ITEMID: 001-59609
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF PERNA v. ITALY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;No violation of Art. 6-3-d+6-1;No violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 6. On 21 November 1993 the applicant, who is a journalist, published in the Italian daily newspaper Il Giornale, in the “Lion’s mouth” column (La bocca del leone), an article about Mr G. Caselli, who was at that time the Public Prosecutor in Palermo. The article purported to be a “portrait” of Mr Caselli. It was entitled “Caselli, the judge with the white tuft” and bore the sub-title “Catholic schooling, communist militancy – like his friend Violante...”.
7. In the article the applicant, after referring to the proceedings instituted by Mr Caselli against Mr G. Andreotti, a very well known Italian statesman accused of aiding and abetting a mafia-type organisation (appoggio esterno alla mafia), who had in the meantime been acquitted at first instance, expressed himself as follows:
“... At university, [Caselli] moved towards the PCI [the Italian Communist Party], the party which exalts the frustrated. When he entered the State Legal Service he swore a threefold oath of obedience – to God, to the Law and to via Botteghe Oscure [formerly the headquarters of the PCI, now those of the PDS – the Democratic Party of the Left]. And [Caselli] became the judge he has remained for the last thirty years – pious, stern and partisan.
But he cannot really be understood without a mention here of his alter ego Violante, his twin brother. Both from Turin; the same age – fifty-two; both raised by the Catholic teaching orders; both Communist militants; both judicial officers; and a deep understanding between them: when Violante, the head, calls, Caselli, the arm, responds.
Luciano [Violante] has always been one step ahead of Giancarlo [Caselli]. In the mid-1970s he indicted for an attempted coup d’état Edgardo Sogno, a former member of the Resistance, but also an anticommunist. It was a typical political trial which led nowhere. Instead of facing a judicial inquiry, Violante found that his career began to take off. In 1979 he was elected as a Communist MP. And ever since then he has been the via Botteghe Oscure’s shadow Minister of Justice...
... [Caselli] is a judge in the public eye. He is in the first line of the fight against terrorism. It was he who obtained the confession of Patrizio Peci, whose evidence as a witness for the prosecution was a disaster for the BR [the red Brigades].
In the meantime, the PCI set in motion its strategy for gaining control of the public prosecutors’ offices in various cities. That campaign is still going on, as the PDS has picked up the baton. ... The first idea was that if the Communists did not manage to gain power through the ballot box, they could do so by forcing the lock in the courts. There was no shortage of material. The Christian Democrats and the Socialists were nothing but thieves and it would be easy to catch them out. The second idea was more brilliant than the first: the opening of a judicial investigation was sufficient to shatter people’s careers; there was no need to go to the trouble of a trial, it was sufficient to put someone in the pillory. And to do that it was necessary to control all the public prosecutors’ offices.
And that was the start of Tangentopoli. The Craxis, De Lorenzos and others were immediately caught with their hands in the till and destroyed. But Andreoti was needed to complete the picture...
It was at that precise moment that Giancarlo [Caselli] was getting ready to leave the rain of Turin for the sun of Palermo...
Once in Palermo his fate and Andreotti’s became intertwined, whereas the two men had remained apart for years. Less than two years later the senator for life was suddenly accused of belonging to the mafia. The file was an implausible rag-bag...
In April Caselli flew off to the United States, where he met Buscetta. He offered the informer eleven million lire a month to continue to co-operate. [Buscetta] could still be useful to him during the investigation, even if the outcome was no longer of much importance. The result sought had already been achieved.
What will happen next is already predictable. In six to eight months’ time the investigation will be closed. But Andreotti will not be able to resurrect his political career. What a stroke of luck. Caselli, on the other hand, will be portrayed as an objective judge. ...”
8. On 10 March 1994, acting on a complaint by Mr Caselli, the judge responsible for preliminary investigations committed the applicant and the manager of Il Giornale for trial in the Monza District Court. The applicant was accused of defamation through the medium of the press (diffamazione a mezzo stampa), aggravated by the fact that the offence had been committed in respect of a civil servant in the performance of his official duties.
9. During the first-instance proceedings the defence asked to take evidence from Mr Caselli as the complainant and civil party. It also asked for two press articles concerning the professional relations between Caselli and the criminal-turned-informer (pentito) Buscetta to be added to the file. The District Court refused both the above applications on the grounds that there was no point taking evidence from Caselli in view of the content of the article written by the applicant and that the documents in question would not have had any influence over the decision.
10. On 10 January 1996 the District Court found the accused guilty of defamation within the meaning of Articles 595 §§ 1 and 2 and 61 § 10 of the Criminal Code and section 13 of the Press Act (Law no. 47 of 8 February 1948). It sentenced the applicant to a fine of 1,500,000 Italian lire (ITL), payment of damages and costs in the sum of ITL 60,000,000 and publication of the judgment in Il Giornale. It held that the defamatory nature of the article was evidenced by the fact that it denied that Caselli performed his duties conscientiously, attributing to him a lack of impartiality, independence and objectivity which had allegedly led him to use his judicial activity for political ends. The applicant was not entitled to assert the right to report current events (diritto di cronaca) and comment on them (diritto di critica) as he had not adduced any evidence in corroboration of such serious accusations.
11. The applicant appealed. Relying on the freedom of the press and in particular the right to comment on current events, he submitted, among other arguments, that the reference to Caselli’s political tendencies reflected the truth and that the District Court could have tested whether this was so by agreeing to take evidence from the complainant himself, that Caselli and Violante actually were friends and that in the proceedings against Andreotti Caselli actually had made use of the assistance of the pentito Buscetta and had paid him sums of money as the representative of the State, since all the pentiti were in receipt of money from the Italian State. He further described himself as a commentator (opinionista), arguing that his intention had not been to present a biography of Caselli but to express his critical opinions, in a figurative and effective way, on the basis of true and uncontested facts. Lastly, he insisted that the complainant, together with journalists and other well-known personalities on the Italian political stage who, like Caselli, had been militant Communists, should be required to give evidence. In particular, he asked for evidence to be taken from Mr S. Vertone and Mr G. Ferrara, both political comrades of the complainant during the 1970s in Turin and demanded that the Court of Appeal add to the file press articles relating interviews in which they had confirmed the complainant’s active political militancy. In particular, in an interview published in the daily newpaper Corriere della Sera on 11 December 1994, extracts from which were quoted in the applicant’s appeal, Mr Vertone had declared, among other statements, that the complainant was a courageous man of great integrity but that he was influenced by the Communist cultural and political model, that his links with the former Communist Party were very close and that Caselli had subsequently become all but a member of it. In an interview published by another daily newspaper, La Stampa, on 9 December 1994, also quoted in extract form in the applicant’s appeal, Mr Ferrara had stated that in the 1970s he had participated in dozens of political meetings attended by Caselli and Violante, among others, held by the Turin federation of the former Communist Party. He had gone on to say that although Caselli, a man of integrity, had done good work in fighting terrorism and as a judicial officer, he was highly politicised and should therefore avoid making speeches like a tribune.
12. In a judgment of 28 October 1997 the Milan Court of Appeal gave judgment against the applicant. It held that he had attributed acts and conduct to Caselli in a clearly defamatory way.
13. The Court of Appeal gave separate rulings on the various key parts of the article.
14. It first examined the phrase concerning the “oath of obedience” (giuramento di obbedienza):
“When he entered the State Legal Service he swore a threefold oath of obedience – to God, to the Law and to via Botteghe Oscure [formerly the headquarters of the PCI, now those of the PDS – the Democratic Party of the Left]. And [Caselli] became the judge he has remained for the last thirty years – pious, stern and partisan.
