ITEMID: 001-100472
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ANTYUSHINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1942 and lives in Uspenskoye, the Krasnodar Region.
5. The applicant and her husband were involved in a number of real estate transactions. On 1 June 1993 the applicant's husband presented her with a flat in Nevinnomyssk of the Stavropol Region which she subsequently exchanged for another flat in a different locality.
6. On 5 July 1994 the applicant became involved in the dispute challenging the four-way real estate exchange transactions through the claims brought by the other parties to the transactions.
7. On 26 December 1994 the Shpakovskiy District Court of the Stavropol Region (“the District Court”) annulled the transactions concerning the applicant and her husband. The parties did not appeal, and the judgment came into force.
8. On 26 December 1995 and 30 September 1996 two other trial courts of the region adopted further judgments related to the same dispute. The parties did not inform the Court of the content of those judgments.
9. On 27 February 1997, at the applicant's request, the deputy president of the Supreme Court of the Russian Federation brought an extraordinary appeal against the judgment of 26 December 1994.
10. On 14 March 1997 the Supreme Court of the Russian Federation granted the appeal, quashed the impugned judgment and remitted the case for fresh consideration.
11. On 8 September 1997 the Presidium of the Stavropol Regional Court suggested that the District Court review the judgments of 26 December 1995 and 30 September 1996 on account of newly discovered circumstances.
12. On 22 September and 22 December 1997 the District Court explained to the applicant that it was necessary to file a request for review of the impugned judgments on account of newly discovered circumstances.
13. On 26 February 1998 the applicant filed such a request with the District Court, at the same time claiming invalidation of two exchange transactions, involving her husband and third parties M. and Kh.
14. On 12 January 1999 the District Court decided to quash the judgment of 26 December 1994 on account of newly discovered circumstances.
15. Between 23 October 1998 and 27 September 1999 the District Court scheduled eleven hearings. Five of them did not take place due to the parties' failure to appear. According to the Government, on 27 September 1999 the District Court “made certain arrangements to ensure the parties' appearance for the next hearing”.
16. On 5 October 1999 the District Court annulled all the real estate exchange transactions between the parties to the dispute. The court found it lawful to examine the case and adopt the judgment in absence of one of the respondents Kh. who had been notified of court hearings on multiple occasions.
17. On 22 December 1999 the Stavropol Regional Court (“the Regional Court”) set aside the above judgment on appeal for errors in application of the procedural law, including insufficient measures to ensure Kh.'s appearance in court, and ordered a new hearing.
18. On 31 January 2000 the District Court stayed the proceedings until the end of a counter-terrorist operation in Grozniy of the Chechnya Republic, where one of the disputed flats was located. The proceedings were resumed on 19 May 2000.
19. On 26 June 2000 the court postponed the hearing due to some of the parties' failure to appear, having again “made certain arrangements to ensure their appearance for the next hearing”.
20. On 6 October 2000 the hearing was adjourned due to the failure to appear of one of the parties' legal counsel.
21. After a hearing on 13 November 2000, the court decided to send a rogatory letter to the Nevinnomyssk Town Court (“the Town Court”) for questioning of one of the parties. The proceedings were stayed until its execution.
22. On 13 March 2001 the proceedings were resumed. The court scheduled the next hearing for 14 August 2001 due to examination of one of the parties' appeal of an injunction order.
23. On 14 August 2001 the hearing did not take place due to some of the parties' failure to appear.
24. On 12 September 2001 the District Court accepted some of the parties' renunciation of their claims, transferred the rest of the claims for consideration to the Town Court and discontinued the proceedings.
25. After two hearings, on 25 December 2001 the Town Court discontinued the proceedings, including the part concerning the applicant's flat.
26. On 8 February 2002 the Regional Court overturned the above decision of on appeal and ordered a new examination.
27. On 5 April 2002 president of the Regional Court brought an extraordinary appeal (протест в порядке надзора) against the District Court's decisions of 12 January 1999 and 12 September 2001. It is not clear from the parties' submissions when the higher court called up the case for examination of the extraordinary appeal.
28. On 22 April 2002 the Presidium of the Regional Court quashed the impugned decisions by way of supervisory review for errors in application of the procedural law and remitted the matter for fresh consideration.
29. On 28 May 2002 the District Court admitted the claims for new consideration and scheduled preparatory meetings with the parties.
30. On 23 October 2002 following one of the parties' protest against examination of the case in absence of the respondent Kh., the District Court stayed the proceedings until Kh.'s whereabouts could be established. In particular, the court noted that it had procured information from the post office, town administration and address bureau of the region of Kh.'s possible residence and obtained a police report. The parties were apprised of their right to file a request with the police for Kh.'s search.
31. On 23 December 2002 the Regional Court upheld the decision on appeal.
32. On 5 June 2008 the District Court quashed its decision of 23 October 2002 at the parties' request and resumed the proceedings.
33. On 16 June 2008 the District Court rejected the applicant's claims for invalidation of the four-way exchange transactions. It transpires from the text of the judgment that Kh., whose whereabouts were still unknown, was represented by legal counsel appointed by the court in accordance with Section 50 of the Code of Civil Procedure. The applicant appealed the judgment but did not inform the Court about the outcome of her appeal.
34. On 20 September 2002 the Justice of Peace of Court Circuit No. 1 of the Kochubeyevskiy District of the Stavropol Region dismissed the applicant's claim for pecuniary and non-pecuniary damages allegedly resulting from delayed payment of the guardian's allowance to her.
35. On 25 December 2002 the Kochubeyevskiy District Court of the Stavropol Region upheld the judgment of 20 September 2002 on appeal.
36. Section 112 provided that in case of unknown whereabouts of a respondent party the court should begin examination of the case upon receipt of the summons with a note testifying that it had been viewed by the housing authority or local council of people's deputies at the respondent's place of residence. It further provided that the court should put a missing respondent on the wanted list if the dispute concerned alimony, health damages and damages resulting from the loss of the main provider, and was entitled to do so in disputes brought by State or public agencies.
37. Section 215.4 provided that the court was entitled to stay the proceedings if the respondent had been put on the wanted list in accordance with Section 112.
38. Section 216.2 provided that the proceedings that were stayed in accordance with Section 215 should be resumed upon establishing the respondent's whereabouts.
39. Section 50 provides that the court should appoint legal counsel to represent a respondent with an unknown place of residence and in other cases envisaged by the federal law.
40. Section 219 provides that court proceedings should be resumed upon clearance of the factors impeding continuation of the proceedings, by way of the parties' request or court's own initiative.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-110921
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF S.F. AND OTHERS v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iran)
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: 6. The applicants were born in 1977, 1979 and 2009 respectively and are currently in Sweden.
7. On 10 September 2007 the first and second applicants, a married couple, arrived in Sweden and applied to the Migration Board (Migrationsverket) for asylum, residence and work permits. Applications for refugee status and travel documents were lodged with written submissions dated 28 February 2008.
8. The applicants submitted that they had lived together in Tehran. The first applicant is a Kurdish Sunni Muslim and the second applicant a Persian Shia Muslim. They both had a university degree and had been working, the first applicant as a machine supervisor at a car factory and the second applicant as a teacher, before they left Iran. The first applicant had also been a musician, and he used to perform and sing political music for the Kurdish cause in Iran. He had played at several concerts, which had been criticised by the authorities. He had also been an active athlete as an Iranian kick-boxing champion.
9. The first applicant claimed that he had been politically active in Iran. He had always been interested in the Kurdish issue and had once, in 2003, been arrested and questioned by Etalat, the Iranian security forces, for being involved in a discussion on this topic. Subsequently, he had been sentenced to 12 months’ imprisonment by the Mojtama Ghazani e Ghods court. He had served one month in Qasr prison, before being released on bail. Despite the sentence, he had been able to keep his job and stay in Tehran.
10. Approximately one year before they left Iran, the first applicant had been approached by a colleague and close friend, who was a member of the Democratic Party of Iranian Kurdistan (KDPI), and asked if he was interested in supporting and working for the KDPI. He had accepted the proposition and started to disseminate leaflets, compact discs and other information about the party and also to recruit new members. He had sympathised with the party but had not been a full member. His only contact with the party had been through the colleague.
