ITEMID: 001-91008
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ANDREYEVSKIY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1982 and is now serving a prison sentence in the correctional facility USh/382/10 in the Saratov Region.
6. On 21 May 2002, at 9 a.m., the applicant was arrested on suspicion of having murdered M., the mother of his girlfriend, and was brought to the Severnoye Medvedkovo police station in Moscow. The arrest record indicated that the applicant had been arrested on suspicion of murder. The applicant countersigned the record, noting that he had been notified of his rights and had understood them. The applicant’s detention was subsequently extended by prosecutors and courts.
7. According to the applicant, upon arrival at the police station on 21 May 2002, he was placed in the office of Officer Mus. The latter and another officer started beating him up. They hit and kicked him in the solar plexus, on the head, in the kidney area and the groin with a view to extracting a confession to the murder. After their prolonged beatings the applicant was placed in a cell. After a while Officers S. and L. started beating him up again. They hit him on the head, on the body and in the groin, insisting that he confess to the murder. Despite the ill-treatment, he did not confess. Only when they threatened to rape his mother and girlfriend, the applicant’s psychological resistance was broken and he confessed.
8. On 21 May 2002, at 10 p.m., the applicant was examined by a forensic medical expert in the presence of the investigator in charge of the criminal case and two attesting witnesses. The expert detected and noted in the examination record the following injuries on the applicant’s body: a pinkish-bluish bruise on the left ear measuring 1.2 cm, two reddish-purple bruises on the left side of the thorax measuring around 2×2.25 cm and 2.2×0.6 cm and a cut on the back of the left wrist. According to the record, the persons present at the examination were apprised of their right to make declarations and objections in connection with the examination. The applicant made no observations and countersigned the examination record.
9. On 22 May 2002 the investigator questioned the applicant about the murder but he denied all accusations. Later on the same day he wrote a statement confessing to the murder. He noted that the confession had been made without any “moral or physical pressure” and that he had no complaints about police officers.
10. On 23 and 30 May 2002 the investigator questioned the applicant in the presence of his two lawyers. The applicant maintained the confession and described in detail how he had committed the murder. He again confirmed the confession while being questioned during a video-recorded inspection of the crime scene where he was also assisted by his lawyers.
11. At a questioning on 2 August 2002 the applicant retracted his previous statements and submitted that his confession of 22 May 2002 had been extracted from him by force and that he had not murdered M.
12. On 24 September 2002 the applicant requested the prosecutor’s office to institute criminal proceedings against Officer “Marat” who had allegedly beaten him up on 21 May 2002.
13. The applicant submitted a written statement by witness A. dated 26 July 2003 which, in its relevant parts, reads as follows:
“...I was detained on 21 May 2002 ... at the [applicant’s] flat... together with [the applicant]....We have been together since 11 a.m. on 20 March 2002...The fact that we had spent that time together can be confirmed by Z., D., A. and K.... All those persons who could have confirmed [the applicant’s] alibi ... had been known to the investigation but were never questioned.... Since we were sleeping in the same flat, I saw [the applicant’s] underwear; there had been no traces of blood on it. Thus, the blood [stains] found on the applicant later could have appeared on his clothes only after we had been separated at the police station. [The applicant] was clam and reacted adequately. I am convinced in his innocence...”
14. On 2 August 2002 an investigator with the Babushkinskiy district prosecutor’s office of Moscow launched an inquiry into the applicant’s allegations of ill-treatment which he had submitted on the same day (see paragraph 11 above). According to the records of interview submitted by the Government, the investigator questioned Officer Mur. on 19 August 2002, Officer S. on 3 September 2002 and Officers L. and Mus. on 20 September 2002. The investigator also ordered a forensic expert examination of the applicant’s injuries. The examination was carried out on 18 September 2002.
15. By a decision of 20 September 2002, the investigator refused to institute criminal proceedings against them for lack of evidence of a criminal offence. The decision was based on the applicant’s forensic medical examination and the statements of Officers Mus., Mur., L. and S. According to the expert’s report, the bruises to the applicant’s chest and ear had been caused by a blunt object two to three days before his arrest on 21 May 2002 and the incised wound on his left hand could have been caused on 19 May 2002, the date when he had allegedly committed the murder. Officers Mus., Mur., L. and S. submitted that the applicant had confessed voluntarily and that they had never forced or threatened him. The applicant was given a copy of the decision in the presence of his lawyers on 11 October 2002.
16. By a decision of 3 October 2002, the investigator refused to institute criminal proceedings against Officer “Marat”, because no such person had ever served at the Severnoye Medvedkovo police station.
17. On 24 September and 9 October 2002 the applicant lodged further complaints with the Moscow City Prosecutor about the alleged beatings.
18. On 11 October 2002 the applicant complained to the Babushkinskiy District Court of Moscow about the prosecutor’s refusal to establish the persons who could have witnessed the victim on the date of the presumed murder. He also complained about the decisions of 20 September and 3 October 2002 refusing to institute criminal proceedings against the police officers. In particular, the applicant submitted that the colour of his bruises (rose and blue and not yellow and brown) had indicated that they were freshly inflicted and that the expert’s conclusion as to the date of their infliction had thus been wrong. The applicant further claimed that witness A. could have confirmed that he had not had any bruises on his body before his arrest. On 14 October 2002 the Babushkinskiy District Court disallowed the complaints for lack of territorial jurisdiction.
19. On an unspecified date the applicant lodged similar complaints with the Ostanskinskiy District Court.
20. On 24 October 2002 the Ostankinskiy District Court dismissed the complaints, finding that the inquiry case file had, at the applicant’s own request, been enclosed in the case file in the criminal proceedings against him and that the criminal case had been sent for trial to the Babushkinskiy District Court. Accordingly, the ill-treatment complaint was to be examined by the trial court. The applicant appealed, alleging that he had not been summoned to the hearing on 24 October 2002.
21. On 22 November 2002, the Moscow City Court heard the applicant’s counsel and upheld the decision. It found that since the applicant had complained in essence of inadmissibility of evidence in relation to the charge against him, the Ostankinskiy District Court had not been entitled to examine the issue, given that the case had been about to be tried by another court. It further noted that the applicant’s lawyer had been present at the hearing on 24 October 2002 and had submitted arguments on his behalf and that the applicant had never asked to be brought to the hearing.
22. On an unspecified date the applicant’s criminal case was transferred for trial to the Babushkinskiy District Court. On court hearing days the applicant was allegedly not provided with food.
23. On 8 December 2004 the District Court found the applicant guilty of murder and sentenced him to fifteen years’ imprisonment. The judgment referred to statements from twenty-nine witnesses, in particular a person who had found and identified the knives with which the applicant had allegedly stabbed the victim; three post-mortem examinations of the victim, several DNA tests establishing a match between the samples of the victim’s blood and the bloodstains found on the applicant’s clothes; statements from experts, and further material evidence. It did not refer to the applicant’s confession dated 22 May 2002. However, it took into account his statements of 23 and 30 May 2002 and the video record of the crime scene inspection.
24. The trial court dismissed as unfounded the applicant’s allegations of ill-treatment. It noted that Officers Mur., Mus.,, S. and L., when questioned in open court, denied having beaten the applicant up. In the same vein, attesting witnesses present during the crime scene inspection and the applicant’s medical examination on 22 May 2002 testified to the court that the applicant had not complained about the alleged ill-treatment in their presence. Furthermore, his submissions were contradicted by statements from independent witnesses A. and N., who had been arrested, brought to the police station and detained there together with the applicant, and who had testified to the court that nobody had beaten him up or threatened him in their presence. According to the forensic examination, the applicant’s injuries had been sustained two to three days before his arrest. Furthermore, the court considered that he had waited for several months before complaining about the alleged ill-treatment and, when questioned about it by the court, made contradictory statements about the circumstances in which he had sustained the injuries. Thus, he alleged once that he could have sustained the ear injury in a scuffle with skinheads prior to his arrest, on another occasion he claimed that nobody had beaten him up. Moreover, witness V. testified to the Court that he had seen the applicant on 19 May 2002 sleeping under a bench at a subway station in a state of intoxication.
25. According to the applicant, from 9 a.m. on 21 May 2002 until 6 a.m. on 24 May 2002 he was held in a cell at the Severnoye Medvedkovo police station. Throughout his detention there he was not given food or drink and had nowhere to sleep because the cell had no sleeping place.
