ITEMID: 001-88476
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF AKHMADOVA AND AKHMADOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (abuse of the right of petition);Violation of Art. 2;Violation of Art. 2 (procedural aspect);Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2;Pecuniary damage - award;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicants were born in 1957 and 1953 respectively and live in Urus-Martan. They are spouses and the parents of four children. Their elder son, Adnan Yusupovich Akhmadov, was born in 1982.
7. Between 28 and 29 September 2002 the applicants, their two sons, two daughters and two minor grandchildren were at their family home at 90 Sportivnaya Street, Urus-Martan.
8. At about 3 a.m. on 29 September 2002 a group of five masked men in camouflage uniforms broke into the applicants’ house. The men did not identify themselves. They were armed with machine guns, which were equipped with silencers used by Russian troops. The men conversed among themselves in Russian without any accent. The applicants inferred that they were Russian servicemen.
9. The applicants’ younger daughter cried. The servicemen put machine guns to the second applicant’s chest, told him to calm the children down and ordered him to awaken his elder son. When he did so, they took Adnan Akhmadov to the courtyard, forced him to his knees and tied his arms behind his back with adhesive tape.
10. The servicemen pushed the second applicant with a machine-gun butt into a room and ordered him not to move. Then the armed men left the house taking Adnan Akhmadov with them. The second applicant tried to follow the servicemen, but the door was blocked from the outside. The second applicant then looked out the window and noticed more masked men. The whole group drove away in a UAZ vehicle, a Ural truck and an armoured personnel carrier (“APC”).
11. In support of their account of the events the applicants submitted written statements from four neighbours who had witnessed the scene in the courtyard.
12. According to the Prosecutor General’s Office, at 3 a.m. on 29 September 2002 unidentified persons armed with machine guns entered the house at 90 Sportivnaya Street, Urus-Martan, kidnapped Adnan Akhmadov and took him away in an unknown direction.
13. In the morning of 29 September 2002 the applicants reported in person their son’s disappearance to the district department of the interior, the temporary district department of the interior, the military commander’s office, the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”) and the local administration. None of the officials provided any information as to Adnan Akhmadov’s whereabouts. On the same date the applicants lodged written complaints with all the aforesaid bodies. The applicants retained copies of some of these complaints and submitted them to the Court.
14. From 1 October 2002 onwards the first applicant repeatedly wrote to various official bodies, such as the Prosecutor General’s Office, the prosecutor’s office of the Chechen Republic, the military prosecutor of military unit no. 20102, the Administration of the Chechen Republic, the Special Envoy of the Russian President in Chechnya for Rights and Freedoms, the Russian Ministry of Justice and the Russian State Duma. She also contacted the Memorial Human Rights Centre. In her applications she described in detail the circumstances of her son’s abduction and asked for assistance in establishing his whereabouts. Most of the complaints were eventually forwarded to the district prosecutor’s office.
15. The first applicant also addressed numerous penitentiary institutions requesting information on her son’s possible detention. In reply, she was informed that Adnan Akhmadov had not been held in any of them.
16. On 3 October 2002 the first applicant visited the head of the Chechen Department of the Federal Security Service (“the FSB”), Mr K., and told him that Adnan Akhmadov was not sufficiently fluent in Russian. Mr K. interrupted her saying that her son spoke Russian better than her. As evidence, the first applicant provided written statements from her two relatives who heard Mr K.’s reply.
17. On 31 October 2002 the investigation into Adnan Akhmadov’s kidnapping was opened in case no. 61145.
18. On 18 June 2003 the Chechen Department of the FSB informed the first applicant that Adnan Akhmadov had not been detained by the FSB and that there had been no legal grounds for his detention. The letter also stated that measures were being taken to establish his whereabouts.
19. On 5 August 2003 the prosecutor’s office for the Southern Federal Circuit informed the first applicant that her complaint about ineffective investigation into her son’s disappearance had been forwarded to the prosecutor’s office of the Chechen Republic.
20. On 18 August 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that her complaint about the suspension of the criminal proceedings concerning her son’s disappearance had been examined.
21. On 1 October 2003 the first applicant wrote to the Chechen Department of the FSB asking for assistance and mentioned her conversation with Mr K. of 3 October 2002. Later an FSB official informed the first applicant that her letter had been forwarded to the district prosecutor’s office.
22. On 7 April 2004 the district prosecutor’s office informed the first applicant that the investigation in case no. 61145 had been resumed on 16 April 2004 and that no suspects had been found yet.
23. On 16 May 2004 the investigation was again stayed, apparently for a failure to identify suspects.
24. On 1 July 2004 the first applicant complained to the Urus-Martan Town Court of the Chechen Republic (“the town court”) about the authorities’ failure to carry out an effective investigation and namely to take a number of essential steps. She requested that the investigation be reopened and that she be allowed access to the case file.
25. On 20 September 2004 the military prosecutor’s office of military unit no. 20102 informed the first applicant that military personnel had not taken part in her son’s abduction.
26. On 8 November 2004 four policemen of the district department of the interior visited the applicants and interrogated witnesses of Adnan Akhmadov’s apprehension. The witnesses reassured the policemen that the applicants’ son had not participated in any illegal armed groups.
27. On 2 June 2005 the first applicant complained to the prosecutor’s office of the Chechen Republic about inactivity of the district prosecutor’s office. On 29 June 2005 she was informed in reply that investigative measures were being taken to resolve her son’s kidnapping.
28. On 19 July 2005 the first applicant was invited for an interview at the district prosecutor’s office. Once there, she was told by an investigator that she should have ensured that witnesses to her son’s abduction visited him. The first applicant replied that she needed guarantees for safety in respect of herself and the witnesses. The investigator said that he himself had no guarantees for his own safety. The first applicant inferred from the investigator’s remark that her life was in danger and requested the district prosecutor’s office to take security measures pursuant to Article 11 of the Code of Criminal Procedure in respect of her family members and the witnesses to her son’s abduction.
29. On 13 October 2005 the district prosecutor’s office informed the first applicant that her request for application of security measures had been dismissed.
30. On 24 October 2005 the first applicant complained about the decision of 13 October 2005 to the prosecutor’s office of the Chechen Republic. On 22 November 2005 she was informed that there were insufficient grounds for the application of security measures in her case.
31. On 13 June 2006 the first applicant requested the district prosecutor’s office to update her on the progress in the investigation in case no. 61145 and to resume the proceedings if they had been suspended.
32. On 31 October 2002 the district prosecutor’s office instituted criminal proceedings related to the disappearance of Adnan Akhmadov under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned the number 61145.
33. On 31 December 2002 the first applicant was granted victim status in case no. 61145. On the same date the district prosecutor’s office suspended the investigation for failure to identify those responsible.
34. Between 26 February 2003 and 15 September 2003 the investigation in case no. 61145 was resumed three times and then suspended by the district prosecutor’s office.
35. On 16 April 2004 the investigation was resumed.
36. On 16 May 2004 the district prosecutor’s office again suspended the investigation.
37. On 6 August 2004 the Urus-Martan Town Court (“the town court”) examined the first applicant’s complaint concerning the suspension of the investigation into her son’s kidnapping. It noted that the investigators had taken certain measures to resolve the crime. In particular, they had questioned witnesses and sent requests to law-enforcement agencies. The department of the Federal Security Service of the Urus-Martan District, the military commander’s office, the department of the interior and some other law-enforcement agencies had replied that their officers had not detained Adnan Akhmadov. The investigators had tried to establish which State agency had owned an armoured intelligence vehicle (“AIV”, «боевая разведывательно-дозорная машина», БРДМ) and a Ural vehicle. Nevertheless, the town court found that the investigators had not taken all the measures indicated by the prosecutor’s office of the Chechen Republic in a decision of 13 April 2004. In particular, they had not questioned the former head of the district department of the FSB and the former military commander of the Urus-Martan District. The town court concluded that the first applicant’s complaint was well-founded and ordered that the district prosecutor’s office resume the investigation in case no. 61145.
38. On 24 August 2004 the Supreme Court of the Chechen Republic upheld the first-instance judgment.
39. On 28 October 2004 the district prosecutor’s office resumed the proceedings and informed the first applicant accordingly.
