing a request by the applicant for a new expert report, dismissed the action on the ground that the land claimed by the applicant within those boundaries included the stables of the former agricultural cooperative and had no connection with the plot of land awarded by the judgment of 16 July 1991, being adjoining to it. The court acknowledged the applicant’s interest in claiming that land, as it had the stables of the former agricultural cooperative on it.
25. On 26 June 2006 the Regional Court, by a final decision, dismissed as groundless an appeal by the applicant in which he had contested the location on which the expert report produced before the first-instance court was based and the dismissal of his request for a new expert report.
26. On 12 April 2007 the town council informed the Agent of the Government that the applicant was in possession of a plot of land at Cimitir, certified by the official record of 17 January 1994 and, according to an expert report of 16 November 2005, with a surface area of 6,002 sq. m. That land was the land mentioned by the judgment of 16 July 1991.
27. So far the applicant has not received a document of title.
28. The relevant domestic law is summarised in the judgments in Sabin Popescu v. Romania (no. 48102/99, §§ 42-46, 2 March 2004) and Drăculeţ v. Romania (no. 20294/02, § 29, 6 December 2007).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-83175
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ZUNIC v. SLOVENIA
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: 1. The applicant, Mr Branko Žunič, is a Slovenian national who was born in 1953 and lives in Dolenja Vas. He was represented before the Court by Mr B. Verstovšek, a lawyer practising in Celje.
2. y be summarised as follows.
3. On 12 May 1997 the applicant was injured in an accident at work. The applicant’s employer had taken out insurance with the insurance company ZT.
4. On 28 March 2000 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 9,970,530 Slovenian tolars (approximately 41,550 euros (EUR)) for the injuries sustained.
5. Between 14 September 2000 and 29 May 2007 the applicant lodged six preliminary written submissions and adduced evidence.
6. Between 22 June 2004 and 26 August 2005 he made four requests that a date be set for a hearing.
7. During the proceedings the court appointed a medical expert. On 23 May 2005 the court sought an additional opinion from the appointed expert.
8. On ZT’s objection the court, on 6 September 2005, declared lack of jurisdiction to consider the case and ordered that it be heard before the Novo Mesto District Court (Okrožno sodišče v Novem mestu). The applicant appealed against that decision on 9 September 2005. On 23 November 2005 the Celje Higher Court (Višje sodišče v Celju) allowed the applicant’s appeal and rejected the defendant’s objection as to the lack of jurisdiction.
9. On 17 April 2007 the first hearing to be held in the case was adjourned until 18 May 2007 since ZT needed time to prepare pleadings in reply to those of the applicant.
10. On 18 May 2007 the court held a hearing on the merits of the case.
11. The proceedings are currently pending before the Celje District Court.
12. On 23 February 2007 the applicant lodged a supervisory appeal with the Celje District Court under section 5 of the 2006 Act complaining that the civil proceedings had been pending since 28 March 2000. He further argued that the proceedings were not of particular complexity and that there were no reasons for such a delay. It would appear that the applicant’s legal representatives have lodged supervisory appeals in 650 cases pending before the same court.
13. On 15 March 2007 the President of the Celje District Court dismissed the applicant’s supervisory appeal as ill-founded. He relied on the fact that the applicant’s case had not been granted priority; that the judge C.K., to whom the applicant’s case had been assigned on 1 March 2007, had to deal with 264 other cases, some of them much older than the applicant’s; that the order of precedence had to be respected; and that the delays in the present case had resulted from systemic problems and were not the fault of the judge. The President of the Celje District Court therefore deemed it impossible to order any of the measures stipulated in the 2006 Act. Referring to section 6, paragraph 7, the President noted that since other judges were likewise overburdened, it would not be sensible to assign the case to another judge. Moreover, seven new judicial posts had been created at the court as a result of the Lukenda Project (see paragraph 16 below), three of which had been filled, and the rest of which were in the process of being filled. According to him, this would, reduce delays in the future.
14. On 30 March 2007 the applicant lodged a motion for a deadline under section 8 of the 2006 Act. He relied on substantially the same reasons as in his supervisory appeal and requested that the case be decided in one month’s time.