11. On 26 August 2007 the first applicant had witnessed the arrest of a work colleague by Etalat outside their workplace. He had then, out of fear, decided to leave Iran as he assumed that his friend would reveal his contacts under torture. He had left work, gone to the bank to withdraw his savings and then home to tell his wife and to pack their most important belongings. The applicants had travelled first to Karaj, where the second applicant’s parents lived and where they also left some personal belongings and documents, and then to Sardesht, where they stayed with the first applicant’s grandparents for two nights.
12. On 27 August 2007 the first applicant had called the doorman in their apartment building and been told that four men from Etalat had come looking for the applicants. Etalat had broken into their apartment, where allegedly they found evidence and KDPI-related documents which the applicants had left behind.
13. On the night between 28 and 29 August 2007, the applicants had crossed the border into Turkey and then continued through Europe by truck. Since coming to Sweden they had been in touch with the first applicant’s father, who had claimed that he had been threatened by Etalat and that they had been searching for the first applicant. On several occasions, Etalat had approached the father in his home and taken him to their head office for interrogation.
14. The second applicant submitted that she had not been politically involved and that she knew little of the extent of her husband’s involvement in political activities while they were living in Iran. She had, however, helped him to distribute some materials from the party to friends and relatives.
15. In the initial contact with the Migration Board the applicants also submitted that they had both been politically active in Sweden. They had taken part in several meetings for the Kurdish cause and were also active in news programmes that were broadcast on a satellite channel banned in Iran and on internet blogs.
16. The first applicant had contacted members of the KDPI when he arrived in Sweden and, soon after his arrival, he had participated in an information meeting concerning the party’s 14th Congress. The applicant submitted photographs of his attendance at the meeting before the Migration Board. He also submitted a certificate issued by the KDPI office in Paris on 15 April 2008, stating that the first applicant was a supporter of the party and that his life would be in danger if he were to return to Iran.
17. The second applicant had started in 2008 to work regularly for Newroz TV, a Kurdish TV channel which was banned in Iran and considered critical of the Iranian regime.
18. On 23 May 2008 the Migration Board rejected the applicants’ request for asylum. The Board found that the applicants’ story lacked credibility in several aspects. Leaving the credibility issues aside, the Board also found that the applicants had only been active in the KDPI at a very low level and that only activists higher up in the hierarchy would be of any interest to the Iranian authorities. Furthermore, the Board found that the applicants had not been very active since their arrival in Sweden and had only participated in general meetings.
19. The first and second applicants proceeded to the Migration Court (Migrationsdomstolen) where they maintained their story and added that several of their friends had been arrested since they had left Iran and the first applicant’s father had received several threatening telephone calls from Etalat. In July 2008 the first applicant had been interviewed on Newroz TV about himself, sports and music, and political activity. The second applicant had started to work for Newroz TV as a translator, newscaster and journalist on a daily basis. She had researched and reported, inter alia, on the hidden mass killings in Iranian prisons.
20. In September 2008 they had become members of a European support committee for Kurdish prisoners on hunger strike in Iran. Until 9 October 2008, when the hunger strike ended, the first applicant had worked actively to collect support from different NGOs and to spread the information on human rights violations in Iran. The issue was brought up by the European Parliament, on the initiative of the committee. The second applicant, as she could speak English, Farsi and Sorani fluently, had become the universal spokesperson for the committee. During the hunger strike, she had been interviewed by several Kurdish media, Newroz TV and Roj TV and both applicants had participated in debates on human rights violations in Iran on blogs and several internet sites. During another hunger strike in Stockholm, in October 2008, the first applicant had also been interviewed by the Kurdish media, Newroz TV and Roj TV, and both applicants had participated on blogs and several internet sites. They claimed that their involvement with, inter alia, Newroz TV must have drawn the attention and interest of Iranian authorities. They submitted a letter from the first applicant’s father, compact discs containing interviews with them from Newroz TV and several reports and certificates from NGOs.
21. By a decision on 14 January 2009 the Migration Court rejected the applicants’ request to translate the submitted compact discs containing statements about the Iranian government.
22. On 3 April 2009 the Migration Court, after an oral hearing of the case, rejected the applicants’ appeal. The applicants’ story about their activities in Iran was considered stringent and substantiated by written evidence and the court found no reason to question the credibility of the story. However, reports showed that mainly high-ranking executives or militant members of the KDPI were subjected to violent acts. It was not considered probable that the Iranian authorities would show an interest in someone at such a low level as the first applicant. Furthermore, the political activities in Sweden had been limited in scope and the applicants had not been able to show that these activities were of any interest to the authorities. The submitted letter from the first applicant’s father and the certificate from the KDPI’s office in France were considered very general or of low value as evidence. Having regard to relevant country information and to the fact that the Iranian authorities were not interested in activities at a low level, the court found that there was no indication that the applicants had come to the direct attention of the Iranian authorities.
23. On 19 June 2009 the third applicant was born.
24. Before the Migration Court of Appeal the first applicant additionally submitted that he had been actively involved for the Kurdish cause on Newroz TV, where he had expressed criticism and continuously informed, inter alia, about the situation for Kurds and the severe human rights violations in Iran. He had also been interviewed on TV concerning his own reasons for leaving Iran. Newroz TV was allegedly monitored by the Iranian intelligence services. The second applicant submitted that, in addition to her work for Newroz TV, she had been working for other Kurdish broadcasting services, that she had performed approximately 30 interviews and that she had worked on translations for Amnesty International’s international secretariat in London. They submitted that they had been involved in substantial political sur place activity and that this activity was known to the Iranian authorities.
25. On 8 July 2009 the Migration Court of Appeal (Migrations-överdomstolen) refused leave to appeal.
26. Subsequently, the applicants turned again to the Migration Board to stop the expulsion. On 22 October 2009 the Board decided not to grant a new examination. This decision was upheld by the Migration Court on 28 January 2010 and the Migration Court of Appeal refused leave to appeal on 10 March 2010.
27. In August, September and October 2010, the applicants published several articles in “Kurdish Perspective”. The second applicant argued, in the articles, in favour of uniting opposition groups against the Islamic government of Iran. She argued that there were many racial and religious groups in Iran, all of which were oppressed by the Iranian authorities, who tried to take advantage of this variety and distract opposition activities. Several critical articles were also published on various internet sites.
28. In 2010 and 2011 the applicants signed several public petitions to free human rights activists in Iran on an internet site.
29. In 2011, the second applicant was involved in promoting the imprisoned Kurdish Mr. Kabudwand as candidate for the Nobel Peace Prize. In the nomination process, the second applicant was named as a member of the nominating committee on several internet sites. She was interviewed about his candidacy on one of the most popular opposition sites on 15 March 2011.
30. In Sweden, the first applicant had also become a full member of the KDPI.
31. The provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the Aliens Act”).
32. Chapter 5, Section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden.
33. According to Chapter 4, Section 1, of the same Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, membership of a particular social group, religious or political beliefs, grounds of gender, sexual orientation and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the Aliens Act).
34. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the Aliens Act).
35. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the Aliens Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to treatment as referred to in Chapter 12, Sections 1 and 2, of the Aliens Act or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the Aliens Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the Aliens Act).
36. After the elections in Iran on 12 June 2009 the Political Affairs Committee of the PACE on 1 October 2009 adopted a declaration in which it considered the violent reactions of the Iranian authorities to peaceful protests to be a serious breach of Iranian citizens’ human rights. It also called upon governments of other countries not to expel Iranian citizens to Iran.
37. In a document released by Freedom House on 18 April 2011 (Freedom on the Net – Iran, p. 1) it was stated:
“Since the protests that followed the disputed presidential election of June 12, 2009, the Iranian authorities have waged an active campaign against internet freedom, employing extensive and sophisticated methods of control that go well beyond simple content filtering. These include tampering with internet access, mobile-telephone service, and satellite broadcasting; hacking opposition and other critical websites; monitoring dissenters online and using the information obtained to intimidate and arrest them...”
