ITEMID: 001-113648
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MITKUS v. LATVIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3 - Rights of defence;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 4. The applicant was born in 1959. The facts of the case may be summarised as follows.
5. On 20 July 1999 the applicant was arrested on suspicion of extortion. While in detention awaiting the trial in the extortion case, on 26 November 1999 the applicant was charged with having committed robbery on 18 July 1999.
6. On 29 March 2000 the applicant submitted a complaint to the Public Prosecutor’s Office attached to the Rīga Regional Court, maintaining his innocence with regard to the charges of robbery and pointing out that his alibi could be proved by his neighbours, who had seen him working in the yard of his residence on the day in question. Similar complaints were addressed to the Prosecutor General’s Office on 11 July 2000 and on 11 August 2000.
7. On 7 July 2000 a confrontation was carried out between the applicant and a witness M.B. The applicant’s counsel was present. According to the record of the confrontation, M.B. confirmed the applicant’s involvement in the robbery and the applicant denied it. When given an opportunity to put questions to M.B., the applicant did not have any.
8. On 25 August 2000 the pre-trial investigation in the applicant’s criminal case was completed and he was given an opportunity to read the materials in the case file. After reading the case file the applicant submitted several written requests, including a request to hold an identity parade to determine whether the victim of the robbery could identify him in a line-up.
9. On 26 September 2000 a prosecutor rejected the applicant’s requests. With regard to the identity parade, the prosecutor considered that it would serve no useful purpose as the victim had stated that he would not able to recognise his attackers.
10. On 9 April 2001 the Rīga City Zemgale District Court convicted the applicant of extortion and sentenced him to a prison term of two and a half years. That judgment eventually became final after the applicant revoked his appeal.
11. From 26 June to 2 July 2002 hearings in the robbery case took place in the Rīga Regional Court. At the hearing, apart from the applicant and his two co-accused, the following witnesses were present and testified: U.I., who explained that he had driven all the accused persons to the victim’s residence; A.Š., the victim’s neighbour, who had not seen the act of robbery but had heard some conversations through the doors of his apartment and had later seen that the victim had been beaten; two minor girls, who had noticed a car in which goods taken from the victim’s apartment were being loaded and had written down its licence number; L.G., the applicant’s former partner, who testified that she had seen the applicant at home on the day of the robbery; B.B., a friend of L.G., who had also seen the applicant at home on the day of the robbery; T.B., the applicant’s neighbour, who had seen the applicant working in the yard of his house on the day of the robbery; S.B., the applicant’s neighbour, who on the day of the robbery had worked in the yard together with the applicant, and three other witnesses.
12. The court then turned to the question of whether the pre-trial statements of the victim and the witness M.B. could be read out in their absence. The applicant insisted that they had to be questioned in court. On 10 June 2002 the victim had written to the court and indicated that he was unable to attend the hearing “owing to a disability”. The court decided to read out the victim’s pre-trial statements.
13. On 27 June 2002 the court ordered that M.B. be brought to the hearing by the police under constraint, since he had failed to appear at the court without a legitimate excuse. On the following day the police informed the court that M.B. was not residing at the address known to the court. The court then decided to read out the pre-trial statements of M.B. The applicant again insisted that M.B. had to be questioned in person because his testimony directly implicated the applicant in the commission of the crime. The court nevertheless read out the statements obtained during the pre-trial investigation, according to which M.B. had attempted to enlist U.I.’s help in recovering his stolen motorcycle and that the three accused had also joined in. M.B. had waited in the car outside the victim’s apartment building, so he did not see what happened inside but saw the accused carrying out a TV set and other items, which they loaded into the boot of the car and eventually took with them
14. On 2 July 2002 the Rīga Regional Court adopted a judgment by which the applicant was convicted of robbery and sentenced to 8 years’ imprisonment. The court held that the applicant and his co-accused had gone to the victim’s apartment to help M.B. find his stolen motorcycle. It considered that the applicant’s guilt had been established by the testimonies of the applicant’s co-accused, the victim, M.B., U.I., A.Š., and the two minor girls who had written down the number of the licence plate of the car used to transport the victim’s stolen property. The court considered that there was no reason not to believe the pre-trial statements of M.B. and that slight discrepancies in the testimony of U.I. could be explained by the fact that three years had passed since the events in question. The court did not believe the testimonies of the witnesses who confirmed that on the day of the robbery the applicant had been working in the yard of his house, because those witnesses had been questioned at the applicant’s request and because too long a time had passed since the day of the robbery and they could not possibly remember what the applicant had been doing on that particular day.
15. On 5 August 2002 the applicant submitted an appeal, which he amended on 19 September 2002. He complained inter alia about the victim’s absence from the hearing, which had been justified with reference to his disability; yet, according to the information available to the applicant, his disability was not such as to prevent him from attending the trial. Further, the applicant alleged that his defence had been impaired by the absence of M.B. from the court hearing, especially because M.B. had a reason to falsely accuse him because of their strained personal relationship. He complained that two other people – S.K-a and S.K-s – had not been summoned to the court and that their testimonies given during the pre-trial investigation had not even been read out. The applicant requested that the victim, M.B., S.K-a and S.K-s be summoned to the appeal hearing.
16. On 13 February 2003 the Criminal Chamber of the Supreme Court rejected the applicant’s appeal against the judgment of the first-instance court, essentially relying on the reasoning of the first-instance court and without specifically addressing any of the above-mentioned issues raised by the applicant in his appeal.
17. On 3 March 2003 the applicant submitted an appeal on points of law to the Senate of the Supreme Court. He essentially repeated the submissions he had made in his appeal.
18. On 2 April 2003 the Ministry of Justice sent the applicant a letter, explaining, inter alia, that there had been a delay with regard to the hearing of his case in the Rīga Regional Court because of “objective reasons” – the heavy workload of that court.
19. On 23 April 2003 the Senate of the Supreme Court rejected the applicant’s appeal on points of law. In its decision the Senate pointed out, inter alia, that during the trial at the court of appeal the applicant had not repeated his request that – among others – M.B. and the victim be summoned to the hearing. The Senate therefore held that the applicant’s complaint about their absence was ill-founded.
20. On 21 March 2003 the Prisons Administration (Ieslodzījuma vietu pārvalde) sent a letter to the applicant informing him that in 2002 a blood test had disclosed that he was HIV positive. Subsequently, additional tests had revealed that the applicant was also infected with hepatitis C.
21. On 31 March 2003 the applicant sent a letter to the Prisons Administration, inter alia expressing his belief that he had been infected in Central Prison in circumstances unknown to him. The applicant also explained that he had never used intravenous drugs and that he was not a homosexual.
22. On four occasions in 2003 the Human Rights Bureau received letters from the applicant in which he explained that he had been infected with HIV while in Central Prison. However, he consistently reiterated that he did not know in what circumstances he had been infected.
23. On 30 April 2003 the applicant lodged a claim with the Rīga Regional Court seeking damages from Central Prison because he had been infected with HIV by the fault of the prison staff.
24. On 25 July 2003 the administration of Central Prison submitted its response. It pointed out that on 26 July 1999, upon the applicant’s arrival at Central Prison, his HIV test had been negative. On 24 September 2002 the test had been positive, which made the representatives of Central Prison believe that the initial test could have been performed during the “window” period and that the applicant had been infected before his arrest or, alternatively, that he had been infected while in prison because of failure to observe personal hygiene or by way of a sexual intercourse. It was also noted that all the blood samples in Central Prison were taken using single-use vacuum containers, which excluded the possibility of being infected during the taking of a blood sample.
25. In his reply of 24 November 2003 the applicant indicated that, on the contrary, when his blood was taken in 1999, a multiple-use glass syringe had been used. He contended that he could not have been infected by his cell-mates and that, instead, he had been infected with HIV and hepatitis C in 1999 when the medical staff of Central Prison had used a multiple-use syringe to take a sample of his blood.
26. On the same day the applicant amended his claim, additionally alleging that because of the negligence of the prison’s medical staff he had been infected with hepatitis C.
27. On 4 February 2004 Central Prison replied to the applicant’s statement of 24 November 2003, pointing out, inter alia, that Central Prison had used single-use syringes since the beginning of the 1990s and that there were no multiple-use syringes in the medical centre of that prison in 1999.
28. On 12 February 2004 the Rīga Regional Court rejected the applicant’s claim. The judgment noted that the very fact of being placed in prison placed people at a risk of being infected with HIV and hepatitis C. The nurse who had taken the applicant’s blood sample in 1999 had testified before the court that exclusively single-use syringes had been used for blood tests in Central Prison since 1996 or 1997. The court considered that the respondent had proved that a single-use syringe had been used when taking the applicant’s blood sample. It also noted that it was impossible to pinpoint exactly when the applicant had been infected with hepatitis C, since he had not been tested for that disease upon his arrival at Central Prison in 1999.
29. On 17 February 2004 the applicant submitted an appeal against the judgment of the first-instance court, which he disputed in a general manner. A week later he amended his appeal and noted that, while single-use syringes might indeed have been available in Central Prison, they had not been used for his blood test in 1999. He also requested that his presence at the hearing be ensured.
30. In a letter of 15 June 2004 the Supreme Court informed the applicant that the hearing concerning his appeal would be held on 30 September 2004. The applicant was invited (aicināts) to attend the hearing. On 20 September 2004 the administration of Jelgava Prison sent confirmation to the Supreme Court that the applicant had attested by his signature that he had received the above information.