26. On an unspecified date an investigator with the Babushkinskiy District prosecutor’s office requested the head of the temporary detention ward of the Losinoostrovskiy police station to provide him with information on, among other things, the date of the applicant’s admission to the ward. In response, the head of the ward certified that on 21 May 2002, at noon, the applicant had been placed in the Severnoye Medvedkovo police station and that on 23 May 2002, at 10.40 p.m., he had been admitted to the temporary detention facility of the Losinoostrovskiy police station.
27. On 24 September and 9 October 2002 the applicant complained to the Moscow City prosecutor’s office that from the moment of his arrest on 21 May 2002 he had been detained for more than two days at the Severnoye Medvedkovo police station without food or drink. His complaints were left without reply. Complaints in similar terms were raised by the applicant’s relatives in their open letter to the State Duma dated 27 January 2005.
28. According to the Government, from 21 to 23 May 2002 the applicant was held in the temporary detention facility of the Losinoostrovskiy police station and was brought to the Severnoye Medvedkovo police station for investigative action. On their completion he was brought back to the Losinoostrovskiy police station.
29. The applicant was detained in Moscow IZ-77/1 remand centre from 30 May 2002 to 28 March 2005.
30. For most of the period the applicant was held in cell no. 106 measuring around 50 square metres. It had thirty two-tier bunks and accommodated seventy-five to one hundred inmates. Two bunks were always occupied by the inmates’ bags, leaving twenty-eight sleeping places for the inmates. Detainees had to sleep in shifts, on the floor, under the bunks and under the table. Three or more inmates had to share one bunk. The cell space per detainee was reduced to 0.5 to 0.6 square metres. The situation was the same in other cells where the applicant was detained. The administration only once provided him with bedding and even when his relatives brought him bedding the wardens always seized it.
31. Cell no. 106 had two windows with metal bars and until November 2003 the windows were covered with metal shutters which barred natural light and airflow. The windows were glazed only in winter and sometimes detainees had to stuff them with wet linen, which served as a replacement for glass when it was frozen, permitting them to maintain the air temperature at around 0.5 ºC. The stuffing was routinely removed by the wardens. The lights and TV were on day and night. As there was no ventilation, it was particularly hot in summer. Allegedly, the administration seized the electric fans provided by the detainees’ relatives and then leased them to the inmates for money.
32. The sanitary conditions in the cells were unsatisfactory. The toilet was 60 cm high. It was separated from the living area by a partition measuring one metre in height and the inmates had to use the bedding supplied by their relatives to secure at least some privacy. The wardens routinely removed their hand-made partitions so that the applicant had to answer the needs of nature in view of other inmates. Moreover, because of the overcrowding the toilet was always occupied and he could not always have access to it in case of need. The toilet was two metres from the table at which the inmates had their meals. The food was of poor quality and had an unpleasant smell. The inmates went on hunger strike several times in protest at the poor quality of the food.
33. Detainees were allowed to take showers only once every eight to ten days, in a communal shower. Seventy-five to one hundred inmates were at the same time given half an hour for a shower while only ten to twelve taps were working properly. They could not wash themselves or their clothes properly and had to negotiate with wardens who agreed for money to extend the shower time to one hour.
34. The applicant received no medical treatment, in particular in respect of his acute tooth pain. He was first given dental treatment only when he arrived at the correctional colony in June 2005.
35. Once a day the applicant was allowed to take a forty-minute walk in a stone courtyard measuring 20-25 square metres, at the same time as up to ninety others.
36. On many occasions the applicant complained about the conditions of detention to the administration of the remand centre but his complaints were left without reply.
37. In support of his description of the conditions of detention the applicant produced written statements by Messrs N., D., Po. and Pe. who had been detained in the same remand centre at the relevant time and confirmed his submissions concerning, in particular, overcrowding, lack of individual sleeping places and bedding and inadequate medical assistance. The applicant also submitted sketched plans and photographs of cell no. 106 and the courtyard. He also furnished an article dated 28 December 2005 and published on the internet site newsru.com, summarising the results of the checks carried out by the Moscow City Prosecutor’s office in 2005 and concerning conditions of detention at remand centres in Moscow. With reference to the results of the check-ups, it was stated that although the overall number of inmates held in the six remand centres of Moscow had decreased over a five-year period, it was still twice the design capacity. A considerable number of detainees were not provided with individual sleeping places.
38. According to the Government, throughout his detention in the remand centre the applicant was held in the following cells:
- cell no. 106 measuring 57.8 square metres, having 34 bunks and accommodating 34 inmates;
- cell no. 118 measuring 32.3 square metres, having 34 bunks and accommodating 35 inmates;
- cell. No.122 measuring 52.7 square metres, having 20 bunks and accommodating 20 inmates;
- cell no. 146 measuring 46.57 square metres, having 22 bunks and accommodating 22 inmates;
- cell no. 238 measuring 21.31 square metres, having 6 bunks and accommodating 6 inmates.
39. The cells had central heating, water supply and drainage; each cell was equipped with a toilet and a wash basin. The toilet was separated from the living area by a brick partition not less than one metre in height and fully securing the necessary privacy. Depending on their size, the cells had one or two windows with bars; the windows were glazed and permitted the inmates to read and work by natural light. The artificial lighting conformed to the relevant standards and at night its brightness was reduced to a level permitting supervision of the detainees. During the applicant’s detention there had been no artificial ventilation in the cells of the remand centre, but it was introduced subsequently. The air temperature, the humidity level and the quality of water in the applicant’s cells conformed to the relevant standards.
40. The applicant was properly fed and a medical assistant regularly checked the quality of food and the compliance with the requirements in force as regards its storage. The applicant was regularly examined by the medical staff of the facility and received adequate medical assistance.
41. The medical unit was equipped with all necessary medications. According to an excerpt of the applicant’s medical record submitted by the Government, he was examined by a dentist on 17 February 2005 and his condition was assessed as satisfactory. He was diagnosed with chronic caries of two teeth but no need for urgent medical intervention was established. Upon arrival at the correctional colony, the applicant was treated for caries of two teeth, which were filled.
42. To support their submissions, the Government furnished a number of certificates issued by the head of remand centre IZ-77/1 in April 2006 and several excerpts from the applicant’s medical record.
43. Section 23 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be kept in conditions which satisfy health and hygiene requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. Detainees should be given free of charge sufficient food to maintain them in good health in line with the standards established by the Government of the Russian Federation (Section 22).
44. The 1993 Judicial Review Act (Federal Law No. 4866-1 on challenging acts and decisions infringing individual rights and freedoms), as amended in 1995, provides for a judicial avenue for claims against public authorities. It states that any act, decision or omission by a state body or official can be challenged before a court if it encroaches on an individual’s rights or freedoms or unlawfully vests an obligation or liability on an individual. In such proceedings the court is entitled to declare the disputed act, decision or omission unlawful, to order the public authority to act in a certain way vis-à-vis the individual, to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom. If the court finds the disputed act, decision or omission unlawful this gives rise to a civil claim for damages against the State.
45. The relevant extract from the 2nd General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (CPT/Inf (92) 3) reads as follows:
“42. Custody by the police is in principle of relatively short duration ...However, certain elementary material requirements should be met.
All police cells should be of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and blankets.
Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions, and be offered adequate washing facilities. They should be given food at appropriate times, including at least one full meal (i.e. something more substantial than a sandwich) every day.
43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area. The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling.”
The CPT reiterated the above conclusions in its 12th General Report (CPT/Inf (2002) 15, § 47).
46. The part of the Report to the Russian Government on the visit to the Russian Federation carried out by the CPT from 2 to 17 December 2001 (CPT/Inf (2003) 30) read, in so far as it concerned the conditions of detention in administrative-detention cells located within police stations, as follows:
“25. Similar to the situation observed during previous visits, none of the district commands (RUVD) and local divisions of Internal Affairs visited were equipped with facilities suitable for overnight stays; despite that, the delegation found evidence that persons were occasionally held overnight at such establishments... The cells seen by the delegation were totally unacceptable for extended periods of custody: dark, poorly ventilated, dirty and usually devoid of any equipment except a bench. Persons held overnight were not provided with mattresses or blankets. Further, there was no provision for supplying detainees with food and drinking water, and access to a toilet was problematic.
The CPT reiterates the recommendation made in its report on the 1999 visit (cf. paragraph 27 of document CPT (2000) 7) that material conditions in, and the use of, cells for administrative detention at district commands and local divisions of Internal Affairs be brought into conformity with Ministry of Internal Affairs Order 170/1993 on the general conditions and regulations of detention in administrative detention cells. Cells which do not correspond to the requirements of that Order should be withdrawn from service.