15. The Court of Appeal held that this sentence was defamatory because, while it had a symbolic value, it indicated dependence on the instructions of a political party, which was inconceivable for persons who, on being admitted to judicial office, had to swear an oath of obedience (not a symbolic one but a real one) to the law and nothing but the law.
16. The Court of Appeal next examined the remainder of the article, particularly the allegations that
- Caselli, with the support of Violante, also a judicial officer (the relations between the two being described as relations between “the arm and the head”), had played a crucial role in the former Italian Communist Party’s plan to gain control of the public prosecutors’ offices in each Italian city in order to annihilate their political opponents;
- Caselli had accused Andreotti and used the pentito Buscetta in the full knowledge that he would eventually have to discontinue the proceedings for lack of evidence, which confirmed that the sole purpose of his actions had been to destroy Andreotti’s political career.
17. The Court of Appeal ruled that these allegations were very serious and highly defamatory in that they were not backed up by any evidence.
18. As to the request for cross-examination of the complainant and other notable figures of Italian political life and for certain articles to be added to the file, the Court of Appeal held that this was unnecessary since the applicant’s remarks about Caselli’s political leanings, the friendship between Caselli and Violante and the use of Buscetta, a pentito paid by the State, in the proceedings against Andreotti, were not defamatory and therefore did not have to be proved.
19. In a judgment of 9 October 1998, deposited with the registry on 3 December 1998, the Court of Cassation upheld the Court of Appeal’s decision. It held that it was a correct decision both in procedural terms and as regards the merits of the case. On the merits, it held that the offensive nature of the article for Caselli, both as an individual and as a judicial officer, could not be doubted, as the applicant had accused him of deeds which implied a lack of personality, dignity, autonomy of thought, coherence and moral integrity.
VIOLATED_ARTICLES: 10
NON_VIOLATED_ARTICLES: 10
6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-72559
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KEHAYA AND OTHERS v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violations of P1-1;Not necessary to examine question of fines under Art. 6-1;Pecuniary and non-pecuniary damage - reserved;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 12. All applicants live in Sarnitza, the region of Velingrad. They are the heirs of Mrs Fatma Bozova, who possessed land in the vicinity of Sarnitza until the collectivisation of agricultural land in the 1950s.
13. In 1991 Parliament adopted the Agricultural Land Act which provided for the restitution of “collectivised” agricultural land. The former owners, or their heirs, could request the restoration of their right under certain conditions (see paragraphs 34 and 35 below).
14. On unspecified dates the applicants requested the restitution of several plots of land.
15. By decision of 19 February 1993, the local agricultural land commission partially refused the applicants' requests. The refusal concerned, inter alia, plots covering 14 ha in the Okusha area, adjacent to the Dospat reservoir, in the vicinity of Sarnitza, which are the object of the present case, as delimited by the applicants' complaints and the Court's admissibility decision in the present case.
16. Upon the applicants' appeal against the land commission's decision, on 29 June 1995 the Velingrad District Court set aside the commission's decision and restored the applicants' title on part of the plots of land claimed, including those covering 14 ha in the Okusha area. On the basis of documentary evidence and testimony of witnesses, the court found that in the 1940s and at the time of the collectivisation Mrs Fatma Bozova had been the owner, by virtue of acquisitive prescription, of a part of the land claimed, and that the conditions for restitution under the 1991 Agricultural Land Act had been met in respect of that part of the land. The agricultural land commission, the respondent in these proceedings, was summoned but did not take part.
17. On an unspecified date the Chief Public Prosecutor instituted review (cassation) proceedings before the Supreme Court against the District Court's judgment. At the relevant time and until 1998 the Chief Public Prosecutor could institute review (cassation) proceedings under former Article 225 of the Code of Criminal Procedure, thus intervening in a civil dispute.
18. The Supreme Court examined the case on the merits and by judgment of 20 September 1996 upheld the District Court's judgment. The Supreme Court dismissed the prosecutor's arguments that the property rights of Mrs Fatma Bozova, whom the applicants inherited, had not been proven, that the land in question was not agricultural, could not be restored under the Agricultural Land Act and had therefore remained State property. In particular, the Supreme Court found that even if part of the land may have been forested after the collectivisation, that was not an obstacle to restitution under the Act, only protected forests being excluded from restitution.
19. In compliance with these judgments, on 3 February 1997 the local agricultural land commission ordered the restitution of the applicants' land to them. On 4 April 1997 they formally entered into possession thereof. On 20 August 1997 they obtained a notary deed.
20. In 1997 the local forest authority brought an action for rei vindicatio against the applicants, claiming that they had unlawfully entered into possession of State forest land. The claim concerned plots covering 25.6 ha, including the plots of 14 ha in the Okusha area relevant in the present case.
21. On 30 April 1998 the Velingrad District Court found that the disputed land had remained state owned and ordered the applicants to vacate it. To reach that conclusion, the District Court re-examined one of the issues determined in the 1995 and 1996 proceedings and found that the applicants' ancestor had not been the owner of the disputed land at the time of the collectivisation. Therefore, they were not entitled to restitution under the Agricultural Land Act. Addressing the applicants' objection that that issue was a res judicata, the court stated that under Article 220 § 1 of the Code of Civil Procedure third persons who had not been parties to previous judicial proceedings were not bound by the res judicata effect of final judgments delivered in such proceedings. The forest authority had not been a party to the 1995 and 1996 proceedings.
22. The applicants appealed. On 28 November 1999 the Regional Court set aside the judgment of 30 April 1998 and dismissed the rei vindicatio claim. The court found that the plaintiff, the local forest authority, had not established that the disputed land was state owned. That finding was based on a fresh examination of the relevant facts and evidence and not on the res judicata effect of the 1995 and 1996 judgments.
23. The forest authority filed an appeal on points of law to the Supreme Court of Cassation.
24. On 10 October 2000 the Supreme Court of Cassation set aside the Regional Court's judgment of 28 November 1999 and granted the rei vindicatio claim, ordering the applicants to vacate the land.
25. The Supreme Court of Cassation stated that the 1995 and 1996 judgments had been pronounced in proceedings which were administrative by their nature and that therefore the plaintiff in the rei vindicatio proceedings was not bound by them. Furthermore, in the 1995 and 1996 proceedings the applicants had been trying to prove that their ancestor, Mrs Fatma Bozova, had been the owner of the disputed land at the time of the collectivisation on the basis of declarations made before a notary and statements of witnesses. Reexamining that question, the Supreme Court of Cassation found that the ownership rights of Ms Fatma Bozova had not been established. Also, it was not true that the disputed land was agricultural and that the conditions for restitution under the Agricultural Land Act had been met. The Supreme Court of Cassation further found that the disputed land belonged to the State. The forest authority had acted on its behalf.
26. On 30 July 2002, an enforcement judge effected the forest authority's entry into possession of the disputed land, including the plots of 14 ha in the Okusha area.
27. In the period January - September 1997 the local forest authority fined two or more of the applicants, including Mr Aliosman Kehaya (application no. 47797/99) and Ms Gulfeze Osmandjikova (application no. 68698/01) on the basis that they had “unlawfully used land for pasture”, “built a cattle-pen on state forest land” and “constructed a hut without a building permit”. Mr Mustafa Kestendjiev, the son of one of the applicants in application no. 68698/01 (Mrs Aishe Kestendjieva), was also fined. The amounts of the fines varied between 5,000 and 50,000 old Bulgarian levs (BGL) (BGL 5,000 being the equivalent of approximately EUR 2.5).
