ITEMID: 001-23599
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: LUNDKVIST v. SWEDEN
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant, Mr Tommy Lundkvist, is a Swedish national, who was born in 1949 and lives in Kvicksund. He is represented before the Court by Mr J. Södergren, a lawyer practising in Stockholm. The respondent Government were represented by Mrs I. Kalmerborn of the Ministry for Foreign Affairs, as Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
In the evening of 24 June 1994, the so-called “midsummer night”, a row broke out between the applicant and his wife in the couple’s home. Later, on 25 June, at around 2 a.m., a fire ravaged the home, a wooden house owned by the applicant, which burned down to the foundation walls.
The applicant was subsequently charged under Chapter 3, Article 5 of the Penal Code, with ill-treating his wife, and under Chapter 13, Article 1 with arson for setting his house on fire.
In August 1994 the Västerås District Court convicted the applicant on the first count and sentenced him to one month’s imprisonment. On the second count, it acquitted him, finding that, notwithstanding the existence of strong arguments supporting the prosecution’s case, it had not been shown beyond reasonable doubt that the applicant was guilty of the offence.
On 14 December 1994 the Svea Court of Appeal upheld the judgment. As regards the arson charge, it observed:
“As found by the District Court, there are strong reasons for believing that [the applicant] started the fire in his villa. However, there is nothing in the investigation that directly links him to this act. Nor does the investigation exclude the possibility that the fire was caused by an accident or had been started by another person. Since it cannot therefore be regarded as established beyond reasonable doubt that [the applicant] started the fire, the charge must be rejected.”
Subsequently, the applicant instituted civil proceedings against his insurance company, Länsförsäkringar Bergslagen, requesting a declaratory judgment to the effect that the latter was obliged under the insurance contract to pay him compensation for the damage caused by the fire to his house and personal belongings.
The Västerås District Court, sitting with a different bench from the one in the criminal case, held an oral hearing during which evidence was heard from the applicant, the witnesses who had given evidence during the criminal trial and a number of new witnesses. The written evidence adduced by the parties was to a large extent the same as had been submitted in the criminal proceedings.
In its judgment of 24 January 1997, the District Court found for the insurance company and against the applicant. The judgment contained an introductory section entitled “Background”, in which the District Court quoted the Court of Appeal’s above-cited conclusion, and a summary of the parties’ submissions (“Yrkande mm”). This was followed by the District Court’s reasoning (“Domskäl”), which gave an itemised description of the written and oral evidence, reiterated the contents of some of the new oral evidence, and set out the District Court’s assessment. It first reiterated the standards of proof applicable to cases of insurance compensation, noting that it was not disputed here that an insured event had occurred, but only whether the matter fell within the exception clause in H 4.3 of the insurance policy, cf. section 32 of the Consumer Insurance Act (konsumentförsäkringslagen), which it was for the insurance company to prove. In this connection the District Court emphasised that a factor that was significant for distinguishing the assessment of evidence in the civil case from that of the criminal case was the applicant’s silence.
The District Court then examined, at quite some length, the evidence, including that from experts, as to the possible natural causes of the fire, notably the house’s electrical installations and heating system, in particular a combined wood-and-oil burner and the chimney. It concluded that such causes could be excluded and that there were therefore weighty reasons for considering that the cause must lie somewhere else. It went on:
“As already stated, [the applicant] for his part has not been able to contribute with any explanation as to the origin of the fire. He had good opportunities to start the fire. According to the investigation, shortly before the fire, he went in and out of the house several times.
The District Court considers that no person other than [the applicant] can be suspected of having started the fire. The information provided by [his wife] to the police during the first interview makes the suspicion against him particularly strong. During the police interview she had stated inter alia that [the applicant] threatened to burn the house down if she and her son were to move. The evidence obtained at the police interviews must be given particular evidential value. Subsequently she has provided new and different information in a curious manner. Her new statement does not seem credible. She has strong personal reasons for trying to save the family’s financial situation. The new information could be explained, or at least seen, in the light of the fact that, as she admits, she talked with [the applicant] about the circumstances relating to the origin of the fire before the Court of Appeal hearing. Even during the hearing in the previous case Mrs Lundkvist gave barely credible explanations for departing from the information that she had spontaneously provided during the first police interview and has not convincingly presented her new version, inter alia that she should have been inside the house immediately before the fire and seen smoke in the house, amongst other things. She has been further examined on these points and has stated that she did ‘not know how she should reply’.
What first and foremost indicated that [the applicant] started the fire is that, in connection with a row with his wife, he expressed a threat to burn the house down, plus the fact that his state of mind was clearly such that, in a fit of desperation, he could very well be believed to have started the fire by using the inflammable liquids that were in the house. His disposition for taking dramatic steps is confirmed by the suicidal thoughts that he expressed immediately after the fire. The assumption that [the applicant] himself started the fire with the help of inflammable liquids is supported by the development of the fire as witnessed by several eye witnesses and, with the exception of Mr Andersson, by the evidence heard from technical experts on fire incidents. One of the apparent factors which likewise suggests that [the applicant] started the fire is that, as pointed out by the District Court in its judgment of 5 August 1994, immediately before the fire [the applicant] carried his son from his room in the house out to the lorry and the fact that [the applicant] was in the house, in the cellar, at the precise moments that the smoke became apparent. Furthermore, it should be taken into consideration that [the applicant] himself, voluntarily, raised the question of arson with Mr Mats Eriksson [police officer] when the police intervened against him after the fire.
The District Court finds that the circumstances adduced in support of the submission that [the applicant] intentionally started the fire outweigh other possible causes of the fire to such a high degree that insurance compensation should not be paid. The appeal shall therefore be rejected.”
The applicant appealed to the Svea Court of Appeal. That court, too, sat in a different composition from that in the criminal case. The applicant relied mainly on the same evidence as before the District Court. The Court of Appeal heard evidence from the applicant at his own request and from several expert witnesses and heard tape recordings of a number of witness statements taken by the District Court, including those of the applicant’s wife and mother, at their request.
In its judgment of 17 March 1998 the Court of Appeal upheld the District Court’s judgment.
Like the District Court, the Court of Appeal first considered the various possible technical causes of the fire and endorsed the District Court’s findings that such causes had to be excluded.
“[The applicant]’s behaviour during the midsummer night and the disquiet and anxiety that he aroused in Mrs Lundkvist and his mother indicate that he was mentally highly imbalanced. The information that Mrs Lundkvist finally provided in order to protect him appears, as the District Court held, not to be credible. Furthermore regard should be had to the fact that the statements initially made by [the applicant] about the fire during the police interviews – the first time, when he had not yet been informed that he was under suspicion of having committed an offence – are not supported by the remainder of the investigation. Thereafter he has not been able to contribute any explanation. The Court of Appeal draws the same conclusion as the District Court from the fact that after the initial police interview [the applicant] has given hardly any information about the event. Against this background and having regard to the case as a whole, there is no possibility of considering that the fire was started by any person other than [the applicant].
In view of these considerations the insurance company must be considered to have shown – in accordance with the standard of proof applicable to civil cases of this kind – that [the applicant] started the fire. His request for a declaratory judgement shall therefore be rejected and the District Court’s judgment shall stand.”
The applicant sought leave to appeal against the Court of Appeal’s judgment. On 11 November 1998 the Supreme Court refused leave.
Chapter 13, section 1, of the Penal Code (brottsbalken) provides:
“If a person starts a fire, which entails a danger to another person’s life or health or extensive damage to another person’s property, he or she shall be convicted of incendiarism and be sentenced to imprisonment of between two and eight years.
Where the offence is less serious, the person shall be sentenced to imprisonment of between one and three years.”