40. On 28 November 2004 the investigation was again suspended.
41. On 29 June 2005 the prosecutor’s office of the Chechen Republic quashed the decision of 28 November 2004 for the reason that the investigation had not been comprehensive. They indicated that it was necessary to verify the first applicant’s hypothesis of involvement of FSB servicemen in her son’s kidnapping and to perform the measures indicated by the prosecutor’s office of the Chechen Republic and the town court. The proceedings in case no. 61145 were resumed.
42. On 6 August 2005 the district prosecutor’s office again suspended the investigation.
43. On 13 June 2006 the district prosecutor’s office resumed the investigation into Adnan Akhmadov’s kidnapping for one day as it was necessary to decide upon a request by the first applicant. On 14 June 2006 the investigation was suspended.
44. On 17 May 2007 the district prosecutor’s office decided to resume the investigation in case no. 61145 for the reason that a number of investigative measures had not been taken.
45. Despite specific requests by the Court the Government did not disclose most of the material from case no. 61145, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of several notifications to relatives of the adjournment and reopening of the proceedings. In particular, they did not provide a copy of the decision of the prosecutor’s office of the Chechen Republic of 13 April 2004 referred to by the town court. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.
47. Article 124 of the CCP provides that a prosecutor can examine a complaint concerning actions or omissions of various officials in charge of a criminal investigation. Once a complaint is examined, the complainant should be informed of its outcome and of possible avenues of appeal against the prosecutor’s decision.
48. Article 125 of the CCP provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions.
49. Article 161 of the CCP enshrines the rule that data from the preliminary investigation cannot be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission.
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-80046
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2007
DOCNAME: CASE OF EVANS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 2;No violation of Art. 8;No violation of Art. 14+8
JUDGES: Anatoly Kovler;András Baka;Antonella Mularoni;Christos Rozakis;Dean Spielmann;Ineta Ziemele;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Ljiljana Mijovic;Margarita Tsatsa-Nikolovska;Matti Pellonpää;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vladimiro Zagrebelsky;Volodymyr Butkevych
TEXT: 11. The applicant was born in October 1971 and lives in Wiltshire.
12. The facts, as found by Mr Justice Wall (“Wall J”), who heard the parties’ oral evidence (see paragraph 20 below), are as follows.
13. On 12 July 2000 the applicant and her partner, J. (born in November 1976), commenced treatment at the Bath Assisted Conception Clinic (“the clinic”). The applicant had been referred for treatment at the clinic five years earlier, when she was married, but had not pursued it because of the breakdown of her marriage.
14. On 10 October 2001 the applicant and J. were informed, during an appointment at the clinic, that preliminary tests had revealed that the applicant had serious pre-cancerous tumours in both ovaries, and that her ovaries would have to be removed. They were told that because the tumours were growing slowly it would be possible first to extract some eggs for in vitro fertilisation (“IVF”), but that this would have to be done quickly.
15. The consultation of 10 October 2001 lasted approximately an hour in total. A nurse explained that the applicant and J. would each have to sign a form consenting to the IVF treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”), it would be possible for either to withdraw his or her consent at any time before the embryos were implanted in the applicant’s uterus (see paragraph 37 below). The applicant asked the nurse whether it would be possible to freeze her unfertilised eggs, but was informed that this procedure, which had a much lower chance of success, was not performed at the clinic. At that point J. reassured the applicant that they were not going to split up, that she did not need to consider the freezing of her eggs, that she should not be negative and that he wanted to be the father of her child.
16. Thereafter, the couple entered into the necessary consents, by signing the forms required by the 1990 Act (see paragraph 37 below).
Immediately beneath the title to the form appeared the following words:
“NB – do not sign this form unless you have received information about these matters and have been offered counselling. You may vary the terms of this consent at any time except in relation to sperm or embryos which have already been used. Please insert numbers or tick boxes as appropriate.”
J. ticked the boxes which recorded his consent to use his sperm to fertilise the applicant’s eggs in vitro and the use of the embryos thus created for the treatment of himself and the applicant together. He further ticked the box headed “Storage”, opting for the storage of embryos developed in vitro from his sperm for the maximum period of ten years and also opted for sperm and embryos to continue in storage should he die or become mentally incapacitated within that period. The applicant signed a form which, while referring to eggs rather than sperm, essentially replicated that signed by J. Like J., she ticked the boxes providing for the treatment of herself and for the treatment “of myself with a named partner.”
17. On 12 November 2001 the couple attended the clinic and eleven eggs were harvested and fertilised. Six embryos were created and consigned to storage. On 26 November the applicant underwent an operation to remove her ovaries. She was told that she should wait two years before attempting to implant any of the embryos in her uterus.
18. In May 2002 the relationship broke down. The future of the embryos was discussed between the parties. On 4 July 2002 J. wrote to the clinic to notify it of the separation and to state that the embryos should be destroyed.
19. The clinic notified the applicant of J.’s withdrawal of consent to further use of the embryos and informed her that it was now under a legal obligation to destroy them, pursuant to paragraph 8(2) of Schedule 3 to the 1990 Act (see paragraph 37 below). The applicant commenced proceedings in the High Court, seeking an injunction requiring J. to restore his consent to the use and storage of the embryos and a declaration, inter alia, that he had not varied and could not vary his consent of 10 October 2001. Additionally she sought a declaration of incompatibility under the Human Rights Act 1998 to the effect that section 12 of, and Schedule 3 to, the 1990 Act breached her rights under Articles 8, 12 and 14 of the Convention. She also pleaded that the embryos were entitled to protection under Articles 2 and 8. Interim orders were made requiring the clinic to preserve the embryos until the end of the proceedings.
20. The trial judge, Wall J, heard the case over five days and took evidence from, among others, the applicant and J. On 1 October 2003, in a 65-page judgment (Evans v. Amicus Healthcare Ltd and Others [2003] EWHC 2161 (Fam)), he dismissed the applicant’s claims.
21. He concluded that under the terms of the 1990 Act, and as a matter of public policy, it had not been open to J. to give an unequivocal consent to the use of the embryos irrespective of any change of circumstance, and that, as a matter of fact, J. had only ever consented to his treatment “together” with the applicant, and not to her continuing treatment on her own in the event that their relationship ended. Wall J thus rejected the applicant’s submission that J. was estopped from withdrawing his consent, finding that both the applicant and J. had embarked on the treatment on the basis that their relationship would continue. On 10 October 2001 J. had been doing his best to reassure the applicant that he loved her and wanted to be the father of her children; giving a truthful expression of his feelings at that moment, but not committing himself for all time. Wall J observed that in the field of personal relationships, endearments and reassurances of this kind were commonplace, but they did not – and could not – have any permanent, legal effect. In undergoing IVF with J., the applicant had taken the only realistic course of action open to her. Wall J continued:
“However, even if I am wrong about that, and even if an estoppel is capable of existing in the face of the Act, I do not, for the reasons I have given, think it would be unconscionable to allow [J.] to withdraw his consent. It is a right which the Statute gives him within the clear scheme operated by Parliament. It was the basis upon which he gave his consent on 10 October 2001. It is perfectly reasonable for him, in the changed circumstances which appertain, not to want to father a child by Ms Evans.”
22. As to the applicant’s Convention claims, Wall J held in summary that an embryo was not a person with rights protected under the Convention, and that the applicant’s right to respect for family life was not engaged. He accepted that the relevant provisions of the 1990 Act interfered with the private life of both parties, but held that it was proportionate in its effect, the foundation for the legislation being a treatment regime based on the twin pillars of consent and the interests of the unborn child. He considered it entirely appropriate that the Act required couples embarking on IVF treatment to be in agreement about the treatment, and permitted either party to withdraw from it at any time before the embryo was transferred into the woman.
23. Wall J emphasised that the provisions of Schedule 3 to the Act (see paragraph 37 below) applied equally to all patients undergoing IVF treatment, irrespective of their sex, and concluded with an illustration of how the requirement for joint consent could similarly affect an infertile man.