38. The United States Department of State 2010 Human Rights Report: Iran, section 2: Freedom of Speech and Press/Internet Freedom (8 April 2011) noted that:
“The government monitored Internet communications, especially via social networking Web sites such as Facebook, Twitter and Youtube, and collected individuals’ personally identifiable information in connection with peaceful expression of views. The government threatened, harassed, and arrested individuals who posted comments critical of the government on the internet...”
39. The U.K. Home Office’s Operational Guidance Note – Iran, dated November 2011, stated the following:
“3.7.11 ... There is a real risk that high profile activists and political opponents who have come to the attention of the authorities would on return to Iran face a real risk of persecution and should be granted asylum for reason of his or her political opinion.
3.7.12 Depending on the particular circumstances, some persons who do not have a political profile- which would include for example student demonstrators or other anti-government protestors- are likely to be perceived by the authorities in Iran to oppose the regime and may similarly face a real risk of persecution or ill-treatment on return. Case owners must consider carefully whether the personal circumstances of the individual concerned are such that he or she would face a real risk of persecution on return to Iran.
3.7.13 Those who have engaged in opposition political activity in the U.K. might, depending on their level of involvement, similarly face a real risk of persecution on return to Iran on account of that activity and in such cases a grant of asylum will also be appropriate. The test to be applied in such cases is set out in detail in BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC).
3.12.9 Kurdish opposition groups suspected of separatist aspiration, such as the Democratic Party of Iranian Kurdistan (KDPI), are brutally suppressed.
3.12.10 Politically active groups and individuals are considered a threat to national security by the Iranian government. If the Iranian authorities consider a person to be working against national security, (the person may for example be accused of being a spy or of cooperating with an oppositional religious, ethnic or political group), they may face severe punishment ranging from ten years’ imprisonment to execution. For instance, being in possession of a CD, a pamphlet or something similar made by the Kurdish Democratic Party of Iran (KDPI), Komala or other Kurdish organisations, may be considered as an act against national security. This form of persecution for political activities is a problem all over Iran. However, the authorities are watching Kurdish areas and Tehran more carefully than other areas.
3.12.12 There is no evidence to suggest that an applicant of Kurdish ethnic origin, in the absence of any other risk factor, would on return face a real risk of serious mistreatment simply on the account of his or her ethnic origin alone. Applicants who are able to demonstrate that they are members or supporters of the KDPI, Komala, or active members of PJAK, and who are known to the authorities as such, will be at real risk of persecution and a grant of asylum will be appropriate unless there are case-specific reasons why it would not be.”
40. Amnesty International, in its Amnesty International Annual Report 2011 – Iran, stated the following:
“The authorities maintained severe restrictions on freedom of expression, association and assembly. Sweeping controls on domestic and international media aimed at reducing Iranians’ contact with the outside world were imposed. Individuals and groups risked arrest, torture and imprisonment if perceived as co-operating with human rights and foreign-based Persian-language media organizations. Political dissidents, women’s and minority rights activists and other human rights defenders, lawyers, journalists and students were rounded up in mass and other arrests and hundreds were imprisoned. Torture and other ill-treatment of detainees were routine and committed with impunity. Women continued to face discrimination under the law and in practice. The authorities acknowledged 252 executions, but there were credible reports of more than 300 other executions .
... The authorities continued to restrict access to outside sources of information such as the internet. International radio and television broadcasts were jammed. In January, the authorities banned contact by Iranians with some 60 news outlets and foreign-based organizations. Those willing to speak to the few large Persian-language media outlets on human rights issues were threatened or harassed by security officials .
... The authorities banned newspapers and student journals and prosecuted journalists whose reporting they deemed "against the system". Wiretapping and intercepting of SMS and email communications were routine. A shadowy "cyber army", reportedly linked to the Revolutionary Guards, organized attacks on domestic and foreign internet sites deemed to be anti-government, while other sites, including some associated with religious leaders, were filtered ...”
41. The U.K. Foreign and Commonwealth Office in its Human Rights and Democracy: The 2010 Foreign & Commonwealth Office Report – Iran, (2011), stated:
“The Iranian authorities continued to actively censor the internet, restricting access to wide range of sites including Facebook and YouTube and targeting bloggers and online journalists. The military-run Cyber Army was reported to have taken a leading role in monitoring and disrupting internet sites and other online tools, including email and blog sites.”
42. The Swedish Migration Board, in its legal position document (Rättsligt ställningstagande), regarding the determination of individual risk for minorities and other groups in Iran and also the refugee status for individuals with regard to sur place activity (31 October 2011) stated that it must be considered that the Iranian regime is interested in internet users and activity abroad. Its ability to track down and monitor Iranians’ use of internet and other activities abroad is remarkably high and Iran is considered to be one of the countries which go the furthest in this respect .
43. In its World Report 2012, Human Rights Watch stated the following:
“In 2011 Iranian authorities refused to allow government critics to engage in peaceful demonstrations. In February, March, April and September security forces broke up large-scale protests in several major cities... There was a sharp increase in the use of death penalty. The government continues targeting civil society activists, especially lawyers, rights activists, students, and journalists.”
44. In a judgment of the U.K. Court of Appeal in SS (Iran) [2008] EWCA Civ 310, the issue of sur place activities was considered. The case concerned an appeal by an Iranian of Kurdish ethnicity who claimed to have been involved with Komala, a Kurdish political party, in Iran and that Komala leaflets had been found in his home. He had said that after fleeing Iran and applying for asylum he had become more involved with Komala. A photograph of him had been posted on the internet and a film sequence of a demonstration he had attended in London had been broadcast on Komala Television in Sweden. The Court of Appeal considered that the Immigration Judge’s conclusions on the credibility of the appellant were not sustainable, however, the court did also consider the appellant’s sur place activities. Bearing in mind that the burden of proof lay on the appellant, Lord Neuberger found that the Immigration Judge had been entitled to reach the conclusion he did. He commented:
“There must be a limit as to how far an applicant for asylum is entitled to rely upon publicity about his activities in the UK against the government of the country to which he is liable to be returned. It seems to me that it is not enough for such an applicant simply to establish, as here, that he was involved in activities which were relatively limited in duration and importance, without producing any evidence that the authorities would be concerned about them, or even that they were or would be aware of them.”
45. However, in YB (Eritrea) v. Secretary of State for the Home Department [2008] EWCA Civ 360, which was handed down on 15 April 2008, the Court of Appeal took the following approach to the issue of sur place activities. The case involved an Eritrean asylum seeker who claimed to have been active in support of the opposition Eritrean Democratic Party whilst in the United Kingdom. The Court of Appeal again remitted the issues arising from sur place activities to be heard before a differently constituted Asylum and Immigration Tribunal, which stated:
“... [T]he Tribunal, while accepting that the appellant’s political activity in this country was genuine, were not prepared to accept in the absence of positive evidence that the Eritrean authorities had ‘the means and the inclination’ to monitor such activities as a demonstration outside their embassy, or that they would be able to identify the appellant from photographs of the demonstration. In my judgment, and without disrespect to what is a specialist tribunal, this is a finding which risks losing contact with reality. Where, as here, the tribunal has objective evidence which ‘paints a bleak picture of the suppression of political opponents’ by a named government, it requires little or no evidence or speculation to arrive at a strong possibility, - and perhaps more – that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed. Similarly it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups. The real question in most cases will be what follows for the individual claimant. If, for example, any information reaching the embassy is likely to be that a claimant identified in a photograph is a hanger-on with no real commitment to the oppositionist cause, that will go directly to the issue flagged up by art 4(3)(d) of the [Qualification Directive 2004/83/EC].”
46. In a more recent judgment of the U.K. Upper Tribunal in BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC), the tribunal gave a new “country guidance” determination on returns to Iran in light of the post-presidential election violence. The case concerned an Iranian national’s sur place activities in the U.K. The Court considered the appellant to be a demonstrator whom the Iranian authorities would particularly wish to identify and that there was a real risk that they would be able to do so. Additionally, because of the nature of his association with Bamdad e Iran there was also a real risk that he would face ill-treatment which would amount to persecution because of his political beliefs. The Court stated, inter alia, the following.