Chapter 1, section 2, first sub-paragraph of the Penal Code reads:
“Unless otherwise specifically provided, an act shall be considered a criminal offence only if it has been committed with intent.”
“If you have caused the insured event by intent you shall not receive any compensation for your part. The same applies if another person acted with your consent or if the person has significant financial interests in common with you (for example your spouse) and there are no particular reasons to the contrary.
This is also the case - except where it concerns a third party insurance - if the insured event has been caused by gross negligence and there are no particular reasons to the contrary.”
It is not claimed that the above-cited policy clause conflicted with the relevant provisions of the Consumer Insurance Act, section 32 of which provides that no insurance cover will be provided in favour of an insured person who has intentionally caused the insured event and that the cover may on certain conditions be reduced if an insured event has been caused by gross negligence or negligence which is not insignificant.
Different standards of proof apply to criminal and civil cases. In a criminal case the burden of proof is entirely on the prosecutor, who must establish beyond any reasonable doubt that the defendant has committed the act in question and that he did so with the necessary intent or negligence. In a civil case, the burden of proof is normally on the plaintiff. The standard of proof in a civil case differs according to the type of case and the circumstances that have to be proved, but is less strict than in a criminal case.
According to examples of Supreme Court case law submitted by the Government (see, e.g., NJA 1984 p. 501, NJA 1986 p. 3, NJA 1986 p. 358, NJA 1986 p. 470 and NJA 1990 p. 93), in cases concerning insurance compensation to consumers it is for the policyholder to show that, having regard to the circumstances as a whole, it is more likely than not that an insured event has occurred. The policyholder’s burden of proof is viewed as somewhat more lenient than the ordinary civil burden of proof. If the insurance company responds that no compensation shall be granted because the policyholder has intentionally caused the insured event, the burden shifts onto the company, which has to prove this in accordance with the ordinary civil standard.


ITEMID: 001-78898
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF OREL v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1953 and lives in Slovenská Nová Ves.
5. On 16 November 1993 the applicant challenged the lawfulness of his dismissal from a job and withdrawal of a part of his pay by the employer.
6. On 3 February 1994 the Bratislava I District Court invited the applicant to pay the court fee. On 6 April 1994 the defendant foundation submitted comments on the applicant’s action.
7. As the parties did not attend the hearing scheduled for 7 June 1994, the court adjourned the case until 18 October 1994. Subsequently the applicant appeared before the court and he requested that an interim measure be issued.
8. On 31 August 1994 the Bratislava I District Court discontinued the proceedings concerning the interim measure on the ground that the applicant had failed to substantiate his request.
9. On 9 September 1994 the court invited the applicant to specify the amount which he claimed. The applicant replied on 9 November 1994.
10. On 18 October 1994 the case was adjourned as the parties were absent.
11. On 21 October 1994 the court asked the defendant for information about the applicant’s pay. The mail was returned to the court as being undeliverable.
12. On 1 December 1994 the case was again adjourned, due to the absence of the defendant. The post had returned the summons to the District Court. As the post had informed the court that the defendant foundation had moved, on 4 January 1995 the court asked two authorities for information about the new seat of the defendant. On 3 February 1995 the court was informed of the defendant’s new address.
13. The case was adjourned on 19 January 1995 and on 16 February 1995 as a representative of the defendant foundation had not appeared. The summons had been returned to the court. The representative of the defendant appeared before the District Court on 13 April 1995. He informed the court of his and the foundation’s new address. The applicant did not appear at that hearing. The court informed the representative of the defendant that a fine would be imposed on him if he failed to appear at the next hearing scheduled for 30 May 1995.
14. Hearings were held on 30 May 1995 and on 12 September 1995 in the presence of both parties. On 7 November 1995 the case had to be adjourned as the defendant was absent.
15. The applicant and a witness were unable to attend the hearing held on 30 January 1996. On the same day the defendant challenged the District Court judge dealing with the case. On 29 February 1996 the Bratislava City Court dismissed the request.
16. The defendant failed to appear before the District Court on 11 and 23 July 1996. As the mail sent by the court to both the defendant foundation and its representative could not be delivered, the court made inquiries with a view to establishing the defendant’s address. The three authorities concerned submitted their replies on 16 August 1996, on 11 September 1996 and on 5 November 1996.
17. The District Court sent letters to the representative of the defendant foundation in February and in May 1997. All three letters were returned with the indication that the addressee was not at the address indicated in the letters.
18. On 15 August 1997 the central register informed the District Court that the representative of the defendant foundation had registered his permanent stay at the address where the court had tried to reach him earlier and which the Ministry of the Interior had indicated to the court on 5 November 1996.
19. On 21 November 1997 the court asked the Bratislava III District Office for a copy of the registration file of the defendant foundation. In a letter dated 28 November 1997 which arrived at the District Court on 2 December 1997 the above administrative authority informed the court that the foundation had not requested a change in registration of the address of its seat. The letter stated that the representative had informed the District Office, on 3 September 1997, that the defendant foundation was in liquidation.
20. On 21 May 1998 the District Court asked the Bratislava III District Office for the registration file of the defendant foundation. The file was submitted to it on 9 June 1998. The letter stated that the administrative authority had already sent to the court the requested documents on 28 November 1997.
21. On 22 July 1998 the court appointed a guardian to represent the defendant foundation in the proceedings as it had been impossible to establish the new address of its seat.
22. In a letter dated 10 July 1998 the representative of the defendant foundation informed the court that he would not submit the requested information and documents as he considered that the applicant’s right to claim the sum in issue had lapsed. A new address of the defendant foundation was indicated in the header of the letter.
23. The case was adjourned on 7 September 1998 due to the absence of the parties. Both the applicant and his representative had excused their absence. The court imposed a fine of 1,200 Slovak korunas on the representative of the defendant foundation for his failure to appear. On 15 October 1998 the case was again adjourned because of the absence of the defendant.
24. On 17 November 1998 the Bratislava I District Court decided, in the absence of the defendant’s representative, that the applicant’s dismissal had been unlawful as the relevant notice had not been in conformity with the statutory requirements. It ordered the defendant to pay 608,500 Slovak korunas (SKK) to the applicant in compensation for loss of salary. It discontinued the proceedings in respect of the remainder of the applicant’s action as the applicant had withdrawn the corresponding claims. The judgment was served on the representative of the defendant on 30 April 1999. The liquidator of the defendant filed an appeal on 17 May 1999 indicating that the defendant foundation had ceased to exist by 1 November 1998.
25. On 28 May 1999 the defendant was invited to eliminate shortcomings in the appeal within ten days. The letter was returned as undeliverable on 23 June 1999. A further request was delivered to the representative of the defendant on 30 July 1999. He submitted no reply. On 10 September 1999 the file was submitted to the court of appeal.
26. On 25 February 2000 the Bratislava Regional Court adjourned the case because of the defendant’s absence. On 3 April 2000 the court received information, at its request, concerning the status of the defendant foundation.
27. On 5 May 2000 the Regional Court set a ten day time-limit for submission of the reasons for the defendant’s appeal.
28. On 31 May 2000 the Bratislava Regional Court discontinued the appeal proceedings on the ground that the defendant had failed, despite several warnings, to submit reasons for the appeal. The decision on the applicant’s action became final on 18 July 2000.
29. On 27 September 2002 the applicant requested the Bratislava I District Court that the sum which his former employer owed him should be enforced by selling his former employer’s movable property.
30. On 23 May 2000 the Bratislava I District Office decided to stop paying a social allowance to the applicant with effect from 1 June 2000. On 12 June 2000 the applicant appealed.