28. Mr Kestendjiev was fined by order no. 264 of 5 September 1997. On appeal the Velingrad District Court upheld the fine on an unspecified date. On 28 September 1999 the Pazardjik Regional Court quashed the lower court's judgment and set aside the fine, considering that it had been imposed in breach of the law. Mr Kestendjiev allegedly tried unsuccessfully to obtain reimbursement of the fine.
29. Mr Aliosman Kehaya was also fined and complained to the local prosecutor. In February and March 1998 the prosecutor, acting in accordance with her powers to request review (cassation) of judicial and administrative decisions, instituted such proceedings before the Pazardjik Regional Court in respect of three separate fines imposed on Mr Kehaya (nos. 190, 197 and 223 of 1997). The prosecutor stated, inter alia, that the forest authority had acted in breach of the law, as they had been aware that the applicants had become the owners of the land they were using.
30. By two final judgments of the Regional Court of 20 March 1998 two of the fines (nos. 197 and 223 of 1997) were upheld, as there was insufficient proof that the land for the use of which the Mr Kehaya had been fined was the same as that which had been restored to the applicants. The court considered that it was for the appellant (the prosecutor) to prove that fact.
31. Mr Kehaya was not summoned to these proceedings. Copies of the judgments were not served on him. On 9 August 1999 he was invited by the fiscal authorities to pay the fines. Thereupon, on 28 September 1999 he obtained copies of the judgments.
32. In respect of the third fine against Mr Aliosman Kehaya (no. 190 of 1997), it is unclear whether a judicial decision was taken on the prosecutor's appeal.
33. On 24 May 2000 the applicants reported to the police that their hut had been set on fire.
34. The Agricultural Land Act of 1991 provides, inter alia, that persons, or their heirs, whose land had been collectivised, may request restoration of their ownership rights under certain conditions (section 10 of the Act). On the basis of certain statutory criteria, such as whether or not the plot of land once owned by the claimant or his or her ancestors had remained unaffected by urban construction, restitution may be “in actual boundaries” or through a redistribution plan.
35. Two possible ways of obtaining restitution are provided for: (a) administrative proceedings, within a period of seventeen months following the Act's entry into force, through a request to the local Agricultural Land Commission (section 11 § 1 of the Act) whose decision is subject to appeal before the courts (section 14 § 3), or, (b) after the expiry of that time limit, through a civil claim to the competent court against the respective land commission (section 11 § 2).
36. At the relevant time land commissions were state bodies whose members were appointed by the Minister of Agriculture (section 33 of the Act). In 2002 the commissions were replaced by the local Agriculture and Forestry Departments, whose members are appointed by the Minster of Agriculture and Forestry.
37. The commission's task when seized with a request for restitution under section 11 § 1 of the Act was to establish whether the relevant statutory conditions were met and, if so, to issue a decision restoring ownership.
38. In deviation from general evidentiary rules, section 12 §§ 2, 3 and 5 of the Act provides that a wide range of evidence, including declarations before a notary, are admissible before the land commissions.
39. Land commissions may not revoke their decisions. Favourable decisions are not subject to appeal and are final. Under an amendment of 1995 to the Agricultural Land Act, in certain circumstances, such as newly discovered facts or evidence, the land commissions may modify their decisions within certain time limits (section 14 § 7).
40. Some courts have stated that the decisions of the land commissions have characteristics similar to those of certifications in ex parte notary proceedings (opred. 10333-2002-VAS; opred. 1020-2003-VAS). It has also been stated that land commissions' decisions are administrative decisions (1832-93-III).
41. A person whose request for restitution has been refused by the competent land commission may appeal to the respective District Court (section 14 § 3 of the Act). The District Court has jurisdiction to examine the matter on the merits, i.e. to determine whether or not the claimant has the right to restitution under the Agriculture Land Act. The court may need to establish, inter alia, whether the claimants or their ancestors owned land at the time of the collectivisation (3319-94-III). If it finds that the relevant statutory criteria for restitution are established, the court shall set aside the land commission's refusal and order restitution (section 14 §§ 1-3 of the Act). The District Court's judgment is amenable to review (cassation).
42. The special evidentiary rules of section 12 §§ 2, 3 and 5, according to which declarations made before a notary are admissible, are also applicable in judicial proceedings under section 14 § 3 of the Act. Statements of witnesses are also admissible (930-94-III; 2648-94-III).
43. The proceedings before the courts under section 14 § 3 of the Act (on appeal against land commissions' refusals) are judicial administrative proceedings suis generis, their object being control of lawfulness of the commissions' decisions; these proceedings cannot be characterised as noncontentious (1832-93-III). Parties to these proceedings are the land commission and the claimant. A third party claiming title of its own may not intervene (179-97-VAS). The scope of the proceedings before the District Court is circumscribed by the disputed grounds for the land commission's refusal (3319-94-III).
44. No disputes other than those concerning the relevant statutory criteria for restitution may be examined in the proceedings before the land commissions or on appeal against its decisions. If there are disputes on other matters, such as, for example, objections by third persons claiming rights in respect of the land or disagreement between heirs, they must be determined by the courts in separate civil proceedings (section 12 § 4 and 14 § 3 of the Act).
45. The prevalent judicial practice appears to consider that judgments under section 14 § 3 of the Act (on appeal against land commissions' refusals) do not have res judicata effects (1198-93-III; 1467-93-III; 1799796). The contrary has been stated in a recent decision of the Supreme Administrative Court (opred. 1021-2003-VAS).
46. Persons claiming restitution of agricultural land who have missed the seventeen months' time limit under section 11 § 1, may bring an action for a declaratory judgment against the local land commission. In these proceedings the courts determine whether or not the claimant has the right to restitution.
47. The lenient evidentiary rules of section 12 §§ 2, 3 and 5 of the Agricultural Land Act, which deviate from the stricter general rules of evidence, do not apply. Declarations made before a notary and other evidence that would be admissible in administrative restitution proceedings under sections 11 § 1 and 14 § 3 of the Act, are not admissible in proceedings under section 11 § 2 (671-97-IV).
48. In the civil proceedings under section 11 § 2, if the courts decide in favour of the claimant, the land commission must comply and issue the necessary restitution decision (TR 2-96-OSGK). Where the judgment has become final after the publication of the local land distribution plan, the land commission shall allocate to the claimant other available land.
49. The proceedings under section 11 § 2 of the Act being ordinary civil proceedings for a declaratory judgment, they determine, with effect of res judicata, the claimant's property right.
50. In such proceedings the lenient evidentiary rules under section 12 §§ 2, 3 and 5 of the Agricultural Land Act are inapplicable. The general, stricter, rules of evidence apply.
51. Judgments of the civil courts are binding on the parties, their successors, the courts and all other State organs (Article 220 § 1 of the Code of Civil Procedure).
52. The issue determined in the court's holding on the merits is a res judicata. In order to establish the content of the issue determined in the holding, regard must be had to the scope of the dispute and, therefore, to the court's reasoning. In addition, certain decisive findings on elements directly determinative of the disputed right or obligation may also be seen as res judicata (201-91-I, 987-90-I, 433-90-I, 30-64-OSGK).
53. Final judgments preclude any re-examination of the same dispute between the same parties (Articles 221 and 224 of the Code). They are not conclusive in respect of disputes on the same subject between different parties or between the same parties on a different subject matter. The res judicata effect of a judgment thus has a limited scope ad personam and a limited subject-matter scope (except for several particular categories of judgments, such as those concerning civil status, which are binding erga omnes).
54. In judicial administrative proceedings, courts' judgments setting aside administrative decisions and deciding the disputed matter on the merits are binding on the parties and constitute res judicata in respect of the rights and obligations that formed the subject matter of the proceedings.