“If a man has testicular cancer and his sperm, preserved prior to radical surgery which renders him permanently infertile, is used to create embryos with his partner; and if the couple have separated before the embryos are transferred into the woman, nobody would suggest that she could not withdraw her consent to treatment and refuse to have the embryos transferred into her. The statutory provisions, like Convention rights, apply to men and women equally.”
24. The applicant’s appeal to the Court of Appeal was dismissed in a judgment delivered on 25 June 2004 (Evans v. Amicus Healthcare Ltd [2004] EWCA Civ 727).
The court held that the clear policy of the 1990 Act was to ensure the continuing consent of both parties from the commencement of treatment to the point of implantation of the embryo, and that “the court should be extremely slow to recognise or to create a principle of waiver that would conflict with the parliamentary scheme”. Like Wall J, the Court of Appeal found that J. had only ever consented to undergoing “treatment together” with the applicant, and had never consented to the applicant using the jointly created embryos alone. Once the relationship had broken down, and J. had indicated that he did not wish the embryos to be preserved or used by the applicant, they were no longer being treated “together”. The court rejected the applicant’s argument that J. had concealed his ambivalence, thereby inducing her to go forward with him into couple treatment, holding this to be an unjustified challenge to the finding of the trial judge who had had the obvious advantage of appraising the oral evidence of the applicant, J., and the other witnesses (see paragraph 20 above). The Court of Appeal was also informed by J.’s counsel that J.’s clear position in withdrawing his consent was one of fundamental rather than purely financial objection.
25. While there was an interference with the private lives of the parties, Lords Justices Thorpe and Sedley found it to be justified and proportionate, for the following reasons.
“The less drastic means contended for here is a rule of law making the withdrawal of [J.’s] consent non-conclusive. This would enable [the applicant] to seek a continuance of treatment because of her inability to conceive by any other means. But unless it also gave weight to [J.’s] firm wish not to be father of a child borne by [the applicant], such a rule would diminish the respect owed to his private life in proportion as it enhanced the respect accorded to hers. Further, in order to give it weight the legislation would have to require the [Human Fertilisation and Embryology Authority] or the clinic or both to make a judgment based on a mixture of ethics, social policy and human sympathy. It would also require a balance to be struck between two entirely incommensurable things. ...
... The need, as perceived by Parliament, is for bilateral consent to implantation, not simply to the taking and storage of genetic material, and that need cannot be met if one half of the consent is no longer effective. To dilute this requirement in the interests of proportionality, in order to meet [the applicant’s] otherwise intractable biological handicap, by making the withdrawal of the man’s consent relevant but inconclusive, would create new and even more intractable difficulties of arbitrariness and inconsistency. The sympathy and concern which anyone must feel for [the applicant] is not enough to render the legislative scheme ... disproportionate.”
26. Lady Justice Arden stated, by way of introduction:
“The 1990 Act inevitably uses clinical language, such as gametes and embryos. But it is clear that the 1990 Act is concerned with the very emotional issue of infertility and the genetic material of two individuals which, if implanted, can lead to the birth of a child. ... Infertility can cause the woman or man affected great personal distress. In the case of a woman, the ability to give birth to a child gives many women a supreme sense of fulfilment and purpose in life. It goes to their sense of identity and to their dignity.”
She continued:
“Like Thorpe and Sedley LJJ, I consider that the imposition of an invariable and ongoing requirement for consent in the 1990 Act in the present type of situation satisfies Article 8 § 2 of the Convention. ... As this is a sensitive area of ethical judgment, the balance to be struck between the parties must primarily be a matter for Parliament ... Parliament has taken the view that no one should have the power to override the need for a genetic parent’s consent. The wisdom of not having such a power is, in my judgment, illustrated by the facts of this case. The personal circumstances of the parties are different from what they were at the outset of treatment, and it would be difficult for a court to judge whether the effect of [J.’s] withdrawal of his consent on [the applicant] is greater than the effect that the invalidation of that withdrawal of consent would have on [J.]. The court has no point of reference by which to make that sort of evaluation. The fact is that each person has a right to be protected against interference with their private life. That is an aspect of the principle of self-determination or personal autonomy. It cannot be said that the interference with [J.’s] right is justified on the ground that interference is necessary to protect [the applicant’s] right, because her right is likewise qualified in the same way by his right. They must have equivalent rights, even though the exact extent of their rights under Article 8 has not been identified.
... The interference with [the applicant’s] private life is also justified under Article 8 § 2 because, if [the applicant’s] argument succeeded, it would amount to interference with the genetic father’s right to decide not to become a parent. Motherhood could surely not be forced on [the applicant] and likewise fatherhood cannot be forced on [J.], especially as in the present case it will probably involve financial responsibility in law for the child as well.”
27. On the issue of discrimination, Lords Justices Thorpe and Sedley considered that the true comparison was between women seeking IVF treatment whose partners had withdrawn consent and those whose partners had not done so; Lady Justice Arden considered that the real comparators were fertile and infertile women, since the genetic father had the possibility of withdrawing consent to IVF at a later stage than in ordinary sexual intercourse. The three judges were nevertheless in agreement that, whatever comparators were chosen, the difference in treatment was justified and proportionate under Article 14 of the Convention for the same reasons which underlay the finding of no violation of Article 8. The Court of Appeal further refused leave to appeal against Wall J’s finding that the embryos were not entitled to protection under Article 2, since under domestic law a foetus prior to the moment of birth, much less so an embryo, had no independent rights or interests.
28. On 29 November 2004 the House of Lords refused the applicant leave to appeal against the Court of Appeal’s judgment.
29. The birth of the first child from IVF in July 1978 prompted much ethical and scientific debate in the United Kingdom, which in turn led to the appointment in July 1982 of a Committee of Inquiry under the chairmanship of the philosopher Dame Mary Warnock DBE to “consider recent and potential developments in medicine and science related to human fertilisation and embryology; to consider what policies and safeguards should be applied, including consideration of the social, ethical and legal implications of these developments; and to make recommendations”.
30. The Committee reported in July 1984 (Cmnd 9314). At that time, the technique of freezing human embryos for future use was in its infancy, but the Committee noted that it had already occurred and had resulted in one live birth, and recommended that clinical use of frozen embryos should continue to be developed under review by the licensing body (see paragraph 10.3 of the report). It went on, however, to recognise the potential problems arising from the possibility of prolonged storage of human embryos, and recommended that a couple should be permitted to store embryos for their own future use for a maximum of ten years, after which time the right of use or disposal should pass to the storage authority (paragraph 10.10). It further recommended that where, as a result, for example, of marital breakdown, a couple failed to agree how the shared embryo should be used, the right to determine the use or disposal of the embryo should pass to the storage authority (paragraph 10.13). Consistent with its view that there should be no right of ownership in a human embryo (paragraph 10.11), the Committee did not consider that one party to the disagreement should be able to require use of the embryo against the wishes of the other.
31. The Warnock Committee’s recommendations, so far as they related to IVF treatment, were set out in a Green (consultation) Paper issued for public consultation. It was noted in the Green Paper (at paragraph 35) that few comments had been received about the Committee’s recommendation that the storage authority should assume the rights of use or disposal of an embryo where there was no agreement between the couple, and stressed that although this situation was unlikely to arise very often it was important that there should be a “clear basis” for its resolution.
32. After receipt of representations from interested parties, the proposals on IVF were included in a White Paper (report), Human Fertilisation and Embryology: A Framework for Legislation, published in November 1987 (Cm 259). The White Paper recorded the Warnock Committee’s recommendation that the right of use or disposal of a frozen embryo should pass to the storage authority in the event of disagreement between the couple concerned (paragraphs 50-51), but continued:
“Broadly, those who believe storage should be permitted were content with the Warnock recommendations. There were some, however, who considered that the ‘storage authority’ should not have the right of use or disposal unless specifically granted this by the donors. The Government shares this latter view and has concluded that the law should be based on the clear principle that the donor’s wishes are paramount during the period in which embryos or gametes may be stored; and that after the expiry of this period, they may only be used by the licence holder for other purposes if the donor’s consent has been given to this.”