31. On 22 June 2000 the Bratislava Regional Office upheld the decision of 23 May 2000.
32. On 17 July 2000 the applicant challenged the administrative decisions before the Bratislava I District Court. He also filed a request for an interim measure to be issued.
33. On 15 December 2000 the District Court dismissed the applicant’s request for an interim measure. On 30 April 2001 the Bratislava Regional Court dismissed the applicant’s appeal against this decision.
34. On 20 February 2001 the Bratislava I District Court found that it lacked jurisdiction to deal with the applicant’s action concerning the above administrative decisions. The case was transmitted to the Bratislava Regional Court.
35. On 18 June 2001 the Constitutional Court found that the Bratislava I District Court had violated the applicant’s right to a hearing without undue delay in the proceedings concerning his action of 17 July 2000. The Constitutional Court noted that the District Court had started considering the action nearly five months after it had been lodged, and that no procedural steps had been taken as the case fell within the jurisdiction of a different court.
36. On 21 March 2002 the Bratislava Regional Court quashed the administrative decisions challenged by the applicant.
37. On 26 September 2002 the Bratislava I District Office granted the advance payment of the allowance in issue to the applicant for the period from 1 June 2000 to 31 August 2002.
38. On 22 September 1993 the applicant’s former wife filed an action claiming that she had the exclusive right to use a flat in which she and the applicant had lived.
39. Several procedural decisions were given in the case and the Bratislava I District Court, to which the merits of the case fell to be examined, held a number of hearings. In the course of the proceedings the applicant filed a counter-claim.
40. The applicant sought an injunction giving him the right to use the flat. The request for an injunction was dismissed by a final decision which was given by the District Court on 3 June 1999.
41. On 15 May 2002 the District Court dismissed both parties’ claims. It held that the applicant and his former wife no longer lived in the flat. The applicant had waived his right to use the flat in that he had stopped living in a common household with his former wife in 1992.
42. On 15 October 2003 the Regional Court upheld the first-instance judgment which became final on 20 January 2004.
43. On 28 January 2005 the Constitutional Court rejected the applicant’s complaint about inactivity of the District Court as regards his above request for an injunction. The Constitutional Court referred to the ordinary courts’ findings in the proceedings concerning the use of the flat in issue. It held, inter alia, that the applicant had sought an injunction giving him the right to use a flat which, as it had been established, he had left in 1992 and in respect of which he had no legal title.
44. On 5 August 1996 the applicant claimed distribution of his and his former wife’s marital property.
45. The merits of the case have been examined by the Bratislava II District Court which held a number of hearings and took extensive evidence. The proceedings are pending.
46. On 27 August 1991 the applicant claimed damages before the Bratislava I District Court. The applicant alleged that the defendant had not repaired his car properly and claimed SKK 11,000 in compensation. The case was transferred to the Bratislava V District Court. That court held several hearings in 1991. On 8 August 1994 the court ordered an expert to submit an opinion. The opinion was submitted on 19 October 1994.
47. The court scheduled four hearings between 20 December 1996 and 14 March 1997. On the latter date the Bratislava V District Court ordered the defendant to pay the sum claimed to the applicant with default interest. The defendant refused receipt of mail and the District Court’s decision was served on him only on 20 October 1997.
48. On 22 July 1998 the applicant sought the enforcement of the sum in question.
49. On 6 August 1998 the Bratislava V District Court authorised an executions officer to enforce the sum. On 19 August 1998 the executions officer issued a notification of the execution. It was served on the applicant on 1 June 1999 and on the debtor on 26 May 1999.
50. On 24 June 1999 and on 20 July 1999 the executions officer issued two execution orders with a view to obtaining the sum owed by the defendant through the sale of his movable property and the withdrawal of a part of his income. On 8 July 1999 the executions officer, with the assistance of the police, established an inventory of the movable property of the debtor. The movables were not taken away as their value was low and since the debtor’s wife had promised to pay the sum in issue. Subsequently the executions officer unsuccessfully attempted to contact the debtor and his wife.
51. In a statement of 12 October 2006 the executions officer explained that it had not been shown that the debtor owned any property or that he had any income. For that reason the judgment had not been executed.
52. The execution proceedings are pending.
53. The relevant provisions of the Constitution as well as the practice of the Constitutional Court are described in detail in, for example, Jakub v. Slovakia, no. 2015/02, §§ 25-38, 28 February 2006 or Savka v. Slovakia, no. 77936/01, 30 May 2006).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80205
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF B. v. FINLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1+6-3-d
JUDGES: Nicolas Bratza
TEXT: 6. The applicant and another person were suspected of having sexually abused the applicant's two daughters, K. born in October 1986 and J. born in October 1990.
During the pre-trial investigation, K. and J. were questioned on 16 February 1997 and on 19 January 1997 respectively.
Subsequently, they were questioned again and the interviews were recorded on videotape. K. was interviewed on 15 June and 6 December 1998 and J. on 22 June and 7 December 1998.
7. On 3 December 1998 at the pre-trial stage, the applicant was shown the videotapes. She contested the suspected sexual abuse. She was given an opportunity to have questions put to the children, but she did not avail herself of the opportunity. Her counsel was also present.
In her closing statement of 4 February 1999 she maintained that she was not guilty of any offence. She also considered the children's statements contradictory and unclear.
8. The applicant, among others, was charged before the District Court (käräjäoikeus, tingsrätten) with having sexually abused the two children on several occasions between 1992 and 1996. The defendants denied the charges.
9. The District Court heard the applicant, the co-accused and ten witnesses, including a psychiatrist, two psychologists and several persons, who had taken care of the children and offered them a foster home over the years. The District Court also watched the above videotapes. The pre-trial investigation minutes and several medical reports drawn up by a psychiatrist and a psychologist were referred to in evidence. The children did not appear before the court. Nor did the defence make any request to that effect.
10. In its judgment of 13 October 2000 the District Court noted that the oral evidence was of an indirect nature and that the case turned on the assessment of the credibility of the children's statements. The court convicted the applicant as charged and sentenced her to seven years' imprisonment. She was detained.
11. The applicant, among others, appealed, denying the charges. She argued that the conviction was based on contradictory and indirect evidence. In her writ of appeal she did not, however, request that the children be heard before the Court of Appeal (hovioikeus, hovrätten).
12. On 26 April 2001 K. visited the applicant in prison. It appears that the applicant asked K. whether she had ever abused her children. In front of other people K. withdrew her previous accusations, stating that there had never been any sexual abuse.
13. Having learnt of K.'s statement, the applicant's counsel made a request by telephone to the Court of Appeal to the effect that K. be called as a witness in the forthcoming oral hearing or that she be questioned in an additional investigation conducted by the police during which the interview could be videotaped.
14. On 8-10 May 2001 the Court of Appeal held an oral hearing. The applicant, the co-accused and the witnesses were reheard. The Court of Appeal also heard four new witnesses, including L., a deacon, and M.K., a social official, who had been present during K.'s above-mentioned visit to the prison. The videotapes, the pre-trial investigation records and the medical reports were referred to in evidence. K.'s foster mother testified that the girl did not want to appear before the court. Her treating psychologist stated that she did not recommend that K. be heard in court. She also testified that K. was very prone to external influence and that her ego structure contained much repression and that “it would be too upsetting for her to face the deeper reality”.
15. The applicant's counsel repeated the above request at the oral hearing on 10 May 2001 and also requested an opportunity to put questions to K.
16. The Court of Appeal noted that the applicant stated that she had asked K. whether the children had been raped at their home whereas L. did not remember that such a direct question had been put to the girl at all. According to L., the applicant had asked whether “something like that” had taken place. Given the context, L. had however concluded that the question had related to the events leading up to the applicant's detention. L. considered that the girl's reply had appeared credible and that the question had not been leading in nature. According to M.K., the applicant had cried and said that the prison was gloomy. She had gone on saying to the girl that she had not done the things that she was now imprisoned for. The girl had then answered “no, you have not”. M.K. considered that the applicant's question had been leading in nature, leaving the girl with no other option than to answer the way she had.