31. On 30 September 2004 the Civil Chamber of the Supreme Court held a hearing and issued a judgment with regard to the applicant’s appeal. In the judgment the court pointed out that “the plaintiff has not appeared [at the hearing] because he is detained”. There was no further analysis of the question of the applicant’s absence. The appeal court essentially dismissed the appeal by relying on the same grounds as the first-instance court. The respondent’s representatives and the nurse from Central Prison were reported to have stated that Central Prison had used exclusively single-use syringes since 1998.
32. On 11 October 2004 the applicant lodged an appeal on points of law. Among other things he complained that he had not been transported to the appeal court hearing.
33. On 25 October 2004 and then again on 22 December 2004 the applicant complained to the Prosecutor General that he had been infected with HIV because of negligence on the part of the medical staff of Central Prison. The applicant’s complaint requested “the initiation of criminal proceedings against the persons responsible for infecting me with HIV and hepatitis C”. The Prosecutor General forwarded the applicant’s claim to the Ministry of Justice, which on 12 January 2005 refused to initiate an internal investigation concerning the actions of the prison staff because the applicant’s appeal on points of law was still pending before the Senate of the Supreme Court.
34. In the meantime, on 20 December 2004 the Senate, by a decision of a preparatory meeting (rīcības sēde), had dismissed the applicant’s appeal on points of law. The Senate did not address the applicant’s complaints about his absence from the appeal court hearing.
35. At a hearing held on 27 August 2003 in the case concerning the applicant’s alleged infection, he had left to the court’s discretion the decision whether to open the trial to the public. The court had decided to hold a closed hearing.
36. At the hearing on 24 November 2003 the applicant expressed his desire for the trial to be open to the public, as long as no photos were taken. The representative of Central Prison objected to opening the trial to the public, since the case concerned sensitive medical information. The court allowed the applicant’s request and the trial was opened to the public.
37. On 25 November 2003 a daily newspaper, Rīgas Balss, published an article entitled “Prison Doctors Accused of Injecting AIDS”, where it was stated that “prisoner Andris M.” had lodged a complaint against Central Prison alleging that he had been infected with AIDS because of the fault of the doctors at the prison. The article also included a photograph of the applicant behind bars, in three-quarters profile, where his facial features were clearly distinguishable. It also reported that the trial had not been open to the public and further described the applicant as a recidivist, who had been convicted six times and was currently serving a prison term of eight years in Jelgava Prison.
38. On 12 February 2004 another hearing was held in the trial between the applicant and Central Prison. The applicant told the court that he did not object to the presence of representatives of the media at the hearing, but added that no pictures should be taken and that his name should not be published. If video recordings were to be made, the applicant insisted that his face should not be visible and his name should not be shown. The court acceded to the applicant’s demands and prohibited the representatives of the media from disclosing the applicant’s identity, while otherwise authorising media coverage of the trial.
39. On 16 June 2004 the applicant lodged a claim with the Rīga Regional Court, naming the publisher of Rīgas Balss (SIA “Mediju Nams”) as the respondent and requesting non-pecuniary damages for moral and psychological harm caused to him when Rīgas Balss published the above-mentioned article, which included his photo in which he was fully recognisable. The claim was based on an alleged infringement of personal data protection legislation and an alleged violation of criminal law which, in accordance with the Civil Law, created an obligation to pay damages.
40. In its response the publisher pointed out that the applicant had implicitly consented to the disclosure of his personal data when he had lodged a claim against Central Prison. Furthermore, he had not asked for the trial to be closed to public. At an unspecified later date the respondent publisher amended its observations, indicating that the disputed article had merely put together information that had been in the public domain. Furthermore the applicant himself had striven to make the information about his case as widely available as possible.
41. On 21 December 2004 the Rīga Regional Court adopted a judgment by which it dismissed the applicant’s claim. It expressed the opinion that data protection legislation was applicable to the applicant, as he could be identified from the photograph published in the newspaper. It also agreed that the applicant had not consented to the publication of his personal data, since during the trial he had asked not to be filmed or photographed. Thus the respondent newspaper had contravened the law by publishing sensitive personal data. Nevertheless, the applicant had failed to prove the existence of any damage and/or had not referred to any legal basis for the damages claimed; therefore his claim for compensation had to be dismissed.
42. On 23 December 2004 the applicant appealed. Among other things he indicated specific types of damage he had allegedly suffered. On 14 January 2005 the applicant submitted additional comments to the appeal court in which he emphasised that the publication of his data and photo had been prohibited by the court during the hearing of 24 November 2003 in the case against Central Prison.
43. On 11 April and 9 May 2005 the applicant asked the appeal court when his appeal would be heard and also requested that his presence at the hearing be ensured.
44. On 2 February 2006 the Civil Chamber of the Supreme Court held an appeal hearing. Its verbatim record indicates that the court noted that the applicant had not appeared at the hearing and, after asking for the opinion of the respondent, it decided to proceed in the applicant’s absence.
45. On the same date the Supreme Court adopted its judgment, in which it was pointed out that the applicant had not been escorted to the hearing and that the case could be heard in his absence. No further comments in this regard were made.
46. As to the substance, the court held that the media were not subject to the data protection legislation and that there were no legal grounds for compensating the non-pecuniary damage allegedly caused to the applicant by the publication.
47. On 27 February 2006 the applicant lodged an appeal on points of law. He complained, among other things, that the case had been heard by the appeal court in his absence.
48. On 26 April 2006 the Senate of the Supreme Court, by a decision of a preparatory meeting, dismissed the applicant’s appeal on points of law. The Senate considered that the applicant had merely disputed the assessment of facts by the first-instance and appeal courts and therefore his appeal on points of law did not meet the procedural requirements. The decision did not mention the applicant’s complaint about his absence from the appeal hearing.
49. As in force at the material time, section 10 (1) of the Law of Civil Procedure provided that civil proceedings were to be conducted on an adversarial basis (“sacīkstes formā”). In practice it meant the following:
Each party shall prove the facts forming the basis of its claims or objections. ...
Evidence shall be submitted by the parties and by other participants. If it is not possible for the parties or other participants to submit evidence, the court shall ask (izprasīt) for such evidence on the basis of a reasoned request.”
50. As in force at the relevant time, section 138 of the Criminal Law provided for criminal responsibility for inadequate performance of professional duties by a medical professional resulting in serious or life-threatening injuries, a person’s death or infection with HIV. Under section 56 (1) of the Criminal Law the statute of limitations for this crime was five years.
51. Article 3 of the Code of Criminal Procedure as in force at the relevant time obligated prosecutors to initiate criminal proceedings every time signs of a criminal offence (noziedzīga nodarījuma pazīmes) were discovered. According to Article 107 criminal proceedings could be initiated only in those cases when there was a sufficient basis (pietiekams pamats) to believe that a criminal offence had been committed.
52. Article 109 provided as follows:
“[A] prosecutor ... has to accept materials, applications and declarations concerning a criminal offence that has been committed ..., including in cases which do not fall under his jurisdiction.
In relation to the materials, application or declaration received one of the following decisions shall be taken:
to initiate criminal proceedings;
to refuse to initiate criminal proceedings;
to submit the application or declaration to [a competent institution].
...
Applications and declarations concerning crimes shall be examined immediately but at the latest within ten days of their receipt. ...”
53. Article 112 of the Code of Criminal Procedure provided that a copy of a prosecutor’s decision to refuse to initiate criminal proceedings was to be sent to the person who had submitted the complaint. The complainant was also to be informed of his or her right to appeal against the decision.
54. At the relevant time Article 241 of the Code of Criminal Procedure provided that the trial in the first-instance court had to start no later than one month after a criminal case had been received at that court.
55. According to the Law of Civil Procedure as in force at the relevant time, the parties to a case had a right to participate in hearings (section 74 (2) (2)). However, a hearing could proceed even if a party to the case failed to appear in court (section 156). Nevertheless, according to section 209 a court had an obligation to postpone a hearing if a party was not present because he or she had not been informed of the time and place of the hearing or if he or she had not appeared for reasons the court found to be justified. A court had a choice whether to postpone a hearing if a party who had been informed of the time and place of a hearing failed to appear for unknown reasons (section 210).
56. Under section 11(1) of the Personal Data Protection Law the processing of sensitive personal data is prohibited, except if the data subject has given his or her written consent for the processing of his or her sensitive personal data.
57. Section 5(1) of the Personal Data Protection Law provides, among other things, that section 11 does not apply if personal data is processed for journalistic, artistic or literary purposes, and it is not prescribed otherwise by law. Section 5(2) of that law, however, provides that section 5(1) has to be applied in compliance with the right to private life of an individual and the freedom of speech.
58. In accordance with section 7(6) of the Law on Press and Other Mass Media it is prohibited to publish information concerning the state of health of individuals without their consent.
59. On 23 January 1970 the Parliamentary Assembly of the Council of Europe adopted Resolution 428, containing a Declaration on Mass Communication Media and Human Rights, the relevant part of which reads as follows:
1. There is an area in which the exercise of the right of freedom of information and freedom of expression may conflict with the right to privacy protected by Article 8 of the Convention on Human Rights. The exercise of the former right must not be allowed to destroy the existence of the latter.
2. The right to privacy consists essentially in the right to live one’s own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts ... protection from disclosure of information given or received by the individual confidentially...
7. The right to privacy afforded by Article 8 of the Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. National legislations should comprise provisions guaranteeing this protection.”
60. Recommendation Rec (89) 14 on “The ethical issues of HIV infection in the health care and social settings”, adopted by the Committee of Ministers of the Council of Europe on 24 October 1989, reads as follows in so far as is relevant to the present case:
“Public health authorities are recommended:
in relation to reporting of cases:
to ensure that the reporting of AIDS cases ... is used for epidemiological purposes only and therefore carried out in strict compliance with appropriate confidentiality regulations and in particular that data is transmitted on a non-identifiable basis;
to avoid any possible discriminatory use of sensitive health-related data;
to avoid discouraging individuals from seeking voluntary testing,
in relation to the patient-health care worker relationship:
to strongly support respect for confidentiality, if necessary by introducing specific policies and by promoting educational programs for health care workers to clarify confidentiality issues in relation to HIV infection.”