55. Local forest authorities are state administrative bodies subordinate to the regional forest authorities and the National Forest Authority at the Ministry of Agriculture and Forestry (section 24 of the Forests Act 1997 and section 12 of the Forests Act 1958, in force until 31 December 1997).
56. Under section 86 of the Property Act, as in force since 1996, state property, if it is of the category of “public state property”, may not be acquired by private persons through adverse possession. Under section 2 § 2 of the State Property Act, state property falls within the category of “public state property” where, inter alia, it serves public needs of national importance. The Council of Ministers may declare certain state property as falling within that category. As a result of these provisions, there is no limitation in time of the possibility of a State body bringing a rei vindicatio action against private persons for the recovery of state property of the category of “public state property”. Such an action against private persons in possession of state land may be unsuccessful in respect of state property other than “public state property”, if the relevant period of acquisitive prescription under section 70 of the Property Act has expired (five or ten years).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103893
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre
TEXT: 5. The applicant was born in 1956 and lives in the city of Poltava.
6. In November 2001 the applicant instituted proceedings in the Poltava Kyivsky District Court against his former employer – the Poltava Regional Fire Safety Department – claiming payment arrears of a monthly subsistence allowance for the years 1999 and 2000.
7. On 27 September 2002 the court found in part for the applicant and awarded him 767.04 Ukrainian hryvnias (UAH).
8. On 11 October 2002 the same court rectified its judgment of 27 September 2002 and increased the amount awarded to UAH 797.04.
9. On 15 April 2003 the Poltava Regional Court of Appeal quashed the decisions of 27 September and 11 October 2002 and rejected the applicant's claims. The appellate court based its findings on the fact that the Budget Act 2000 had not foreseen expenditure for the payments under the applicable Presidential Decree, and therefore held that the applicant had no entitlement to such payments during the impugned period under the Budgetary System Act.
10. On 15 September 2004 the Supreme Court of Ukraine rejected a cassation appeal lodged by the applicant against the decision of 15 April 2003.
11. The relevant provision of the Constitution reads as follows:
Article 95
“The budgetary system of Ukraine is built on the principles of just and impartial distribution of social wealth among citizens and territorial communities.
All expenditure by the State for social purposes, and the amount and aims thereof, shall be determined by the State Budget Act of Ukraine.
The State aspires to achieve a balanced budget for Ukraine.
Regular reports on revenue and expenditure of the State Budget of Ukraine shall be made public.”
12. Section 28 of the Act provides, in so far as relevant, as follows:
“... The State Budget Act of Ukraine shall not make ... changes to existing legislation. If necessary, changes or additions are made initially to the relevant laws ...
... If the draft State Budget Act of Ukraine does not provide full funding within available resources of the costs set forth in Ukrainian legislation, the Verkhovna Rada of Ukraine shall enact the State Budget Act of Ukraine without amending current legislation. Such legislation is valid during the budget year only to the extent that it does not contradict the State Budget Act of Ukraine.
If the Verkhovna Rada has not approved the full costs of salaries and additional payments, the corresponding number of staff of the institutions financed from the budget shall be made redundant.”
13. The relevant part of the Decree reads as follows:
“In order to regulate the financial subsistence of soldiers and officers of the Interior, I decide:
2. To pay:
...
material assistance in the amount of a monthly salary [payable] once a year to soldiers and officers of the Interior ...”
14. The Decree was abolished by Presidential Decree no. 1234/2007 of 18 December 2007.


ITEMID: 001-61375
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF CALOSI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1934 and lives in Florence.
5. He is the owner of a flat in Florence, which he had let to R.C.
6. In a writ served on the tenant on 14 May 1990, the applicant informed the tenant of his intention to terminate the lease on expiry of the term on 31 October 1992 and summoned him to appear before the Florence Magistrate.
7. By a decision of 11 June 1990, which was made enforceable on 26 June 1990, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 October 1993.
8. In the meanwhile, the enforcement proceedings were suspended until 31 October 1994.
9. On 28 June 1995, the applicant served notice on the tenant requiring him to vacate the premises.
10. On 19 July 1995, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 18 September 1995.
11. Between 18 September 1995 and 30 November 1999, the bailiff made thirteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
12. On 2 May 2000, the applicant recovered possession of the flat.
13. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
14. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
15. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
16. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
17. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
18. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.”
19. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
20. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
21. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69895
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF DOST AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 6-1 (length of proceedings);Partly inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicants were born in 1956, 1954 and 1955 respectively and live in Munich, Germany.
5. In 1995 the Sakarya Governor’s office expropriated a plot of land belonging to the applicants. A committee of experts assessed the value of the plot of land and the relevant amount was paid to them when the expropriation took place.
6. Following the applicants’ request for increased compensation, on 11 September 1997 the Sakarya Civil Court of First-instance awarded them an additional compensation of 865,267,950 Turkish liras (TRL) plus interest at the statutory rate running from 12 December 1995, the date on which the title-deed to the land had been transferred to the Sakarya Governor’s Office. In the course of the proceedings, the court conducted on-site visits and requested three expert reports which concluded that the land in question was development land (arsa). In view of a judgment rendered by the Joint Civil Chambers of the Court of Cassation which ruled that the lands within the vicinity of the Sakarya organised industrial zone should be considered as agricultural lands, the court decided that it would not take the three expert reports into account. It therefore relied on a fourth expert report which served as a conciliation report for a calculation of the amount due to the applicants.
7. The applicants appealed against the judgment of the Sakarya Civil Court of First-instance. In their submissions, the applicants contested the court’s decision to take solely the last expert report into consideration.
8. On 12 February 1998 the Court of Cassation upheld the judgment of the Sakarya Civil Court of First-instance.
9. On 1 April 1998 the Sakarya Governor’s Office paid the amount of TRL 1,513,641,033 to the applicants.
10. On 26 May 1998 the Court of Cassation rejected the applicants’ request for rectification.
11. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).


ITEMID: 001-67472
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF WOOD v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: 7. Between 4 July 1998 and 1 April 1999 a series of robberies and burglaries took place in the Coventry area. As a result of their investigations, the police considered that there were some nine persons involved in the commission of these offences, including the applicant and his three co-defendants. The police had difficulty obtaining evidence against those who they thought were responsible, and therefore decided to seek authority from the Chief Constable for the West Midlands to carry out a covert operation (“Operation Brassica”). The operation was to be carried out by arresting the suspects in groups, on suspicion of having committed different offences, and detaining them together in a police cell which had been specially fitted with covert audio equipment. It was hoped that the suspects would discuss the reasons for their arrest and that their ensuing conversation would be incriminating. On 17 May 1999 the Chief Constable gave authority for Operation Brassica to take place.
8. The applicant and two others were arrested on 20 May 1999. Their conversations whilst in police detention were recorded on 21 and 22 May 1999. Further covert recordings took place on 16 and 17 June 1999. The tapes formed the basis of the prosecution against the applicant.
9. The trial judge held a “voir dire” on the admissibility of the tapes. Counsel for the applicant argued that the methods of obtaining the evidence violated Articles 5, 6 and 8 of the Convention, and that they should therefore be excluded under section 78 or section 76 of the Police and Criminal Evidence Act 1984 (PACE). The tapes were ruled admissible on 13 March 2000. During the course of his ruling, the trial judge rejected the defendants' argument that the circumstances of obtaining the evidence were oppressive and the tapes should therefore be excluded under section 76 of PACE. In considering section 78 of the Act, the trial judge said:
“I find that no mala fides exist in this case and that the Chief Constable acted throughout in good faith. Although I find the decision of the Chief Constable was not in accordance with a strict interpretation of the guidelines [Home Office Guidelines on the Use of Police Surveillance Equipment], it does not mean that his authority to use a bugging device or devices is no longer of importance. Of course it is. It is a very important factor which I have to take into account in deciding to exercise my discretion under section 78 of the Police and Criminal Evidence Act.”