“1 Given the large numbers of those who demonstrate here and the publicity which demonstrators receive, for example on Facebook, combined with the inability of the Iranian Government to monitor all returnees who have been involved in demonstrations here, regard must be had to the level of involvement of the individual here as well as any political activity which the individual might have been involved in Iran before seeking asylum in Britain.
2 (a) Iranians returning to Iran are screened on arrival. A returnee who meets the profile of an activist may be detained while searches of documentation are made. Students, particularly those who have known political profiles are likely to be questioned as well as those who have exited illegally.
(b) There is not a real risk of persecution for those who have exited Iran illegally or are merely returning from Britain. The conclusions of the Tribunal in the country guidance case of SB (risk on return – illegal exit) Iran CG [2009] UKAIT 00053 are followed and endorsed.
(c) There is no evidence of the use of facial recognition technology at the Imam Khomeini International airport, but there are a number of officials who may be able to recognize up to 200 faces at any one time. The procedures used by security at the airport are haphazard. It is therefore possible that those whom the regime might wish to question would not come to the attention of the regime on arrival. If, however, information is known about their activities abroad, they might well be picked up for questioning and/or transferred to a special court near the airport in Tehran after they have returned home.
3 It is important to consider the level of political involvement before considering the likelihood of the individual coming to the attention of the authorities and the priority that the Iranian regime would give to tracing him. It is only after considering those factors that the issue of whether or not there is a real risk of his facing persecution on return can be assessed.”
A number of factors were considered and placed under four main heads: (i) the type of sur place activity involved; (ii) the risk that a person will be identified as engaging in it; (iii) the factors triggering inquiry on return of the person and; (iv) in the absence of a universal check on all entering the country, the factors that would lead to identification at the airport on return or after entry.
47. In a recent judgment of the Swedish Migration Court of Appeal of 16 September 2011, the court considered the need for international protection based on sur place activity. The court stated that a real risk to be subjected to severe ill-treatment can be based on an applicant’s sur place activity and that a comprehensive examination of all circumstances has to be made to determine such a risk. It was considered to be of particular importance whether the claimed activity was an expression and a continuation of opinions already founded in the country of origin.
48. The Swedish Migration Board, in its legal statement of 31 October 2011(as referred to above), recognised that a risk based on sur place activity can constitute grounds for refugee status and asylum and listed the following factors to be considered in such assessment:
“1. Whether the person has been politically or religiously active also in his country of origin. It is of importance for the determination whether a need for international protection has occurred sur place if the claimed activity is an expression and a continuation of an opinion already founded in the country of origin. The starting point should be that the requirements are higher regarding the extent of sur place activity if it has only occurred in Sweden.
2. Whether the political activity and its extent are of interest to the Iranian state. The activity must be sufficiently serious in nature and involve behaviour which would generally be seen to displease the Iranian regime. The assessment should be based on the nature and extent of the activity and should take into consideration the Iranian approach to such activity according to current country information, the degree of exposure in Sweden and the possible subsequent risk on return to Iran.
3. Whether the activity has or may come to the knowledge of the Iranian state. The asylum seeker has to make plausible that the activity has or may come to the knowledge of the Iranian authorities. To this end he must, in the absence of other evidence, provide a clear and coherent story supported by current country information.”
VIOLATED_ARTICLES: 3


ITEMID: 001-92569
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: SEVİM GÜNGÖR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: “... the patient was in pain and unresponsive, had severe lung and circulatory insufficiency, severe and widespread decubitus ulcers and was in sepsis ... that night, at around 2 a.m., the nurse on duty, Ms Z.Ç., came to my office and informed me that the patient had probably died. I immediately went to the patient’s room. When I entered the room I saw that the patient’s pupils were bilaterally fixed and dilated. [Her] respiration had ceased and her heart monitor showed a flat line. As you know there is no indication to attempt resuscitation on a patient who has suffered multiple organ failure, brain death and cardiac asystole. Therefore there was no attempt to resuscitate the patient. The patient’s relative’s allegations ... are not true. It is against universal ethical considerations to reprimand a near-death patient’s relative. I do not accept the accusations against me.”
“... after Dr I.C. performed the first medical interventions I took over responsibility for the patient. I changed the dressings twice a day. Later on I performed, after consulting with Dr I.C., a debridement on the region which was infected. Since the procedure is done on dead tissue it is impossible for the patient to shout out in pain ... I took a sample from the infected wound. ... Dr I.Ç. told me that the micro-organisms on the wound were susceptible to [the drug] imipenem and asked if it would be acceptable to me if they administered it. I told them that if the patient’s clinical condition permitted, they could use it. Contrary to the allegations, I did not give either direct or indirect orders for the administration of imipenem since I was not the doctor primarily responsible for the deceased ...”
“The patient was admitted to the intensive care unit on 31 December 1997 .... The patient’s general condition was extremely bad. She was unconscious, dehydrated ... She was fitted with a urine catheter to relieve her bladder ... We consulted with the cardiology department ... The patient had decubitus ulcers covered with necrotic material. We consulted with the plastic-surgery department. Dr R.Ö. examined the patient. A debridement was performed on the ulcers and a sample was taken for examination. The patient was treated with cephalosporin-type antibiotics. In the following days, according to the results of the samples, the wound was susceptible to imipenem. Accordingly, on the recommendation of Dr R.Ö., the treatment with cephalosporin-type antibiotics was stopped and the patient was treated with Tienam500... Nothing was said between the patient’s daughter and me concerning the patient’s allergy to penicillin and beta-lactamase inhibitors. I believe that the patient died because her general health was terrible and she was at the terminal stage, rather than from an allergy.”
In her testimony nurse Z.Ç. stated, inter alia, the following:
“... I periodically monitored the patient until her death on 15 January 1998. During this time there was no significant improvement in her health. I was on duty the night she died. Dr M.K. was the doctor on duty. At 5 p.m. Dr I.Ç. ordered the infusion of Tienam-500 to the patient. I complied with this order at 10 p.m. I did not see any negative changes in the patient’s general state when I entered the room later on to check on the patient’s blood pressure. At around 3.30 to 4 a.m., I saw [the applicant] leaving the patient’s room and entering Dr M.K.’s room. They both entered the patient’s room. When I tried to enter the room [the applicant] shouted that I had killed the patient with the injection. Dr M.K. tried to calm [the applicant] down. Despite our efforts she did not let us take the deceased out of the room until 5.30 a.m. ... I did not see any negative reaction towards [the applicant] and the patient on the part of Dr M.K. ... I did not see or receive any order from Dr R.Ö. ...”
“I called the gastroenterology clinic and they recommended Dr A.G. I called him, told him that the doctor who treated my mother at home had recommended nasogastric intubation and asked him what reference number I needed to buy. He told me that if I brought in my mother they would insert the tube and treat her ... I believe that the patient was administered medicines that she was allergic to during her treatment. My mother was allergic to beta-lactamase and penicillin-type antibiotics. I did not say this before because I was not asked. I was not in the patient’s room during the treatment. A plastic surgeon outside (whose name I cannot remember at the moment – his first name was probably Mehmet) told me that the decubitus ulcers on her back were not infected and that they would heal with bandages. I think that they became infected after the debridement. If they had not given [the] patient antibiotics for the infection, she would not have died within fifteen minutes after the injection. The night my mother died, I told Dr M.K. that my mother was not well. However, he refused to intervene and told me off. Dr E.D. is a witness to this action. When Dr M.K. returned from my mother’s room he told me that my mother had died. The wound had been bandaged by Dr R.Ö.”