VIOLATED_ARTICLES: 3
6
8
VIOLATED_PARAGRAPHS: 6-1
8-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-89733
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF AGASARYAN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1949 and lives in Moscow.
5. The applicant worked as chief physician in a hospital managed by the Moscow patriarchate. On 29 November 2000 the applicant on her own initiative left her place of work in order to participate in a conference dedicated to the fight against drug addiction in Russia, organised by the Russian Orthodox Church.
6. On 18 December 2000 the applicant was dismissed for unjustified absence from work on 29 November 2000. She believed that the dismissal was unlawful and brought civil proceedings for reinstatement and for compensation for pecuniary and non-pecuniary damage.
7. On 28 March 2001 the Simonovskiy District Court of Moscow partly allowed the claims, ordered her reinstatement and awarded her 19,401.03 Russian roubles (RUB) in respect of pecuniary damage. The applicant’s claims for non-pecuniary damage were dismissed. On 14 May 2001 the Moscow City Court upheld the judgment on appeal.
8. On 16 May 2001 the Moscow Prosecutor’s Office lodged an application for supervisory review of the judgment. On 1 June 2001 the Presidium of the Moscow City Court quashed the judgment of 28 March 2001 and the appeal decision of 14 May 2001 and remitted the case to the first-instance court for a fresh examination.
9. On 19 September 2001 the Simonovskiy District Court of Moscow dismissed the applicant’s claims in full. The Moscow City Court upheld the judgment on 22 October 2001.
10. The Vice-President of the Supreme Court lodged an application for supervisory review of the ruling of the Presidium of the Moscow City Court of 1 June 2001 and the subsequent judgments.
11. On 16 April 2002 the Supreme Court of Russia, by way of supervisory review, quashed the ruling of 1 June 2001 and the judgment of 19 September 2001 and restored the validity of the judgment of 28 March and the appeal decision of 14 May 2001 as regards the applicant’s reinstatement and the refusal to pay her compensation for non-pecuniary damage. The applicant’s pecuniary claims were remitted to the first-instance court for a fresh examination as the amount initially awarded had by that time considerably decreased in purchasing power. No appeal lay against this ruling.
12. The Prosecutor General’s Office lodged an application for supervisory review of the Supreme Court’s ruling of 16 April 2002.
13. On 5 June 2002 the Presidium of the Supreme Court of Russia quashed the judgment of 16 April 2002 by way of supervisory review and restored the validity of the judgment of 19 September 2001, upheld on appeal on 22 October 2001.
14. For the relevant provisions on the supervisory review proceedings contained in the 1964 Code of Civil Procedure, see the Court’s judgment in the case of Ryabykh v. Russia (no. 52854/99, §§ 31-42, ECHR 2003-IX).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-103218
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GEPPA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 2 (substantive aspect);No violation of Art. 2 (procedural aspect)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant lives in Kursk. She is the mother of Yevgeniy Geppa, born in 1974 and deceased in 2004 while serving his prison sentence.
6. On 19 November 1998 Yevgeniy Geppa was found guilty of organised violent robbery and, following appeal proceedings before the Kursk Regional Court which ended on 10 February 1999, was sentenced to eight years of imprisonment in a high-security penitentiary facility. He was sent to serve his sentence in IK-2 in Kosinovo, Kursk Region.
7. In the periods from 17 to 31 August 2000 and from 10 to 29 July 2003 he was transferred to the hospital of the Penitentiary Department in Kursk for treatment for chronic pyelonephritis of his only kidney in the active phase.
8. On 28 January 2004 he was transferred to the same hospital, having been diagnosed with a psychiatric disorder, namely, “past organic brain lesion of complex origin” (owing to a head injury and drug abuse), with emotional instability and compensatory behaviour. It was noted that his medical history included a reference to epileptic syndrome.
9. On 20 May 2004, following changes introduced to the Criminal Code, the Kursk Regional Court reduced the applicant's prison sentence to seven years and ordered it to be served in a facility of average security level. Yevgeniy Geppa was therefore transferred to the Lgov correctional colony OX-30/3 (учреждение OX-30/3, hereafter “the colony”).
10. In June 2004 Yevgeniy Geppa's wife received a letter from him. His distorted handwriting, repetitive use of words and confused language made her suspect that he was unwell.
11. On 5 August 2004 the applicant and Yevgeniy Geppa's wife visited him in the colony. They found him very weak, pale and exhausted. He had lost weight and had a blank expression. During the visit he fainted and collapsed on the floor; according to the applicant, when they pulled up his shirt they saw faded bruises of yellow-greenish colour on his chest. They also saw clotted blood on his lips. Yevgeniy Geppa told them afterwards that he was being beaten by the colony officials because he had refused “to co-operate”, that is, to systematically report on his fellow inmates. According to the Government, Yevgeniy Geppa had an epileptic fit on that day and his medical examination did not reveal any injuries.
12. On 20 August 2004 the applicant wrote to the Kursk Regional Prosecutor's Office complaining that her son had been ill-treated at the colony, referring to the incident of 5 August 2004 when he fainted during the visit; she described the injuries they had allegedly found on his chest and lips and also complained that he was not receiving medical care. She contended that this had not happened in the previous detention facility and had only started after her son's transfer to correctional colony OX-30/3. She requested that he be transferred elsewhere.
13. From 27 August 2004 to 18 September 2004 Yevgeniy Geppa was transferred to the hospital of the Penitentiary Department in Kursk for examination and treatment. He was diagnosed with a psychiatric disorder, namely, “past organic brain lesion of complex origin” (owing to a head injury and drug abuse), with emotional instability and compensatory behaviour, and epileptic syndrome. In addition, he was diagnosed with chronic pyelonephritis of his only kidney at the stage of remission; it was recommended that he be placed in the psychiatric hospital of Smolensk.
14. In the meantime, on 3 September 2004 the applicant received a reply from the Kursk Regional Penitentiary Department of the Ministry of Justice to the effect that the on-site inspection conducted following her complaint had established that the conditions of her son's detention complied with the law and there were no grounds to transfer him to another facility. It was also stated that he was provided with medical care when necessary.
15. On 17 October 2004 the applicant and Yevgeniy Geppa's wife visited him in the colony for the last time. According to the applicant, when they met him he had had a fever and had been shivering despite being dressed in a winter jacket and gloves. He had allegedly told them that he had pain “all over inside” and splitting headaches but that the colony medical staff had refused to see him and had accused him of faking the illness. He had also allegedly told them that he had requested a transfer to the psychiatric hospital of the Penitentiary Department of the Smolensk Region (the psychiatric hospital of Smolensk) because he could not bear the constant beatings any longer. Before they said goodbye he had told them that he felt he was dying and they would probably not see him again.
16. On 18 October 2004 the applicant wrote to the Penitentiary Department complaining that her son was being ill-treated at the colony. She complained about the beatings, the deterioration of his health and the lack of medical assistance. She requested that he be given a medical examination to identify the cause of his headaches, stomach and chest pains, and deteriorating eyesight. She also requested to see his pre-transfer medical records from IK-2 and the colony medical records relating to the period between 27 August and 16 September 2004.
17. On 25 October 2004 the Penitentiary Department replied to the applicant that her enquiry had been examined by its medical division. It informed the applicant that Yevgeniy Geppa's medical file at the colony contained records on his past organic brain lesion of complex origin (owing to a traumatic brain injury and drug abuse), with emotional instability and compensatory behaviour, and epileptic syndrome; he was also diagnosed with chronic pyelonephritis of his only kidney at the stage of remission. It stated that he was receiving the necessary medical care. When interviewed, Yevgeniy Geppa had refused to be placed in the hospital of the Penitentiary Department but had given his consent to be placed in the psychiatric hospital of Smolensk. A similar letter was sent to her on 18 November 2004, adding that no physical force had been applied against Yevgeniy Geppa and informing her of his transfer to the psychiatric hospital of Smolensk.
18. On 14 November 2004 Yevgeniy Geppa was taken to the psychiatric hospital of Smolensk. On the way a stop was made at IZ-36/1 of Voronezh, where he asked to see a doctor. The medical examination revealed several symptoms of medium severity, such as a “confused state of consciousness”. After he had been given medication his condition improved, and he was sent on to Smolensk.
19. On 20 November 2004 Yevgeniy Geppa arrived at the psychiatric hospital of Smolensk. The medical examination conducted on his arrival established that his condition was serious, he was unable to walk by himself, was pale and his extremities were cold. He could communicate with the doctor, but quickly became exhausted. Symptomatic treatment began immediately and further examinations were ordered.
20. On 22 November 2004 Yevgeniy Geppa had a general blood test. On the following day he had a chest x-ray and an electrocardiogram. On 24 November 2004 he had an HIV test, which was negative.
21. On 29 November 2004 Yevgeniy Geppa underwent an x-ray brain scan that revealed hypertension. On the same day an electroencephalogram was performed, and it was concluded that there was probably a pathological formation in the left hemisphere. He also had a stomach x-ray on that day.
22. On 30 November 2004 he had a general ultrasound abdominal scan that revealed some changes in the liver and pancreas. On the same day he was seen by an infection specialist, who did not find any infection.
23. On 1 December 2004 he was seen by a neurologist who ordered a brain CT scan, which was performed on 6 December 2004 and confirmed the presence of a formation in the left hemisphere. It was followed by a consultation with a neurosurgeon, who advised against surgery. On the following day an oncologist diagnosed Yevgeniy Geppa with a brain tumour and oedema of the brain.