10. He went on to consider the points raised under the Convention, saying:
“There is no doubt that when the defendants were arrested the main plan was that the covert operation would be put into effect, and to do this all the defendants involved should be in the cells at the same time.
However, the matter has to be taken in stages and then considered jointly. Firstly, did the police have power to arrest and was the arrest lawful? The evidence before me was that the police had information that the accused had committed some or other of the crimes which they were investigating. They not only had the right but the duty, in my judgment, to arrest and investigate the further evidence ... As I have indicated already, the police clearly hoped that the covert bugging operation would bear fruit and if it did not the relevant defendant would have to be released. They were not arresting to create evidence but in the hope that evidence would be forthcoming.
The wording of Article 5(1)(c) does not readily read with the English system and was clearly designed for taking an accused before a magistrate for investigation. But it obviously is intended to be adjusted to the specific system of member states. I find that there is no breach of Article 5.” [6G-7D]
11. On the question of Article 6, the trial judge said:
“It has to be borne in mind but requires no specific findings from me at this stage.” [7E]
12. In considering Article 8, he said:
“A man in a police cell is entitled to privacy just as much as a man sitting at his fireside in his own home. In fact it may be argued that his right should be greater. He is after all innocent until proved guilty and he is in a vulnerable situation. Any bugging of his cell to intrude on his private conversation with another person would, prima facie, amount to an invasion of his privacy and as such a breach of Article 8.1. However, it can perhaps be argued that whilst he is in a cell he not only does not have to say anything but if in fact he is free of guilt there is nothing that he can say. If, on the other hand, he is guilty then he does not deserve the same right of privacy as anyone else. The weight of his loss of privacy is another matter which I may take into account.
... the main point which I have to decide is as to whether or not the intrusion to privacy was 'in accordance with the law'.
There is no statute which provides for lawful bugging of police cells nor to prohibit such an action. There are however numerous cases where it has been considered and adopted. In fairness, if bugging is done it should not be done haphazardly and certainly does not bestow on police officers unfettered power. It is to this end that, in 1984, the Home Office issued the Guidelines for the Use of Police Surveillance Equipment. As I have already said, these are merely guidelines, they are certainly not statutes.
The actions of the police and the decision of the Chief Constable have to be considered together with all the other matters which have to be taken into consideration. On the basis of all those matters, I have to consider in which way I should exercise my discretion under section 78.” [7G-9A]
13. Applicant's counsel suggested five safeguards that should have been afforded to the accused if the bugging was to be lawful. The trial judge said:
“I have considered each one of these matters and have rejected them all. If they were to be required in each case, no covert listening would ever be realistic or possible. As I have indicated already, such evidence can in serious cases such as this be very important and is, in my judgment, not objectionable. [9F]
In the exercise of my discretion under section 78, I will allow the tapes to be used in evidence.”
14. None of the defendants gave evidence at trial.
15. The applicant together with three others was convicted on 20 July 2000 of various robbery and firearms offences. He was sentenced to a total of 8 years' imprisonment.
16. The applicant and his three co-defendants appealed to the Court of Appeal, submitting, inter alia, that the tapes should not have been admitted in evidence.
17. Lord Woolf CJ gave the judgment of the Court of Appeal on 13 February 2002, dismissing the appeal. As regards the admissibility of the tapes in evidence, the Court of Appeal considered the alleged violations of the Convention. It decided that there had been a violation of Article 8 because the surveillance was not conducted according to law. Lord Woolf CJ said:
“This is because of the lack of any legal structure to which the public have access authorising the infringement. If there had been such authorisation there would have been no breach.” [§ 65]
He went on to say:
“The non-compliance with Article 8 does not, however, mean that the tape-recordings cannot be relied upon as evidence.
...
It is the responsibility of the Government to provide remedies against this violation of Article 8. However, the remedy does not have to be the exclusion of the evidence. The remedy can be the finding, which we have now made, that there has been a breach of Article 8 or it can be an award of compensation. The European Court of Human Rights recognises that to insist on the exclusion of evidence could in itself result in a greater injustice to the public than the infringement of Article 8 creates for the appellants. The infringement is, however, a matter which the trial judge was required to take into account when exercising his discretion under section 78 of PACE.” [§§ 66-67]
18. As regards Article 5 of the Convention, the Court of Appeal rejected the applicant's argument on the basis that the arrests were for a lawful purpose as well as to enable the surveillance to take place, and the appellants were not therefore unlawfully deprived of their liberty. Lord Woolf CJ said:
“The fact that the police were operating in accordance with a strategy designed to obtain additional evidence by covert recording does not turn lawful arrests into unlawful arrests.” [§ 68]
19. The argument that the admission of the tapes in evidence prevented the defendants from receiving a fair trial was also rejected. Lord Woolf CJ said:
“51. The complaints of the appellants with regard to the decision of the judge are not to the relevance of the contents of the tape. They were clearly highly relevant. Instead it is argued that the way the evidence was obtained was contrary to PACE. The submission is not so much based on a contravention of the language of PACE. The allegation is that the surveillance took place contrary to the spirit of the relevant Codes of Practice ...
52. ... On the evidence there were proper grounds for the arrests and ignoring the fact that the police were working to an overall plan, there was nothing improper about the purpose for which the arrests took place.
53. .... As already indicated it was not suggested that the Chief Constable gave his authority other than in good faith. In addition whether or not the Guidelines applied to what happened in the police cells, the police considered that they were appropriately applying the Guidelines and entitled to act as they did.
...
54. Here the trial judge came to the conclusion that the Guidelines had not been complied with ... because of the requirement in the Guidelines for normal methods of investigation to have been tried and failed or be unlikely to succeed if tried ...
55. In coming to this conclusion, the trial judge may have been unduly rigorous in his approach because the object of the exercise was not to obtain evidence against one or other of the suspects in relation to a particular offence but to obtain the evidence which would enable the police to bring to justice those who were involved in the conspiracy to carry out numerous robberies in the Coventry area. Viewed in this way, it was Sergeant Fairfield's evidence that 'other policing means had failed.' ...
...
58. We are far from satisfied that when the Guidelines were formulated, they were intended to apply to surveillance of the sort that took place here of those in custody in police cells. However, even if the Guidelines were not intended to apply to suspects already in custody, as there was no alternative guidance published, we consider that it was reasonable for the Chief Constable to apply the Guidelines by analogy, unless they conflicted with PACE. ... This was a situation where the police were responding reasonably and proportionately to a very serious threat to the safety of the public and law and order and so were entitled to seek evidence not only of individual wrongdoing but of a conspiracy to commit armed robbery. ...
59. More difficult is the issue whether the surveillance in cells is inappropriate treatment of those in police custody who are intended to be protected by the safeguards contained in PACE and the Codes. ... the surveillance is not directly in conflict with any provision of PACE or the Codes ...
60. We have no doubt that it is highly desirable that a statutory code should be established for the surveillance of the sort that occurred here ... but our conclusion is that it is not contrary to the spirit of PACE or the Codes for there to be covert taping of what is said in the cells.”
20. Lord Woolf CJ went on to adopt the conclusions reached in other cases that there was no unfairness in admitting such taped evidence where there was no suggestion that the confessions were oppressively obtained or other than wholly reliable. As regarded the complaints under the Convention, he observed:
“Article 6 for the purposes of the present case does not add anything to section 78. If there was no unfairness caused by the tapes being relied upon in evidence then there is no breach of Article 6.” [§ 69]
21. The Court of Appeal certified a question for consideration by the House of Lords concerning use of evidence obtained by an arrest for the purpose of eavesdropping on the defendant.