15. On 25 April 2007 the President of the Celje Higher Court, in agreement with the first-instance decision, dismissed the motion for a deadline, finding that the applicant had simply reiterated the general complaints contained in his supervisory appeal and had, in respect of the requirements stipulated in section 5 paragraph 2 (5), only indicated the date of the beginning of the proceedings.
16. Following the judgment in Lukenda v. Slovenia (no. 23032/02, 6 October 2005), and decision no. U-I-65/05 of the Constitutional Court (22 September 2005), both binding the Slovenian State to establish conditions in which the right to a trial without undue delay must be afforded, the Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the so-called Lukenda Project. Its goal is the elimination of backlogs in Slovenian courts and prosecutor’s offices by the end of 2010, by providing for structural and managerial reform of the judiciary.
17. The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006- “the 2006 Act”), as a part of the Lukenda Project, has been implemented since 1 January 2007.
18. Section 3 of the 2006 Act provides for two remedies to expedite pending proceedings - a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog) - and, ultimately, for a claim for just satisfaction in respect of damage sustained because of the undue delay (zahteva za pravično zadoščenje).
19. Section 4 defines the criteria that domestic authorities should take into account when assessing the complaints:
“When deciding on the legal remedies under this Act, the circumstances of the particular case shall be taken into account, namely: its complexity in terms of facts and law; actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings; compliance with rules on the set order for resolving cases, or with statutory deadlines for fixing preliminary hearings or for giving court decisions; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged; the nature and type of case and its importance for a party.”
20. The supervisory appeal is governed by sections 5 and 6, which provide as far as relevant:
“(1) If a party considers that the court is unduly protracting the decision-making, he or she may lodge a supervisory appeal in writing before the court hearing the case; the decision thereon is taken by the .... president of the court (hereinafter ‘the president of the court’).
(2) For the purposes of decision-making concerning the protection of the right to a trial without undue delay, the supervisory appeal shall contain the following elements:
...
– indication of circumstances or other particulars concerning the case, which demonstrate that the court is unduly protracting the decision-making;
...
“(1) If the supervisory appeal is manifestly unfounded having regard to the timetable for resolving the case concerned by the supervisory appeal, the president of the court shall dismiss the appeal by a ruling.
(2) If the supervisory appeal does not contain all the required elements referred to in section 5(2) of this Act, the president of the court shall dismiss it by a ruling. No appeal shall lie against that ruling.
(3) If no ruling as provided for in paragraphs 1 or 2 of this section is given, the president of the court shall, in the framework of his court management competence under the statute governing the court system, forthwith request the .... judge or chair of a court panel (hereinafter ‘the judge’) to whom the case has been assigned for resolution to submit a report indicating reasons for the duration of proceedings, not later than fifteen days after receiving the request of the president of the court or after obtaining the file, if necessary for drawing up the report. The report shall include the declaration in respect of criteria referred to in section 4 of this Act and the opinion on the time-limit within which the case may be resolved. The president of the court may also require the judge to submit the case file if he assesses that, in the light of allegations of the party indicated in the supervisory appeal, its examination is necessary.
(4) If the judge notifies the president of the court in writing that all relevant procedural acts will be performed or a decision issued within a time-limit not exceeding four months following the receipt of the supervisory appeal, the president of the court shall inform the party thereof and thus conclude the consideration of the supervisory appeal.
(5) If the president of the court establishes that in view of the criteria referred to in section 4 of this Act the court is not unduly protracting the decision-making in the case, he shall dismiss the supervisory appeal by a ruling.
(6) If the president of the court ...
(7) If the president of the court establishes that the undue delay in decision-making in the case is attributable to an excessive workload or an extended absence of the judge, he may order that the case be reassigned. He may also propose that an additional judge be assigned to the court or order other measures in accordance with the statute governing the judicial service.
...”
21. Sections 8 and 11 define the motion for a deadline and provide for measures that may be applied by the court dealing with the motion. They read, in so far as relevant, as follows:
“(1) If, under section 6(1) or (5) of this Act, the president of the court dismisses the supervisory appeal ..., the party may lodge a motion for a deadline under section 5(1) of this Act with the court hearing the case.