The Court of Appeal refused the applicant's requests. It reasoned:
“The applicant, L. and M.K. have given somewhat different testimonies on the discussions in prison. The applicant has stated that she had asked whether the children had been raped at their home whereas L. has not remembered that such a direct question had been put to the girl at all and M.K. has stated that K. had only replied to a question that appeared from the context. However, the Court of Appeal finds it established that K. replied in the negative to the applicant's question whether K. had given truthful statements about the sexual abuse.
It has been established that K. has not on her own initiative expressed her wish to alter her earlier statements in the case. It rather appears that K. has been trying to forget the sad events in her early childhood. She has refused to clarify them openly. Moreover, as K. has expressed her wish to re-approach her mother, whom she has not met for a long time, it is evident that she has been unable to give a considered response [to the applicant's question], given the circumstances in which the visit took place. It has thus not been established that the hearing of K. before the court or by any other means could bring additional evidence significant to the case.
Also the fact that it would be particularly stressful for the now 14-year-old K., given the personal nature and significance of the case, to be heard again speaks against hearing her.”
17. In its judgment of 8 June 2001 the Court of Appeal considered that as a hearing in court could be harmful to the children, now aged 10 and 14 respectively, it was possible to use in evidence their statements during the pre-trial investigation.
18. It noted that the case turned on an assessment of the credibility of the children's statements. In assessing their credibility particular regard had to be had to unclear factors such as the time that had passed since the acts and the children's young age. Moreover, they had been exceptionally young and their family life had been chaotic. The credibility of their statements was increased by the fact that they had given similar accounts of the events. Further, they had given account of empirical details, which they could not have taken in by, for example, watching films or sexual acts between adults. Reference was here made to the nasty taste of yellow snot secreted from the penis and which they had washed away with toothpaste. A further example was the comparison made by the children between the sensation when touching with their tongue the gum in their mouth following a tooth loss and the slimy female genital area. In these circumstances, the court found that the children had been truthful when giving their statements.
19. As to the discussion during the visit to the prison, the court repeated the reasons in its decision of 10 May 2001. It also noted that M., a psychologist, considered that K. was very prone to external influence. The court concluded that the discussions in prison were not relevant. The court upheld the lower court's judgment insofar as the applicant's conviction and sentence were concerned.
20. The applicant requested leave to appeal, arguing, inter alia, that K., following her retraction of the allegations, should have been heard either in the Court of Appeal or in an additional investigation. The applicant requested that K. be heard before the Supreme Court (korkein oikeus, högsta domstolen), in person in one way or another, and that the applicant be given an opportunity to put questions to her.
21. On 18 October 2001 the Supreme Court refused leave to appeal.
22. The Decree on Criminal Investigations and Coercive Measures (asetus esitutkinnasta ja pakkokeinoista, förordning om förundersökning och tvångsmedel; Act no. 575/1988) provides that when questioned during a pre-trial investigation the child must be treated with due respect having regard to his or her age and level of development. Where possible, the interview should be carried out by a police officer acquainted with that task. If need be, a doctor or an expert must be consulted before the interview (section 11).
23. The Criminal Investigations Act (esitutkintalaki, förundersökningslagen; Act no. 449/1987) provides that questioning and other investigation measures requested by a party must be carried out, if that party shows that there is a possibility that these measures could have an effect on the case, provided that the expenses so incurred are not disproportionate to the nature of the case (section 12). The competence to decide on investigation measures requested by a party lies with the head of investigation during the pre-trial investigation and with the public prosecutor after the case has been transferred to him or her (section 15(3), Act no. 692/1997). A pre-trial investigation has to be carried out in such a manner that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience. Nor must the rights of those concerned be infringed more than is necessary for the achievement of the purpose of the investigation (section 8).
24. The investigator may permit a party and his counsel to be present during the questioning of another party or witness, provided this does not hinder the investigation of the offence (section 32(1), Act no. 692/1997). A party and his or her counsel may, with the permission of the investigator, put questions to the person being questioned in order to clear up the case. The investigator may decide that the questions are to be put through him or her. Also, the prosecutor may put questions to the person being questioned. A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times also (section 34, Act no. 692/1997).
25. Before the closing of the criminal investigation, the parties must be afforded the opportunity to present to the criminal investigation authority their statement on the material gathered during the investigation, if this is conducive to hastening or facilitating the hearing of the case in court. The statement is to be appended to the investigation record (section 42).
26. The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) lays down the applicable rules on receiving testimony.
27. A statement in a pre-trial investigation record or another document may as a rule not be admitted as evidence in court. The court may exceptionally admit such a statement as evidence, if the witness in question cannot be questioned before the court (chapter 17, Article 11; Act no. 690/1997). A witness must give testimony orally before the court and must not refer to a written testimony. Oral evidence given during a pre-trial investigation may be read out when the witness in question is heard by the court only if he or she retracts in court an earlier statement or states that he or she is unable or unwilling to testify before the court (chapter 17, Article 32; Act no. 571/1948).
28. If a person called as a witness is less than 15 years of age, is mentally ill or mentally retarded, or his or her mental capacities have otherwise been impaired, the court shall, taking into consideration the circumstances, assess whether or not he or she may be heard as a witness (Chapter 17, Article 21). Although the hearing of evidence from children falls within the court's discretion, there has been a long-standing practice not to hear evidence in court from children under the age of ten.
29. At the time of the proceedings in question, there were no legal provisions concerning the use as evidence of a video recording of a statement given by a child during the pre-trial investigation. There was however a practice to admit such recordings as evidence.
30. The Code of Judicial Procedure was amended with effect from 1 October 2003 to the effect that the testimony of a person under 15 years of age, or a mentally disturbed person, recorded on audio or videotape during a pre-trial investigation may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony (chapter 17, Article 11(2); Act no. 360/2003). According to the explanatory report to the relevant Government Bill (no. 190/2002), this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to inter alia a child and on the importance of respecting the rights of the defence.
31. Chapter 17, Article 21 (as amended by Act no. 360/2003) of the Code of Judicial Procedure reads with effect from 1 October 2003 as follows:
“(1) A person who has not attained the age of fifteen or whose mental capacities have been impaired, may be heard as a witness or for the purpose of obtaining evidence if the court finds it appropriate and:
(i) if the hearing in person is of significant relevance for the establishment of the facts of the case; and
(ii) the hearing is not likely to cause such suffering or other harm to the person to be heard as could be detrimental to the person concerned or his or her development.
(2) Where necessary, the court shall designate a support person for the person to be heard, pursuant to the provisions of chapter 2 of the Criminal Procedure Code (Act no. 689/1997).
(3) The person to be heard shall be questioned by the court, unless the court finds particular reason to entrust the questioning to the parties in accordance with the provisions of section 33. The parties shall be provided with an opportunity to put questions to the person to be heard through the intermediary of the court or, if the court finds it appropriate, directly to the person concerned. Where necessary, the hearing may take place on premises other than the court room.”