The White Paper indicated the Government’s decision that the maximum storage period for embryos should be five years (paragraph 54). Then, in a section entitled “Donor’s Consent”, it set out the policy that a donor should have the right to vary or withdraw consent to the transfer of an embryo to a woman at any time before the embryo was used:
“55. The complexities connected with storage underline the importance of ensuring that, when couples embark on IVF treatment, or when gametes are being donated, the individuals involved have given their consent to the uses to which their gametes or embryos will be put.
56. The Bill will provide that gametes or embryos may only be stored with the signed consent of the donors; and may be used only by the licence holder responsible for storage for the purposes specified in that consent (e.g. for therapeutic treatment, [or for research]). Those giving consent should be provided with information about the techniques for which their gametes/embryos might be used and about the legal implications of their decision. As a matter of good practice, counselling should also be available to them.
57. Donors would have the right to vary or withdraw their consent before the gametes/embryos were used, but the onus would be on them to notify any change to the licence holder. A licence holder receiving notice of such a change will have a duty to inform any other licence holder to whom he has supplied the donor’s gametes. (This situation might arise, for example, if a sperm bank supplied sperm to one or more treatment centres.) In the absence of any notification to the contrary, or notification of death, the licence holder must assume that the original consent still holds, and must act accordingly during the storage period. When this ends, he may only use or dispose of the embryos or gametes in accordance with the specified wishes of the donors. If these are not clear, the embryo or gametes should be removed from storage and left to perish.
58. As far as embryos are concerned, these may not be implanted into another woman, nor used for research, nor destroyed (prior to the expiry of the storage time limit) in the absence of the consent of both donors. If there is disagreement between the donors the licence holder will need to keep the embryo in storage until the end of the storage period, after which time, if there is still no agreement, the embryo should be left to perish.”
33. Following further consultation, the Human Fertilisation and Embryology Bill 1989 was published, and passed into law as the Human Fertilisation and Embryology Act 1990. The Bill substantially reflected the terms of the White Paper. The provisions dealing with consent did not prove controversial during its passage through Parliament.
34. In R. v. Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) [2003] UKHL 13, Lord Bingham described the background to and general approach of the 1990 Act as follows.
“... There is no doubting the sensitivity of the issues. There were those who considered the creation of embryos, and thus of life, in vitro to be either sacrilegious or ethically repugnant and wished to ban such activities altogether. There were others who considered that these new techniques, by offering means of enabling the infertile to have children and increasing knowledge of congenital disease, had the potential to improve the human condition, and this view also did not lack religious and moral arguments to support it. Nor can one doubt the difficulty of legislating against a background of fast-moving medical and scientific development. It is not often that Parliament has to frame legislation apt to apply to developments at the advanced cutting edge of science.
... The solution recommended and embodied in the 1990 Act was not to ban all creation and subsequent use of live human embryos produced in vitro but instead, and subject to certain express prohibitions of which some have been noted above, to permit such creation and use subject to specified conditions, restrictions and time limits and subject to the regimes of control ... It is ... plain that while Parliament outlawed certain grotesque possibilities (such as placing a live animal embryo in a woman or a live human embryo in an animal), it otherwise opted for a strict regime of control. No activity within this field was left unregulated. There was to be no free for all.”
35. By section 3(1) of the Act, no person shall bring about the creation of an embryo, or keep or use an embryo except in pursuance of a licence. The storage or use of an embryo can only take place lawfully in accordance with the requirements of the licence in question. The contravention of section 3(1) is an offence (created by section 41(2)(a) of the Act).
36. By section 14(4) of the Act, “the statutory storage period in respect of embryos is such period not exceeding five years as the licence may specify”. This provision was amended by the Human Fertilisation and Embryology (Statutory Storage Period for Embryos) Regulations 1996, which came into force on 1 May 1996, and which provide, inter alia, that where, in the opinion of two medical practitioners, the woman in whom the embryo may be placed, or, where she is not one of the persons whose gametes are used to create the embryo, one of those persons, is or is likely to become completely infertile prematurely, the storage period is extended until that woman is 55. Where, in the opinion of a single medical practitioner, the woman in whom the embryo may be placed, or one of the gamete providers, has or is likely to have significantly impaired fertility or has a significant genetic defect, the storage period is extended to ten years, or until that woman is 55, whichever period is the shorter.
Both of the persons whose gametes are used to create the embryos are required to confirm in writing that they do not object to extended storage for the purposes of future treatment. The woman in whom any such embryo may be placed must be under 50 when storage commences.
37. By section 12(c) of the Act, it is a condition of every licence granted that the provisions of Schedule 3 to the Act, which deal with “consents to use of gametes or embryos”, shall be complied with. The High Court and Court of Appeal held, in the proceedings brought by the applicant (see paragraphs 20-27 above) that, as a matter of the construction of Schedule 3, “the embryo is only used once transferred to the woman”.
Schedule 3 provides as follows:
“Consents to use of gametes or embryos
Consent
1. A consent under this Schedule must be given in writing and, in this Schedule, ‘effective consent’ means a consent under this Schedule which has not been withdrawn.
2. (1) A consent to the use of any embryo must specify one or more of the following purposes–
(a) use in providing treatment services to the person giving consent, or that person and another specified person together,
(b) use in providing treatment services to persons not including the person giving consent, or
(c) use for the purposes of any project of research,
and may specify conditions subject to which the embryo may be so used.
(2) A consent to the storage of any gametes or any embryo must–
(a) specify the maximum period of storage (if less than the statutory storage period), and
(b) state what is to be done with the gametes or embryo if the person who gave the consent dies or is unable because of incapacity to vary the terms of the consent or to revoke it,
and may specify conditions subject to which the gametes or embryo may remain in storage.
(3) A consent under this Schedule must provide for such other matters as the Authority may specify in directions.
(4) A consent under this Schedule may apply–
(a) to the use or storage of a particular embryo, or
(b) in the case of a person providing gametes, to the use or storage of any embryo whose creation may be brought about using those gametes,
and in the paragraph (b) case the terms of the consent may be varied, or the consent may be withdrawn, in accordance with this Schedule either generally or in relation to a particular embryo or particular embryos.
Procedure for giving consent
3. (1) Before a person gives consent under this Schedule–
(a) he must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and
(b) he must be provided with such relevant information as is proper.
(2) Before a person gives consent under this Schedule he must be informed of the effect of paragraph 4 below.
Variation and withdrawal of consent
4. (1) The terms of any consent under this Schedule may from time to time be varied, and the consent may be withdrawn, by notice given by the person who gave the consent to the person keeping the gametes or embryo to which the consent is relevant.
(2) The terms of any consent to the use of any embryo cannot be varied, and such consent cannot be withdrawn, once the embryo has been used–
(a) in providing treatment services, or
(b) for the purposes of any project of research.
Use of gametes for treatment of others
5. (1) A person’s gametes must not be used for the purposes of treatment services unless there is an effective consent by that person to their being so used and they are used in accordance with the terms of the consent.
(2) A person’s gametes must not be received for use for those purposes unless there is an effective consent by that person to their being so used.
(3) This paragraph does not apply to the use of a person’s gametes for the purpose of that person, or that person and another together, receiving treatment services.
In vitro fertilisation and subsequent use of embryo
6. (1) A person’s gametes must not be used to bring about the creation of any embryo in vitro unless there is an effective consent by that person to any embryo the creation of which may be brought about with the use of those gametes being used for one or more of the purposes mentioned in paragraph 2(1) above.
(2) An embryo the creation of which was brought about in vitro must not be received by any person unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for one or more of the purposes mentioned in paragraph 2(1) above of the embryo.
(3) An embryo the creation of which was brought about in vitro must not be used for any purpose unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for that purpose of the embryo and the embryo is used in accordance with those consents.
(4) Any consent required by this paragraph is in addition to any consent that may be required by paragraph 5 above.
...
Storage of gametes and embryos
8. (1) A person’s gametes must not be kept in storage unless there is an effective consent by that person to their storage and they are stored in accordance with the consent.
(2) An embryo the creation of which was brought about in vitro must not be kept in storage unless there is an effective consent, by each person whose gametes were used to bring about the creation of the embryo, to the storage of the embryo and the embryo is stored in accordance with those consents.
(3) An embryo taken from a woman must not be kept in storage unless there is an effective consent by her to its storage and it is stored in accordance with the consent.”