Further, the Committee reiterates the recommendation made in previous visit reports that administrative detention cells not be used for accommodating detainees for longer than 3 hours.”
VIOLATED_ARTICLES: 3


ITEMID: 001-80619
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TULESHOV AND OTHERS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Violation of Art. 8;Non-pecuniary damage - financial award;Pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 6. The applicants are members of one family. Mr Maksut Netkaliyevich Tuleshov, born in 1953 (the first applicant), and Mrs Aslganym Kalikovna Tuleshova, born in 1955 (the second applicant), are husband and wife; Mr Viktor Maksutovich Tuleshov, born in 1979, and Mr Sergey Maksutovich Tuleshov, born in 1977, are their sons; Mr Kalik Isayev, born in 1929, is the second applicant's father. They, and three other children of the first and the second applicants, live together in one household in the town of Marx of Saratov Region.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. In 1993 Mr Kh bought a house from company B. It was a former shop at 8 Third Avenue, Marx, which Kh intended to convert into a dwelling. The house was free from any third party claim.
9. In 1996 the Marx Town Court of the Saratov Region examined an unrelated commercial dispute between company B and a third party and found that B had failed to perform as stipulated in their contract. The house was listed as pledged property in the contract and the court ordered its sale. Apparently the court was not aware that the house had already been sold to Kh.
10. The sale was administered by the court bailiff. The price was set at 13,600,000 roubles (RUR), the pre-redenomination equivalent of RUR 13,600, or approximately 2,800 US dollars. The first applicant offered to buy the house, and on 12 April 1996 the Marx Town Court approved the sale. This decision took effect on 23 April 1996. The first applicant was registered with the real estate registry (Бюро технической инвентаризации) as the owner of the house. Apparently the first applicant was not aware of Kh's right to the house and Kh was not aware of the sale to the first applicant.
11. On 22 July 1996 the Marx local administration granted a reconstruction permit by virtue of which the first applicant converted the shop into a dwelling of about 78 square metres. He moved into it with seven members of his family including the other applicants.
12. In 1998 Kh seized the Marx Town Court with a property claim in respect of the house and challenged its sale by the bailiff. The first applicant lodged a counterclaim invoking his title to the house.
13. On 28 June 1999 the Marx Town Court found that the bailiff had sold the house to the first applicant unlawfully and declared the sale null and void. It annulled the first applicant's title and ordered his and his family's eviction. The first applicant was awarded RUR 13,600 as reimbursement of the house purchase price by company B and the other party to the contract mentioned in paragraph 9 above, and RUR 113,161 of reconstruction costs payable by Kh.
14. On the same day the applicants were served with an eviction order.
15. The first applicant and Kh appealed.
16. Company B and the other party both failed to pay the amount due to the applicant under the judgment (RUR 13,600) as they became insolvent.
17. On 27 August 1999 the Saratov Regional Court upheld the first instance judgment as to the substance, but reversed the award of the reconstruction costs because such a claim had never been made by the applicants.
18. On 15 November 1999 the Presidium of the Saratov Regional Court quashed on supervisory review the decision of 12 April 1996 by which the sale of the house to the first applicant had been ordered.
19. On 9 August 2000 the Marx Town Court, apparently following the first applicant's request for supervisory review, appointed an expert to assess the market value of the house. The evaluation report issued on the same date estimated it as RUR 245,000 (then an equivalent of about 9,738 euros (EUR)). On 31 August 2000 the Saratov Regional Court rejected the request for supervisory review.
20. On 14 March 2001 the applicants brought proceedings for damages against Kh, the Ministry of Finance, the Ministry of Justice and the Judicial Administration Department. They claimed pecuniary damages of RUR 317,654 including the reconstruction costs (RUR 146,461), the sum of RUR 13,600, i.e. the money which had not been paid by the insolvent debtors, and non-pecuniary damages of RUR 210,000. In support of their pecuniary claims they referred to the expert evaluation of 9 August 2000. The court joined Kh to the proceedings as a co-defendant.
21. On 14 December 2001 the Marx Town Court examined the case. It found that Kh had never authorised the reconstruction works on his premises and, relying on Article 1069 of the Civil Code, held that these expenses were incurred as a result of the authorities' unlawful conduct and must be reimbursed by the State. The first applicant was awarded RUR 89,522 (then the equivalent of about EUR 3,305) to be paid by the Ministry of Finance. In so far as the applicants claimed the reimbursement of RUR 13,600, the court held that the first applicant “had not made sufficient effort to recover the debt” from company B and the other party. The remaining pecuniary and non-pecuniary claims including those by the other applicants were dismissed on the grounds that the applicants had not adduced sufficient proof of the amount they claimed as damages.
22. On 15 February 2002 the Saratov Regional Court upheld the judgment of 14 December 2001.
23. On 26 November 2002 the applicants were ordered to leave the house by 6 December 2002.
24. The applicants challenged the eviction order claiming that the award had not been paid and that no other dwelling had been made available to them.
25. On 9 December 2002 the Marx Town Court of the Saratov Region dismissed the applicants' challenge to the eviction order. This decision was upheld on appeal by the Saratov Regional Court on 17 January 2003.
26. On 27 March 2003 the Marx Town Court of the Saratov Region examined another request by the applicants and adjourned the eviction until 4 April 2003. The applicants appealed claiming that this was insufficient and requested an adjournment until social housing could be allocated. The extension was refused.
27. Between April and July 2003 the applicants were served the eviction order three times, each time with a new deadline. The applicants unsuccessfully challenged the order every time it was served.
28. On 12 September 2003 the bailiff of the Tsentralnyy District Court of Moscow informed the first applicant that the bailiff service was no longer competent to enforce awards against the State. He instructed the first applicant to claim his award under the judgment of 14 December 2001 directly from the Ministry of Finance.
29. On 12 October 2003 the applicants and the rest of the family were evicted from the house.
30. On 19 November 2003 they were granted social housing in a municipal hostel where they have been living since then. For eight family members they were allocated a 45 square metres flat comprising three rooms. The toilet, bathroom and cooking facilities are shared with other flats on the same floor, and the residence has central heating but no gas or hot water supply. The applicants received this accommodation under the terms of a social tenancy and have to pay rent. At present ten family members live in this dwelling.
31. On 18 February 2004 the Ministry of Finance informed the second applicant that the payment due to the first applicant pursuant to the judgment had been suspended because the enforcement documents had been sent to the Ministry's Legal Department “for the inspection of the materials of the [applicants'] court dispute”. It promised to “keep the applicants informed about the outcome of the challenge and its legal assessment”.
32. On 16 November 2004 the Ministry of Finance paid the applicant RUR 89,522 (then the equivalent of about EUR 2,405).
33. On 15 May 2006 the applicants obtained an expert evaluation of the market value of their social housing, which was estimated at RUR 70,000 (then the equivalent of about EUR 2,017).
34. Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the person or property of a citizen must be compensated in full by the person who caused the damage. Pursuant to Article 1069, a State agency or a State official is liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury.
35. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage.
36. The officially fixed reference rates of the market value of residential real estate are periodically published by the State Construction Agency (Госстрой) and are mandatory for the calculation of State-funded housing subsidies. Directive No. 158 of 29 August 2003 stated that in the last quarter of 2003 the average price of residential real estate in the Saratov Region was RUR 8,200 (then the equivalent of about EUR 248) per square metre.
VIOLATED_ARTICLES: 8


ITEMID: 001-79396
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF CZAJKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1974 and lives in Gdynia, Poland.
5. On 8 May 1999 the applicant was arrested by the police. On 9 May 1999 the Gdańsk District Court (Sąd Rejonowy) decided to detain the applicant on remand in view of the reasonable suspicion that he had committed robbery, kidnapping and larceny.
6. The applicant’s appeal against this decision was dismissed by the Gdańsk Regional Court (Sąd Okręgowy) on 24 May 1999.
7. On 25 January 2000 the applicant was indicted before the Gdańsk Regional Court.
8. The applicant’s detention was prolonged on 27 January 2000. The court reiterated the grounds originally given for his detention and stressed the gravity of the charges.
9. On 10 April 2000 the first hearing took place before the trial court.
10. On 18 May 2000 the Gdańsk Regional Court dismissed the applicant’s application for release. The court considered that the evidence obtained in the case sufficiently justified the charges laid against the applicant. In addition, the gravity of the charges made it probable that a heavy sentence would be imposed.