32. In 2003, the Criminal Investigations Act was supplemented with a new section 39a (Act no. 645/2003) that entered into force on 1 January 2004 and reads as follows:
“The questioning of a victim or a witness must be recorded on videotape, or by using other comparable audio-visual means of recording, if there is an intention to use the statement given in the interview as evidence in court proceedings, and where it is not possible to hear the victim or the witness in person, due to his or her young age or mental disturbance, without causing likely harm to him or her. The special requirements set by the level of maturity of the questioned person for the methods used, for the number of participating persons, and for other conditions, must be taken into account in the questioning. The person in charge of the criminal investigation may decide that authorities other than the investigators may, under the supervision of the investigator, put the questions to the person being interviewed. The suspect must be provided with an opportunity to put questions to the questioned person. On the request of the suspect, he or she may also put the questions through a legal counsel or other representative. However, the investigator may order that the questions be put through his or her intermediary.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-127400
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF EDUARD ROZHKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)
JUDGES: Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 5. The applicant was born in 1969 and lives in Krasnodar.
6. On 26 January 2004 the applicant was charged with murder. He was assisted by legal counsel and pleaded guilty to a lesser charge of manslaughter. On 5 August 2004 the Novokubansk District Court of Krasnodar Region convicted the applicant as charged and sentenced him to ten years’ imprisonment.
7. On 14 August 2004 the applicant and his counsel submitted their statements of appeal in which they requested the appeal court to reclassify the offence as manslaughter and challenged the findings of fact made by the trial court.
8. On 15 September 2004 the appeal hearing was adjourned as the applicant and his lawyer had not been notified of the appeal hearing fourteen days in advance.
9. The Government produced a typed summons issued by the Krasnodar Regional Court on 22 September 2004, by which the applicant and his counsel were to be informed of the appeal hearing scheduled for 6 October 2004. According to the Government, a copy of this summons was sent to the lawyer’s address.
10. On 6 October 2004 the Krasnodar Regional Court upheld the judgment of 5 August 2004. A representative of the prosecution and the applicant, but not his counsel, attended the appeal hearing.
11. The Code of Criminal Procedure of the Russian Federation, in force from 1 July 2002, provides as follows:
“1. participation of a defence counsel in criminal proceedings shall be mandatory, if:
1) a suspect or accused has not waived defence counsel as per Article 52 of this Code ...
3. If, in the instances specified in paragraph 1 of this Article, no defence counsel has been retained by the suspect or defendant, his representative, or by other persons acting on instructions from or subject to the consent of the suspect or accused, the inquiry officer, investigator, prosecutor, or court shall ensure participation of defence counsel in the criminal proceedings.”
“1. A suspect or defendant shall have the right to waive a defence counsel at any moment of the proceedings in the criminal case. Such waiver shall be permitted only upon the initiative of the suspect or defendant. A waiver of defence counsel shall be filed in writing and be entered into the record of the relevant procedural action ...”
12. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003):
“Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements shall not be applicable in appeal proceedings or that the convict’s right to legal assistance in such proceedings may be restricted.”
13. That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided in the same conditions as for earlier stages in the proceedings and that it was mandatory in the situations listed in Article 51. It further underlined the obligation of the courts to secure the participation of defence counsel in appeal proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-109552
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF RAVIV v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Possessions)
JUDGES: András Sajó;Ewald Wiederin;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in Vienna in 1936 to Jewish parents. Her father was arrested in 1939. In 1942 the family learned of his death. In the same year the applicant’s mother was arrested. In 1943 the applicant and her mother were deported to the concentration camp in Bergen-Belsen. They were transferred to the concentration camp in Vittel in 1944 and were liberated the same year. After having spent four further years in camps for displaced persons, the applicant and her mother emigrated to Israel in 1948. The applicant is still living in Israel, where she resides in Petah-Tikva.
6. The applicant married in 1957. She has three children born in 1961, 1965 and 1971. She worked as a practising lawyer and notary public.
7. On 1 March 2002 an amendment to the General Social Security Act (Allgemeines Sozialversicherungsgesetz) entered into force, creating additional possibilities of obtaining pension entitlements for persons who had been prevented from accumulating insurance periods by their arrest, punishment, detention, unemployment, denaturalisation or emigration as a result of National Socialist persecution.
8. Subsequently, the applicant requested the Pension Insurance Office (Pensionsversicherungsanstalt) to apply these provisions to her case.
9. On 29 October 2002 the Pension Insurance Office issued a declaratory decision stating that the applicant was entitled to pay insurance contributions in respect of periods of emigration between 20 January 1951 and 31 December 1965 – a total of 180 insurance months – pursuant to section 504(2) taken in conjunction with section 502(6) of the General Social Security Act. Moreover, certain periods of secondary and university education were accepted as substitute periods (Ersatzzeiten) provided that contributions were paid in respect of periods of emigration.
10. In a letter of the same day the Pension Insurance Office informed the applicant that she would have to pay 24.19 euros (EUR) per month, making a total amount of EUR 4,354.20 for 180 insurance months. By making this payment by 31 May 2003 at the latest she would be entitled to a monthly pension of EUR 277.25 plus two additional payments in the same amount per year, with effect from 1 March 2002.
11. The applicant appealed against the decision of 29 October 2002, arguing, inter alia, that periods of child-raising should be counted for the purpose of calculating her pension. Not doing so would discriminate against her in relation to women who had not been forced to emigrate and had thus raised their children in Austria.
12. On 6 May 2003 the Office of the Vienna Regional Governor (Amt der Landesregierung) dismissed the applicant’s appeal. It found that the Pension Insurance Office had correctly applied sections 502(4) and (6) of the General Social Security Act by declaring that the applicant was entitled to a maximum of 180 insurance months between January 1951, when she had reached the age of fifteen, and December 1965. Periods of secondary and university education abroad in the years 1953 to 1959 were accepted as substitute periods pursuant to section 502(7) of the General Social Security Act taken in conjunction with sections 227(1)(1) and 228(1)(3). However, section 500 and the subsequent sections of the General Social Security Act did not provide for periods of child-raising within the meaning of section 227a to be counted as substitute periods.
13. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichthof), alleging that section 502 of the General Social Security Act breached the principle of equality as guaranteed by Article 7 § 1 of the Federal Constitution. She argued in particular that excluding periods of child-raising on the ground that they were spent abroad ran counter to the underlying intention of the rules concerning preferential treatment of persons who had suffered disadvantages in their social security status during the National Socialist era. These rules were aimed at eliminating the financial disadvantages suffered by victims of National Socialism under social security law.
14. On 23 September 2003 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. It observed that in an area such as the present one, concerning special provisions giving preferential treatment to a particular group of persons under social security law, the legislature had a wide margin of appreciation in assessing whether events which occurred abroad were to be treated on an equal footing with events that occurred in Austria.
15. Following a request by the applicant the Constitutional Court referred the case to the Administrative Court (Verwaltungsgerichtshof). Before that court the applicant repeated in essence the arguments she had raised before the Constitutional Court. She asserted in particular that, having regard to the aim pursued by section 502 of the General Social Security Act and the fact that periods of secondary and university education abroad were accepted as substitute periods, the lack of a provision including periods of child-raising abroad as substitute periods could only be regarded as an omission. The authorities should have closed this unintended gap in the law by accepting periods of child-raising abroad as substitute periods.
16. On 22 December 2004 the Administrative Court dismissed the applicant’s complaint as being unfounded. It noted that section 500 of the General Social Security Act and its subsequent sections were aimed at eliminating disadvantages in accumulating insurance periods which victims of National Socialism had suffered on account of their persecution or emigration. The law did not require there to be an actual causal link between persecution and the loss of insurance periods. It proceeded from the assumption that without the persecution, insurance periods would have been accumulated, and provided for overall crediting (pauschalierte Anrechnung) of contribution periods or substitute periods to compensate for periods of persecution or emigration.