22. On 30 May 2002, leave to appeal to the House of Lords was refused.
23. Guidelines on the use of equipment in police surveillance operations (the Home Office Guidelines of 1984) provided that only chief constables or assistant chief constables were entitled to give authority for the use of such devices. The Guidelines were available in the library of the House of Commons and are disclosed by the Home Office on application.
24. In each case, the authorising officer had to satisfy himself that the following criteria were met: (a) the investigation concerned serious crime; (b) normal methods of investigation must have been tried and failed, or must from the nature of things, have been unlikely to succeed if tried; (c) there must have been good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism and (d) the use of equipment must have been operationally feasible. The authorising officer had also to satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance was commensurate with the seriousness of the offence.
25. Section 76 of the Act provides as material:
“(1) In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings ...
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained -
(a) by oppression of the persons who made it; or ...
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof;
the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.”
26. Section 78(1) of the Act provides as follows:
“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
27. The Police Act 1997 provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy. The relevant sections relating to the authorisation of surveillance operations, including the procedures to be adopted in the authorisation process, entered into force on 22 February 1999.
28. Since 25 September 2000, these controls have been augmented by Part II of the Regulation of Investigatory Powers Act 2000 (“RIPA”). In particular, covert surveillance in a police cell is now governed by sections 26(3) and 48(1) of RIPA. RIPA also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police. These provisions were not in existence at the time of the applicant's trial.
VIOLATED_ARTICLES: 13
8


ITEMID: 001-114985
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: E.J. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr E.J., is an Iranian national who was born in 1969. He is represented before the Court by Ms Liisamari Herala, a lawyer practising in Helsinki.
2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is a 43-year old man and a Kurd of ethnic origin. His family is active in the Komala party. Two of his brothers received international protection and residence permits in Finland in 1994 and 1998 respectively. A third brother was killed because of his political activities.
5. The applicant allegedly joined the Komala party in 2007 while visiting his brother in Iraqi Kurdistan. Two weeks after he joined the party, he was arrested and held in custody for three weeks. During this time he was ill-treated both physically and mentally. The Iranian secret service Ettelaat agreed upon his release on the condition that he provide them with information about the Komala party’s activities. The applicant travelled back to Iraqi Kurdistan and agreed with the leaders of the Komala party that he would provide Ettelaat with incorrect information about the Komala party, and this took place. The applicant continued his activities in the Komala party, which included mostly delivering different materials relating to the party, such as posters and information sheets, to different cities in Iran until December 2008.
6. In December 2008 the applicant travelled to Finland at his brother’s invitation. Ettelaat had forbidden him to leave the city without their permission but they did not know that he had a passport. The applicant managed to travel to Finland without Ettelaat knowing. His original plan was to visit the Komala’s members in Sweden and then to return to Iran in January 2009. However, having heard from his father in Iran that his wife and brother had been arrested because the Iranian authorities had found out about his departure from Iran, he became afraid that he would again be illtreated or even killed on returning to Iran. Therefore he sought asylum in Finland. His wife was soon released but she still has to report to the authorities every week in order to show that she has not left the country. The applicant has continued his activities in the Komala party in Finland, including taking part in meetings and demonstrations.
7. The applicant arrived in Finland on 21 December 2008 and sought asylum on 5 January 2009.
8. On 17 May 2010 the Finnish Immigration Service (Maahanmuutto-virasto, Migrationsverket) rejected his application and decided to order his removal to Iran. It found that the applicant had not provided any evidence in support of his alleged activities and membership of the Komala party, nor of the alleged persecution or torture inflicted on him. The Immigration Service found that the certificate issued by Komala’s Swedish office, dated 12 December 2009, which attested to his party membership, did not constitute an evidentiary basis on which any credible conclusions could be drawn about his activities and status in the party and the possibility that he would face a risk of ill-treatment in Iran. Moreover, the applicant was able to describe Komala’s objectives and activities only superficially. Even though the applicant had allegedly been tortured repeatedly, he had not provided the Service with any kind of medical certificate. The Immigration Service found the applicant’s story, as a whole, not credible. Even if he had been a member of the party, he could not be regarded as a high level party member but only possibly a lower level party activist. It was not probable that the Iranian authorities would persecute the applicant. This conclusion was supported by the fact that the applicant had been able to leave Iran without any problem. The Service did not find it credible that the arrest of the applicant’s wife and brother, as alleged, were due to his stay in Finland, or that the Iranian authorities would know that the applicant had continued his political activities in the Komala party in Finland.
9. The applicant appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting that the Immigration Service’s decision be quashed and the applicant be granted asylum, or alternatively, a residence permit. He also requested that an oral hearing be held.
10. On 1 June 2011 the Administrative Court, after having held an oral hearing, rejected the applicant’s appeal. The court noted that the applicant did not hold a leading position in the Komala party, nor were his or his family’s political activities known in his home region. It had not been shown that the Iranian authorities knew about his activities. Nor did the Administrative Court find it probable that the Iranian authorities had found out about the applicant’s political activities during his stay in Finland or that he would otherwise be persecuted by the Iranian authorities upon return. The court thus concluded that the applicant would not be subject to any real risk of ill-treatment when returned to Iran.
11. The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting also that a stay on removal be granted.
12. On 28 June 2011 the Supreme Administrative Court stayed the applicant’s removal to Iran for the duration of the proceedings before it.
13. On 26 October 2011 the Supreme Administrative Court refused the applicant leave to appeal.
14. According to Article 9, paragraph 4, of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), the right of foreigners to enter Finland and to remain in the country is regulated by an Act. A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity.
15. According to section 87, subsection 1, of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004), aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well-founded fear of being persecuted for reasons of ethnic origin, religion, nationality, membership of a particular social group or political opinion and if they, because of this fear, are unwilling to avail themselves of the protection of that country.
16. Section 88, subsection 1, of the Act (as amended by Act no. 323/2009) provides that an alien residing in Finland is issued with a residence permit on grounds of subsidiary protection if the requirements for granting asylum under section 87 are not met, but substantial grounds have been shown for believing that the person, if returned to his or her country of origin or country of former habitual residence, would face a real risk of being subjected to serious harm, and he or she is unable, or owing to such risk, unwilling to avail himself or herself of the protection of that country. Serious harm means: 1) the death penalty or execution; 2) torture or other inhuman or degrading treatment or punishment; or 3) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts.
17. Under section 88a of the Act (as amended by Act no. 323/2009), an alien residing in Finland is issued with a residence permit on the basis of humanitarian protection, if there are no grounds under section 87 or 88 for granting asylum or providing subsidiary protection, but he or she cannot return to his or her country of origin or country of former habitual residence as a result of an environmental catastrophe or a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation.
18. According to section 88b of the Act (as amended by Act no. 323/2009), the well-founded fear of being persecuted referred to in section 87b or the real risk of being subjected to serious harm referred to in section 88 may be based on incidents after the applicant’s departure from his or her home country or country of permanent residence or on acts that the applicant has participated in after his or her departure.
19. Section 98, subsection 2, of the Act (as amended by Act no. 432/2009) provides that the requirements for issuing a residence permit are assessed individually for each applicant by taking account of the applicant’s statements on his or her circumstances in the State in question and of real time information on the circumstances in that State obtained from various sources. After obtaining the available statement, the authorities shall decide on the matter in favour of the applicant on the basis of his or her statement if the applicant has contributed to the investigation of the matter as far as possible and if the authorities are convinced of the veracity of the application with regard to the applicant’s need for international protection.