“I do not want a lawyer. The deceased’s daughter called me and said that her mother was very ill and asked me to help her. ... I told her to urgently bring her mother to the hospital. When the patient arrived on a stretcher, she was unconscious, extremely dehydrated and weak. Her stomach was swollen and she had widespread decubitus ulcers. She was taken into intensive care. The patient was treated with all the necessary treatments available in modern science by our team (gastroenterology, cardiology, neurology and plastic surgery). When the patient arrived, she was near death. Despite our swift and continuous treatment her general condition did not change. Unfortunately, the predestined end prevailed.”
“Prof. Dr A.G asked me to see the patient and I saw the patient the very same day. The patient’s general heath was very bad. She had infected wounds in the lower back. The wounds were in a bad condition. I ordered a debridement, which was performed by Dr R.Ö. Afterwards I examined the patient four times. It was the plastic-surgery department which monitored the state of the wounds. It was recommended that the gastroenterology department should administer antibiotics to the patient. We made every effort to cure the patient. We are also sad at the outcome; however, there is no cure for death. The patient had not been taken good care of for weeks (thin, malnutrition, barely conscious).”
In his testimony the applicant’s witness, Mr Y.U., stated the following:
“The deceased and her daughter are relatives of my wife. I have not seen the deceased for over fifteen years. In any event, I only saw her twice in my life. I learned of her death when her daughter came to visit us in Yalova, a long time after her death. I did not see the deceased during her illness. I do not know what kind of treatment was given to her in the hospital. I have no other knowledge apart from what her daughter told me. She told me that her mother had not been treated well in the hospital and that she had died as a result of the injections administered to her despite her allergy to antibiotics. I didn’t believe the things she said. I have nothing else to say.”
The relevant domestic law applicable at the time of the events is as follows.
Article 17 of the Constitution provides that everyone has the right to life.
The relevant provision of the Criminal Code read as follows:
“Anyone who, through carelessness, negligence or inexperience in his profession or craft, or through non-compliance with laws, orders or instructions, causes the death of another shall be liable to a term of imprisonment of between two and five years and to a fine of between 20,000 and 150,000 Turkish liras.”


ITEMID: 001-78330
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF OYA ATAMAN v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: András Baka;Elisabet Fura;Jean-Paul Costa;Mindia Ugrekhelidze
TEXT: 4. The applicant was born in 1970 and lives in Istanbul.
5. On 22 April 2000 the applicant, a lawyer and member of the administrative board of the Istanbul Human Rights Association, organised a demonstration in Sultanahmet Square in Istanbul, in the form of a march followed by a statement to the press, to protest against plans for “F-type” prisons.
6. At about 12 noon a group of forty to fifty persons brandishing placards and signs gathered in the square, under the leadership of the applicant and Eren Keskin, a lawyer and President of the Istanbul Human Rights Association. The police asked the group to disperse and to end the gathering, and informed them via a loudspeaker that the demonstration, for which advance notice had not been submitted, was unlawful and was likely to cause public-order problems at a busy time of day.
7. The demonstrators refused to obey and attempted to continue marching towards the police, who dispersed the group using a kind of tear gas known as “pepper spray”. The police arrested thirty-nine demonstrators, including the applicant, and took them to a police station.
8. After an identity check, and in view of her profession, the applicant was released at 12.45 p.m.
9. On 26 April 2000 the applicant lodged a criminal complaint with the Beyoğlu prosecutor’s office against the head of the Istanbul security police and the police officers concerned, alleging that she had been ill-treated through the use of pepper spray, unlawfully arrested and prevented from making the public statement scheduled for the end of the demonstration.
10. On 29 June 2000 the public prosecutor’s office discontinued the proceedings on the ground that no offence had been committed.
11. On 25 July 2000 the applicant applied to the Beyoğlu Assize Court seeking to have that decision set aside.
12. On 25 September 2000 the Assize Court upheld the decision that there was no case to answer.
13. Article 34 of the Constitution provides:
“Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission.
...
The formalities, conditions, and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law.”
14. At the material time section 10 of Law no. 2911 on assemblies and marches was worded as follows:
“In order for a meeting to take place, the governor’s office or authorities of the district in which the demonstration is planned must be informed, during opening hours and at least seventy-two hours prior to the meeting, by a notice containing the signature of all the members of the organising board ...”
15. Section 22 of the same Act prohibits demonstrations and processions on public streets, in parks, places of worship and buildings in which public services are based. Demonstrations organised in public squares must comply with security instructions and not disrupt individuals’ movement or public transport. Finally, section 24 provides that demonstrations and processions which do not comply with the provisions of this Act will be dispersed by force on the order of the governor’s office and after the demonstrators have been warned.
16. The European Commission for Democracy through Law (the Venice Commission) at its 64th plenary session (21-22 October 2005) adopted an opinion interpreting the OSCE/ODHIR guidelines on drafting laws on freedom of assembly with regard to the regulation of public meetings. It set out its approach in this area, particularly with regard to advance notice of demonstrations in public places.
“29. Establishing a regime of prior notification of peaceful assemblies does not necessarily extend to an infringement of the right. In fact, in several European countries such regimes do exist. The need for advance notice generally arises in respect of certain meetings or assemblies – for instance, when a procession is planned to take place on the highway, or a static assembly is planned to take place on a public square – which require the police and other authorities to enable it to occur and not to use powers that they may validly have (for instance, of regulating traffic) to obstruct the event.”
However, the Venice Commission clearly emphasised that the regime of prior notification must not in any circumstances indirectly restrict the right to hold peaceful meetings by, for instance, providing for too detailed and complicated requirements, or imposing too onerous procedural conditions (paragraph 30 of the opinion).
17. Under Article I § 5 of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13 January 1993 (“the CWC”), each State Party undertakes not to use riot control agents as a method of warfare. Tear gas or so-called “pepper spray” are not considered chemical weapons (the CWC contains an annex listing the names of prohibited chemical products). The use of such methods is authorised for the purpose of law enforcement, including domestic riot control (Article II § 9 (d)). Nor does the CWC state which State bodies may be involved in maintaining public order. This remains a matter for the sovereign power of the State concerned.
The CWC entered into force with regard to Turkey on 11 June 1997.
18. It is recognised that the use of “pepper spray” can produce effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of the tear ducts and eyes, spasms, chest pain, dermatitis or allergies. In strong doses, it may cause necrosis of tissue in the respiratory or digestive tract, pulmonary oedema or internal haemorrhaging (haemorrhaging of the suprarenal gland).
VIOLATED_ARTICLES: 11


ITEMID: 001-98164
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KHURAVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1956 and lives in the city of Odessa, Ukraine.
5. On 22 May 1992 the applicant was dismissed.
6. On 20 August 1992 the applicant instituted proceedings in the Suvorovsky District Court of Odessa (“the District Court”) against her former employer, seeking recovery of salary arrears and other payments owed to her, and compensation for failure to observe the correct procedure for her dismissal.
7. On 28 October 1992 the proceedings in the case were suspended pending the outcome of another set of proceedings concerning the applicant's reinstatement.
8. The next hearing was scheduled for 10 June 2002.
9. On 27 June 2002 the District Court found against the applicant.
10. On 30 July 2002 the same court declared her appeal inadmissible owing to its procedural shortcomings.
11. On 7 November 2002 the Odessa Regional Court of Appeal (“the Court of Appeal”) quashed that ruling and declared the appeal admissible.
12. On 2 June 2003 the Court of Appeal quashed the judgment of 27 June 2002 and referred the case back for fresh consideration. On the same date the court adopted a separate ruling, drawing the attention of the President of the District Court to the length of the proceedings in question.
13. On 6 July 2004 the District Court again found against the applicant.
14. On 7 December 2004 the Court of Appeal quashed that judgment and rendered a new one, finding in part for the applicant. It awarded the applicant 29,483,71 Ukrainian hryvnias (UAH, about 4,082 euros) in salary arrears and other payments and UAH 2,000 (about 277 euros) in compensation for non-pecuniary damage. On the same date the court adopted another separate ruling, drawing the attention of the President of the District Court to the length of the proceedings in question.