The Administrative Court went on to hold:
“In such a system, a teleological gap cannot in principle result from the fact that the legislature has not extended the crediting of periods of child-raising in Austria under section 227a of the General Social Security Act to persons who, for reasons linked to persecution within the meaning of section 500, live abroad during periods of child-raising. Section 227a has a similar (substitute) function in that it likewise provides for the crediting for insurance purposes of periods during which the person concerned was prevented from accumulating insurance periods (in this instance, on account of child-raising). In so far as the legislature already compensates for the loss of insurance periods as a result of persecution, no further compensation is needed. In so far as it does not make such provision, there is no difference in relation to other persons who are resident abroad: on account of the territoriality principle applicable under the social security scheme, the crediting of insurance periods in accordance with section 227a of the General Social Security Act would in any event require an equalisation arrangement through an international agreement and, moreover, decisions in such matters would be taken not in administrative proceedings but in proceedings concerning benefit entitlements.
Section 502(7) of the General Social Security Act does not alter this finding in any way. This provision has two aims: it ensures that periods of schooling that were interrupted as a result of persecution are regarded as completed (thus constituting a situation giving rise to preferential treatment under section 502(4)), and it places school and university attendance abroad and in Austria on an equal footing. This equal treatment is admittedly of significance for benefit entitlement (and not only for the application of preferential treatment on the basis of emigration). However, as such it falls within the discretion enjoyed by the legislature in matters of legal policy. No further inferences are to be drawn from this in terms of the principle of equality, especially not in the manner argued by the complainant.”
Finally, the Administrative Court noted that the applicant’s complaint failed to give more detailed reasons as to why accepting periods of child-raising abroad as substitute periods was objectively required.
17. The judgment was served on the applicant’s counsel on 20 January 2005.
18. The General Social Security Act (Allgemeines Sozialversicherungs-gesetz) regulates health and accident insurance and old-age pension insurance for persons employed in Austria, based on the contributory principle.
19. Section 4 of the General Social Security Act regulates compulsory affiliation to the social security system. Pursuant to section 4(1)(1), employees are affiliated to the health and accident insurance scheme and to the old-age pension scheme. Section 4(2) defines an employee as any person working in consideration of remuneration in a relationship of personal and economic dependency. For an employee affiliated to the social security system, compulsory contributions have to be paid in part by the employer and in part by the employee.
20. Entitlement to an old-age pension arises when a person who has reached pensionable age has accumulated a sufficient number of insurance months, the required minimum being 180 months.
21. When calculating the number of insurance months, certain periods during which no gainful activity has been pursued, and thus no contributions have been made, are nevertheless taken into account as substitute periods, for instance periods of secondary or university education, child-raising, unemployment, or military or alternative service.
22. The relevant rules on substitute periods are laid down in sections 227, 227a and 228 of the General Social Security Act. The following provisions are relevant in the context of the present case.
Section 227(1)(1) and section 228(1)(3) regulate in detail which periods of secondary education and university education in Austria are to be credited as substitute periods.
Section 227a of the General Social Security Act provides that periods which the insured person has spent exclusively or mainly raising his or her child are to be counted as substitute periods up to a maximum of forty-eight months, starting with the birth of each child, if the period of child-raising was spent in Austria.
23. Section 500 of the General Social Security Act provides that persons who, between 4 March 1933 and 9 May 1945, suffered a disadvantage in their social security status for political reasons – except in connection with National Socialist activities – or on account of their religion or race are to receive preferential treatment.
24. The details regarding this preferential treatment are regulated in the subsequent sections and differ according to whether the person emigrated or not. The relevant provisions were enacted in 1968 and have subsequently been amended several times.
25. Section 502(4) provides that persons who emigrated during the above-mentioned period and had accumulated insurance periods or substitute periods prior to that time are entitled to pay retroactive contributions (of approximately EUR 25 per month) for periods of emigration up to 31 March 1959.
26. Pursuant to section 502(6), in the version in force since 1 March 2002, persons who emigrated but had, for reasons beyond their control, not accumulated any insurance periods or substitute periods before their emigration are also entitled to pay retroactive contributions if they were born on or before 12 March 1938 and were resident in Austria on that date. Retroactive contributions can be made with effect from the person’s fifteenth birthday at the earliest. A further provision (section 592(2)) limits the possibility of making retroactive contributions to 180 insurance months.
27. Pursuant to section 502(7), periods of secondary education or university education abroad between 4 March 1933 and 31 March 1959 are to be dealt with in the same way as periods falling under sections 227(1)(1) and 228(1)(3). In essence, that means that such periods are to be counted as substitute periods, in the same way as periods of secondary education or university education spent in Austria.
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-71640
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: RRUSTEMAJ v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Mr A. Rrustemaj, Mrs S. Tiku Rrustemaj and their three daughters are nationals of Serbia and Montenegro, and were born in 1970, 1975, 1999, 2000 and 2002 respectively. They are currently in Sweden. They were represented before the Court by Mr M. Ekelöf, a lawyer practising in Växjö.
The applicants are ethnic Albanians from the province of Kosovo in Serbia and Montenegro. In 1991 the first applicant travelled to Sweden and applied for asylum. This request was refused and he was deported to Kosovo in December 1992.
On 5 September 1997 the first applicant again came to Sweden and, on 6 October 1997, he submitted an application for asylum and a residence permit to the Migration Board (Migrationsverket). On 6 February 1998 the second applicant joined her husband in Sweden and, three days later, she also joined his application for asylum and a residence permit. Before the Migration Board, they stated that, upon arrival in his home country in 1992, the first applicant had been detained a few hours by the border police and had been instructed to report to the police in Pristina. He had done so with the result that he had been detained there for ten days and questioned about the activities of Albanians in Sweden. Roughly two months later, the police had showed up at his home and had questioned him and all the members of his family about the activities of Albanians in the neighbourhood. Subsequently, the police had on repeated occasions passed by the applicants’ home and questioned the first applicant. In 1997 he had been contacted by a lawyer who had informed him that he was suspected of having connections with the UÇK (Ushtria Çlirimtare Kombetare – the Kosovo Liberation Army). Although the police had never accused him of this, the first applicant had decided to return to Sweden to avoid more problems. In December 1997 the police had come to the applicants’ home and had asked the second applicant about her husband’s whereabouts. They had, again, showed up in January 1998 at which time they had taken the second applicant to the police station and questioned her. She had been released after a few hours but the police had threatened to imprison her if her husband did not show up within ten days. For these reasons, the second applicant had travelled illegally to Sweden.
On 14 May 1998 the Migration Board refused the applicants’ request for asylum. It considered that the harassment of which they had been the victims in their home country had been of a general character but not of a serious kind, and that they had not shown that they would be of special interest to the national authorities if they were to be returned to Kosovo. Thus, they could not be granted asylum. Moreover, the applicants had presented no grounds on which they could be granted residence permits on humanitarian grounds.
The applicants appealed to the Aliens Appeals Board (Utlänningsnämnden), adding to their claims that, due to the deteriorating situation in Kosovo, it would be impossible to enforce the deportation order against them.
On 28 June 1999 the Aliens Appeals Board granted the applicants temporary residence permits for a period of eleven months, as of the date of the decision, due to the very unstable situation in Kosovo at that time.
Upon the expiry of their temporary residence permits, the applicants renewed their request for asylum and residence permits to stay in Sweden. On 6 September 2001 the Migration Board rejected the request and, on 2 April 2002, the Aliens Appeals Board upheld the Migration Board’s decision in full and ordered the applicants to leave Sweden within two weeks from the date of the decision.
To avoid having to return to Kosovo, the applicants travelled to Norway and applied for asylum there. However, in accordance with the Dublin Convention, they were sent back to Sweden in December 2002 and, once again, lodged a new application for asylum and residence permits with the Migration Board. They stated that there was nothing left for them to return to in Kosovo as they would have nowhere to live and unemployment was very high. Moreover, they claimed that since they had not been in Kosovo since 1997/98 and their three children were born in Sweden, it would be inhuman to send them back. Furthermore, the second applicant was depressed and anxious, and she received medication for these problems.