20. According to section 147 of the Act, no one may be refused entry and sent back or deported to an area where he or she could be subject to the death penalty, torture, persecution or other treatment violating human dignity or from where he or she could be sent to such an area.
21. The Amnesty International Report 2010: The State of the World’s Human Rights: Iran (AI Report 2010) covering events in 2009 and published on 27 May 2010, notes the following about the general human rights situation in Iran:
“An intensified clampdown on political protest preceded and, particularly, followed the presidential election in June [2009], whose outcome was widely disputed, deepening the long-standing patterns of repression. The security forces, notably the paramilitary Basij, used excessive force against demonstrators; dozens of people were killed or fatally injured. The authorities suppressed freedom of expression to an unprecedented level, blocking mobile and terrestrial phone networks and internet communications. Well over 5,000 people had been detained by the end of the year. Many were tortured, including some who were alleged to have been raped in detention, or otherwise ill-treated. Some died from their injuries. Dozens were then prosecuted in grossly unfair mass ‘show trials’. Most were sentenced to prison terms but at least six were sentenced to death.
The election-related violations occurred against a background of severe repression, which persisted throughout 2009 and whose victims included members of ethnic and religious minorities, students, human rights defenders and advocates of political reform. Women continued to face severe discrimination under the law and in practice, and women’s rights campaigners were harassed, arrested and imprisoned. Torture and other ill-treatment of detainees remained rife and at least 12 people died in custody. Detainees were systematically denied access to lawyers, medical care and their families, and many faced unfair trials. Iran remained one of the states with the highest rates of execution and one of very few still to execute juvenile offenders: at least 388 people were executed, including one by stoning and at least five juveniles.”
22. According to the country information on Iran (UK Home Office, Operational Guidance Note: Iran, November 2011), politically active groups and individuals are considered a threat to national security by the Iranian Government. If the Iranian authorities consider a person to be working against national security (the person may for example be accused of being a spy or of cooperating with an opposition religious, ethnic or political group), they may face severe punishment ranging from ten years’ imprisonment to execution. For instance, being in possession of a CD, a pamphlet or something similar made by the Kurdish Democratic Party of Iran (KDPI), Komala or other Kurdish organisations, may be considered an act against national security. This form of persecution for political activities is a problem all over Iran. However, the authorities are watching Kurdish areas and Tehran more carefully than other areas.
23. Both high and low profile persons may risk persecution. Whether a person is harassed does not depend on the person being a high or low profile opponent of the government. While a high profile person is sure to be persecuted when arrested by the authorities, even a low profile person, who has been in possession of documents with a political message, may face persecution even if the person does not know anything about the movement in question. Moreover, if a person had left Iran illegally, he or she would not have been registered in the computer system as having left Iran and therefore would be questioned upon return (Danish Immigration Service: Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons, and Reporting, etc., April 2009).
24. According to the Operational Guidance Note, there is no evidence to suggest that an applicant of Kurdish ethnic origin, in the absence of any other risk factor, would on return face a real risk of serious mistreatment simply on account of his or her ethnic origin alone. Applicants who are able to demonstrate that they are members or supporters of the KDPI, Komala, or active members of PJAK, and who are known to the authorities as such, will be at real risk of persecution and a grant of asylum will be appropriate unless there are case-specific reasons why it would not be.


ITEMID: 001-106541
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: LAUNIALA v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: The applicant, Mr Mika Markus Launiala, is a Finnish national who was born in 1966 and lives in Aura. He was represented before the Court by Mr Antti Tapanila, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was the Head of the Sodankylä Police Department (nimismies, länsmannen).
In November 2000 a detainee set fire to the department’s holding cell. In the subsequent investigation against the detainee in question, it turned out that the fire alarm had not gone off because it had been deliberately deactivated, presumably by one of the police officers. While the officer appointed to investigate the suspected criminal damage by the detainee was questioning one of his colleagues as a witness, the applicant entered the investigation room. He read the text of the unfinished report and noticed that the witness had indicated the name of a fellow officer who had, to his mind, deactivated the fire alarm. The applicant felt that such an allegation was improper and, after a discussion between the three persons present, that part of the witness statement was removed. The report was then finalised and it was read and signed by the witness.
On 23 March 2006 the public prosecutor brought charges against the applicant in the Lappi District Court (käräjäoikeus, tingsrätten), accusing him of abuse of public office and, in the alternative, violation of official duty. As to the latter charge, she invoked Chapter 40, article 10, of the Penal Code (rikoslaki, strafflagen, as amended by Act no. 792/1989), which was the general provision sanctioning violation of official duty. She also invoked section 14, subsection 1, of the State Civil Servants Act (valtion virkamieslaki, statstjänstemannalagen; Act no. 750/1994), which stipulated that a civil servant was to perform his or her duties properly and without delay and follow supervisory orders. She further invoked section 39, subsection 2, of the Criminal Investigations Act (esitutkintalaki, förundersökningslagen, Act no. 449/1987, as amended by Act no. 427/2003), according to which a report drawn up during questioning was not to be changed after the person giving the statement had checked it and any corrections and amendments requested by him or her had been made.
The applicant denied the charges. He contended that his actions had not been contrary to section 39, subsection 2, of the Criminal Investigations Act. On the contrary, in contributing to the removal of the allegation which in his view had been defamatory, he had fulfilled his official duty as the superior officer, as defined in section 14, subsection 1, of the State Civil Servants Act. He also regarded the effects of his conduct as insignificant. In any case, the requirement of criminal intent was not met.
During her closing arguments before the District Court, the prosecutor claimed that the applicant should, at any rate, be convicted of negligent violation of official duty under Chapter 40, article 11, of the Penal Code.
On 4 October 2006 the District Court found the applicant guilty of violation of official duty, under Chapter 40, article 10, of the Penal Code and section 14, subsection 1, of the State Civil Servants Act, and sentenced him to a fine. According to the court he had, in his office as the Head of the Sodankylä Police Department, deliberately violated his official duty based on the provisions to be followed in official functions. The court found that, due to his intervention in the questioning, a statement already included in the report had been removed. As to the applicable legislation, the court stated that the general provision, Chapter 40, article 10, of the Penal Code, did not as such form a legal basis for a conviction. The actual substance of the official duty was to be found in other provisions or regulations. In the court’s view, the applicant’s actions had not been contrary to section 39, subsection 2, of the Criminal Investigations Act, as claimed by the prosecution. It did find, however, that section 14, subsection 1, of the State Civil Servants Act provided a sufficient legal basis for the conviction, as the applicant’s conduct, in the given circumstances, could not be regarded as proper.
The applicant appealed against the judgment to the Rovaniemi Court of Appeal (hovioikeus, hovrätten) relying mainly on his previous arguments. During the appeal proceedings the prosecutor renewed her charge concerning negligent violation of official duty. The applicant contested that charge, arguing that he had not been able to respond to it at first instance.
On 12 October 2007 the Court of Appeal, having held an oral hearing, convicted the applicant of negligent violation of official duty under Chapter 40, article 11, of the Penal Code and section 14, subsection 1, of the State Civil Servants Act. It found that the applicant had acted carelessly rather than with criminal intent. It also reduced the amount of the fine by half. As to the legal basis of the conviction the court reasoned its judgment as follows:
“According to section 14, subsection 1, of the State Civil Servants Act, a civil servant shall perform his or her duties properly and without delay and follow supervisory orders. In the legal praxis [reference to the Supreme Court’s precedence no. KKO:2000:40], it has been held that the said provision, governing the general duties of public officials, does not have an independent status irrespective of other provisions. In the judicial literature the provision has been regarded as problematic in the light of the principle of legality, which includes the requirement of precision of criminal statutes. Criminal liability presupposes a breach of a clearly defined official duty. On the other hand, it has been expressed in the judicial literature that, in practice, it is impossible to describe all official duties in detail in legal provisions and regulations. However, one must always be able to deduce the more specific aspects of an official duty from some provision or regulation or at least from the established practice. ...”