24. On 8 December 2004 Yevgeniy Geppa died.
25. On 9 December 2004 an autopsy, including a histological study, was conducted and established that Yevgeniy Geppa's death was caused by a brain tumour (glioblastoma multiforme).
26. Following Yevgeniy Geppa's death the Smolensk Prosecutor's Office conducted an inquiry in order to decide whether there were grounds for a criminal investigation. On 17 December 2004 it decided that no criminal investigation was necessary. The decision referred to the autopsy report, the medical file, and the statements of the hospital director and detainee K., who was employed at the hospital.
27. On 21 December 2004 the applicant complained to the Kursk Regional Prosecutor's Office about the beatings to which her son had allegedly been subjected in the colony and alleged that there had been a negligent failure to provide him with medical assistance; she also alleged that his transfer to the psychiatric hospital had been delayed without justification.
28. On 27 January 2005 the prosecutor's office decided that there were no grounds to open a criminal investigation into Yevgeniy Geppa's death. The prosecutor's office had questioned the colony officials and inmates, who made the following statements:
– the head officer of unit no. 12 where Yevgeniy Geppa was held stated that he had not received any complaints that physical force had been applied to Mr Geppa and had not seen any injuries on him;
– inmate K. stated that upon his arrival at the colony Yevgeniy Geppa had had certain health complaints, in particular he had mentioned that he was suffering from epilepsy; he had not seen any injuries on him and had not heard any complaints about the use of force against him;
– inmate Ch. stated that he had not seen any injuries on Yevgeniy Geppa and had not heard any complaints about the use of force against him;
– inmate Kh. stated that his sleeping place in the dormitory had been next to Yevgeniy Geppa's and that he had not seen any injuries on him or heard any complaints about the use of force against him;
– an officer of the visits and parcels section, M., stated that on 5 August 2004 Yevgeniy Geppa had been visited by his wife and mother and that about thirty minutes into the visit he had had an epileptic fit and had been taken to the medical unit; Yevgeniy Geppa's mother had not mentioned seeing any injuries on him;
– an officer of the visits and parcels section, Kh., stated that on 5 August 2004 he had searched Yevgeniy Geppa before the visit, though without removing his clothes, and had not seen any injuries on him; following an epileptic fit during the visit Yevgeniy Geppa had been taken to the medical unit; his mother had not mentioned seeing any injuries on him;
– inmate Sh. stated that on one occasion in August 2004 he had accompanied Yevgeniy Geppa from the medical unit back to unit no. 12; Yevgeniy Geppa had spent about one or two hours in the medical unit; on the way he had not heard any complaints; he could not say whether Yevgeniy Geppa had had any injuries;
– an officer of the medical unit, G., stated that on 5 August 2004 he had attended to Yevgeniy Geppa after he had fainted during the visit; when examined, Yevgeniy Geppa had been conscious; he had diagnosed him with epileptic syndrome and given him an injection of seduxen; he had had a bruise on his knee; no other injuries had been revealed;
– the head of the medical unit stated that Yevgeniy Geppa had been registered with the colony medical unit as suffering from a psychiatric disorder, namely, “past organic brain lesion of complex origin” (owing to a traumatic brain injury and drug abuse), with emotional instability and compensatory behaviour, and epileptic syndrome. From 27 August 2004 to 18 September 2004 he had been transferred to the hospital of the Penitentiary Department for examination and treatment; the above diagnosis had been confirmed and in addition to that he had been diagnosed with chronic pyelonephritis of his only kidney at the stage of remission. It had been recommended that he be placed in the psychiatric hospital of Smolensk. In the colony Yevgeniy Geppa had been provided with adequate medical care; on 14 November 2004 he had been transferred, with his consent, to the psychiatric hospital of Smolensk.
29. The applicant challenged the decision of 27 January 2005 in court.
30. On 17 March 2005 the Kirovskiy District Court of Kursk found that the inquiry conducted by the prosecutor's office into Yevgeniy Geppa's death had been insufficient. It referred in particular to the failure to verify the allegations of ill-treatment and indicated that it was necessary to establish the origin of the head injury and the brain tumour which caused his death. The court granted the applicant's request and ordered the prosecutor's office to carry out the inquiry in accordance with law. The prosecutor's office appealed.
31. On 19 April 2005 the Kursk Regional Court upheld the decision of the Kirovskiy District Court dated 17 March 2005. Following this decision the prosecutor's office requested the Penitentiary Department to send Yevgeniy Geppa's medical file and the autopsy report to it.
32. On 22 April 2005 the applicant requested the prosecutor's office to grant her victim status in the criminal proceedings concerning her son's death. She also requested access to documents from his medical file.
33. On 3 May 2005 the prosecutor's office quashed its decision of 27 January 2005 refusing to open a criminal investigation and an additional inquiry was ordered. The applicant was informed of the decision; she was also informed that there were no grounds to grant her victim status.
34. On 13 May 2005 the prosecutor's office decided to refuse to institute criminal proceedings concerning Yevgeniy Geppa's death. It stated that an additional inquiry had been carried out, which had included an examination of the medical file and questioning of the psychiatrists of the colony and of the hospital of the Penitentiary Department. It was established that the cause of death, the brain tumour, was consistent with the earlier diagnosis indicated in the colony medical file. It was also noted that Yevgeniy Geppa had sustained a head injury in 1997 and in the past he had abused alcohol, psychotropic substances and home-brewed narcotics; he had also been diagnosed with epilepsy. It was therefore concluded that there were no grounds to believe that the colony staff had committed a crime against Yevgeniy Geppa.
35. The applicant challenged the decision of 13 May 2005 in court.
36. On 3 June 2005 the Kirovskiy District Court declared the decision dispensing with criminal proceedings unlawful. It found that the investigation file was incomplete and the prosecutor's conclusions contradictory, in particular with reference to the failure to verify the origin of the head injury and the brain tumour, as well as Yevgeniy Geppa's state of health and the adequacy of his medical treatment prior to his transfer to the psychiatric hospital. The prosecutor's office appealed.
37. On 16 June 2005 the prosecutor's office sent a number of official inquiries to medical institutions. It asked the Kursk Regional Psychiatric Hospital if Yevgeniy Geppa's had been under their supervision in the past; it requested the details of his treatment for his head injury in 1997 from the Kursk Municipal Clinic and the Kursk Regional Clinic. Finally, it requested the director of the specialist oncology clinic to explain the origin, the development pattern, methods of diagnosing and treatment of the brain tumour with which Yevgeniy Geppa had been diagnosed and the recovery rate for the disease. The latter enquiry does not appear to have been answered.
38. On 30 June 2005 the Kursk Regional Court upheld, in substance, the decision of the Kirovskiy District Court dated 3 June 2005.
39. On 27 July 2005 the prosecutor's office quashed its decision of 13 May 2005 refusing to open the criminal investigation and an additional inquiry was ordered. The applicant was informed about the decision and provided with a copy thereof.
40. On 29 July 2005 the administrative officer of the hospital of the Penitentiary Department in Kursk wrote an explanatory note for the investigation file. He stated that during his in-patient treatment at the hospital Yevgeniy Geppa had showed no symptoms of formation of a brain tumour. Early signs of the tumour could have only been detected by a CT scan, which had not been possible in the hospital for the lack of the requisite equipment. Moreover, there had been no apparent reason to order a CT scan.
41. On the same day the prosecutor's office decided to refuse to institute criminal proceedings concerning Yevgeniy Geppa's death. It referred to the medical records dated October-November 1997 relating to his head injury and concluded that it had predated his imprisonment. It further stated that the medical equipment available at the institutions and medical centres of the penitentiary system could not be used to diagnose the early stages of a brain tumour or to assess the necessity of a CT scan. The scan was recommended on 1 December 2004, after the examination at the psychiatric hospital, and carried out on 6 December 2004, two days before Yevgeniy Geppa's death. It was therefore concluded that there had been no grounds to believe that the colony staff had caused Yevgeniy Geppa injuries or had been negligent in deciding to transfer him to the psychiatric hospital for examination. The applicant was informed about the decision and provided with a copy thereof.
42. The applicant challenged the decision of 29 July 2005 in court.
43. On 30 September 2005 the Kirovskiy District Court declared the decision dispensing with criminal proceedings unlawful. It found that the inquiry had failed to establish a link between the head injury sustained by Yevgeniy Geppa in 1997 and his death in 2004 and had also failed to substantiate the conclusion that the medical care received by Yevgeniy Geppa had been appropriate for his condition. The court indicated that the above defects could only be remedied by a proper investigation and criminal proceedings and therefore it had been mandatory to open a criminal file. The court also pointed out that the procedural law did not allow a ten-day preliminary inquiry to be conducted more than once.
44. On 14 November 2005 the prosecutor's office quashed its decision of 29 July 2005 refusing to open a criminal investigation and an additional inquiry was ordered. The applicant was informed about the decision and provided with a copy thereof.
45. On the same day the prosecutor's office of Kursk requested the prosecutor's office of Smolensk to provide it with Yevgeniy Geppa's medical file from the psychiatric hospital of Smolensk and the autopsy report.
46. On 18 November 2005 the prosecutor's office decided to refuse to institute criminal proceedings concerning Yevgeniy Geppa's death. It essentially reiterated the contents of the decision of 29 July 2005, adding that the prosecutor's office of Smolensk had not replied to the request of 14 November 2005, hence there was no new information that would allow the allegations of medical negligence to be confirmed. The applicant was informed about the decision and provided with a copy thereof.
47. On 13 December 2005 the prosecutor's office of Smolensk forwarded the requested documents to the prosecutor's office of Kursk.