On 7 August 2003 the Migration Board rejected the application. It first noted that the applicants had only invoked humanitarian grounds and they had not claimed that they would risk persecution in their home country. Thus, the Migration Board found that they were not in need of protection in Sweden, and stated that they could not be granted residence permits only because their financial situation would be difficult in Kosovo. Moreover, it noted that the three children were very young and did not have a strong connection to Sweden and that the second applicant’s mental health was not so poor that the family could be granted leave to stay based on these grounds.
The applicants appealed against the decision to the Aliens Appeals Board, maintaining their earlier claims and adding that the first applicant was in poor mental health, suffering from anxiety and depression, and the second applicant’s poor mental health had deteriorated further. On 19 April 2004 the Aliens Appeals Board upheld the Migration Board’s decision and reasoning in full and ordered the applicants to leave Sweden within two weeks from the date of the decision.
The applicants remained illegally in Sweden and lodged a new application for residence permits with the Aliens Appeals Board, claiming that since they had been outside of Kosovo for almost seven years it would be inhuman to send them back, in particular since their children were born in Sweden. Thus, it would not be in the best interests of the children to deport them to a, for them, completely foreign country. Moreover, they alleged that the situation in Kosovo was unstable and that they were in need of protection in Sweden.
On 1 June 2004 the Aliens Appeals Board rejected the application. It first observed that it had already considered the applicants claims in its earlier decision and found no reason to change it. Moreover, it stressed that it was the applicants’ own choice to have been away from Kosovo for so many years since, in spite of several negative decisions from the Swedish immigration authorities, they had remained illegally in Sweden.
The applicants lodged yet another new application for residence permits on humanitarian grounds, relying on the second applicant’s deteriorating mental health. She had been diagnosed as suffering from Post Traumatic Stress Disorder and depression, and she had entertained thoughts of committing suicide.
On 16 November 2004 the Aliens Appeals Board also rejected this application, finding that the second applicant’
On 20 January 2005 the Aliens Appeals Board rejected yet another application lodged by the applicants as they had invoked no new circumstances.
The applicants submitted two medical certificates. The first, dated 15 October 2004, had been issued by H.-G. Nilsson, a psychologist, and the second certificate, dated 5 February 2005, had been issued by P.O. Elfstrand, a chief physician.
The certificates stated that the second applicant suffered from Post Traumatic Stress Disorder (PTSD) with recurring depressive instances, including suicidal thoughts, due to which she had been admitted to a psychiatric clinic on two occasions (the certificates did not specify the dates). Her poor mental health was the consequence of traumatic experiences in her home country and of the long, insecure waiting in Sweden. She was very afraid of returning to Kosovo.
As concerned the three children, it was observed that they only knew life in Sweden and had integrated into Swedish society. However, they had developed aggressive behaviour, suffered from nightmares and were afraid of sudden noises. According to the certificates, a deportation to Kosovo, where the children had never been, could cause them to develop identity problems of a serious nature.
No information was provided as to the first applicant’s state of health.
On 5 March 2005 the applicants requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of their deportation to the province of Kosovo in Serbia and Montenegro.
On 15 March 2005 the President of the Section to which the case had been allocated decided to apply Rule 39. He further decided to request the Swedish Government to submit a recent, independent assessment of the physical and mental health of the second applicant.
On 4 April 2005 the Government informed the Court that, on 16 March 2005, the Migration Board, following the Court’s request, had decided to stay the deportation of the applicants until further notice.
On 17 May 2005 the Government provided the Court with a medical report concerning the second applicant, dated 29 April 2005, by Dr I. Sjödin, doctor in psychiatry and psychosomatics and chief physician at the psychiatric clinic of the University Hospital of Linköping. The report was based on the medical documents available in the case and on a personal examination of the second applicant by the physician. The report stated that the second applicant had suffered from anxiety and sleeplessness already in her home country and that her mental health had deteriorated in June 1999 when she had been informed that her father and brother had been found in a mass grave in Kosovo. It had triggered a panic attack and she had been committed to closed psychiatric care between 20 and 28 June 1999, diagnosed as suffering from an adjustment disorder. Following a rejection of one of their applications for asylum by the Aliens Appeals Board, she had had a crisis reaction and again been committed to closed psychiatric care between 6 and 9 April 2002. One month later, between 7 and 23 May 2002, she was again taken into care and treated for depression. Since then she had taken medication to treat her anxiety and sleeplessness and, periodically, anti-depressants. During the personal examination of the second applicant, she had told the physician that she and the children mostly lived with her sister-in-law and her family because the first and second applicants had problems in their relationship. Moreover, she had stated that she only had sporadic contact with the health services and that, from time to time, she would get suicidal thoughts but that she had to live for the sake of her children.
According to the physician, the second applicant appeared tired and dejected but she showed no signs of being psychotic and had no physical health problems. He considered that she suffered from years of anxiety, depression and nightmares which emanated from traumatic experiences in her home country, together with the protracted insecurity of her present situation and her complicated relationship with her husband. Her depressive symptoms appeared to have become chronic but she did not show any suicidal tendencies. The physician found that the second applicant’s poor mental health was not so serious that, in itself, it could justify granting her leave to stay in Sweden on medical grounds. However, he considered that the family’s situation as a whole, and in particular the children’s vulnerability, had to be taken into account before deciding to deport them to their home country. He concluded that the second applicant’s state of health was not an impediment to the enforcement of the deportation order.


ITEMID: 001-76185
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MEHMET YILMAZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1925 and lives in Ankara.
5. On an unspecified date in 1990, the General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant in Ankara in order to build the Ankara Central Motorway. The authorities paid him the value of the land, assessed by a committee of experts, when the expropriation took place.
6. Following the applicant’s request, on 26 December 1994 the Ankara Civil Court awarded him additional compensation plus interest at the statutory rate applicable.
7. On 22 January 1996 the Court of Cassation upheld that judgment.
8. On 4 February 1998 the amount of 3,618,000,000 Turkish liras (TRL) was paid to the applicant.
9. The relevant domestic law and practice are set out in the case of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997IV, §§ 13-16).


ITEMID: 001-93429
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: M.W. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr M. W., is a British national who was born in 1958. He was represented before the Court by Mr J. Welch, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is homosexual. He lived with his partner, M., for twentythree years until the latter’s death on 10 April 2001. From the late 1980s onwards, they resided in jointly-owned properties. The applicant states that he and his partner were financially interdependent, pooled their income and that each had designated the other as his heir. Their relationship was accepted by family and friends, and, according to the applicant, their degree of mutual commitment was such that had they been a heterosexual couple they would have married.
Around two weeks after M’s death, the applicant asked a social worker whether he could claim Bereavement Payment (a lump sum currently worth GBP 2,000). He was advised that the benefit was only payable to the survivor of a married couple, and so he did not formally claim it.
The applicant complained of his ineligibility for bereavement benefits to his Member of Parliament (“MP”). In a letter dated 17 July 2001, the Chief Executive of the Benefits Agency confirmed to the MP that:
“... entitlement to bereavement benefits is based on legal marriage between couples at the time of death”.
The applicant also wrote to the Prime Minister. This letter was forwarded to the Department of Work and Pensions, which replied on 21 September 2001 stating that:
“Marriage is a cornerstone of the contributory benefits system and all rights to contributory benefits derived from another person’s contributions are based on the concept of legal marriage. Changing or widening the definition of marriage would have far reaching implications and could not be done in isolation.”