38. The material effect of Schedule 3 was summarised in the judgment of Lords Justices Thorpe and Sedley (see paragraph 25 above) as follows.
“(i) Those contemplating the storage and/or use of embryos created from their gametes must first be offered counselling; (ii) They must specifically be informed of the circumstances in which consent to the storage or use of an embryo may be varied or withdrawn; (iii) Consent given to the use of an embryo must specify whether the embryo is to be used to provide treatment services to the person giving consent, or to that person together with another, or to persons not including the person giving consent; (iv) An embryo may only be stored while there is effective consent to its storage from both gamete providers, and in accordance with the terms of the consent; (v) An embryo may only be used while there is an effective consent to its use from both gamete providers, and in accordance with the terms of that consent; (vi) Consent to the storage of an embryo can be varied or withdrawn by either party whose gametes were used to create the embryo at any time; (vii) Consent to the use of an embryo cannot be varied or withdrawn once the embryo has been used in providing treatment services.”
39. On the basis of the material available to the Court, including the “Medically Assisted Procreation and the Protection of the Human Embryo Comparative Study on the Solution in 39 States” (Council of Europe, 1998) and the replies by the member States of the Council of Europe to the Steering Committee on Bioethics “Questionnaire on Access to Medically Assisted Procreation” (Council of Europe, 2005), it would appear that IVF treatment is regulated by primary or secondary legislation in Austria, Azerbaijan, Bulgaria, Croatia, Denmark, Estonia, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Latvia, the Netherlands, Norway, the Russian Federation, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom; while in Belgium, the Czech Republic, Finland, Ireland, Malta, Lithuania, Poland, Serbia and Slovakia such treatment is governed by clinical practice, professional guidelines, royal or administrative decree or general constitutional principles.
40. The storage of embryos, for varying lengths of time, appears to be permitted in all the above States where IVF is regulated by primary or secondary legislation, except Germany and Switzerland, where in one cycle of treatment no more than three embryos may be created which are, in principle, to be implanted together immediately, and Italy, where the law permits the freezing of embryos only on exceptional, unforeseen medical grounds.
41. In Denmark, France, Greece, the Netherlands and Switzerland, the right of either party freely to withdraw his or her consent at any stage up to the moment of implantation of the embryo in the woman is expressly provided for in primary legislation. It appears that, as a matter of law or practice, in Belgium, Finland and Iceland there is a similar freedom for either gamete provider to withdraw consent before implantation.
42. A number of countries have, however, regulated the consent issue differently. In Hungary, for example, in the absence of a specific contrary agreement by the couple, the woman is entitled to proceed with the treatment notwithstanding the death of her partner or the divorce of the couple. In Austria and Estonia the man’s consent can be revoked only up to the point of fertilisation, beyond which it is the woman alone who decides if and when to proceed. In Spain, the man’s right to revoke his consent is recognised only where he is married to and living with the woman. In Germany and Italy, neither party can normally withdraw consent after the eggs have been fertilised. In Iceland, the embryos must be destroyed if the gamete providers separate or divorce before the expiry of the maximum storage period.
43. In addition, the parties referred the Court to case-law from the United States and Israel. The field of medically assisted reproduction is not regulated at federal level in the United States and few States have introduced laws concerning the subsequent withdrawal of consent by one party. It has, therefore, been left to the courts to determine how the conflict between the parties should be resolved and there are a number of judgments by State Supreme Courts regarding the disposal of embryos created through IVF.
44. In Davis v. Davis (842 S.W.2d 588, 597; Tenn. 1992), the Supreme Court of Tennessee held in 1992:
“... disputes involving the disposition of pre-embryos produced by in vitro fertilisation should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the pre-embryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre-embryos in question. If no other reasonable alternatives exist, then the argument in favor of using the pre-embryos to achieve pregnancy should be considered. However, if the party seeking control of the pre-embryos intends merely to donate them to another couple, the objecting party obviously has the greater interest and should prevail.
But the rule does not contemplate the creation of an automatic veto ...”
45. In Kass v. Kass (98 N.Y. Int. 0049), the couple had signed an agreement with the clinic which stipulated that, “in the event that we ... are unable to make a decision regarding the disposition of our frozen pre-zygotes”, the embryos could be used for research. When the couple separated, Mrs Kass sought to overturn the agreement and proceed to implantation. Although she prevailed at first instance (the court reasoning that just as a woman has exclusive control over her reproduction so should she have the final say in the area of IVF), the New York Court of Appeal decided that the existing agreement was sufficiently clear and should be honoured.
46. In A.Z. v. B.Z. (2000 431 Mass. 150, 725 N.E.2d 1051) there was again a previous written agreement, according to which, in the event of separation, the embryos were to be given to the wife, who now wished to continue with the treatment, contrary to the wishes of the husband. However, the Supreme Court of Massachusetts considered that the arrangement should not be enforced because, inter alia, as a matter of public policy “forced procreation is not an area amenable to judicial enforcement”. Rather, “freedom of personal choice in matters of marriage and family life” should prevail.
47. This judgment was cited with approval by the Supreme Court of New Jersey, in J.B. v. M.B. (2001 WL 909294). Here, it was the wife who sought the destruction of the embryos while the husband wanted them either to be donated to another couple or preserved for use by him with a future partner. Although constitutional arguments were advanced on behalf of the wife, the court declined to approach the matter in this way, reasoning that it was in any event not sure that enforcing the alleged private contract would violate her rights. Instead, having taken into account the fact that the father was not infertile, the court subscribed to the view taken in the A.Z. case regarding public policy and ordered that the wife’s wishes be observed.
48. Finally, in Litowitz v. Litowitz (48 P. 3d 261, 271) the woman, who had had children before undergoing a hysterectomy, wished to use embryos created with her ex-husband’s sperm and donor eggs for implantation in a surrogate mother. The ex-husband, however, wished the embryos to be donated to another couple. At first instance and on appeal the husband’s view prevailed, but in 2002 the Supreme Court of Washington decided by a majority to adopt a contractual analysis and to honour the couple’s agreement with the clinic not to store the embryos for more than five years.
49. In Nachmani v. Nachmani (50(4) P.D. 661 (Isr)), a childless Israeli couple decided to undergo IVF and then to contract with a surrogate in California to bear their child because the wife would not be able to carry the foetus to term. The couple signed an agreement with the surrogate, but not with the IVF clinic regarding the disposal of the embryos in the event of their separation. The wife had her last eleven eggs extracted and fertilised with her husband’s sperm. The couple then separated, before the embryos could be implanted in the surrogate, and the husband, who had gone on to have children with another woman, opposed the use of the embryos.
The District Court found in favour of the wife, holding that the husband could no more withdraw his agreement to have a child than a man who fertilises his wife’s egg through sexual intercourse. A five-judge panel of the Supreme Court reversed this decision, upholding the man’s fundamental right not to be forced to be a parent. The Supreme Court reheard the case as a panel of eleven judges and decided, seven to four, in favour of the wife. Each judge wrote a separate opinion. The judges in the majority found that the woman’s interests and in particular her lack of alternatives to achieve genetic parenthood outweighed those of the man. Three of the minority judges, including the Chief Justice, reached the opposite conclusion, emphasising that the wife had known that her husband’s consent would be required at every stage and that the agreement could not be enforced after the couple had become separated. The fourth of the dissenters held that the man’s consent was required before the obligation of parenthood could be imposed on him.
50. The general rule stated in Article 5 of the Council of Europe Convention on Human Rights and Biomedicine states as follows:
“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.
This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.
The person concerned may freely withdraw consent at any time.”
51. Principle 4 of the principles adopted by the ad hoc committee of experts on progress in the biomedical sciences, the expert body within the Council of Europe which preceded the present Steering Committee on Bioethics (CAHBI, 1989), stated:
“1. The techniques of artificial procreation may be used only if the persons concerned have given their free, informed consent, explicitly and in writing, in accordance with national requirements.
...”
52. Finally, Article 6 of the Universal Declaration on Bioethics and Human Rights provides:
“Article 6 – Consent
1. Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.
...”