...
(3) The party may lodge the motion for a deadline within fifteen days after receiving the ruling or after the time-limits provided for in paragraph 1 of this section.”
“(1) If the motion for a deadline is manifestly unfounded, having regard to the timetable for the resolution of the case and the actions of the party, the president of the court shall dismiss it by a ruling.
...”
(3) If the president of the court establishes that in view of the criteria referred to in section 4 of this Act the court is not unduly protracting the decision-making in the case, he shall dismiss the motion for a deadline by a ruling.
(4) If the president of the court establishes that, in view of the criteria referred to in section 4 of this Act, the court is unduly protracting the decision-making in the case, he shall order, by a ruling, that the appropriate procedural acts be performed by the judge and shall also set the time-frame for their performance, which may not be less than fifteen days and not longer than four months, as well as set the appropriate deadline for the judge to report on the acts performed.
(5) The president of the court shall decide on the motion for a deadline within fifteen days after receiving it.”
22. Section 7 provides for the limitations concerning filing of a new supervisory appeal or a motion for a deadline.
“(1) If the president of the court acts in compliance with Article 6, paragraphs 4 or 6 of this Act, the party may not file a new supervisory appeal nor a motion for a deadline concerning the same case before the expiry of deadlines set in the notification or ruling of the president of the court. This provision shall not apply to cases where detention is proposed or ordered or where an interim measure is proposed.
(2) If a ruling was issued in accordance with Article 6, paragraphs 1 or 5 of this Act, the party may file a new supervisory appeal only after six months have elapsed from the receipt of the decision. This provision shall not apply to cases where detention is proposed or ordered or where an interim measure is proposed.”
23. Further to section 15, just satisfaction may be provided by payment of monetary compensation, a written statement of the State Attorney’s Office or the publication of a judgment. A claim can be lodged under the following condition:
“(1) If the supervisory appeal lodged by the party was granted or if a motion for a deadline has been lodged, the party may claim just satisfaction under the present Act.
...”
24. Section 16 provides for a compensatory remedy and fixes the maximum amount that could be awarded:
“(1) Monetary compensation shall be payable for non-pecuniary damage caused by a violation of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia.
(2) Monetary compensation for individual finally resolved cases shall be granted in the amount of 300 up to 5,000 euros.
(3) When deciding on the amount of compensation, the criteria referred to in section 4 of this Act shall be taken into account, in particular the complexity of the case, actions of the State, actions of the party and the importance of the case for the party.”
25. Sections 19 and 20 govern just satisfaction proceedings:
“(1) Proceedings to enforce a claim for just satisfaction, provided that the condition referred to in section 15(1) of this Act is met, shall be instituted by a party by means of a motion for settlement lodged with the State Attorney’s Office with a view to reaching an agreement on the type or amount of just satisfaction. The party may lodge such motion within nine months after the final resolution of the case. The State Attorney’s Office shall rule on the motion of the party within a period of three months if it establishes that the just satisfaction claim is substantiated. Until the expiry of the above-mentioned period, the party may not assert any claim for monetary compensation by way of just satisfaction by bringing an action before the competent court.
(2) If, in accordance with paragraph 1 of this section, the agreement has been reached with the party, the State Attorney’s Office shall enter into an out-of-court settlement with the party.”
“(1) If no agreement under section 19 of this Act is reached upon the motion for settlement, or the State Attorney’s Office and the party fail to negotiate an agreement within three months of the date of the motion being lodged, the party may bring an action for damages.
(2) An action for damages against the Republic of Slovenia shall be brought not later than eighteen months after the final resolution of the party’s case.
...”
26. The relevant provisions of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 83/2001) provide:
“A judgment, against which an appeal can no longer be lodged, shall become final (pravnomočen), insofar as the party’s claim or counter-claim has been decided therein.
...”
“The parties may lodge an appeal against a judgment delivered at first instance within thirty days from the service of its written grounds...