“The general principles to be followed in the pre-trial investigation are prescribed in sections 5 – 12 of the Criminal Investigations Act. For instance, those factors which are to be cleared up during the investigation are defined in these provisions. Further, sections 22 – 38 of the Criminal Investigations Act contain regulations about the procedure to be followed. According to those provisions a witness to the investigation, legal counsel of the person being questioned, his or her support person, guardian, trustee or other legal representative, the prosecutor and an interpreter may be present at the questioning, along with the questioner and the person being questioned. The statement given by the [latter] is recorded to the extent necessary, having regard to the issue under investigation. It is for the questioner to decide what, and to what extent, will be recorded in the report. The questioner must, however, always conduct the questioning in such a manner that the statement of the person being questioned is recorded according to his or her approval. Further, section 24 of the Criminal Investigations Act provides that the use of any impropriate means or practices that affect [a person’s] freedom of decision, will, memory or judgment, in order to obtain a statement leading for a specific direction, are forbidden. After the questioning the person being questioned shall be given an opportunity to check the report drawn up by the questioner, after which he or she shall be asked whether his or her account has been noted down correctly. The principle of impartiality is to be followed, which means that in the performance of official duties all persons must be treated equally...”
“Even though the above-mentioned provisions of the Criminal Investigations Act do not directly regulate the duties of [the applicant] as the superior officer, the general requirement of proper discharge of duties, as defined in section 14, subsection 1, of the State Civil Servants Act means, in this case, that the provisions and principles concerning pre-trial investigation are to be followed. In this respect, regard is to be had to [the applicant’s] position and the nature of his duties and what that necessarily entails. The Court of Appeal finds that, in the light of the above general principles and the provisions concerning pre-trial questioning, it was not the duty of [the applicant] as the superior officer to intervene in the questioning conducted by his subordinate officer, not even in the form of a conversation. As a result of such a conversation the subordinate officer being questioned had asked that a part of his statement, already entered in the report, be removed.”
The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) maintaining, inter alia, that he had been convicted without a sufficient legal basis. The substance of the official duty allegedly breached did not in his view transpire from those provisions of the Criminal Investigations Act referred to by the Court of Appeal. He also contended that, in the appellate proceedings, the prosecutor had only demanded that he be convicted of negligent violation of official duty after the court had inquired whether she intended to do so. At no stage did the prosecutor modify the charges accordingly or indicate the applicable provision concerning that offence. He further argued that the prosecutor had never invoked any specific provision other than section 39, subsection 2, of the Criminal Investigations Act. As to the other provisions of the said Act, the Court of Appeal had at no point of the proceedings brought to the applicant’s attention that it considered those provisions applicable to the case and that they could be relied upon for his conviction.
On 13 May 2008 the Supreme Court refused the applicant leave to appeal.
Chapter 40, article 10, of the Penal Code, as in force at the relevant time, read as follows:
“If a public official, when acting in his or her office, deliberately in a manner other than provided above in this chapter violates or fails to meet his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty crime, he or she shall be sentenced for violation of official duty to a fine or to imprisonment for at most one year.”
Chapter 40, article 11, of the Penal Code (as amended by Act no. 792/1989), regulating negligent violation of official duty and as in force at the relevant time, read:
“If a public official, when acting in his or her office, through negligence or carelessness in a manner other than referred to in article 5 (2) violates or fails to meet his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty crime, he or she shall be sentenced for negligent violation of official duty to a warning or a fine.”
Section 14, subsection 1, of the State Civil Servants Act provides that a civil servant is to perform his or her duties properly and without delay and to follow superior orders.
Section 24, subsection 1, of the Criminal Investigations Act reads (Act no. 449/1987) as follows:
“A person being questioned shall be treated in a calm and pertinent manner. The use of false notice, promises or innuendo of special advantages, exhaustion, threats, force or other improper means or practices affecting the person’s freedom of decision, will, memory or judgment, in order to obtain a confession or a statement leading in a specific direction, are not allowed.”
Section 39, subsection 2, of the said Act reads:
“The statement entered in the report shall be read out to the person being questioned immediately after the questioning, and he or she may check it. The questioner shall ask the person being questioned whether his or her account has been entered into the report correctly. Any such request to correct or amend the report which has not been complied with shall also be noted in the report. The report must not be changed after the person being questioned has checked it and the requested corrections and amendments have been made.”
According to Chapter 11, section 3, of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål, Act no. 689/1997), the court may pass a sentence only for the act for which a punishment has been requested or for which the court may, according to law, pass a sentence on its own initiative. The court is not bound by the heading of the offence or the reference to the applicable provisions in the charge.
The Government Bill (hallituksen esitys, regeringens proposition, no. HE 82/1995) concerning the last-mentioned provision states, inter alia, that in criminal proceedings the court is only bound by the description of the events for which punishment is demanded. It is for the court to decide ex officio which offence the act described in the charge constitutes. The proceedings must be conducted in such a manner that the offence of which the defendant is convicted does not come as a surprise to him or her. The defence shall have the opportunity to point out any such circumstances which he or she feels are relevant in deciding about the culpability. If in the court’s view the defendant should be convicted of some other offence or under some other provision than that indicated in the charge, the court should draw the defendant’s attention to the matter in the course of the proceedings.


ITEMID: 001-88183
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: TARASYUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: The applicant, Ms Nataliya Mykhaylivna Tarasyuk, is a Ukrainian national who was born in 1975 and lives in Chernigiv. She was represented before the Court by Mr I. Uvarov, a lawyer practising in Chernigiv. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 May 2000 the applicant brought a car registered in Lithuania (a 1985 Volkswagen-Golf) into the customs territory of Ukraine. When crossing the border she undertook an obligation to re-export the car before 22 May 2001. She failed to do so, however.
On 15 April 2002 the applicant, upon request of the customs authorities, explained that the car had been brought to the Republic of Belarus and sold to unknown persons.
On 16 April 2002 she explained that she did not bring the car to Belarus but left it on the Ukrainian-Belarusian border.
On 17 April 2002 the Chernigiv Customs Office, in absence of records confirming that the impugned car had actually left Ukraine, drew up a report on an infringement of customs regulations due to the applicant’s failure to remove the above car from the customs territory of Ukraine (Article 113 of the Customs Code).
On 8 May 2002 the Customs Office submitted the above report to the Novozavodsky District Court of Chernigiv. Before the court the applicant explained that she had brought the car to the checkpoint on the Ukrainian- Belarusian border and then her husband had been supposed to take it away to Belarus. The applicant’s husband explained that he had sold a car on the border check-point to an unknown person. The Customs Office explained that the car was not registered as exiting Ukraine at the period mentioned by the applicant.
On 1 August 2002 the court found the applicant guilty of having failed to re-export the car in violation of Article 113 of the Customs Code. The court ordered the confiscation of the vehicle, but given that the car’s location was unknown, it replaced the confiscation with payment of 2,906.96 Ukrainian hryvynas (UAH) (about 558 euros (EUR)), which corresponded to the value of the car, in accordance with Article 149 § 3 of the Customs Code.
On 18 September 2002 the Acting President of the Chernigiv Regional Court of Appeal refused the applicant’s request to initiate supervisory review proceedings in the case.
The relevant domestic law is summarised in the case of Nadtochiy v. Ukraine (no. 7460/03, §§ 13-14, 22 April 2008.)