11. Between 27 June 2000 and 17 April 2001 eight hearings took place.
12. Subsequently, the Gdańsk Regional Court made a request under Article 263 § 4 of the Code of Criminal Proceedings to the Gdańsk Court of Appeal (Sąd Apelacyjny) in which it asked that the applicant’s detention on remand be extended beyond 2 years. On 25 April 2001 the Gdańsk Court of Appeal allowed the request. However, it extended the applicant’s detention only until 31 July 2001 and not until October 2001 as requested by the Regional Court. The appellate court considered that it was probable that the applicant had committed the crimes with which he had been charged. In addition, the case did not disclose any of the grounds for the applicant’s release listed in Article 259 § 1 of the Code of Criminal Proceedings. At the same time, the court of appeal pointed out that the proceedings had already taken a long time and that any extension of his detention on remand beyond a twoyear period should only be allowed for the purposes of taking all necessary procedural steps to conclude the trial.
13. Afterwards, hearings were held in June and July 2001.
14. On 25 July 2001 the Gdańsk Court of Appeal further extended the applicant’s detention until 30 September 2001. It considered, however, that the proceedings in the applicant’s case had already taken a long time and that the Regional Court had been inefficient in dealing with the case. In this connection, the Gdańsk Court of Appeal pointed out that the trial court had adjourned the case for almost 50 days without giving any reasons. As a result of the adjournment the proceedings had to be recommenced.
15. Subsequently, hearings took place before the trial court.
16. On 26 September 2001 the Gdańsk Court of Appeal further prolonged the applicant’s detention until 30 November 2001 relying on the reasonable suspicion that the applicant had committed the offences and on the complexity of the case.
17. Between 10 October 2001 and 21 January 2002 fourteen hearings were held.
18. On 28 January 2002 the Gdańsk Regional Court gave a judgment. The applicant was convicted and sentenced to fifteen years’ imprisonment.
19. Subsequently, the applicant’s detention was prolonged on several occasions.
20. On 9 April 2003 the Gdańsk Court of Appeal quashed the applicant’s conviction and remitted the case. At the same time the appellate court prolonged the applicant’s detention until 21 July 2003. The court considered that it was necessary to keep the applicant in detention since he had been charged with several crimes which represented “a significant danger to society” (o znacznej szkodliwości społecznej) and which attracted a heavy prison sentence. In addition, the evidence obtained in the case sufficiently supported the probability that the applicant had committed those crimes. Moreover, the court considered that there was a risk that the applicant would go into hiding and that he could interfere with the proceedings if released. It was recalled in this connection that the applicant had been arrested while trying to leave the country.
21. The applicant appealed against this decision, but his appeal was dismissed on 23 April 2003 by the Gdańsk Court of Appeal.
22. On 7 October, 18 and 20 November 2003 hearings took place before the Gdańsk Regional Court.
23. The applicant’s pre-trial detention was prolonged on 8 July 2003, 20 January, 30 July and 7 December 2004. The court reiterated the original grounds for keeping him in custody, in particular the seriousness of the charges against the applicant and the risk that he might receive a heavy sentence.
24. At the hearings held on 11 January and 19 July 2005 the Regional Court prolonged the applicant’s detention relying on the reasonable suspicion against the applicant, the seriousness of the charges, the severity of the likely sentence and the complexity of the case. The court further stated that since not all of the witnesses had been heard, there was a risk that the applicant might attempt to influence them.
25. On 27 October 2005 the applicant’s detention on remand was prolonged. The court repeated the grounds relied on in its previous decision given in 2005 in an almost identical manner.
26. The applicant’s numerous appeals and requests for release were to no avail.
27. On 27 December 2005 the Gdańsk Regional Court gave a judgment. It convicted the applicant and sentenced him to 14 years’ imprisonment. On 12 April 2006 the applicant lodged an appeal.
28. On 20 November 2006 the Gdańsk Court of Appeal partly upheld the impugned judgment and reduced the applicant’s prison sentence to 11 years’ imprisonment.
29. On 15 November 2004 the applicant lodged with the Gdańsk Court of Appeal a complaint alleging that his right to have his case examined within a reasonable time had been breached. He relied on the 2004 Act on complaints about a breach of the right to a trial within a reasonable time.
30. On 28 December 2004 the Gdańsk Court of Appeal allowed his complaint, found that the length of the criminal proceedings pending before the Regional Court had been unreasonable and awarded the applicant PLN 3,000 in compensation. The court examined the course of the proceedings and found delays between 10 April 2000 and 6 June 2001 for which the trial court had been responsible. The Court of Appeal further instructed the trial court to accelerate its handling of the case so that the trial was concluded within a period much shorter than the one-year period envisaged.
31. On 29 December 2005 the applicant lodged a second complaint about the unreasonable length of the proceedings in his case.
32. On 28 February 2006 the Gdańsk Court of Appeal dismissed the applicant’s second complaint. The court examined the course of the proceedings after 28 December 2004 and established that they had been conducted diligently and that there were no delays attributable to the trial court.
33. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze).
34. A more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Kudła v. Poland [GC], no. 30210/96, § 75, ECHR 2000XI, Celejewski v. Poland, no. 17584/04, §§ 22 and 23, 4 May 2006.
35. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
A more detailed description of the relevant domestic law provisions is set out in the Court’s judgment in Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005–... (extracts) and its decision in Charzyński v. Poland (dec.), no. 15212/03, §§ 1223, ECHR 2005–....
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-88229
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: A.J. v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 1. The applicant is a Moroccan national who was born in 1979 and is currently in Sweden. He was represented before the Court by Mr A.-H. Alami, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr C. H. Ehrenkrona, of the Ministry for Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 23 October 2002 the applicant entered Sweden and, on the following day, he applied to the Migration Board (Migrationsverket) for asylum and a residence permit. A first interview was scheduled in order to establish the grounds for the applicant’s request for asylum but he did not appear for this meeting. The Migration Board then called him to a new interview on 25 July 2003 which he attended. At the interview, the applicant claimed that he did not know where he had been born or raised and that he had never held a passport or an identification card. He did not know the whereabouts of his parents either but stated that he had been working as a shepherd in Western Sahara (a region under Moroccan authority). A friend, who had “felt sorry for him” and had wanted to give him the possibility of a better life, had helped him to leave his home country.
4. A language analysis, carried out in October 2003, showed that the applicant had tried to conceal his real dialect but that it still appeared from the test that he came from Morocco. He did not attend any further meetings with the Migration Board or his legal representative, despite being called repeatedly.
5. In April 2004 the Swedish Security Police (Säkerhetspolisen), in a submission to the Migration Board, stated that they had certain information about the applicant which indicated that he could become involved in activities that threatened the security of the nation.
6. On 9 November 2005 the Migration Board rejected the applicant’s application, essentially because he had failed to participate in the asylum investigation and had not stated that he risked being persecuted or harassed in his home country. Thus, the Board concluded that the applicant himself did not feel that he was in need of protection in Sweden. Since the applicant had disappeared, the decision could not be communicated to him.
7. In August 2006 the applicant was apprehended by the Austrian police when he tried to enter the country with a fake French passport and holding an airplane ticket to Syria. He had tried to conceal his identity by giving two other names, different from that given to the Swedish authorities, to the Austrian authorities but they had discovered this. Consequently, in accordance with the Dublin Convention, the applicant was accepted back in Sweden on 9 November 2006 and placed in custody since he had absconded once before and thus there was a risk that he would try to evade enforcement of a decision on deportation. Moreover, he was informed of the Migration Board’s negative decision in regard to his asylum request lodged in October 2002.
8. On 20 November 2006 he lodged a new application for asylum and a residence permit with the Migration Board, alleging that since he was from Western Sahara and had left the country illegally, the Moroccan authorities would automatically assume that he was part of the Polisario Front (an armed, political organisation which fights for the independence of Western Sahara from Morocco) and therefore arrest and torture him. However, he specified that he had never been politically active or supported the Polisario Front. Moreover, he claimed that he should be considered as a refugee sur place since the Swedish Security Police had accused him of being involved in security-threatening activities and the Moroccan authorities surely knew about it and would arrest him on this basis as well.
9. The applicant was interviewed by the Migration Board on 22 November 2006 at which point he added, essentially, the following. He had not been raised by his parents and he did not know from which country he hailed but he was a citizen of Polisario, which should be understood as Western Sahara. He had no passport or identity documents. His foster father had wanted him to join the Polisario Front but he had not wanted this himself. He had not had any contact with the Moroccan authorities. While in Sweden, he had had no choice but to live with people that the Swedish Security Police held under surveillance since he had had nowhere else to live. When he had been apprehended in Austria, he had been on his way to work in Spain. The fact that his ticket was to Syria was a mistake. If forced to return to Morocco, he would risk being imprisoned because he was from Western Sahara and because of the people he had socialised with while in Sweden.