An appeal, lodged on time, precludes the judgment to become final in the part which has been challenged in the appeal.”
“The parties may lodge an appeal on points of law against a final judgment, delivered at second instance, within thirty days from the service of its written grounds.”


ITEMID: 001-69686
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: MAGOKE v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Samwel Magoke, is a Swedish national, who was born in 1959 and lives in Märsta. He was represented before the Court by Mr P. Stadig, a lawyer practising in Stockholm. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, who is of Tanzanian origin, visited Sweden for the first time as a tourist between 22 July and 21 September 1992 in order to see his sister, living in Sweden. He then entered into a relationship with K.J., a Swedish citizen and a friend of his sister's. On 27 October 1994 he arrived in Sweden for the second time. He stayed with K.J. and the couple married on 25 February 1995.
On 10 March 1995 the applicant applied for a residence permit on the basis of the link to his wife. He stated that he had two children in Tanzania, a boy named Ernest, born on 2 July 1985, and a girl named Esther, born on 8 April 1992. Apparently, the children have different mothers. At an interview with the immigration authorities, the applicant stated that he was born and raised in the city of Shinyanga, Tanzania, and that he had three brothers and four sisters all of whom, except the sister in Sweden, lived in Tanzania. His two children were living with their paternal grandmother in Shinyanga. He intended to bring them to Sweden in the future.
On 4 July 1995 the applicant was granted a temporary residence permit, which was later renewed several times. At interviews held in connection with these renewals, the applicant stated that he kept in contact with his children in Tanzania through telephone calls and letters and that he sent them money. As to where the children were living, the information given by the applicant varied. In January 1996 he asserted that Ernest lived with his maternal grandmother and Esther with her mother and paternal grandmother. In September 1996 he stated that they both lived with their paternal grandmother. In May 1997 he claimed that Ernest lived with his maternal grandmother and Esther with her mother.
On 3 February 1997 a son, Sebastian, was born to the applicant and K.J. On 15 September 1997 the applicant was granted a permanent residence permit in Sweden on account of his family ties. He acquired Swedish citizenship on 20 September 2000.
On 5 November 1998 applications for residence permits in Sweden were submitted to the Swedish Embassy in Dar es Salaam concerning the applicant's mother, Ernest and Esther. Asked about the applications, the applicant stated, in December 1998, that he was Esther's legal guardian, although the guardianship had not been established by a court. The girl had lived with her mother until some time in 1996, when she had moved in with her paternal grandmother as her mother had married and could not take care of Esther for financial reasons. The applicant had not seen Esther since leaving Tanzania but had spoken to her on the telephone. He had, however, lived with her in 1992, 1993 and 1994. At an interview with the National Immigration Board (Statens invandrarverk) in May 1999, the applicant asserted that he had never lived with Esther's mother, nor had he lived permanently with Esther and her half-brother Ernest. However, the children had visited him and his mother for shorter periods of time while he was still in Tanzania. The applicant also stated that Esther had lived with her mother until three years earlier when her mother had married and handed over Esther to her paternal grandmother.
On 28 July 1999 the Immigration Board rejected the applications. In regard to Esther, the Board referred to the applicant's statement that she had lived with her mother until 1996 when the mother had married and handed over her to the applicant's mother. Concluding that the daughter had never been living with the applicant, the Board found that she could not be granted residence permits pursuant to chapter 2, section 4, subsection 1 (2) of the Aliens Act (Utlänningslagen, 1989:529).
The applicant appealed against the decision. He appended an affidavit from Esther's mother dated 4 August 1999 in which she stated that Esther had been living with her paternal grandmother since the age of five, as she was unemployed and therefore unable to take care of her daughter herself.
On 29 March 2000 the Aliens Appeals Board (Utlänningsnämnden) upheld the Immigration Board's decision.
On 9 February 2001 new applications for residence permits were submitted to the Swedish Embassy in Dar es Salaam on behalf of Ernest and Esther. From the documents appended it transpired that the applicant's mother had died on 18 January 2001 and that the applicant was in Tanzania for the funeral and to sort out certain issues that had emerged as a result of her death.