NON_VIOLATED_ARTICLES: 14
2
8


ITEMID: 001-85244
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF DEMEBUKOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits (six-month rule);No violation of Art. 6
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: 6. The applicant owned a house in the village of Brod where he resided at the time of the events.
7. On 18 September 1997 the cables supplying the village with electricity were stolen.
8. On 2 October 1997 a preliminary investigation was opened against the applicant and two other individuals for the theft of the electricity cables.
9. On 15 October 1997 the applicant, assisted by a lawyer, was charged with the theft of the electricity cables and a restriction was imposed on him not to leave the village of Brod without the authorisation of the public prosecutor’s office.
10. The preliminary investigation was concluded on an unspecified date and the case was forwarded to the public prosecutor’s office. On an unspecified date the case was remitted for further investigation.
11. On 16 January 1998 the charges against the applicant were amended; he was once again assisted by a lawyer.
12. The results of the preliminary investigation were presented to the applicant and his lawyer on 30 January 1998.
13. On an unspecified date the applicant left the village of Brod without authorisation from the public prosecutor’s office. He claimed to have moved to live at an address in Plovdiv which was registered with the police and where he received his pension.
14. On an unspecified date the public prosecutor’s office entered an indictment against the applicant and his two accomplices with the Dimitrovgrad District Court for the theft of the electricity cables.
15. A copy of the indictment was sent to the applicant’s address in the village of Brod, apparently by registered post with return receipt. The indictment and the receipt were returned to the District Court in their entirety and without an indication whether they had been served.
16. The first hearing before the District Court was scheduled for 22 September 1998, but was postponed, for undisclosed reasons, to 15 October 1998.
17. A summons to the first hearing was sent to the applicant’s address in the village of Brod, which was returned without any indication whether it had been served. In an accompanying letter, the mayor of the village of Brod informed the District Court that the applicant was not registered as living in the village, that he had not resided there for several months and that he had moved to the city of Plovdiv.
18. At the hearing on 15 October 1998 the District Court established that the applicant had not been duly summoned because he had not received the summons. Nevertheless, at the request of the public prosecutor’s office, the court decided to examine the case in his absence as it found that this would not impede the proceedings, and assigned a court-appointed lawyer to represent the applicant.
19. The second hearing was conducted on 24 November 1998; the applicant was summoned to it through his court-appointed lawyer.
20. In a judgment of 24 November 1998 the District Court found the applicant and his accomplices guilty as charged. The applicant was sentenced to three years’ imprisonment.
21. No appeal was lodged against the judgment, so it became final on 28 December 1998.
22. The applicant was arrested on 9 February 1999 to serve the prison sentence, which he did until 27 April 2001.
23. On an unspecified date in 2000 the applicant requested the Supreme Court of Cassation to reopen the criminal proceedings against him. He relied on Article 362a of the Code of Criminal Procedure 1974 (“CCP”: see Relevant domestic law below) and claimed that he had not been aware of the criminal trial against him. The applicant argued that even though he had been aware of the preliminary investigation against him he could not be expected to constantly follow the subsequent development of the proceedings against him. Moreover, as he had not received the indictment entered against him by the public prosecutor’s office, he had been unaware that formal court proceedings had been initiated against him. The applicant also argued that once the authorities had established that he was no longer residing in the village of Brod they should have attempted to find him at his other address in Plovdiv, where they would have found him without difficulty.
24. In a judgment of 4 May 2000 the Supreme Court of Cassation dismissed the applicant’s request to reopen the case. It found that the applicant had been aware of the criminal proceedings against him because he had been present, together with his lawyer, when he had been initially charged on 15 October 1997, when the charges had been amended on 16 January 1998 and also when the results of the preliminary investigation had been presented on 30 January 1998. Moreover, he had violated the restriction order imposed on him not to leave the village of Brod without the authorisation of the public prosecutor’s office and had moved to another address without informing the said authorities. Thus, the court found that the applicant had wilfully made himself unavailable to participate in the criminal proceedings against him and had lost the right to seek their reopening.
25. The CCP, revoked in 2006, allowed trial in absentia in certain limited instances. It provided in Article 268 § 3, as in force at the relevant time, the following:
“When it would not hamper the ascertaining of the truth, the case can be examined in the absence of the accused if:
1. [he] was not found at the address he had given or had changed it without informing the competent authorities;
2. [he] was duly summoned and had not indicated a good cause for his failure to appear.”
26. When an accused was tried in absentia, there was a statutory requirement that he be represented by an ex officio counsel (Article 70 § 1 (6) of the CCP).
27. Until 1 January 2000 Bulgarian law did not provide for the reopening of criminal cases heard in absentia. Thereafter reopening became possible in cases where the convicted person was unaware of the criminal proceedings against him or her and had submitted a request for a reopening within a year of learning of the conviction (Article 362a of the CCP). The request was examined by the Supreme Court of Cassation (Article 363 of the CCP), which could quash the conviction and either order a rehearing of the case (Article 364 § 1 of the CCP) or discontinue or suspend the criminal proceedings (Article 364 § 2 of the CCP).
28. The Bulgarian courts’ prevailing practice has been summarised in the Court’s judgment in the case of Kounov v. Bulgaria (no. 24379/02, §§ 31-33, 23 May 2006).
29. In further judgments, the Supreme Court of Cassation stated that a convicted person cannot claim not to have been aware of the criminal proceedings against him if he had been charged with the offence in question in the course of the preliminary investigation and had had a restriction placed on him not to leave his place of residence without the authorisation of the public prosecutor’s office (решение № 348 от 26.06.2000 г. по н.д. № 258/2000 г., II н.о. на ВКС; решение № 651 от 05.01.2001 г. по н.д. № 609/2000 г., II н.о. на ВКС). Moreover, it considered that it was irrelevant whether in such instances the convicted person was actually seeking to evade justice or had simply moved to another address without having duly informed the competent authorities where he could be summoned (решение № 182 от 18.04.2001 г. по н.д. № 99/2001 г., II н.о. на ВКС).
30. The new Code of Criminal Procedure 2006 provides for the reopening of criminal cases heard in absentia in cases where the convicted person was unaware of the criminal proceedings against him or her, including of the conviction, and had submitted a request for a reopening of the case within six months of learning of the conviction (Article 423 § 1).
31. In the first reported case under the new rule, the Supreme Court of Cassation restated its understanding that the possibility for reopening of criminal cases heard in absentia aimed to restore the right of the convicted person to participate personally in the criminal proceedings, which he or she had previously been denied for reasons outside his or her control. In particular, its aim was not to be of benefit to convicted persons who had known of the criminal proceedings against them, but had belatedly learnt of their conviction because they had absconded or had avoided participating in the court proceedings (решение № 882 от 07.11.2006 г. по н.д. № 331/2006 г., I н.о. на ВКС).
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-82581
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ILIC v. SERBIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Violation of Art. 6-1 (length of civil proceedings);Violation of Art. 13+6-1;No separate issue under Art. 6-1 (non-enforcement) or under 13+P1-1;Remainder inadmissible (impartiality);Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
TEXT: 4. The applicant was born in 1935 and lives in Belgrade, Serbia.
5. On 23 March 1960 an apartment building owned by the applicant's father was nationalised by the Yugoslav communist authorities.
6. On 1 December 1960 the Palilula municipal authorities declared that one specific flat in the apartment building was to remain the property of the applicant's father.
7. Following his father's death, the applicant inherited the legal title to this flat. He could not, however, effectively enjoy it because the flat was subjected to a special “protected tenancy regime” and, as such, physically occupied by other persons whose rent was controlled by the public authorities.
8. In 1992 a new Housing Act made it possible, under certain conditions, for the owners of such flats to regain effective possession (see paragraphs 39-41 below).
9. On 19 January 1993 the Housing Department of the Palilula Municipality (Odeljenje za komunalno-stambene poslove opštine Palilula) accepted the applicant's eviction request and ordered the same Municipality to provide the “protected tenant” in question with adequate alternative accommodation by 31 December 1995, at the latest.
10. On 17 August 1994 the Housing Department of the Palilula Municipality adopted another decision to the same effect (360-440/93-II-01). In so doing, it confirmed its ruling of 19 January 1993 and explicitly ordered the protected tenant's eviction by 31 December 1995.