10. In a submission from the applicant’s representative, dated 27 November 2006, he stressed that the applicant was not a member of the Polisario Front. However, since he had left Western Sahara illegally without any travel documents, this was enough for the Moroccan authorities to consider him a member of the Polisario Front. Moreover, he refuted the Swedish Security Police’s allegations that he was a security threat to Sweden as groundless.
11. On 4 December 2006 the Migration Board rejected the application. It first noted that the applicant had provided no evidence to support either his identity or any of his grounds for asylum but that the language analysis had shown that he came from Morocco. It then noted that the Security Police had maintained their earlier submission to the Board and, in a new submission of 25 October 2006, had recommended that the applicant should not be allowed to remain in Sweden because they considered that he posed a security risk to the nation. The Board then observed that the situation in Western Sahara was unstable due to the conflict with the Moroccan authorities but that the situation in itself was not so serious that it could justify granting a person asylum in Sweden. As concerned the applicant’s situation, it found his allegations to be groundless. There was no indication that the Moroccan authorities would consider him a member of the Polisario Front or otherwise show any interest in him since there was nothing to suggest that the Moroccan authorities had knowledge of the Swedish Security Police’s concerns. Moreover, it noted that the applicant himself had stated that he was not involved in any activities of a political, or other, nature. Having regard to the Security Police’s submissions, which the Board did not question, and all the above considerations, the Board concluded that the applicant’s request for asylum and a residence permit should be rejected.
12. The applicant appealed against the Migration Board’s decision. Since the case involved national security matters, the Board transferred the appeal to the Migration Court of Appeal (Migrationsöverdomstolen) in order for that court to give its opinion on whether there were any impediments to the enforcement of the deportation order before the case, together with the court’s opinion, were passed on to the Government for examination (see below under relevant domestic law and practice, § 29).
13. Before the Migration Court of Appeal, the applicant maintained his earlier claims and added that he believed that the Swedish Security Police had informed their Moroccan counterpart, in accordance with international obligations, about him and their suspicions about him. Moreover, in March 2004, he and a friend had been arrested by the police in a mosque in Stockholm. He had been questioned but released later the same day and no charges had been brought against him. However, he was convinced that the Moroccan security police had been in the mosque at the time of the arrest and therefore would immediately detain and question him if he were deported to Morocco.
14. On 26 January 2007 the Migration Court of Appeal held an oral hearing in the case and, on 2 February 2007, it submitted its opinion on the matter to the Government for them to examine the case and make a final decision. In its submission, the court recommended that the applicant should not be granted leave to remain in Sweden and that he should, moreover, be prohibited from returning within the next ten years. It noted, inter alia, that there was nothing to suggest that the Moroccan authorities would show any interest in him and that the applicant himself had stated that he had never been politically active. It also considered that he was very unreliable and questioned the veracity of his accounts as his story had escalated over time. Thus, the court was of the opinion that the applicant was not in need of protection in Sweden, either as a refugee or as a person otherwise in need of protection. Furthermore, it presumed that the Swedish Security Police had not, and would not, handle the case in such a way that it would render the enforcement of the deportation order impossible.
The applicant disputed the Migration Court of Appeal’s opinion and maintained his claims. He further added that court had not taken into consideration his connection to one of the persons he had socialised with in Sweden and that the Migration Board and the Swedish Security Police could not guarantee his safety in Morocco, if he were returned.
15. On 22 March 2007 the Government rejected the appeal and decided that he should be deported to Morocco as soon as possible and with a prohibition on returning to Sweden before 22 March 2017. They first noted that they did not question the Security Police’s information that the applicant could become involved in activities threatening the security of the nation. They then considered that he was not credible and that there was no indication that he would risk persecution or torture by the Moroccan authorities upon return. Therefore there were no grounds on which to consider him a refugee or otherwise in need of protection and no other reasons to grant him leave to remain in Sweden had been established. Having regard to the submission made by the Swedish Security Police, the Government also decided to prohibit the applicant from returning to Sweden for ten years. This decision was final.
16. Subsequently, the applicant applied to the Migration Board for a re-examination of his application for asylum and a residence permit on the grounds that new circumstances had come to light which rendered an enforcement of the deportation order impossible. However, on 4 April 2007, the Migration Board found that no new circumstances had been presented and that the deportation order could be enforced. The applicant did not appeal against this decision.
17. In the meantime, on 27 March 2007, the applicant requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of his deportation to Morocco. On the following day, 28 March 2007, the Court decided to apply Rule 39 and to suspend the deportation until 10 April 2007, on which date it was extended until further notice and the case communicated to the Swedish Government.
18. Following the request by the Court, the Migration Board stayed the enforcement of the deportation order until further notice.
19. In a letter of 20 June 2007 the Government informed the Court that new information had come to light in the case which might constitute an impediment to the enforcement of the deportation order.
20. Consequently, in accordance with the relevant rules in the Aliens Act, on 29 June 2007, the Migration Board handed the case over to the Government for examination since it considered that, due to certain new information presented in an internal note by a civil servant at the Ministry of Justice, there appeared to be an impediment to the enforcement of the deportation order in the applicant’s case. In its view, there was now adequate reason (skälig anledning) to believe that the applicant would risk being tortured if returned to his home country. It noted that although the human rights situation in the country had improved and some police officers had been convicted for having committee torture, allegations of torture and impunity remained.
21. The Government requested the Migration Court of Appeal to submit its opinion on the case, which it did on 10 August 2007, after having held an oral hearing where the applicant and his representative were present as well as representatives for the Migration Board and the Security Police. In its opinion, the court stated that there were no impediments to the enforcement of the deportation of the applicant since it was not probable that the Moroccan authorities had an interest in the applicant and he therefore did not risk torture or inhuman treatment.
22. The applicant submitted in reply that the Migration Court of Appeal’s opinion was incorrect and that the Swedish Government could not guarantee his safety in Morocco. He further submitted a copy of a newspaper article about him in which his name was mentioned and there was a photo of him. The article had been published in the daily newspaper Svenska Dagbladet on 18 August 2007 and included the following information. The applicant claimed that he had never been interested in politics and that he hoped that the Swedish authorities would believe his assurances that he was not a terrorist. He had left Western Sahara, where he had grown up, because the Polisario Front had wanted him to join as a soldier but he had refused. In the article is was further stated that the main reason that the applicant was regarded as a security risk in Sweden, allegedly was that he had socialised with another person, X., who was suspected of having ties to Al-Qaida in Iraq and who had led a group of extremists from an apartment in Stockholm. The applicant claimed that he had needed a cheap place to sleep when he arrived in Stockholm and that X. had offered him a room in his apartment. However, they had never discussed politics and the applicant had moved out as soon as he had started working. However, while he was living in the apartment, he and X. had been awoken one morning by the Security Police who had detained and questioned them for half a day before they had been released. According to the applicant, the Security Police had focused on questioning him about X. He further stated that if he had seen anything suspicious, he would have told the police since he had come to Sweden for protection and therefore also wanted to protect Sweden.
23. On 19 September 2007 the Government decided that there were no impediments to the enforcement of the deportation order. Although some new information had come to light, these circumstances were not such as to render the deportation of the applicant unenforceable. Moreover, the fact that the applicant himself had chosen to make public his name and photo in one Swedish media after the Migration Court of Appeal had submitted its opinion to the Government, did not alter the Government’s conclusion in the matter. Finally, the Government reiterated that the enforcement of the deportation order was still suspended due to the Court’s request under Rule 39 of the Rules of Court.
24. The basic provisions mainly applied in the present case, concerning the right of aliens to enter and to remain in Sweden are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529).
25. Chapter 5, Section 1 of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1 of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group, and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2).
26. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2).
27. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19).
28. A refugee or an alien otherwise in need of protection may be refused a residence permit in certain cases. Such a decision may be taken if there are exceptional grounds for not granting a residence permit, either following an assessment of what is known about the alien’s previous activities or with regard to national security (Chapter 5, Section 1, paragraph 2, points 1 and 2). However, it follows from Chapter 8, Section 17 of the 2005 Act that no person at risk of being tortured may be refused a residence permit.
29. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3 and Chapter 16, Section 9 of the 2005 Act). However, in a so called security case (defined in Chapter 1, Section 7, as a case in which the Swedish Security Police, for reasons relating to national security or otherwise bearing on public security, recommend that an alien be deported or expelled, or that his or her application for a residence permit should be rejected or that an alien’s residence permit be withdrawn), a decision of the Migration Board on deportation, expulsion, a residence permit or a work permit may not be appealed against to the Migration Courts, but may instead be appealed against to the Government (Chapter 14, Section 11). The Migration Board shall promptly turn over an appeal of such a decision to the Migration Court of Appeal. This court shall, if it is not clearly unnecessary, hold an oral hearing in the case and shall then pass on the case, along with its opinion, to the Government for examination The opinion shall specifically state whether there is an impediment to enforcement under Chapter 12, Section 1, 2 or 3. If the Migration Court of Appeal finds that there is such an impediment, the Government may not diverge from the assessment of the Migration Court of Appeal in its examination (Chapter 14, Section 12). If, during the enforcement of a deportation or expulsion order in a security case, information comes to light that might constitute an impediment to the enforcement of that order, the Migration Board shall also promptly turn the case over to the Government, after which the above procedure applies (Chapter 12, Section 20, paragraph 2).
30. The Swedish Security Police may only recommend that an alien be deported or expelled, or that his or her application for a residence permit should be rejected for reasons relating to national security or otherwise bearing on public security. This recommendation is only decisive for defining the case as a security case. The decision to deport or to reject an application for a residence permit for reasons relating to national security or otherwise bearing on public security lies with the Migration Board and, ultimately, with the Government.
31. Moroccan law prohibits torture and the Government denied its use. In March 2006 a specific anti-torture law was passed, which has clear classification of the crimes in line with relevant UN conventions. Moreover, the penal code stipulates sentences of up to life imprisonment for public servants who use, or allow the use of, violence against others in the exercise of their official duties. Furthermore, by law, pre-trial investigating judges must refer a detainee to a forensic medicine expert if asked to do so or if judges notice suspicious physical marks on a detainee. Still, according to domestic and international human right organisations, prisoners and detainees, members of the security forces abused individuals in their custody. According to the Moroccan Minister of Justice, during 2007, authorities prosecuted 17 members of the security forces for human rights violations, including torture, and two officers were convicted and sentenced to ten years’ imprisonment for beating to death a Western Saharan activist in 2005.
32. The law does not prohibit arbitrary arrest or detention. According to international sources, the police used both practices and the authorities denied defendants access to counsel or family members during the initial 96 hours of detention, during which police interrogated detainees and abuse or torture was most likely to occur. Under the anti-terrorism law, enacted in the aftermath of the 2003 Casablanca bombings, the authorities have the power to detain a person for up to 12 days without notifying a lawyer or the detainee’s family. Detention limits were exceeded when individuals were suspected of terrorism or were linked to terrorism.
33. The constitution provides for an independent judiciary. However, it appears from available sources that in practice the courts were not always independent and corruption remained prevalent. The law also stipulates that when a criminal penalty is more than five years in prison, a court-appointed attorney must be provided, if a defendant cannot afford private counsel. Furthermore, if a judge determines that a confession was obtained under duress, the law requires that it be excluded from evidence. However, human rights organisations claimed that judges often decided cases on the basis of forced confessions, especially in cases of Islamists accused of terrorism or in the cases of some Sahrawis (people from the region of Western Sahara).
34. The Moroccan Government permitted visits to prisons during the year by independent human rights observers and, throughout 2007, they also permitted the Moroccan Observatory of Prisons (an NGO that receives limited government funding) to visit prisons and detention centres unhindered to observe conditions and hear complaints. Moreover, individuals could complain of human rights abuses to the Conseil Consultatif des Droits de l’Homme (the CCDH), which was also done without problems. The CCDH presented regular reports on the country’s human rights situation.
35. The Government provided increased human rights training to prison officials, military officers, police and medical personnel. The authorities did not hamper foreign human rights organisations visiting Morocco and they generally tolerated the work of many national human rights organisations. Amnesty International opened its first office in Morocco in 1998 and has since then opened several more offices in the country.
36. Several of the sources noted that despite the clear efforts to improve the human rights situation in Morocco and strengthen the democratic process, the fight against terrorism risked having a negative impact on respect for human rights in Morocco. Since August 2006, police have arrested at least 500 suspected Islamist militants and, according to Human Rights Watch, the intelligence agencies have continued to use an unacknowledged detention centre at Temara to interrogate some of those suspected of serious offences. Suspects continued to allege that they had been tortured while under interrogation, although there were fewer complaints of torture and excessive incommunicado pre-arraignment detention in 2007 than in the immediate aftermath of the 2003 Casablanca bombings. Moreover, during 2007, law enforcement efforts focused more narrowly on counter terrorism investigations and arrests than the previous broad dragnets used following the 2003 Casablanca attacks. Still, according to the Association El Nacir (an NGO which advocates on behalf of jailed Islamists) an estimated 200 individuals remained in custody without charge at the end of 2007, as a result of terror-related dragnets. Amnesty International has reported that more than 100 suspected Islamist militants were arrested, mostly by police, and that most of the detainees were charged and some were tried on terrorism offences and sentenced to up to 15 years in prison.
37. The Moroccan authorities kept particularly tight control over the disputed Western Sahara region, resulting in many reports of police brutality, including torture. UN-mediated talks concerning the region were held in 2007 between the Moroccan Government and the Polisario Front but without reaching an agreement. Amnesty International reported that hundreds of Sahrawi activists suspected of participating in demonstrations against Moroccan rule were arrested and dozens of them alleged that they had been tortured during questioning by security forces. Some were tried on charges of violent conduct while others were released after questioning. The Government encouraged the return of Sahrawis as long as they acknowledged the Government’s claim to the Western Sahara territory. There were no restrictions on travelling within the country.


ITEMID: 001-72923
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: MAYER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Ms Madeleine Mayer, is a German national who was born in 1952 and lives in Bruckberg. She was represented before the Court by Mr C. Lenz, a lawyer practising in Stuttgart.
The applicant is mentally disabled since her birth. A curator has been appointed in 1993 to take care of the administration of her property.
Following the death of the applicant’s parents in 1991 and 1993 respectively, the tax authorities found out that her parents had not declared certain assets in the property tax returns concerning themselves and the applicant. Thereupon, the Uffenheim Tax Office reassessed the property tax payable by the applicant, being their heiress, for the years 1985 to 1993 and fixed the default interest due pursuant to section 233a of the Taxation Code (Abgabenordnung, see ‘Relevant domestic law’ below). The decision became final.
On 22 June 1995 the Federal Constitutional Court rendered a leading decision concerning section 10 no. 1 of the Property Tax Act (Vermögensteuergesetz), which fixed the rates of property tax payable. It declared that the said section, in all its versions since 1983, was incompatible with the principle of equality before the law laid down in Article 3 § 1 of the Basic Law. However, in order to secure budgetary planning and an equal tax assessment for past periods of time, it decided that the provisions of the Property Tax Act continued to apply until 31 December 1996. The legislator was obliged to adopt a new regulation until then at the latest.
On 6 October 1997 the Uffenheim Tax Office ordered the applicant in her position as heiress to pay 14,561 Deutschmarks (DEM) in interest on the property tax evaded by her late parents between 1985 and 1993. It based its decision on section 235 of the Taxation Code (see ‘Relevant domestic law’ below). The default interest already paid pursuant to section 233a of the Taxation Code for an overlapping period of time was deducted from the amount of interest charged (section 235 § 4 of the said Code).
On 10 December 1998 the Uffenheim Tax Office dismissed the applicant’s objections against this decision.
On 17 February 2000 the Nuremberg Tax Court fixed the tax payable by the applicant at DEM 14,436 and dismissed the remainder of the applicant’s action. It found that pursuant to section 235 of the Taxation Code the applicant was liable to pay interest on property tax evaded by her deceased parents between 1985 and 1992. It found that at least one of the applicant’s parents had committed a tax evasion with in the meaning of section 370 of the Taxation Code (see ‘Relevant domestic law’ below) within that period. As regards the property tax return for 1993, the court found that there was no proof of an intentional evasion of property tax. The declaration was returned by the applicant’s curator, who had not intentionally made wrong statements and the applicant, being mentally disabled, did not participate in filing these submissions.