On 18 April 2001 the second applications were rejected by the Migration Board (Migrationsverket; previously the National Immigration Board). The Board concluded that the children had never been living with the applicant and could not therefore be granted residence permits in Sweden.
In an appeal of 3 May 2001, it was stated that Esther was only three months old when the applicant left Tanzania, which explained why the applicant had never lived with her. Ernest had lived alternately with his mother and father.
The appeal was rejected by the Aliens Appeals Board on 30 July 2001.
Third applications for residence permits for the children were lodged with the Migration Board on 27 September 2001. There it was claimed that the previous decisions of the immigration authorities had been based on a misunderstanding. The applicant had had, it was stated, very close contact with the children while he was living in Tanzania. Ernest had lived with his mother at her parents' home but the applicant had still maintained close contact with him. Esther's mother and the applicant had lived together for three months after Esther had been born until he went to Sweden for the first time. When he had returned to Tanzania he had stayed with his mother and Ernest. Esther had been living in one of the neighbouring houses with her mother.
On 18 October 2001 the Migration Board rejected the applications, finding that the new claim concerning Esther was not credible as the applicant previously had asserted that he had never cohabited with Esther's mother.
In an appeal it was submitted that the applicant had visited Tanzania between 25 December 2001 and 27 January 2002 to commemorate the first anniversary of his mother's death and that his son Sebastian had been with him on the visit. It was further stated that Ernest and Esther were at that time staying with their aunt, M.M., one of the applicant's sisters, in Dar es Salaam and that the applicant was paying for their school fees and living expenses. An additional submission of 6 August 2002 contained information that M.M. was going to move with her family to England for studies in September 2002, leaving the applicant's children in Tanzania.
On 28 August 2002 the Aliens Appeals Board rejected the appeal. Concerning Esther, the Board upheld the assessment of the Migration Board. With regard to Ernest it was noted that he had reached the age of 18 and that he had never been a member of the same household as his father.
A fourth application for a residence permit for Esther was lodged on 30 September 2002 with the Swedish Embassy in Dar es Salaam. Appended to the application was, inter alia, a copy of Esther's passports which included the names of two of her aunts, including M.M., to be contacted in the event of accident or death. It was further stated in the application that Esther was currently living with a good friend of M.M.'s, who is apparently the director of the Legal and Human Rights Centre in Dar es Salaam.
On 28 November 2002 the Migration Board rejected the fourth application, stating that, apart from the fact that Esther was no longer living with her aunt, no new circumstances had emerged.
In an appeal to the Aliens Appeals Board, Esther's counsel stated the following. During the first two or three months after her birth, the daughter had been taken care of by her mother. Thereafter, she had lived with her father – the applicant – and her paternal grandparents, until her father left for Sweden in 1994. It was therefore not correct that she had never lived with her father. That conclusion was based on incomplete information previously given by the applicant. It was further claimed that the woman who was at the time taking care of Esther had accepted this responsibility on the condition that it would be a temporary measure and had contacted the applicant to inform him that she was going to travel abroad. Esther therefore no longer had any relative or other person who could take care of her.
By a decision of 28 February 2003 the Aliens Appeals Board rejected the appeal. It noted that the information on whether the applicant and Esther had ever lived together had been changed on several occasions. In May 1999, during the investigation relating to the first application, the applicant had stated that he had never lived together with his daughter. In submissions of 3 May 2001, Esther's counsel had stated that the she was only three months old when the applicant left Tanzania and that they had thus not lived together. In further submissions of 27 September 2001, the counsel had stated that the applicant had lived with Esther's mother for three months after Esther's birth and had then left the country. Having regard to the contradictory statements, the Appeals Board concluded that it had not been shown that Esther had ever lived with the applicant.
On 19 December 2002 the applicant and K.J. divorced.
The basic provisions concerning the right of aliens to enter and remain in Sweden are found in the Aliens Act. Chapter 2, section 4, subsection 1 (2) of the Act provides that a residence permit may be given to an alien who is below the age of 18 and unmarried and who is or has been living at home with a parent who is resident in Sweden or who has been granted a permit to reside in Sweden.