11. On 1 December 1994 the Housing Department of the City of Belgrade (Sekretarijat za komunalne i stambene poslove grada Beograda) rejected the appeal filed by the Municipal Attorney-General's Office (Javno pravobranilaštvo opštine Palilula) and the decision of 17 August 1994 thereby became final.
12. On 4 August 2006 the Housing Department of the Municipality of Palilula offered the original protected tenant's legal heir, Ms B.K., specific alternative accommodation but then went on to note that a “priority list” would nevertheless have to be considered.
13. Ms B.K. stated that she had continued living in the flat, following the former protected tenant's death, together with her son, her daughter-in-law and their minor child. She added that the flat offered was some 20 square meters smaller than the one she currently lived in, and stated that it was not located in the city centre.
14. On 10 August 2006 the Housing Department of the Municipality of Palilula reaffirmed its offer but Mr S.K., Ms B.K.'s son, stated that the flat in question was inadequate in terms of its overall size as well as the number of rooms available. He added, however, that he and his family would provide the municipality with their final answer within ten to fifteen days.
15. In 1996 the applicant filed a civil claim against the Municipality of Palilula with the First Municipal Court in Belgrade (Prvi opštinski sud u Beogradu). He sought compensation for the pecuniary damage sustained due to his continuing inability to use/lease the flat in question.
16. On 2 September 1996 the First Municipal Court in Belgrade (“the Municipal Court”) ruled partly in favour of the applicant.
17. On 30 June 1997 the District Court in Belgrade (Okružni sud u Beogradu) quashed this decision on appeal and ordered a retrial.
18. On 26 June 2001 the Municipal Court ruled against the applicant.
19. On 27 December 2001 this judgment was upheld by the District Court in Belgrade (“the District Court”).
20. On 18 March 2002 the applicant filed an appeal on points of law (revizija).
21. On 9 October 2003 the Supreme Court (Vrhovni sud Srbije) quashed the judgments adopted at first and second instance and ordered a retrial before the Municipal Court. It held, inter alia, that the Municipality of Palilula was, indeed, obliged to enforce the decision of 17 August 1994, ordering the protected tenant's eviction, and, moreover, that the deadline for so doing had already expired. The court concluded that the applicant's claim thus had to be reconsidered on its merits and then went on to state that there was no legal avenue at the applicant's disposal which could have compelled the said municipality to honour “its own final and enforceable decision” of 17 August 1994.
22. The applicant received the decision of the Supreme Court on 17 December 2004.
23. On 29 December 2004 the applicant filed a submission with the Municipal Court, attempting to reformulate his original claim. In particular, he requested that the protected tenant be evicted from his flat and provided with adequate alternative accommodation.
24. On 20 January 2005 the Municipal Court rejected the applicant's request (nije dozvolio preinačenje tužbe).
25. The applicant subsequently appealed against this decision, but on 28 September 2005 the District Court declared his appeal inadmissible.
26. The proceedings before the Municipal Court therefore continued based on the applicant's initial claim for damages.
27. On 12 April 2006 the Municipal Court ruled in favour of the applicant. It ordered the Municipality of Palilula to pay him 5,318,300 Serbian Dinars (“RSD”), together with statutory interest as of 23 February 2006, in respect of the pecuniary damage suffered, as well as RSD 28,350 in legal costs. The court explained that the damage awarded was equivalent to the difference between the market price of the applicant's flat while “burdened” with a protected tenant and its estimated market value without this burden. It further referred to Article 1 of Protocol No. 1 and stated that the municipality was under a legal obligation to enforce the final eviction order at issue. The Municipality had had, over the years, sufficient funds and available flats in order to provide the applicant's protected tenant with adequate alternative accommodation (see paragraphs 33 and 35 below). Finally, there was no other legal avenue at the applicant's disposal by means of which he could have compelled the municipality to honour its own decision of 17 August 1994.
28. On 14 August 2006 the Municipality of Palilula filed an appeal with the District Court.
29. On 29 November 2006 the District Court quashed the impugned judgment and ordered a retrial at first instance. In its reasoning, inter alia, it explained that the applicant's rights were indeed breached but that he had not actually sold the flat in question which is why he was not entitled to the compensation awarded.
30. On 6 March 2007 the applicant reformulated his claim and sought compensation for the market rent which he could otherwise have earned while leasing the flat out to third parties. The applicant also proposed that the Municipal Court appoint an expert whose task would be to carry out the necessary calculation.
31. On 7 June 2007 the Municipal Court ruled partly in favour of the applicant. It ordered the Municipality of Palilula to pay him RSD 3,749,200, together with statutory interest as of 26 April 2007, in respect of the pecuniary damage sought, as well as RSD 28,000 in legal costs. In its reasoning, as regards the failure of the respondent to enforce its own eviction order of 17 August 1994, the Municipal Court reaffirmed its views expressed previously. There is, however, no evidence in the case file that this judgment has become final.
32. On 28 June 2002 the applicant filed a criminal complaint with the First Municipal Public Prosecutor's Office in Belgrade (Prvom opštinskom javnom tužilaštvu). He alleged that from 1996 to 2000 members of the Executive Council of the Palilula Municipality had mismanaged the available funding, earmarked for the “resettlement of protected tenants”, and misallocated the flats already available for this purpose.
33. On 7 April 2003 the Ministry of Internal Affairs (Ministarstvo unutrašnjih poslova) informed the First Municipal Public Prosecutor's Office (“the Public Prosecutor's Office”) that from 1994 to 2000 a total of 275 social flats had been “given” to persons in need by the Municipality of Palilula.
34. On 19 May 2003 the Public Prosecutor's Office rejected the applicant's criminal complaint. In so doing, inter alia, it explained that: i) no crime had been committed; ii) only two social flats comparable to the applicant's had been available but that they had been given to persons in greater need; and iii) in any event, the Municipality of Palilula did not have the funding needed to secure adequate alternative accommodation for all protected tenants, irrespective of whether or not there was a formal eviction order already issued.
35. On 2 December 2003, within a subsequent judicial investigation (istraga) apparently concerning the same matter, the Municipality of Palilula informed the Municipal Court that from 1992 to September 2003 it had sold 4,018 municipal flats for RSD 24,522,352.01.
36. Secondly, the funds thus obtained were used in accordance with Article 27 of the Housing Act, and the Municipality did not adopt a special programme aimed at building new social housing (see paragraph 39 below).
37. Thirdly, there were 14 “protected tenants” in respect of whom final municipal eviction orders had already been issued but were yet to be enforced.
38. Finally, during the period in question, there were no “adequate” flats needed for the resettlement of the “protected tenants”, as required by Article 42 of the Housing Act, which is why the evictions (“resettlement”) could not have been carried out (see paragraph 40 below.)
39. Under Article 27 §§ 1 and 2 funds obtained through the sale of State-owned flats (“sredstva od stanova prodatih putem otkupa”) shall, “unless the [Housing Act] provides otherwise”, be used “solely” for the purpose of providing various social housing loans. Exceptionally, municipalities, as but one emanation of the State, may also use “a portion” of these funds “for their own development”.
40. Article 42 states, inter alia, that, by 31 December 2000, municipalities were obliged to (“opštin[e] ... [su bile] ... dužn[e da]”) secure alternative accommodation (“obezbed[e] stan za preseljenje”) to all those individuals with the status of a “protected tenant” (“nosioc[ima] stanarskog prava na stanu u svojini građana”), namely to individuals who had continued living in flats owned by other private persons whose property had been placed under this regime by the former communist authorities. In other words, the owners, or their legal heirs, could take possession of their flats and the tenants would be moved to other accommodation. For this to occur, however, the owner, or his or her legal heir, would have to have filed a request to this effect and proved that the flat at issue was acquired “as habitable” prior to 26 December 1958. Further, “priority” in securing alternative housing was to be granted to “owners in need” and the alternative accommodation to be given to the protected tenants had to be “adequate”. Finally, the municipalities had to treat this issue as a “priority”, both in terms of managing the flats already available and as regards channelling the public funds obtained through the sale of State-owned flats into additional housing projects.