The conditions for the receipt of Bereavement Payments are contained in Section 36 of the Social Security Contributions and Benefits Act 1992, as amended with effect from 9 April 2001 by the Welfare Reform and Pensions Act 1999. The relevant parts of this provision read as follows:
“(1) A person whose spouse dies ...shall be entitled to a bereavement payment if – (a) either than person was under pensionable age at the time when the spouse died or the spouse was then not entitled to a Category A retirement pension...; and
(b) the spouse satisfied the contribution condition for a bereavement payment...
(2) A bereavement payment shall not be payable to a person if that person and a person of the opposite sex to whom that person was not married were living together as husband and wife at the time of the spouse’s death.”
Under the Social Security (Claims and Payments) Regulations 1987, a claim for Bereavement Payment must be made within three months from the date of the spouse’s death (Regulation 19).
Section 4 of the Human Rights Act 1998 Act provides (so far as relevant):
“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ...
(6) A declaration under this section ... -
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and
(b) is not binding on the parties to the proceedings in which it is made.”
The Civil Partnership Act 2004, which took effect on 5 December 2005, broadened eligibility for Bereavement Payment. It amended Section 36(1) of the 1992 Act so as to include persons who have entered into a civil partnership.


ITEMID: 001-104730
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: VIEHBOCK v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen
TEXT: The applicant, Mr Peter Viehböck, is an Austrian national who was born in 1968 and lives in St Georgen. He was represented before the Court by Mr A. Piermayr, a lawyer practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was in the area of Fügen, Tyrol, from 16 to 17 December 1995. He went to a discotheque in the evening and said he had left between 1.30 a.m. and 2 a.m. When he left the discotheque, an unknown person hit him in the face and he fell to the ground. The applicant took a taxi and went back to his hotel, where he was sharing a room with two friends.
On 17 December 1995 Mr P reported to the police that at about 5 a.m. an unknown person had had an argument with him and kicked his car, which was parked in front of the discotheque, and damaged it.
The following day the applicant returned to Upper Austria by train. He was apprehended by the police, on account of his visible injuries, on suspicion of having participated in a fight. The police took two photographs of him. The applicant explained to the police what had happened to him but did not want to file an official complaint against the person who had hit him, as he thought it would not be possible to find the person.
On 22 December 1995 T, a barkeeper in the discotheque and a friend of P, was heard as a witness to the incident in which P’s car had been damaged. He stated that he had not witnessed the incident but remembered seeing a young man and had been told by P that it was that young man who had kicked the car.
On 16 January 1996 T was shown the photos of the applicant taken by the police. He said it was the person who had had the argument with P.
On 27 January 1996 P was also shown the same photos and stated that the applicant was the person who had kicked his car.
On 9 February 1996 an official notice of a criminal act, apparently together with a sheet of the applicant’s personal data, was sent to the District Public Prosecutor, who filed an indictment (Antrag auf Bestrafung) on 16 February 1996.
On 19 April 1996 a provisional penal order (Strafverfügung) was issued by the Zell am Ziller District Court (“the District Court”). The applicant was considered guilty of having wilfully damaged a car on 17 December 1995. He was sentenced to a fine totalling 2,500 Austrian schillings (approximately 180 euros (EUR)), suspended on probation.
According to the law, a provisional penal order had to be served personally on the addressee. The first attempt to serve the provisional penal order on the applicant failed. Although the applicant had a registered address in N between 3 October 1995 and 3 October 1996, the provisional penal order was returned to the District Court with a note that the applicant no longer lived at the address in N and had left a post office box address to which his mail should be forwarded.
On 9 May 1996 the District Court found that service of the provisional penal order at a post office box address was not lawful service and decided to adjourn the proceedings and asked the police to locate the applicant. The District Court received a letter from the local police station saying that the applicant did not live anywhere in the area.
By a letter dated 25 October 1996, the District Authority in Freistadt, Upper Austria, asked the District Public Prosecutor about the outcome of the case. The District Court replied on 4 November 1996 that a provisional penal order had been issued but could not be served on the applicant and had thus not become final.
On 6 June 2002, the District Court renewed the request to the police to locate the applicant. By a letter of 12 June 2002, the Strass im Zillertal police station informed the court that the accused’s personal data had been entered in the Electronic Criminal Police Information System and that a search in the data station had been ordered to find out the applicant’s place of abode.
By a letter dated 17 May 2004 the Grieskirchen District Authority in Upper Austria notified the District Court of the applicant’s registered address in W and stated that the applicant had been registered at that address since 2 December 1998.
On 28 May 2004 the applicant was served with the provisional penal order together with a notice informing him that if objections were lodged against the provisional penal order within two weeks of service, it would become void and a regular trial would be held.
The applicant lodged objections on 2 June 2004.
On 3 September 2004 the file was transmitted to the District Public Prosecutor at the Zell am Ziller District Court for her observations regarding a preliminary settlement (Diversion).
The trial before the District Court started on 4 January 2005. P was heard as a witness and the court asked him whether the applicant had kicked his car in December 1995. P stated that he could not remember whether the applicant had been the perpetrator and confirmed that when he had been shown the photos of the applicant on 27 January 1996 he had been certain that it had been the applicant who had kicked his car.
The applicant asked for evidence to be heard from the two friends with whom he had shared the hotel room. As they lived in Germany, the District Court adjourned the hearing and on 17 January 2005 issued letters rogatory, asking the German authorities to hear the witnesses. The public prosecution office in Munich sent back the witness statements on 17 February 2005. The witnesses had stated that they could not remember the applicant having returned to the hotel room at 2 a.m.
On 31 March 2005 the trial continued. The applicant was not represented by counsel. The judge had the witness statements as submitted by the public prosecution office in Munich read out. Relying on the witness statements of P and the applicant’s friends, the barkeeper’s statement and the notification from the Zillertal police station, the District Court found the applicant guilty of having damaged P’s car on 17 December 1995 and sentenced him to a fine totalling EUR 1,080 (60 per diem rates of EUR 18 each), suspended on probation for three years, ordered him to pay the costs of the trial and ordered him to compensate P for the damage to his car.
On 21 April 2005 the judgment was served on the applicant’s counsel. An appeal on points of law and fact, as well as against sentence, and an appeal against the obligation to pay damages (Berufung wegen Nichtigkeit, Schuld und Strafe und Berufung gegen den Privatbeteiligtenzuspruch) was lodged on 19 May 2005.
On 2 November 2005 the Innsbruck Regional Court set aside the judgment on grounds of nullity as the District Court had failed to obtain the applicant’s consent to have the witness statements read out.
On 21 December 2005 a new trial was held. One of the applicant’s friends, who had been named as a witness, did not appear before the court. The other friend did appear and made a statement to the effect that he could not remember any details of the period when the incident had occurred. He also confirmed that when he had been heard by the German authorities after the Austrian court had issued the letters rogatory, he had told the truth. The barkeeper T was also heard as a witness. He stated that he did not remember what he had told the police when he gave his statements on 22 December 1995 and 16 January 1996, but was certain that he had told the truth.
After an adjournment, the trial continued on 18 May 2006. As the judge had changed, the trial started afresh. T, P and the applicant’s friend who had not appeared before the court on 21 December 2005 were heard as witnesses and, in essence, upheld their previous statements. The District Court, relying on T’s and P’s statements, again found the applicant guilty and sentenced him to a fine totalling EUR 1,080 (60 per diem rates of EUR 18 each), suspended on probation for three years, and ordered him to pay the costs of the trial. P was ordered to claim damages for the car in the civil courts.
The applicant appealed on points of law and fact, as well as against sentence, on 11 July 2006. On 15 December 2006 the Innsbruck Regional Court upheld the judgment. The decision was served on applicant’s counsel on 22 February 2007.