15. The applicant appealed in cassation against the judgment of 7 December 2004. On 13 July 2007 the Kharkiv Regional Court of Appeal, sitting as a cassation court, upheld that judgment.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88888
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TIMERGALIYEV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1 and 6-3-c;Remainder inadmissible
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 6. The applicant was born in 1968. He is currently serving a prison sentence in the Sverdlovskiy Region.
7. Late on the night of 11 May 2001 the applicant was arrested by the police at the scene of a crime on suspicion of having set fire to his mother's flat. His mother died in the fire and another person, M., received serious injuries. The applicant was taken to the police department of the village of Dinas in the Sverdlovskiy Region.
8. According to the applicant, while he was at the police department one of the policemen kicked him twice in the chest.
9. On 12 May 2001 the applicant was examined by a doctor, who noted a bruise on his head. The applicant stated that he had also complained of pain in the chest but that his chest had not been examined.
10. After the examination the applicant was transferred to the police department of the town of Pervouralsk. According to the applicant, while he was at the police department he was kicked in the legs, kidneys, chest and ribs by two policemen.
11. On the same day the applicant was questioned by the investigator. He denied involvement in the arson attack and stated that he had been attacked by three strangers who had assaulted him and set fire to the flat. He was subsequently put in a cell in the temporary detention unit of Pervouralsk.
12. On 15 May 2001 Mr L. was appointed as legal aid counsel for the applicant. The applicant asked the investigator and Mr L. to arrange a medical examination. The investigator refused his request.
13. On 16 May 2001 the applicant was escorted to detention facility no. 1 in Yekaterinburg. However, he was not admitted to the detention facility because he did not have a medical certificate. He was brought back to Pervouralsk.
14. On 18 May 2001 he was again escorted to detention facility no. 1 in Yekaterinburg, where – for the second time – he was refused admittance without a medical certificate. On his return to Pervouralsk, he was examined by a doctor, who noted a bruise on his chest. On the same day a chest X-ray was performed. On 18 November 2004 all the X-ray photographs revealing no injuries, including the X-ray photograph of the applicant's chest, were destroyed by the medical staff of Hospital No. 1. A certificate issued by the chief physician of Pervouralsk Hospital No. 1 on 16 February 2005 confirmed that the X-ray had revealed no injury to the applicant's chest.
15. On 21 May 2001 the applicant was admitted to detention facility no. 1 in Yekaterinburg, where he was examined by a doctor. The doctor noted two bruises on the applicant's forehead and a bruise on his chest. When asked by the doctor about the origin of the bruises, the applicant replied that they had been received outside detention facility no. 1. He signed a statement that he had no complaints and that there was no need for an investigation.
16. On 27 June 2001 the applicant complained to the prosecutor, alleging ill-treatment.
17. On 2 July 2001 the Pervouralsk town prosecutor refused to open criminal proceedings. Having reviewed the reports on the applicant's arrest and questioning, he found that the applicant's head had already been injured when the police arrived at the crime scene. The applicant had himself stated to the investigator that he had been assaulted by strangers before the arrest, which provided sufficient explanation for his injuries. There was no evidence that he had been ill-treated by the police.
18. Following communication of the application, an internal inquiry was conducted in January 2005. On 26 January 2005 the head of the Criminal Investigations Unit of the Sverdlovskiy Regional Department of Internal Affairs found that the applicant had himself affirmed that he had been beaten by strangers prior to the arrest. The strangers had been identified and questioned. They were the applicant's neighbours, who had come running to put out the fire in his flat. They had tried to rescue the applicant's mother from the burning flat, but the applicant had attempted to stop them and subsequently attacked them with an axe. They had had to use force to disarm him. A fight had followed, in the course of which the applicant had been injured. Those facts had been taken into account by the prosecutor, who had refused to open criminal proceedings, finding that the allegations of ill-treatment by the police had been unsubstantiated.
19. On an unspecified date the case was referred for trial to the Sverdlovskiy Regional Court, where Mr R. was appointed as legal aid counsel for the applicant.
20. The applicant stated that on 21 November 2001 he had asked the court to provide him with a hearing aid and arrange a meeting with counsel. No response had been received. The Government claimed that no such requests had been made.
21. On 5 December 2001 the Sverdlovskiy Regional Court, in one hearing, found the applicant guilty of aggravated murder, causing bodily harm and intentional destruction of another's property and sentenced him – taking account of his previous criminal record – to eighteen years' imprisonment in a high-security colony.
22. On 19 December 2001 the applicant lodged an appeal, challenging statements by witnesses and the accuracy of their transcription in the trial record. He advanced the defence of irresistible impulse and asked the court to adopt a different legal characterisation of the imputed offence. He also asked to be given an opportunity to be present at the appeal hearing. On 14 January 2002 he lodged annex no. 1 to his grounds of appeal, concerning the interpretation of the facts.
23. On 26 February 2002 the Supreme Court of the Russian Federation held, in an interim decision, that the applicant should be present at the hearing.
24. On 5 April 2002 the applicant asked the Supreme Court to appoint legal aid counsel for him.
25. On 22 April 2002 the applicant submitted annex no. 2 to his grounds of appeal, in which he complained of procedural shortcomings of the trial, including ineffective representation by counsel L. and R., who had never backed his requests and applications. He further complained that the trial court had refused to provide him with a hearing aid and that counsel R. had failed to support his request to that effect. He also submitted that he had been ill-treated on the day of the arrest and alleged that the investigator had withdrawn the medical certificate of 21 May 2001 and his X-ray photograph from the case file. Finally, he asked the Supreme Court to inform lawyers from Moscow bar association no. 10, the International Protection Centre and the Human Rights Centre Memorial of the date of the appeal hearing.
26. On 29 April 2002 the applicant lodged annex no. 3 to his grounds of appeal, in which he asked, in particular, for legal representation before the appeal court, indicating that he had no legal training and was “half deaf”.
27. On 13 May 2002 the Supreme Court sent telegrams to Pervouralsk bar association no. 1, Moscow Bar Association no. 10, the International Protection Centre and the Human Rights Centre Memorial, informing them that the appeal hearing in the applicant's case would be held on 27 May 2002 at 10 a.m. The telegrams indicated that attendance was not mandatory.
28. On 27 May 2002 the Supreme Court of the Russian Federation held the appeal hearing and upheld the judgment of 5 December 2001. The applicant was present but not represented. The appeal judgment was silent on the issue of providing the applicant with a hearing aid. As regards the applicant's right to a defence, the judgment read as follows:
“It can be seen from the case materials that [the applicant] was represented by Counsel Mr L. during the pre-trial investigation and Counsel Mr R. during the trial. He did not refuse the services of these counsel. There are no reasons to believe that they defended his interests improperly, nor do the grounds of appeal indicate any such reasons.”
29. On 29 May 2002 the applicant complained to the Presidium of the Supreme Court of the Russian Federation about, in particular, the appeal court's refusal to provide him with legal representation. On 9 August 2002 Judge Galiullin responded that there were no grounds on which to institute supervisory review proceedings in respect of the judgments in his case.
30. A certificate of 6 June 2003 issued by a doctor of the medical unit of facility no. I-299 indicates that the applicant suffers from chronic bilateral sensorineural hearing impairment.
31. The RSFSR Code of Criminal Procedure (in force until 1 July 2002) establishes that the investigator or the court shall provide the suspect or the accused with legal aid counsel at his request. In cases where counsel chosen by the accused is not available for a long period of time, the investigator or the court may suggest that the accused choose another counsel or, alternatively, appoint another counsel for the accused (Article 48).
32. Counsel must imperatively be appointed by the investigator or the court if, in particular, the accused is mute, deaf or blind or if he cannot defend himself on account of a physical or mental impairment (Article 49).
33. The Supreme Court notifies participants in criminal proceedings of the dates of appeal hearings at their request. The non-appearance by participants who have been notified of the date of the appeal hearing does not preclude the examination of the case (Article 336).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84452
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF RYAKIB BIRYUKOV v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1977 and lives in Togliatti, Samara Region.
6. In May 1999 the applicant was injured in a road accident; in particular, his arm was broken. Immediately after the accident he was taken to hospital, where he was given first aid. Several days later his arm was amputated.