48. On 30 December 2005 the prosecutor's office quashed its decision of 18 November 2005 refusing to open a criminal investigation and an additional inquiry was ordered. The applicant was informed about the decision and provided with a copy thereof. On 10 January 2006 the term for additional inquiry was extended from three to ten days in order to obtain the medical expert opinion.
49. On 10 January 2006 the prosecutor's office requested the director of the Kursk Regional Clinic to explain the origin of, the possible cause of and methods of diagnosing the brain tumour found in Yevgeniy Geppa. The director was asked whether the tumour could have been caused by Mr Geppa's head injury, whether it was treatable and whether Mr Geppa's death could have been avoided if timely medical treatment had been provided.
50. On 16 January 2006 the clinic director and the head of the clinic's neurosurgery department replied as follows:
“1. The cause of cancerous brain tumours (glioblastoma multiforme) is currently unknown.
2. Neither scientific research data nor our experience confirms any link between brain injuries and [tumours].
3. Early signs of a brain tumour formation are general brain and localised neurological symptoms and changes in the fundus of the eye.
4. Glioblastoma multiforme is one of the most malignant forms of brain tumour with the period between its formation and death varying between two and six months depending on its location.
5. The prognosis of this disease, regardless of the promptness of its diagnosis and specialist treatment, is extremely negative, the disease not being susceptible to treatment.”
51. On 17 January 2006 the prosecutor's office decided to refuse to institute criminal proceedings concerning Yevgeniy Geppa's death. In addition to the medical documents and witness statements relied on in the previous decisions, it referred to the medical opinion of 16 January 2006 given by the Kursk Regional Clinic director. It concluded that there had been no evidence of violence or medical negligence having contributed to his death. The applicant was informed about the decision and provided with a copy thereof. She appealed against this decision in court.
52. On 13 March 2006 the Kirovskiy District Court declared the decision dispensing with criminal proceedings unlawful. It found that the inquiry had failed to address the reasons for the diagnosis having been established so late despite Yevgeniy Geppa's frequent examination and treatment; the court could not rule out that there had been an unjustified delay in providing him with specialised medical care and pointed out that the negative prognosis did not absolve the penitentiary and medical staff from taking all the necessary steps in order to diagnose and treat him. The prosecutor's office appealed.
53. On 11 April 2006 the Kursk Regional Court quashed the decision of 13 March 2006 on the grounds that it had failed to specify the shortcomings in the investigation that the prosecutor's office had to remedy. The case was remitted to the same court for a fresh examination.
54. On 25 April 2006 the Kirovskiy District Court found the decision dispensing with criminal proceedings lawful and justified. Addressing the applicant's argument that the investigators had failed to request the medical file from the psychiatric hospital of Smolensk, the court observed that the file had actually been obtained, that it had been attached to the investigation file and, furthermore, that it had been directly examined in the courtroom.
55. On 5 May 2006 the applicant was given the opportunity to access Yevgeniy Geppa's medical file.
56. Article 175 § 6 of the Penitentiary Code of the Russian Federation provides as follows:
“A detainee who has acquired a serious illness [other than psychiatric] which prevents him from serving his sentence may lodge a request with a court for [ early] release ... [This request] must be lodged by the detainee through the administration of the penitentiary institution ... The said request must be accompanied by the expert opinion of a medical commission or a socio-medical expert institution and the detainee's prison record.”
57. On 6 February 2004 the Government of the Russian Federation adopted Decree no. 54 establishing a list of diseases incompatible with serving a prison sentence. That list included malignant tumours (cancer) in stage IV according to TNM classification (point 7 of the decree) and kidney diseases in the terminal phase with chronic renal failure.
NON_VIOLATED_ARTICLES: 2


ITEMID: 001-71507
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF POPOV v. MOLDOVA (No. 2)
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Not necessary to examine under Art. 13;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1925 and lives in Chişinău.
7. In 1941 the Soviet authorities nationalised the house owned by his parents. In the same year his family was deported to Russia and to Uzbekistan.
8. On 8 December 1992 the Moldovan Parliament enacted Law No. 1225-XII “on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime”. The Law enabled the victims of the Soviet repression to claim restitution of their confiscated or nationalised property.
9. In 1997 the applicant lodged an action with the Centru District Court (Judecătoria Sectorului Centru) by which he sought the restitution of his parents’ house. As the former tenants of the house had purchased it from the State, the applicant sought a judicial ruling declaring the purchase contracts null and void. He also requested the eviction of all the occupants of the house.
10. By a final judgment of 5 November 1997 the applicant’s action was upheld.
11. Between 1997 and 2002 the applicant lodged numerous complaints about the non-enforcement of the judgment of 5 November 1997 with the Municipal Council, Centru District Court and the Ministry of Justice.
12. In 2001 the applicant complained to the Court about the non-enforcement of the final judgment of 5 November 1997. The applicant’s application was given number 74153/01 and was communicated to the Government in January 2003.
13. In April 2004 four occupants of the applicant’s house lodged with the Chişinău Court of Appeal a request for revision of the judgment of 5 November 1997. Relying on Article 449 of the new Code of Civil Procedure they argued in their request that new information had become known to them. They also asked the court to extend the deadline for lodging the request in view of the fact that the new information had been obtained by them from the National Archives in April 2004.
14. The applicant alleges that on 20 May 2004 the Government Agent offered him for signature an agreement according to the terms of which he would consent to withdrawing his application to the Court and waiving his right to any compensation in exchange for receiving his house. According to the applicant, the Agent allegedly suggested that in the event of his refusal the Court of Appeal would continue the examination of the revision request lodged by the defendants and the proceedings would remain unresolved for a long time. He refused to sign the agreement.
15. On 26 May 2004 the Court of Appeal examined the revision request lodged by the occupants of the applicant’s house in which newly discovered facts were invoked.
16. The new facts relied upon by occupants were an issue of the Municipal Official Gazette of 1940 and four certificates from the National Archives and from the Land Register dated 6 April 2004, 18 May 2004 and 19 May 2004.
17. A certificate from the National Archives dated 6 April 2004 had the following content:
“... according to the Municipal Official Gazette of 1940, there is a house with a new number 36 (old number 46) on the Stefan cel Mare street whose owner is Pelagheia Popova and a house with the new number 33 (old number 37) on the Stefan cel Mare street, whose owner is Pelagheia Popov”.
18. Another certificate from the National Archives dated 6 April 2004 stated:
“... according to the Archives of the Municipal Council on 29 February 1924 the name of the street Nicolaievskaia was changed to Stefan cel Mare.”
19. The certificate of 18 May 2004 issued by the National Archives had the following content:
“... according to the data from the Archives of the Chişinău Municipal Council for the year 1930, there was a house with number 37 on the Stefan cel Mare street (Nicolaevscaia) whose owner was Pelagheia Popova and a house with number 46 on the Stefan cel Mare street (Nicolaevscaia) whose owner was Pelagheia Popov.”
20. The certificate of 19 May 2004 issued by the Land Register to judge N.B. from the Court of Appeal stated that the owner of the house on 33 Columa Street, was Mr Serghei Popov. It also stated that there was no information as to whom that house belonged before 1940 since the first entry in the Land Register was made in 1952.
21. According to the Official Gazette of 15 March 1940 issued by the Municipal Council of Chişinău, Romania, in order to eliminate the confusion in the numbering of houses which created economic and administrative difficulties, a new numbering was adopted for certain streets, including the Stefan cel Mare street. The owners of the houses on the concerned streets were obliged to buy from the Municipal Council new number plates and to install them on their houses. The new numbering should have taken effect as of 1 April 1940. Until that date the owners had to have both the old and the new numbers on their houses, in order to facilitate the orientation of the population and authorities. According to a list containing the names of the house owners and their corresponding house numbers, Mrs Pelagheia Popov [the applicant’s mother] was the owner of a house with the old number 37 and the new number 33. The Official Gazette does not contain any other references to her.
22. The Court of Appeal described in its judgment of 26 May 2004 the content of the above documents and concluded that:
“the above circumstances were not examined by the court which decided on the merits and on the appeal. They [the circumstances] have an essential importance for an objective ruling on the case. The court which will re-examine the merits shall determine exactly the location and the surface of the house from which the applicant and his family were evicted.”
The Court of Appeal decided to extend the time limit for the lodging of the revision request without however giving any reasons thereto. It quashed the final judgment of 5 November 1997, ordered the re-opening of the proceedings and sent the file to the first instance court for a fresh examination.
23. After the hearing, on 26 May 2004, the Government Agent allegedly told the applicant’s representative that, had he consented to sign the agreement, the revision proceedings and the subsequent quashing and re-opening would not have taken place. The Government deny that this conversation ever took place.
24. On 18 January 2005 the Court adopted a judgment in the case of Popov v. Moldova, (no. 74153/01, 18 January 2005), in which violations of Article 6 § 1 and of Article 1 of Protocol No. 1 to the Convention were found because of the non-enforcement of the final judgment of 5 November 1997 until 26 May 2004.
25. The proceedings which were re-opened by the Court of Appeal on 26 May 2004 are still pending before the domestic courts. At the date of adoption of the present judgment they were still pending before the first instance court, the Centru District Court.
26. Article 325 of the Code of Civil Procedure, in force between 26 December 1964 and 12 June 2003, (“the old Code of Civil Procedure”), reads as follows:
“Final judgments ... can be revised in the following cases:
1) the discovery of new facts or circumstances, that were unknown and could not have been known earlier by the parties to the proceedings;”
27. On 12 June 2003 a new Code of Civil Procedure entered into force. Article 449, in so far as relevant, reads as follows:
“Grounds for revision
Revision may be requested:
c) When new and essential facts or circumstances have been discovered, that were unknown and could not have been known earlier;”
28. Article 450, in so far as relevant, reads as follows:
“A revision request may be lodged:
...
c) within three months from the date on which the concerned person has come to know the essential circumstances or facts of the case which were unknown to him/her earlier and which could not have been known to him/her earlier....”