The Nuremberg Tax Court further argued that interest on evaded property tax could still be fixed despite the fact that the Federal Constitutional Court, in its decision dated 22 June 1995, considered section 10 no. 1 of the Property Tax Act to be unconstitutional. As the Federal Constitutional Court had ordered that the impugned section nevertheless continued to apply until 31 December 1996, the tax authorities could still fix property tax and order interest to be paid if such tax was evaded before that date.
The Nuremberg Tax Court also found that ordering a heir to pay interest following the death of the testator who was guilty of tax evasion did not violate Article 6 § 2 of the Convention. The heir was the beneficiary of this tax evasion because the testator’s property, including the profits made on the offence, had passed to him or her. It argued that charging interest on evaded taxes pursuant to section 235 of the Taxation Code could not be considered as a criminal sanction. The said section was merely aimed at absorbing profits obtained by the belated payment of the taxes evaded. Interest rate advantages were absorbed for the total period of time in which the amount of tax evaded was not yet paid. This was a longer period of time than the relevant period for which default interest had to be paid according to section 233a of the Taxation Code. However, the interest already fixed pursuant to section 233a of the Taxation Code was deducted from the amount of interest due under section 235 of the said Code (section 235 § 4).
According to the Tax Court, the present case was also distinguishable from the case of A.P., M.P. and T.P. v. Switzerland, in which this Court rendered judgment on 29 August 1997 (Reports of Judgments and Decisions 1997-V). That case concerned a fine, that is, unlike the interest in the present case, a criminal sanction imposed on the heir for a tax evasion committed by the testator.
On 1 August 2001 the Federal Tax Court dismissed the applicant’s appeal on points of law as ill-founded. It endorsed the reasoning of the Tax Court concerning the implications of the Federal Constitutional Court’s decision dated 22 June 1995. It further agreed with the Tax Court’s view that interest on evaded property tax was not a criminal sanction. This was illustrated, in particular, by the fact that the rate of interest payable on evaded tax pursuant to section 235 of the Taxation Code and the rate of interest payable pursuant to section 233a of the Taxation Code was the same. Consequently, Articles 6 and 7 § 1 of the Convention were not applicable to interest payable on evaded property tax.
On 2 May 2002 the Federal Constitutional Court, without giving further reasons, refused to admit the applicant’s constitutional complaint.
The rules on interest payable on tax claims are laid down in sections 233-239 of the Taxation Code.
Pursuant to section 233a § 1 of the Taxation Code, in its version in force at the relevant time, default interest is payable on supplementary claims of, inter alia, property tax. The period for calculation of the interest due starts 15 months after the end of the year in which the tax arose and ends with the date on which the tax assessment takes effect (section 233a § 2).
Section 235 § 1 of the Taxation Code provides that interest is payable on taxes intentionally evaded by the person to whose benefit the tax has been evaded. The time limit for calculation of the interest payable starts already when the tax evasion takes effect and ends only with the payment of the evaded taxes (section 235 §§ 2 and 3). Section 235 § 4 provides that interest already fixed pursuant to section 233a for an overlapping period of time is to be deducted from the interest payable.
According to section 238 of the Taxation Code the rate of interest due pursuant to, inter alia, sections 233a and 235 is 0.5 per cent of the amount of supplementary taxes charged per month.
Section 370 of the Taxation Code provides that tax evasion, when committed intentionally, is a criminal offence which is punishable with up to five years’ imprisonment or a fine.


ITEMID: 001-80249
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: GRANDCHAMBER
DATE: 2007
DOCNAME: CASE OF VILHO ESKELINEN AND OTHERS v. FINLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 (length of proceedings);No violation of Art. 6-1 (lack of a hearing);Violation of Art. 13;No violation of P1-1 alone or in conjunction with Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Anatoly Kovler;Christos Rozakis;Egbert Myjer;Françoise Tulkens;Giovanni Bonello;Javier Borrego Borrego;Jean-Paul Costa;Kristaq Traja;Lech Garlicki;Luzius Wildhaber;Matti Pellonpää;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen
TEXT: 9. The applicants were born in 1955, 1953, 1954, 1956, 1937, 1957, 1983 and 1981 respectively and live in Sonkakoski and Sonkajärvi.
10. The first five applicants and the late Mr Hannu Matti Lappalainen worked in the Sonkajärvi Police District. Under a collective agreement concluded in 1986, they were entitled to a remote-area allowance, which was added to their salaries as a bonus for working in a remote part of the country. The amounts of the allowance were calculated on the basis of a given area’s remoteness. By a collective agreement concluded on 15 March 1988, the remote-area allowance was abolished. This would have resulted in a reduction of the salary payable to civil servants whose duty station was Sonkajärvi. In order to prevent such a reduction, the collective agreement granted them monthly individual wage supplements from 1 March 1988.
11. On 1 November 1990 the Sonkajärvi Police District was incorporated into the Iisalmi Police District by a decision of the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet). Following the incorporation, the applicants’ duty station changed. They also lost their individual wage supplements and the length of their commute allegedly increased by up to 50 km per day as they had to travel from Sonkajärvi to Iisalmi.
12. According to the applicants, following their request of 17 October 1990 to that effect, the Kuopio Provincial Police Command (läänin poliisijohto, länspolisledningen) promised that their loss would be compensated.
13. On 25 March 1991 the Police Department of the Ministry of the Interior, at the request of the Provincial Police Command, submitted a request for authorisation for the payment of monthly individual wage supplements, amounting to between 500 and 700 Finnish marks (FIM) (84118 euros) per person, to those police officers and other personnel whose duty station had been changed from Sonkajärvi to Iisalmi. The request referred to an allegedly analogous case (the Mäntyharju case) in which the Ministry of Finance (valtiovarainministeriö, finansministeriet) had granted a request for individual wage supplements on 29 December 1989. On 3 July 1991 the Ministry of Finance replied that it could not grant such authorisation. It gave no reasons for its refusal.
14. On 1 October 1992 competence to decide on wage supplements in respect of local police forces was transferred to the County Administrative Boards (lääninhallitus, länsstyrelsen).
15. On 19 March 1993 the applicants lodged an application requesting that they be compensated for their loss. They referred to the above decision in the Mäntyharju case. They also relied on the principle of equality as laid down in Article 5 of the Constitution then in force (Suomen hallitusmuoto, Regeringsform för Finland; Law no. 94/1919).
16. Four years later, on 19 March 1997, the request was rejected by the Kuopio County Administrative Board. It reasoned:
“The civil servants of the former Sonkajärvi Police District ... have ... requested compensation for the losses arising from the incorporation of police districts, in response to which the Provincial Police Command, endorsing the request, submitted documents to the Police Department of the Ministry of the Interior. By a letter of 25 March 1991, the Ministry of the Interior recommended to the Ministry of Finance the retroactive payment from 1 November 1990 of individual wage supplements to those civil servants whose duty station, after the incorporation, is Iisalmi.
By a letter of 3 July 1991, [the Ministry of Finance] informed the Ministry of the Interior that it had found that it could not grant the request.
Following the [Ministry of Finance’s] decision, competence to decide on individual wage supplements was transferred to the County Administrative Boards. On 28 January 1993, in a negotiation meeting held by the Provincial Police Command at which the applicants were represented by Mr Lappalainen, it was noted that negotiations were pending with regard to the Askola Police District in Uusimaa County, which was a corresponding case. As [the Ministry of Finance], which had the relevant competence, had already decided the claims concerning the Sonkajärvi Police District, it was concluded that, on grounds of fairness, the decision in Uusimaa would be adhered to in Kuopio County were it to depart from the view of the Ministry of Finance. The Uusimaa County Administrative Board rejected the application and the decision was upheld by the Supreme Administrative Court. No new grounds have been presented in the letter of 19 March 1993, or in Mr Pallonen’s [further and] separate claim of 17 August 1994, to support the claims which have already been decided [by the Ministry of Finance].
The County Administrative Board has not learned of any positive decisions regarding compensation in corresponding cases as regards the incorporation of police districts anywhere in the country following the above-mentioned [Ministry of Finance’s] decision.
In 1990, when the incorporation took place, the Provincial Police Command lacked competence to make any binding promises as regards the compensation of costs. Its view had been shown through its support of the application.
The County Administrative Board, using its discretion and basing itself on the earlier decision by the competent authority, considers that the decision has acquired a certain res judicata effect. Emphasising the principles of equality and fairness, the County Administrative Board also bases itself on the prevalent practice throughout the country.”
17. Meanwhile, in December 1996 one of the applicants lodged a complaint with the Chancellor of Justice (oikeuskansleri, justitiekanslern) who, in his decision of 24 January 1997, drew attention to the fact that the applicants had still not received any answer to their application.