7. In October 1999 the applicant brought proceedings for damages against the hospital before the Nikolaevskiy District Court of the Ulyanovsk Region. He claimed that the hospital’s medical staff had failed to provide him with appropriate medical care and that their negligence had led to the loss of his arm.
8. On 2 April 2001 the court examined the case in a public hearing at which the applicant, his representative and the defendant were present. It heard the parties and witnesses and examined other evidence.
9. At the close of the hearing the court read out the following operative part of the judgment:
“On 2 April 2001 the Nikolayevskiy District Court, composed of ..., having examined in an open court session a civil case which originated in an application by Biryukov Ryakib Ismailovich against the Nikolaevskaya [Hospital] for compensation for bodily harm, on the basis of Article 1064 of [the Civil Code of the Russian Federation] and being governed by Articles 14, 50, 191, 194-97 of [the Code of Civil Procedure of the Russian Soviet Federative Socialist Republic],
decided:
To reject the claims by Biryukov Ryakib Ismailovich against the Nikolaevskaya Central District Hospital of the Ulyanovsk Region for compensation for bodily harm.
An appeal or a protest against the judgment to the Ulyanovsk Regional Court can be lodged with the Nikolayevskiy District Court within ten days.”
10. A copy of the reasoned judgment was served on the applicant on 6 April 2001. It stated that, according to Article 1064 of the Civil Code, harm inflicted on the person or property of an individual is to be reimbursed in full by the person who inflicted the harm. After a description of the evidence examined by the court, the judgment contained the court’s finding that there had been no malpractice on the part of the hospital staff and no causal link between the treatment and the amputation of the applicant’s arm. For those reasons the applicant’s claims were rejected.
11. The applicant appealed, inter alia, on the grounds that the district court had not read out the full text of the judgment at the hearing.
12. On 3 July 2001 the Ulyanovsk Regional Court examined the case on appeal at a public hearing. Having heard the parties, it dismissed the applicant’s appeal and upheld the judgment. It noted that by reading out the operative provisions of the judgment at the hearing and providing the applicant with a copy of the reasoned judgment within the established timelimit the district court had fully complied with the Code of Civil Procedure, notably Article 203.
13. According to the Government, the Regional Court read out the operative provisions of its decision at the hearing in the applicant’s presence and later served a copy of its reasoned decision on the applicant.
14. Article 9 of the Code of Civil Procedure of 1964, in force at the material time, provided:
“... Judgments shall always be pronounced publicly.”
15. Article 203 of the Code read:
“Judgment shall be delivered immediately after the examination of a case. In exceptional circumstances, in extremely complex cases, the preparation of a reasoned judgment may be postponed for not more than three days, providing that the operative part of the judgment is pronounced at the same hearing in which the examination of the case has ended. At the same time the court shall announce when participants to the proceedings and representatives may become acquainted with the reasoned judgment. The announced operative part of the judgment shall be signed by all judges and included in the case file.”
16. Under Article 197 of the Code, judgments were to include an introductory part (the time and place of the delivery of judgment, the name and composition of the court in question, the registrar, parties, the subject matter of the dispute, etc.), a descriptive part (the claims and parties’ submissions), reasons (the circumstances of a case as established by the court, the evidence on which the court based its conclusions, the reasons for which the court rejected one or another piece of evidence, and the statutes by which the court was governed) and an operative part (the court’s conclusion whether to grant or reject the suit, instructions as to how court costs should be divided and explanations concerning an appeal against the judgment).
17. Under Article 213 of the Code, copies of judgments were sent to parties and other participants in proceedings who were not present at the court hearing. Those persons who were present and participated in the examination of the case could receive copies of judgments if they so requested (paragraph 18 of Resolution no. 7 of the Plenary Session of the Supreme Court of the USSR of 9 July 1982 “On court judgments”).
18. Under Article 301 of the Code, the examination of a case on appeal begins with a report by one of the judges, who gives an account of the the first-instance court’s judgment, points of appeal and observations in reply, the content of new materials submitted to the court and any other information necessary for assessment of the judgment.
19. By virtue of sections 30 and 31 of the federal law of 1996 on the judicial system of the Russian Federation and sections 1 and 6 of the federal law of 1998 on the Courts Administration Office at the Supreme Court of the Russian Federation, the Courts Administration Office at the Supreme Court provides administrative support for district and regional courts. In particular, it organises their clerical work, including archives. Thus, at the material time, the clerical work in a district court was governed by the Courts Administration Office’s Instruction no. 8 of 29 January 1999.
20. Paragraph 181 of the Instruction set out an exhaustive list of persons who could consult a case file in a court building. It was limited to the parties to the proceedings, their representatives, other participants in the proceedings, judges and officers of higher courts, public prosecutors and officers of the Courts Administration Office.
21. Paragraph 184 of the Instruction set out an exhaustive list of persons who could be given, at the discretion of a president of a court or a judge, a copy of documents from a case file. It included the parties to a civil case, an accused person, a convicted person, an acquitted person and a victim in criminal proceedings, and their representatives.
22. By a final decision of 3 April 2003, the Supreme Court of the Russian Federation refused to examine an appeal lodged by two individuals who were seeking to have the Instruction declared void. It found that the Instruction, as an instrument which concerned human rights, freedoms and obligations, had not been registered at the federal Ministry of Justice and officially published and could not therefore be considered an instrument issued by a federal authority, the lawfulness of which would fall within the jurisdiction of the Supreme Court.
23. Instruction no. 169 of the Courts Administration Office of 28 December 1999 (paragraphs 16.1 and 16.4) concerning regional courts and the new Instruction no. 36 of the Courts Administration Office of 29 April 2003 (paragraphs 12.1 and 12.4) concerning district courts, which are currently in force, contain provisions identical to those of paragraphs 181 and 184 of the above-mentioned Instruction no. 8.
24. These two Instructions were challenged in the Supreme Court by a journalist, who argued that they violated the principles of open and public administration of justice, in that they restricted public access to court decisions and other court documents in case files. In its decision of 2 November 2004, the Supreme Court found that the Instructions complied fully with the Code of Civil Procedure of 2002 and the Code of Criminal Procedure, which vested a right to consult a case file and receive a copy of court decisions and other documents only in the participants in the proceedings. It noted that journalists could have access to court documents to the extent and in the order prescribed by the relevant legislation. The journalist argued that the existing order did not ensure free access to court documents and that some court officers prevented journalists from exercising their right of access to information. The Court replied that in such instances the journalist was free to complain by way of an appeal to a court. It dismissed the application. On 13 January 2005 the decision was upheld by the Cassation Division of the Supreme Court.
25. Under the Mass Media Act of 27 December 1997 (sections 40 and 58), restrictions on journalists’ access to information are not allowed and entail responsibility, save in cases concerning State secrets, commercial secrets or other confidential information protected by law.
26. Under the Information, Computerisation and Protection of Information Act of 20 February 1995, in force at the material time, and Presidential Decree no. 188 of 6 March 1997, information about the facts, events and circumstances of an individual’s life which makes it possible to identify that individual is confidential. Under the Decree, confidential information further includes information containing the secrecy of the investigation and court proceedings, and official, professional (medical secrecy, information protected by lawyer-client privilege, etc.) and commercial secrecy.
27. Article 1064 of the Civil Code of the Russian Federation provides:
“1. Harm inflicted on the person or property of an individual ... shall be reimbursed in full by the person who inflicted the harm.
A law may oblige a person who is not a tortfeasor to reimburse the harm.
A law or a contract may establish an obligation of a tortfeasor to pay the victim compensation in addition to the reimbursement of the harm.
2. The person who inflicted the harm shall be liable for it unless he proves that the harm was inflicted through no fault of his. A law may provide for the reimbursement of harm in the absence of the tortfeasor’s fault.
3. Harm caused by lawful actions shall be subject to compensation in cases provided by law.
Reimbursement of harm may be refused if the harm was caused at the request or with the consent of the victim, and the torfeasor’s actions do not violate the moral principles of society.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98471
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KABAKCHIEVI v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13+6-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicants were born in 1917, 1947 and 1957 respectively and live in Sofia.