29. Article 453, in so far as relevant, reads as follows:
...
(2) A decision by which a revision request is upheld ... can be challenged together with the merits of the affair...
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82485
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ÇELİKER v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1972 and lives in Batman.
6. On 10 April 1997 the applicant was arrested and taken into police custody on suspicion of her involvement in the activities of an illegal organisation, namely the PKK (the Kurdistan Workers' Party). The police officers drew up an arrest protocol in which they noted that they had found a false identity card on the applicant and seized it for the investigation.
7. Following the Batman public prosecutor's order, the applicant's detention period was extended.
8. On 15 April 1997 police officers took statements from the applicant. She confessed to being a member of the PKK and stated that she had been involved in armed clashes with the security forces.
9. On 16 April 1997 the applicant's statements were taken by the Batman public prosecutor to whom she again confessed to being a member of the PKK and stated that she had been involved in political education and propaganda activities for the organisation.
10. On the same day she was brought before a single judge at the Batman Magistrates' Court who took her statement and ordered her detention on remand.
11. On 2 May 1997 the principal public prosecutor at the Diyarbakır State Security Court filed a bill of indictment, charging the applicant under Articles 125 and 40 of the Criminal Code with carrying out activities for the purpose of bringing about the secession of part of the national territory and aiding and abetting an illegal organisation.
12. Between 5 May 1997 and 18 April 2000, the Diyarbakır State Security Court held nineteen hearings and heard a number of witnesses. During these hearings, the applicant renounced her statements taken during her detention in police custody. Witnesses heard by the court stated that the applicant was an active member of the PKK and that she had been involved in armed clashes with the security forces.
13. On 18 April 2000 the Diyarbakır State Security Court convicted the applicant as charged and sentenced her to death under Article 125 of the Criminal Code. Taking into account her confessions before the court, the death penalty was commuted to a life sentence of imprisonment.
14. On 19 December 2000 the Court of Cassation upheld the decision of the first instance court. It reasoned that the decision was justified as the evidence in the case file was capable of proving that the applicant was an active member of the PKK, which was an armed illegal organisation and carried out activities for the purpose of bringing about the secession of part of the national territory.
15. On 24 January 2001 the Court of Cassation's decision was pronounced in the absence of the applicant's representative.
16. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Öcalan v. Turkey ([GC], (no. 46221/99, §§ 5254, ECHR 2005-IV).
17. By Law no. 5190 of 16 June 2004, published in the Official Journal on 30 June 2004, State Security Courts were abolished.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22165
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: ARENDS v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Alexander J.M. Arends, is a Dutch national, who was born in 1954 and lives in Leiden. He was represented before the Court by Professor M.W.C. Feteris of the Fiscal Law Department of the Rotterdam Erasmus University, who also works as a fiscal advisor in Amsterdam
The facts of the case, as submitted by the parties, may be summarised as follows.
Between 1994 and 1997, the applicant’s employer provided him with a company car. The respective catalogue prices of the three cars concerned were 42,455 Netherlands Guilders (“NLG”) (car used until 6 October 1995), NLG. 45,190 (car used as from 6 October 1995) and NLG. 42,895 (car used as from 16 April 1997). The applicant used his company car at least three days a week for transport from his home to his office. The distance between both places was more than 30 kms. The applicant further used this car for private purposes. The distances travelled for private purposes in 1993 exceeded 1,000 kms.
On 31 August 1995, the Leiden Tax Inspector issued the applicant’s income tax assessment (aanslag inkomstenbelasting) for 1994. In the determination of the applicant’s taxable income for 1994, the Tax Inspector had added – pursuant to the 1964 Netherlands Income Tax Act (Wet op de Inkomstenbelasting; hereinafter “ITA”) as amended by the Act of 4 July 1990 – an amount of NLG. 10,189 (24% of the catalogue price of the applicant’s company car in 1994) to the applicant’s taxable income.
In the applicant’s income tax assessment for 1995 of 31 October 1996, the assessment for 1996 of 8 August 1997 and the assessment for 1997 of 3 November 1998 – on the same grounds as in the assessment of 31 August 1995 – 24% of the catalogue value of the company car provided to the applicant in those years, i.e. NLG. 10,344, NLG. 10,845 and NLG. 10,455 respectively, was added to his taxable income.
The applicant filed an objection (bezwaar) with the Leiden Tax Inspector against the income tax assessments for 1994, 1995 and 1996. He complained that the 24% increase of his taxable income instead of 20% was contrary to the prohibition on discrimination under Article 26 of the International Covenant on Civil and Political Rights, in that employees having a company car who drive more than 1,000 per year for private purposes and who live more than 30 kms from their place of work - like himself - must add a further 4% (24% instead of 20%) to their taxable income, whereas employees with a company car in identical circumstances, apart from the fact that they drive less than 1,000 kms per year for private purposes, do not have to add 4% of the car’s catalogue value to their taxable income, but are in fact fully exempted from any addition to their taxable income. He requested that the additional 4% of his company car’s value be deducted from his taxable income for the years 1994, 1995 and 1996.
In a judgment of 18 December 1995 in a similar case to the applicant’s, the ‘s-Hertogenbosch Court of Appeal (Gerechtshof) found in favour of the taxpayer. It held that the reasons stated by the legislator for creating the difference in treatment at issue could not be regarded as constituting an objective and reasonable justification. Consequently, it quashed the Tax Inspector’s challenged decision, reduced the determination of that taxpayer’s taxable income and ordered the Tax Inspector to reimburse the appellant’s legal costs, including court fees. The State Secretary of Finances (Staatssecretaris van Financiën) filed an appeal in cassation with the Supreme Court (Hoge Raad) against this judgment of 18 December 1995.
The Tax Inspector rejected the applicant’s objections against the income tax assessment for 1994 on 12 January 1996. The Tax Inspector did, however, mention in his decision that proceedings were pending before the Supreme Court in relation to the complaint made by the applicant. The decision further stated that the applicant’s tax assessment for 1994 would be reduced ex officio if the final judicial decision on the matter would warrant such a course of action.
The Tax Inspector rejected the applicant’s objections against the income tax assessment for 1995 on 25 November 1996. In this decision, the Tax Inspector mentioned that, in its judgment of 22 March 1995, the Supreme Court had made a remark to the effect that, possibly, there was prohibited unequal treatment of persons having company cars, living more than 30 kms from their place of work and who used their company car for, on the one hand, less than 1,000 kms a year for private purposes and, on the other hand, more than 1,000 kms for private purposes.
The Supreme Court had, however, not determined this question in that judgment. The applicant was further informed that proceedings on this question were ongoing in which the same complaints as those made by the applicant had been raised. The applicant was finally informed that, in order to prevent numerous proceedings concerning the same matter, his income tax assessment for 1995 would be reduced ex officio if the final decision by the Supreme Court would warrant this. The applicant’s attention was, however, drawn to the fact that this would only take place when, at the appropriate moment, the applicant would make a request to this effect.
The applicant’s objection against the income tax assessment for 1996 was rejected by the Tax Inspector on 20 July 1998.
Although an appeal against a rejection of an objection against a tax assessment lies with the Court of Appeal, the applicant decided, on the basis of the State Secretary’s decision of 7 February 1996, not to file an appeal against the rejection of his objections. For the same reason, he also decided not to file an objection against his income tax assessment for 1997.
In its judgment of 15 July 1998 in the other identical case (reported in the Netherlands Fiscal Law Reports [Beslissingen in Belastingzaken Nederlandse Belastingrechtspraak” – “BNB”) no. 1998/293, the Supreme Court ruled that the tax payers concerned was treated unequally without justification. However, it upheld the Tax Inspector’s decision of 14 August 1995. Consequently, the Supreme Court quashed the judgment of 18 December 1995. with the exception of the costs order against the Tax Inspector. The Supreme Court further ordered the State Secretary to reimburse the adversary party’s legal costs in the cassation proceedings. This judgment, insofar as relevant, reads as follows:
“3.2. In objecting to the application of this so-called increased fixed amount for car costs (verhoogde autokostenforfait), the <applicant> has argued before the Court of Appeal that the legislator unjustly subjects him to different treatment from those taxpayers to whom Article 42 § 5 ITA, fourth paragraph, is not applied, as those taxpayers, unlike the <applicant>, use their company car for private purposes for a distance of less than 1,000 kms <per year> but, like the <applicant>, live more than 30 kms from their place of work and drive with their employers’ car to and from work. ...
3.4. In answering the question whether it concerns an inequality in treatment prohibited by these Treaties [including Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1], it must be stated at the outset that they do not prohibit every inequality in treatment of equivalent cases. The legislator has a certain margin of appreciation in answering the question whether cases, for the purposes of the application of these Treaties, are to considered as equivalent and, if so, whether there is an objective and reasonable justification for nevertheless regulating those cases in a different manner.
3.5. The difference in treatment challenged by the <applicant> has been created by the Act of 4 July 1990 ... The aim of this Act was to make a contribution to both reducing commuter traffic as such (limitation of mobility) and reducing the use of cars for commuting purposes (limitation of car mobility). ...
3.7. It thus follows from the <legislative> history of the creation of the <four percent> addition ... that the legislator, as a basic premise, no longer wished to make a link between the strictly private use of the car and its use for commuting purposes. The legislator did not therefore intend to tax – through the introduction of an increased percentage of the fixed amount for car costs (autokostenforfait) – the higher sum of income considered as being derived from employment as an extra advantage, made dependent on the travel distance, on account of private use.