18. On 25 April 1997 the applicants appealed against the County Administrative Board’s decision and requested an oral hearing which, they asserted, would make it possible to establish the facts of the case, in particular that a promise had been made by the Provincial Police Command. The Kuopio County Administrative Court (lääninoikeus, länsrätten) received replies to the appeal from the Provincial Police Command and the Provincial State Attorney (lääninasiamies, länsombudet), and these were communicated to the applicants for comment.
19. By a decision of 8 June 1998, the County Administrative Court reasoned:
“Rectification of wage increases affecting pensions falls outside the County Administrative Court’s competence.
It is not necessary to receive oral testimony from the parties as regards the Provincial Police Command of the County Administrative Board’s promises concerning the incorporation of police districts, or on how the case has been otherwise handled, in order to clarify the case.
In its letter of 25 March 1991, the Ministry of the Interior proposed to the Ministry of Finance that the Sonkajärvi Police District be incorporated into the Iisalmi Police District from 1 November 1990 [in fact, the Ministry of the Interior recommended payment, not incorporation] and that the inconvenience caused by the change of duty station be compensated in the form of a wage supplement of FIM 500 to 700 per month, retroactively from 1 November 1990. In its letter of 3 July 1991, the Ministry of Finance considered that it could not grant the request. Negotiations were held between the Police Department of the Ministry of the Interior and the Police Association [Suomen Poliisiliitto ry] on 3 September 1992 and between the Provincial Police Command of the Kuopio County Administrative Board and the applicants’ representative on 28 January 1993.
Pursuant to Article 9 § 2 of the State Collective Agreement Decree (as amended on 18 September 1992), the County Administrative Board has competence to decide on wage supplements in respect of ... civil servants in the local police forces.
The County Administrative Board must be considered to have examined the applicants’ ... submission dated 19 March 1993 as a rectification request, referred to in section 84 of the State Civil Servants Act. The rectification request has been lodged within the time laid down by section 95(1) of the State Civil Servants Act, if calculated from the Ministry of Finance’s decision of 3 July 1991.
In 1990 the Provincial Police Command of the County Administrative Board lacked competence to give any binding promises pertaining to compensation. Competence to decide the matter lay at that time with the Ministry of Finance, which in its letter of 3 July 1991 had stated that it considered that it could not accede to the request. Since 1 October 1992 the County Administrative Board has had competence to decide on the wages of local police.
The County Administrative Board has in its decision, subject to appeal, based itself on the decision by the former competent authority and on the fact that after 3 July 1991 no compensation had been awarded to personnel in other cases in which incorporation had taken place. The decision is therefore based on the prevalent practice at that time in the entire country. The decision cannot be considered unreasonable in those circumstances. It has been possible to dismiss the request for rectification.”
20. On 7 July 1998 the applicants appealed further, requesting an oral hearing and emphasising that similar wage supplements had been granted to personnel from other police districts in corresponding situations. They relied, for example, on a decision of 10 January 1997 by the Pohjois-Karjala County Administrative Board, granting a police officer an individual wage supplement from 1 December 1996 following incorporation of the Valtimo Police District into the Nurmes Police District.
21. On 27 April 2000 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), having received observations from the Provincial Police Command and the Provincial State Attorney and having communicated them to the applicants for comment, upheld the lower court’s decision. It reasoned:
“The Supreme Administrative Court has examined the case.
The promises made by the Provincial Police Command of the Kuopio County Administrative Board as regards compensation for costs arising from the incorporation of police districts have no legal relevance to the case. Thus, the holding of an oral hearing is manifestly unnecessary. Accordingly, the Supreme Administrative Court, having regard to section 38(1) of the Administrative Judicial Procedure Act, refuses [the appellants’] request for an oral hearing.
In their letter of 19 March 1993, [the appellants] requested compensation in the form of individual wage supplements of costs arising from the incorporation of their police district. On 1 October 1992 competence to decide on wages in respect of local police forces was transferred to the County Administrative Board pursuant to section 9(2) of the State Collective Agreement Decree (as amended on 18 September 1992).
[The appellants] have no statutory right to the individual wage supplement in question. The Kuopio County Administrative Board has not overstepped its margin of appreciation. The County Administrative Board’s decision is not in breach of the law. Therefore, the Supreme Administrative Court, having regard to section 7(1) of the Administrative Judicial Procedure Act, finds that there is no reason to amend the outcome of the County Administrative Board’s decision, which accordingly remains final.”
22. The implementing instruction of 26 April 1988 on the application of the collective agreement with regard to the payment of a cold-area allowance to civil servants provided:
“A civil servant working (before 29 February 1988) in a municipality not covered by the new collective agreement is entitled to an individual wage supplement ... as long as he or she is working in the municipality giving rise to an entitlement to such an allowance. Where a civil servant entitled to an individual wage supplement is ordered, temporarily or as a substitute, to perform the duties of another civil servant, or where his or her duty station is transferred to a municipality in which the previous remote-area allowance has not been paid, the said civil servant will not be paid the individual wage supplement during the period he or she is performing those other duties because, in order to receive the wage supplement, the civil servant has to perform his or her duties in a municipality giving rise to entitlement to the wage supplement.”
According to the applicants, this instruction was not relevant to the present case, in that it allegedly concerned only temporary transfers, whereas the transfer of the applicants’ place of duty had been of a permanent nature.
23. In its request of 25 March 1991, the Police Department of the Ministry of the Interior referred to an allegedly analogous case in which the Ministry of Finance had on 29 December 1989 granted a request for individual wage supplements following the incorporation of the Pertunmaa Police District into that of the Mäntyharju Police District (the Mäntyharju case).
24. On 3 July 1991 the Ministry of Finance refused a request for compensation for commuting costs lodged by a civil servant whose duty station had changed following the incorporation of the Askola Police District into that of the Mäntsälä and Porvoo Police District. The decision was upheld by the Uusimaa County Administrative Board and the Supreme Administrative Court on 7 April 1993 and 7 December 1994 respectively.
25. By a decision of 10 January 1997, the Pohjois-Karjala County Administrative Board granted a police officer a cold-area allowance at level 1 plus an individual wage supplement compensating for the difference between level 2 (Valtimo) and level 1 (Nurmes) of the cold-area allowance following the incorporation of the Valtimo Police District into the Nurmes Police District (the Nurmes case).
26. Section 38(1) of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen; Law no. 586/1996) provides that an oral hearing must be held if requested by a private party. An oral hearing may however be dispensed with if a party’s request is ruled inadmissible or immediately dismissed or if an oral hearing would be clearly unnecessary due to the nature of the case or other circumstances.
27. The explanatory report on the Government Bill (no. 217/1995) for the enactment of the Administrative Judicial Procedure Act examines the right to an oral hearing as provided by Article 6 of the Convention and the possibility in administrative matters to dispense with the hearing when it would be clearly unnecessary, as stated in section 38(1) of the said Act. It notes that an oral hearing contributes to a focused and immediate procedure but since it does not always bring any added value, it must be ensured that the flexibility and cost-effectiveness of the administrative procedure is not undermined. An oral hearing is to be held when it is necessary for the clarification of the issues and the hearing can be considered beneficial for the case as a whole.
28. The international law and practice from which the Court sought guidance in Pellegrin v. France ([GC], no. 28541/95, ECHR 1999VIII) has been outlined in that judgment (see §§ 37-41).
29. Article 47 of the Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000, on the right to an effective remedy and a fair trial, provides:
“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”
30. The Explanations relating to the Charter of Fundamental Rights, originally prepared under the authority of the Praesidium of the Convention which drafted the Charter and finally integrated in the Final Act of the Treaty establishing a Constitution for Europe, do not have equal authority to the Charter. However, they are a “valuable tool of interpretation intended to clarify the provisions of the Charter”. They read as follows (extract):
“The second paragraph [of Article 47] corresponds to Article 6(1) of the ECHR which reads as follows:
‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.’
In Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law as stated by the Court in Case 294/83, ‘Les Verts’ v. European Parliament (judgment of 23 April 1986, [1988] ECR 1339). Nevertheless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union.”
It follows that Article 47, in the context of European Union law, is not confined to civil rights and obligations or to criminal matters within the meaning of Article 6 of the Convention. In this respect the Charter codified existing case-law of the Court of Justice of the European Communities (see Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary, Case 222/84, [1986] ECR 1651, referred to in paragraph 60 below).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 14
6
NON_VIOLATED_PARAGRAPHS: 6-1