6. In 1993 the heirs of the pre-nationalisation owners of an apartment, purchased by the first applicant's husband from the State in 1968, brought an action for restitution against the latter, seeking a declaration that the 1968 transaction had been null and void and that therefore the apartment should be restored to its original owners before the nationalisation.
7. On 18 October 1995 the Sofia District Court granted the restitution claim.
8. On appeal, on 14 July 1997 the Sofia City Court quashed the District Court's judgment and dismissed the claim of the pre-nationalisation owners' heirs.
9. The heirs of the pre-nationalisation owners submitted a petition for review (cassation).
10. By a final judgment of 22 February 1999 the Supreme Court of Cassation quashed the Sofia City Court's judgment and upheld the District Court's judgment. As a result, the title of the first applicant's husband to the apartment at issue was declared null and void.
11. The number of hearings held in the course of the proceedings is not clear.
12. On 6 May 1999 the first applicant's husband died. The first applicant and her two sons (the second and third applicants) were his heirs.
13. On 20 May 1999 the first applicant, who had not been a party to the 1993-1999 proceedings, submitted a request for reopening, stating that in accordance with the Code of Civil Procedure she should have been cited as a party since she was the owner of one half of the apartment at issue and the judgment of 22 February 1999 was binding on her.
14. The second and third applicants also became parties to these proceedings as they replaced their deceased father, being his heirs.
15. By a judgment of 30 January 2001 the Supreme Court of Cassation quashed the judgment of 22 February 1999, reopened the case and remitted it to another panel of the Supreme Court of Cassation. The court found that, in violation of the relevant provisions of the Code of Civil Procedure, the first applicant had not taken part in the 1993-1999 proceedings.
16. At least two hearings were held before the Supreme Court of Cassation - one on 15 May 2001 and one on 6 November 2001, the first of them was adjourned upon the first applicant's request.
17. By a judgment of 13 November 2001 the Supreme Court of Cassation quashed the judgment of 14 July 1997 and remitted the case to the Sofia City Court for new examination.
18. The first hearing before the City Court was scheduled for 27 May 2002 and was adjourned upon the first applicant's request. The following hearing was held on 6 February 2003. At least three more hearings were held - on 13 March 2003, 20 November 2003 and 9 February 2004, the first of which was adjourned because the third applicant had not been properly summoned as his address had changed.
19. On 1 March 2004 the Sofia City Court quashed the Sofia District Court's judgment of 18 October 1995 and decided to refer the case for renewed examination by the Sofia District Court.
20. On an unspecified date in March or in April 2004 the heirs of the pre-nationalisation owners appealed before the Supreme Court of Cassation, which held a hearing on 11 March 2005. By judgment of 24 March 2005 the Supreme Court of Cassation quashed the lower court's judgment, as the reopened case fell to be examined by the Sofia City Court.
21. The Sofia City Court held a hearing on 14 November 2005.
22. On 9 January 2006 the Sofia City Court found that the 1968 transaction was null and void, having regard to the fact that the apartment at issue had largely exceeded the applicants' family's needs as determined by the relevant housing regulations.
23. On 21 February 2006 the applicants appealed. The first hearing was scheduled for 18 April 2007 but was adjourned upon the first applicant's request. Another hearing was held on 20 June 2007.
24. By a judgment of 9 July 2007 the Supreme Court of Cassation upheld the previous court's judgment.
25. Until July 1999 Bulgarian law did not provide for any remedies in respect of length of civil proceedings.
26. A new procedure, “complaint about delays”, was introduced in July 1999, by virtue of Article 217a of the Code of Civil Procedure 1952, in force until 2007. Pursuant to this procedure, a litigant aggrieved by the slow examination of the case could file a complaint before the president of the higher court. The latter had the power to issue mandatory instructions for faster processing of the case.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57865
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF BURGHARTZ v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion);Violation of Art. 14+8;Not necessary to examine Art. 8;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 6. The applicants, who are Swiss nationals, have both lived in Basle since 1975. They were married in Germany in 1984 and Mrs Burghartz has German citizenship also. In accordance with German law (Article 1355 of the Civil Code), they chose the wife’s surname, "Burghartz", as their family name; the husband availed himself of his right to put his own surname in front of that and thus call himself "Schnyder Burghartz".
7. The Swiss registry office (Zivilstandsamt) having recorded "Schnyder" as their joint surname, the couple applied to substitute "Burghartz" as the family surname and "Schnyder Burghartz" as the husband’s surname. On 6 November 1984 the cantonal government (Regierungsrat) of Basle Rural turned down the application.
8. On 26 October 1988 the applicants made a further application to the cantonal Department of Justice (Justizdepartement) of Basle Urban, following an amendment to the Civil Code as regards the effects of marriage, which had been made on 5 October 1984 and had come into force on 1 January 1988 (see paragraph 12 below).
On 12 December 1988 their application was again refused, on the ground that they had not pointed to any serious inconvenience arising from the use of the surname "Schnyder". Furthermore, in the absence of any transitional provisions the new Article 30 para. 2 of the Civil Code could not apply to couples married before 1 January 1988. Lastly, under the new Article 160 para. 2, only a wife could put her own surname before the family name (see paragraph 12 below).
9. The applicants then lodged an appeal (Berufung) with the Federal Court (Bundesgericht) in which they complained of, among other things, a breach of the new Articles 30 and 160 para. 2 of the Civil Code and Article 4 para. 2 of the Federal Constitution (see paragraphs 11 and 12 below).
On 8 June 1989 the Federal Court allowed the appeal in part. While refusing to apply paragraph 2 of Article 30, which concerned only engaged couples and had no retrospective effect, it held that in the particular case there were important factors which justified applying paragraph 1 in order to allow the applicants to call themselves "Burghartz"; apart from the couple’s age and profession, account had to be taken of the differences between the relevant Swiss and German systems, which were made more acute by the fact that Basle was a frontier city.
As to Mr Burghartz’s application to be allowed to bear the name "Schnyder Burghartz", no support for it could be found in Article 160 para. 2 of the Civil Code; the drafting history showed that the Swiss Parliament, out of a concern to preserve family unity and avoid a break with tradition, had never agreed to introduce absolute equality between spouses in the choice of name and had thus deliberately restricted to wives the right to add their own surnames to their husbands’. This rule therefore could not avail by analogy a husband in a family known by the wife’s surname. There was, however, nothing to prevent Mr Burghartz from using a double-barrelled name (see paragraph 13 below) or even, informally, putting his surname before his wife’s.
10. According to the applicant, a large number of official documents, in particular the certificate of his doctorate in history, had not since then contained the "Schnyder" element of his surname.
11. Article 4 para. 2 of the Swiss Federal Constitution provides:
"Men and women shall have equal rights. Equality shall be provided for by law, in particular in relation to the family, education and work ..."
12. The relevant new Civil Code provisions that came into force on 1 January 1988 read as follows:
"(1) The government of the canton of residence may, if there is good cause, authorise a person to change his or her name.
(2) Engaged couples shall be authorised, if they so request and if they prove a legitimate interest, to bear the wife’s surname as the family name once the marriage has been solemnised.
..."
"(1) Married couples shall take the husband’s surname as their family name.
(2) A bride may, however, make a declaration to the registrar that she wishes to keep the surname she has borne to date, followed by the family name.
..."
"(1) The children of married couples shall bear their family name.
..."
"Within one year of the entry into force of the new Act, a woman who was married under the old law may make a declaration to the registrar that she wishes to put the surname she bore before her marriage in front of the family name."
13. By a custom recognised in case-law, married couples may also put the wife’s surname after the husband’s surname, joining the two with a hyphen. This double-barrelled name (Allianzname), however, is not regarded as the legal family name (Federal Court, judgment of 29 May 1984, Judgments of the Swiss Federal Court, vol. 110 II 99).
VIOLATED_ARTICLES: 14
8