3.8. This entails that the addition of four percent of the catalogue price of the <company> car, though in form an increase of the fixed amount for car costs, in nature has the character of an independent addition for the cases where tax payers habitually travel at least three days a week over a one-way distance of 30 kms between their home and their work place using for this a car placed at their disposal for work purposes. The Supreme Court fails to see that, for the application of that independent addition, it is of any relevance whether or not the car, apart from commuter travel, has not or only to a limited extent been used for private purposes.
3.9. The considerations set out in 3.6. to 3.8. lead to the conclusion that the legislator, by not prescribing the addition of four percent of the catalogue price in cases where there is no or only a limited private use of the <company> car, has given preferential treatment to a limited group within a category of equivalent cases - in short: commuter travel over more than 30 kms -, and has thus treated equivalent cases unequally.
3.10. Members of the Netherlands Parliament (Staten-Generaal) have shown doubts as to the legitimacy of that unequal treatment. It has been stated in justification on the Government side that, from the point of view of transport arranged by the employer, the employees privileged by the proposed regulation are on a par with employees who, either collectively or not, are transported by their employer in minibuses and the like. That contention is, however, in all reasonability untenable. Within the group of employees whose transport is arranged by the employer, those disposing of a <company> car are in a completely different situation from those who are, either collectively or not, transported by the employer in minibuses and the like. As of old, the legislator itself has not viewed these cases as equivalents. It has long since made a difference within the relevant group of employees by including employees disposing of a <company> car as being liable to income tax for the private use of such a car. The form chosen for this, the fixed amount for car costs, prompted an addition of a fixed amount for private use <of a company car> to the taxable income in all cases where an employer has made a car available, unless the tax payer can convincingly prove that, on an annual basis, the car has been used for private purposes for less than (at present) 1,000 kms. In addition, the “employer’s car” in the latter situation is further treated differently from other transport arranged by the employer, as in that situation the value of the real private use is taxed. Also, given this long standing difference, the argument made in an earlier phase of the examination of the draft Act, that the distinction of the employees with a <company> car runs up against practical difficulties, is defective.
3.11. Moreover, the Supreme Court has not found outside this legislative history any grounds of a fiscal or non-fiscal nature that can justify the unequal treatment at issue.
3.12. Further, it cannot be said that the unequal treatment results in a quantitatively unimportant advantage as, with the addition of 4% of the catalogue price of a <company> car, quickly one finds that an increase in income of NLG. 1,500 to NLG. 2,000 is involved.
3.13. Even taking into consideration the margin of appreciation of the legislator, the above also leads to the conclusion that the legislator cannot in all reasonability have held that it concerns here unequal cases, or that there is a reasonable and objective justification for the unequal treatment of those cases. The <cassation> complaints I and II, insofar as they are based on a different opinion, fail.
3.14. The <cassation> complaint I ... is however successful insofar it points out that not to apply the rule contained in Article 42 § 4 of the ITA would result in an equally unjustifiable inequality in treatment, namely in respect of employees who habitually commute, involving a one-way travel distance of more than 30 kms, with their own car or with public transportation without having a public-transport-declaration [for fiscal deduction purposes] (openbaar vervoerverklaring). This could only be remedied by the non-application of the entire <regulation on the> “capping <of the tax allowance for commuters>” (“aftopping”). The Supreme Court considers for the time being that such a consequence of the inequality found is disproportionate. It is for legislator to remove the inequality found. The Supreme Court assumes that the Bill announced in the <cassation> complaint III will be presented <to Parliament>.”
In a further judgment given on 24 January 2001 in yet another case concerning the same subject matter, the Supreme Court rejected the argument that, on the basis of its judgment of 15 July 1998, an increase of 24% instead of 20% should not be imposed. It held:
“3.1. ... In cassation, the appellant argues .... that the fiscal judge should now refrain from applying the regulation at issue, because the legislator has failed to introduce in a timely manner a Bill in order to remove the inequality which has been found.
3.2. As to this argument, the following applies.
3.2.1. In consideration 3.14 of its judgment of 15 July 1998, the Supreme Court held that it was for the legislator to remove the inequality found and that it assumed that to this end the State Secretary <of Finances> would submit <to Parliament> the Bill announced in the State Secretary’s cassation memorial.
In its advice of 8 October 1998 on draft legislation on amendments to forthcoming statutory fiscal regulations ... the Council of State (Raad van State) noted that this Bill did not contain a regulation designed to remove the above inequality under the law, and advised that such a regulation be included already in this Bill. In the further report (...), the Government replied as follows:
“The Council <of State> advises, with reference to the Supreme Court’s judgment of 15 July 1998 ..., as to the application of the ... increased fixed amount for car costs to repair the inequality found in respect of the fixed amount for car costs already <in this Bill>. ... this inequality will be repaired by a change of legislation. This change is however connected to the elaboration of the announcement in the Coalition Agreement (Regeeraccoord) to replace the fixed amount nature (forfaitaire karakter) of the car costs’ fiction (autokostenfictie) by an approach that more befits the factual private use of the company car. The manner in which this reparation is to take place is further dependent on the new modelling of the fiscal treatment of company cars in the framework of legislation on tax reforms for the 21st century (belastingherziening 21e eeuw). In this it will also be considered whether the above-intended reparation, if required, can already occur as of 1 January 2000 in anticipation of the announced fiscal reform for 2001.”
The Government have subsequently .... stated the following:
“In the Bill on Fiscal Reform 2001 <this point made by> the Supreme Court is resolved. It has been considered whether it was feasible to advance <this solution> without great problems. To advance <this regulation> would, in the light of the proposed fiscal reform for 2001 lead to an unbalanced <global> package. In the Fiscal Plan 2000 it was not possible to incorporate the compensation – connected with <this solution> – in the sphere of tariffs and the further retrenchments from the fiscal reform for 2001. In addition, justice would no longer be done to the policy connection with other regulations on fiscal reform (commuter travel expenses and labour reduction). In the fiscal reforms for 2001, on the other hand, the budgetary and revenuepolitical consequences of the <solution> are incorporated in the total package of measures.
Apart from this, a reparation within the current system as an extra intermediate step to the fiscal reform leads to confusion for taxpayers and the fiscal executive, and to extra administrative charges. Taxpayers and the fiscal executive would thus be confronted with an adapted system that will change totally again within a year. To achieve a balance, we have therefore opted for resolving the inequality pointed out <by the Supreme Court> as to the <fixed amount for car costs> in the Bill on Fiscal Reform 2001. In taking up this option, the fact that this Bill has already been submitted to the Lower House of Parliament also plays a role.”
In the Bill mentioned here by the Government, that has been submitted on 14 September 1999 to the Lower House and which Bill has been adopted in the meantime (Act of 11 May 2000 on the Determination of the Income Tax Act 2001 (Fiscal Reform 2001), Official Gazette (Staatsblad) 2000, no. 215), the inequality referred to above has in fact been removed.
3.2.2. It appears from the above that the legislator has opted to remove the inequality in the framework of a general fiscal reform in connection with other regulations that, in the legislator’s opinion, also required revision ... in order to establish in that way a coherent overall <system>.
The Supreme Court is of the opinion that there are insufficient grounds for finding that the legislator could not reasonably have taken this decision, although the removal of the inequality therefore took longer than was desirable. In this finding, the Supreme Court takes into consideration, apart from the above circumstances and the duration of the delay, that apparently initially a totally different regulation was considered, that a change in legislation could possibly have resulted in an increase of fiscal charges for certain groups, and that it is understandable that the legislator did not wish to alter the regulation twice within a short space of time. These considerations lead to the conclusion that the Court of Appeal has correctly refrained from not applying Article 42 § 4 of the Income Tax Act 1964.
3.3. Moreover, it must be noted that the appellant in the present case, as regards the income tax imposition for 1991, cannot successfully argue that this statutory provision should not be applied in his case because, in any event, the legislation was not obliged to remove the instant inequality found with retroactive effect for the fiscal years prior to 1998.”
On 15 March 1999, the Leiden Tax Inspector issued the applicant’s income tax return assessment (voorlopige teruggaaf inkomstenbelasting) for 1999. Like in the previous assessment, 24% of the catalogue value of the his company car was added to his taxable income.
The applicant filed an objection (bezwaar) with the Leiden Tax Inspector against the income tax return assessment for 1999. Relying on the Supreme Court’s judgment of 15 July 1998, he complained that Article 42 of the ITA was contrary to the prohibition on discrimination insofar as it resulted an increase of more than 20%. He submitted that, in its judgment of 15 July 1998, the Supreme Court had refrained from action, in the form of a reduction of the income tax assessment, on the assumption that a new Income Tax Bill would be submitted to Parliament in the near future. As this Bill had not yet been presented to Parliament, the applicant considered that the need for judicial action had now arisen.
The Leiden Tax Inspector rejected the applicant’s objection on 14 June 1999. The Tax Inspector noted that that the Supreme Court, although it had found that the application of Article 42 § 4 of the 1964 Income Tax Act was contrary to the principle of equal treatment, had declined to render this provision inoperative as this would have entailed an equally unjustifiable inequality, with disproportionate consequences. The Tax Inspector further noted that the Supreme Court had concluded that it was for the legislator to remove the unequal treatment. The Tax Inspector did not accept the applicant’s argument that the legislator had failed to act with due diligence in drawing up new legislation.
The applicant filed an appeal with the Hague Court of Appeal. He did not avail himself of the possibility to claim a reimbursement of his legal costs by the other party. By judgment of 14 February 2001 and referring to the Supreme Court’s findings in its judgment of 24 January 2001, the Court of Appeal rejected the applicant’s appeal as ill-founded.
Although it was open to the applicant to file an appeal in cassation with the Supreme Court, he did not avail himself of this possibility, considering that this would not have had any prospects of success.
Pursuant to Article 42 § 3 of the 1964 Netherlands Income Tax Act (Wet op de Inkomstenbelasting), employees disposing of a company car provided by their employer must add a fixed amount to their taxable income because of the use of such a car for private purposes. The wording of this provision fixes this amount, the so-called fixed amount for car costs (autokostenforfait), at 20% of the catalogue price of the car concerned.
Following the adoption of the Act of 4 July 1990 amending income tax and salaries tax [capping of the tax allowance for commuters] (Wet tot wijziging van de inkomstenbelasting en de loonbelasting [aftopping reiskostenforfait]), this fixed amount was increased by 4% (i.e. to 24%) in those cases where an employee habitually travels at least three days a week between his or her home and work place when the distance of a oneway journey between these two places exceeds 30 kms (Article 42 § 4).
Article 42 § 5 of the Income Tax Act provides that the rules contained in Article 42 §§ 2 - 4 are not applied where it appears that, on an annual basis, the company car has been used for private purposes for a total distance not exceeding 1,000 kms. In that situation no fixed amount for car costs has to be added to the taxable income, but the actual benefit must be added on the basis of a fixed amount per kilometre, e.g. 500 kilometres at 60 cents per kilometre.
The underlying rationale of the Act of 4 July 1990 was of an environmental nature, i.e. to reduce commuter traffic by encouraging employees to live closer to their place of work, as well as to reduce the use of cars for commuter travel by encouraging employees to opt either for public transport or other forms of collective transport arranged by the employer.
In the original proposal contained in the Bill, which resulted in the Act of 4 July 1990, the existing possibilities for tax deduction of costs for commuting to work and the exemption from taxes of compensation paid by employers in respect of commuting costs were limited to a maximum (aftopping). Costs for commuting to work for distances in excess of 30 kms were to be considered as “private” and no longer eligible for tax allowances.
As to the application of the fixed amount for car costs in cases concerning a company car, the commuter traffic in excess of 30 kms was to be considered as “private“ and lead to the application of a higher percentage. This would only apply, however, where a car was also being used for private purposes. If the car would only be strictly used for work purposes, including commuting, the fixed amount for car costs would not come into play.
As this approach met with the objection that only one single kilometre driven by a company car for private purposes could result in the addition to the taxable income of the fixed amount for car costs, the Bill was amended. The fixed amount for car costs would be applied when a company car was to be used for private purposes involving a distance of 1,000 kms or more a year. In the determination of this question, the distance between the home and place of work – whether or not it was more than 30 kms – would be irrelevant. If the limit of 1,000 kms for private use were exceeded, an addition of 20% of the car’s catalogue price would be applied where the commuting to work remained limited to a distance of less than 30 kms from the home. For commuting involving a distance between the home and place of work of more than 30 kms, a percentage of 24% would be applied.
Although some critical questions were put during the parliamentary debate the system as amended was adopted by the Act of 4 July 1990.
In a judgment of 22 March 1995 (BNB no. 1995/140), the Supreme Court held that:
“In the present proceedings, the question has not been raised whether the rules contained in Article 42 §§ 4 and 5 [ITA] entail a prohibited unequal treatment in respect of those case in which a car made available by an employer is used for private purposes for less than 1,000 kms per year. That question must at present, however, remain unresolved, since its answer also requires an investigation of the facts for which there is no scope in cassation proceedings.”
The rules contained in Article 42 of the ITA remained in force until 1 January 2001 when fiscal reform legislation came into force - the Income Tax Act 2001. This Act provided that the distance between the home and place of work is no longer relevant in the determination of the addition of the fixed amount for car costs in respect of company cars. Only the distance for private purposes for which the company car is used is relevant. In case this use is less than 500 kms per year, no fixed amount has to be added to the taxable income. For a distance between 501 - 4,000 kms, 15% of the car’s catalogue value must be added to the taxable income, for distances between 4,001 - 7,000 kms, 20%, and for distances exceeding 7,000 kms, 25%. Commuter travel is considered to be work-related.
Article 1 of the Constitution (Grondwet), provides:
"All persons present in the Netherlands shall be treated in the same way in similar situations. Discrimination on the ground of religion, philosophical convictions, political leanings, race, sex, or any other ground whatsoever shall not be allowed."
Article 120 of the Constitution reads:
"The courts shall not rule on the constitutionality (grondwettigheid) of statutes and treaties."
Under Article 120 of the Constitution, as interpreted in the constant caselaw of the Supreme Court, the judiciary is not permitted to examine the lawfulness of Acts of Parliament. The courts can, however, review the lawfulness of subordinate legislation and of all other acts of the administration including the lawfulness of decisions which have a general character such as regulations, plans or directives (cf. Hoge Raad, 1 December 1993, Beslissingen in Belastingzaken 1994, no. 64).
Article 93 of the Constitution provides that provisions of international treaties and decisions of international (intergovernmental) organisations which, according to their content, may be binding on anyone shall have binding force after they have been published. Pursuant to Article 94 of the Constitution, such provisions of international treaties and decisions of international organisations take precedence over domestic statutory rules in case of conflict.
As regards the prohibition on discrimination, the Netherlands Supreme Court recognised in a judgment of 2 February 1982 (Nederlandse Jurisprudentie – “NJ”, 1982, no. 424 [corrected in NJ 1982, no. 475]), that Article 26 of the International Covenant on Civil and Political Rights is a provision of an international treaty which, according to its content, may be binding on anyone, and must therefore in principle be applied directly by the Netherlands courts.
However, in a number of judgments the Supreme Court has declined to construe Article 26 of the Covenant in such a way as to deprive national legislation of its effect even if it considered that a given measure constituted unlawful discrimination, holding that – where various options were open to the national authorities to remove such discrimination – the choice should be left to the legislator in view of the social and legal implications attending each possible course of action (Hoge Raad, 12 October 1984, NJ 1985, no. 230; and Hoge Raad, 23 October 1988, NJ 1989, no. 740).
In its judgment of 16 November 1990 (NJ 1991, no. 475), cited in the Court’s Kroon and Others v. the Netherlands judgment of 27 October 1994, the Supreme Court came to a similar finding with regard to Article 14 of the Convention taken together with Article 8 (Series A no 297-C, p. 50, § 14).


ITEMID: 001-5082
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: PONINSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant, who is a businessman, has dual Polish and Canadian nationality. He was born in 1943 and is represented before the Court by Mr Jerzy Marcin Majewski, a lawyer practising in Poznań, Poland.
On 26 October 1994 the Poznań District Prosecutor (Prokurator Rejonowy) charged the applicant under Article 267 of the Criminal Code with the offence of securing execution of document by deception. The applicant was also charged under Article 482 of the Commercial Code with the offence of acting against the interests of the “R” company. The prosecuting authorities considered that on 4 June 1992 the applicant, acting as the president of the “R” company, had deceived a notary public in order to obtain a power of attorney authorising his brother to sell shares in that company. Furthermore, they considered that on 4 June 1992 the applicant had acted against the interests of the “R” company when he had sold the company shares and had granted his brother another power of attorney to sell company shares without having the right to do so.
On 10 November 1994 the applicant was interviewed by the Poznań District Prosecutor who informed him about the charges laid against him and the facts on which they were based.
On 10 November 1994 the Poznań District Prosecutor ordered the applicant to report once a week to the Poznań Grunwald Police Station and to surrender his Canadian passport. The prosecutor considered that these measures were necessary in order to ensure the proper course of the criminal investigation (zapewnienie prawidłowego toku postępowania przygotowawczego). The order was based, inter alia, on Article 235 of the Code of Criminal Procedure which granted the prosecuting authorities a right to order a person charged with a criminal offence to report to the police.
On 15 November 1994 the applicant lodged with the Poznań Regional Prosecutor (Prokurator Wojewódzki) an appeal against the order of 10 November 1994. On 21 November 1994 the Regional Prosecutor rejected the part of the appeal concerning the applicant’s obligation to report to the police and instructed the District Prosecutor to return immediately the applicant’s passport. It appears that subsequently the applicant received his passport without delay.
On 30 November 1994 the Poznań Regional Prosecutor rejected the applicant’s request of 28 November 1994 to quash the order requiring him to report once a week to the police. The prosecutor considered that the applicant had failed to show any legal grounds for quashing the order.
In a letter of 1 December 1994 the Poznań District Prosecutor advised counsel for the applicant that his request of 15 November 1994 to be given written grounds for the order issued on 10 November 1994 was unsubstantiated since that order clearly stated that the measures it imposed on the applicant were necessary to ensure the proper course of the criminal investigation.
On 8 December 1994 counsel for the applicant received from the Poznań District Prosecutor written grounds for the statement of charges issued on 26 October 1994.
On 12 December 1994 the applicant requested the Poznań District Prosecutor to discontinue the proceedings in his case.
The applicant failed to provide information about the outcome of the proceedings.


ITEMID: 001-88572
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HUTCHINS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr John Hutchins, is a British national who was born in 1945 and lives in Wirral. He was represented before the Court by Ms A. Williams from the Citizens Advice Bureau. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 10 May 1992. At the time he enquired about widows’ benefits but was not issued with the relevant form. His claim for widows’ benefits was then made on 23 August 2002 and was rejected in September 2002 on the ground that he was not entitled to widows’ benefits because he was not a woman. On 23 April 2003 the decision was upheld by an appeal tribunal. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.