41. The deadline referred to above (31 December 2000) was initially 31 December 1995, but had subsequently been extended by the amendments to the Housing Act adopted in 1995.
42. Articles 261-278 set out the details concerning the enforcement of final decisions adopted by the respondent State's administrative bodies.
43. In addition, the Supreme Court has consistently held that, pursuant to Article 274 § 3 of the former General Administrative Proceedings Act, as well as Article 264 § 3 of the current General Administrative Proceedings Act, enforcement of eviction orders was to be carried out ex officio, in view of the compelling public interest in this respect, and even in the absence of a formal enforcement request filed by the claimant personally (see, for example, Vrhovni sud Srbije, Ubr. 6613/95).
44. The relevant provisions of this Act read as follows:
“The parties have the right to obtain a court decision in respect of their claims and proposals within a reasonable period of time.
It is incumbent upon the court to conduct the proceedings without undue delay and economically.”
45. Article 25 of the Serbian Constitution (Ustav Republike Srbije) published in OG SRS no. 1/90 provided as follows:
“Everyone shall be entitled to compensation for any pecuniary and non-pecuniary damages suffered due to the unlawful or improper conduct of a State official, a State body or a public authority, in accordance with the law.
Such damages shall be covered by the Republic of Serbia or the public authority [in question].”
46. This Constitution was repealed on 8 November 2006, which is when the new Constitution (published in OG RS no. 98/06) entered into force.
47. The substance of Article 35 § 2 of the “new” Constitution corresponds, in its relevant part, to the above-cited text of Article 25 of the previous Constitution.
48. The relevant provisions of this Act read as follows:
“The Supreme Court of Serbia shall set up a Supervisory Board [“Nadzorni odbor”] (“the Board”).
This Board shall be composed of five Supreme Court judges elected for a period of four years by the plenary session of the Supreme Court of Serbia.”
“In response to a complaint or ex officio, the Board is authorised to oversee judicial proceedings and look into the conduct of individual cases.
Following the conclusion of this process, the Board may initiate, before the High Personnel Council, proceedings for the removal of a judge based on his or her unconscientious or unprofessional conduct, or propose the imposition of other disciplinary measures.”
49. The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101321
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF LEONID LAZARENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1 and 6-3;Non-pecuniary damage - finding of violation sufficient
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1968 and is currently serving life imprisonment in Yenakiyeve Prison no. 52.
6. In its judgment of 14 November 2002 the Donetsk Regional Court of Appeal (“the Donetsk Court”) outlined the factual background of this case as follows. On 22 December 2001 the applicant and an acquaintance, G., stopped a taxi and asked the driver, L., to take them to a destination out of town. According to the applicant, they were planning a robbery and carjacking. The applicant had a knife hidden in his sleeve, which he had prepared in advance, and G. had a rope with him. Once the car reached a forest, the applicant and G. ordered the driver to stop. G. put the rope around the driver's throat while the applicant threatened him with the knife. The applicant got into the driver's seat and drove further into the forest, where they removed L., unconscious by that time, from the car. Later in December 2001 the dead body of L. was found in the forest with multiple stab wounds.
7. After the applicant and G. had unsuccessfully tried to sell L.'s car, it was found and seized by the police on 4 January 2002.
8. The applicant submitted that he had been arrested on 4 January 2002. According to the arrest report, he was arrested on 5 January 2002 on suspicion of the murder of L., which the investigator classified as falling under Article 115 § 1 of the Criminal Code (a premeditated murder). The applicant was recorded in the arrest report as having stated that he had no complaints or requests. The case file also contains a waiver of legal assistance by the applicant dated 5 January 2002.
9. On 8 January 2002 the applicant was examined by a doctor, who found his right wrist to be injured. The applicant explained that he had sustained the injury as a result of a fall during his arrest.
10. As confirmed in a note by the town hospital, on 11 January 2002 the applicant was taken there by the police for an examination of the aforementioned injury. An X-ray revealed that he had a closed fracture of a bone in his right wrist, and the wrist was put in plaster.
11. Between 5 and 16 January 2002 the applicant was held in the Petrovskyy District Police Station of Donetsk (“the police station”), after which he was moved to Donetsk Pre-Trial Detention Centre no. 5 (“the SIZO”). During that period, in the absence of a lawyer and allegedly after being subjected to beatings and threats, the applicant signed a confession, which was further confirmed in the course of a reconstruction of the events. He confessed that, acting together with G. and by their prior conspiracy, he had robbed and murdered L. The applicant admitted, in particular, that he had stabbed L. once with a knife. Later on, apparently after moving to another place of detention, the applicant withdrew his confession to murder, stating that it had been given under duress. He continued, however, to admit to the robbery and carjacking throughout the proceedings.
12. On 16 January 2002 the applicant wrote a note to the investigator, in which he stated that he had injured his wrist on 3 January 2002 after accidentally falling down some stairs. He also stated that he had no complaints against the police.
13. On an unspecified date, after the applicant's confession and after the reconstruction of the events, a lawyer was appointed for him.
14. On 20 May 2002 the Petrovskyy District Prosecutor's Office dismissed as unsubstantiated the applicant's complaint regarding his alleged ill-treatment by the police. The applicant did not challenge that decision. At some stage of the pre-trial investigation the charges against the applicant were reclassified to premeditated murder for profit, robbery, and carjacking, carried out by an organised group.
15. On 14 November 2002 the Donetsk Court, acting as a first-instance court, found the applicant and G. guilty of premeditated murder for profit, robbery, and carjacking, carried out by an organised group, and it sentenced each of them to fifteen years' imprisonment with confiscation of all personal property. As to the applicant's guilt, the court based its findings on the confession he had given at the initial stages of the pre-trial investigation, the testimony given by G. during the pre-trial investigation (although retracted by him at the trial as untruthful), according to which the applicant had stabbed L. once, and the testimony of several persons to whom the defendants had tried to sell L.'s car. The court examined the applicant's allegation of ill-treatment and found it to be no more than defence tactics. The police officer responsible for the applicant's arrest was questioned at the hearing and denied having coerced him in any way. The court noted that the applicant's injury could not be considered evidence of his ill-treatment in custody since he had given several inconsistent explanations as to its cause.
16. The prosecutor appealed against the aforementioned verdict in the part regarding the applicant, considering that it was too lenient given the seriousness of the crimes committed and in the light of the applicant's personality.
17. On 3 April 2003 the Supreme Court allowed that appeal. It quashed the verdict of 14 November 2002 in the part pertaining to the applicant and remitted the case for fresh examination to the same court.
18. On 2 September 2003 the Donetsk Court issued a new verdict with findings concerning the applicant's guilt identical to those it had made before. However, it changed his sentence to one of life imprisonment, referring to the seriousness of the crimes at issue and the personality of the applicant, who had committed the crimes some two months after his release from prison on probation. The court considered the fact that the applicant had repeatedly committed robbery with assault to be an aggravating circumstance.
19. On an unspecified date the lawyer acting on the applicant's behalf appealed. She submitted, inter alia, that the first-instance court had failed to duly examine the applicant's allegation of ill-treatment. On 13 October 2003 the applicant also introduced an appeal in cassation, in which he complained that the trial court had wrongly relied on a confession allegedly extracted by coercion, as well as on G.'s allegedly contradictory statements about him. He noted that as soon as he had been able to gain access to a lawyer after his transfer from the police station to the SIZO he had stopped giving any statements or signing any documents. On 19 January 2004 the applicant added a supplement to his appeal in cassation, complaining that he had not been legally represented during the initial stages of the pre-trial investigation, contrary to Article 45 of the Code of Criminal Procedure, and requesting the court not to accept his confession as evidence in the case. Copies of the applicant's appeal in cassation and the supplements to it were submitted to the Court by the Government along with their observations on the admissibility and merits of the application.
20. On 8 April 2004 the Supreme Court upheld the verdict subject to a minor amendment, namely, the removal of the reference to the repeated offence of robbery as an aggravating circumstance, since it had already been included in the classification of the crimes of which the applicant had been found guilty. The Supreme Court noted that the finding of guilt had been “based on evidence obtained in compliance with the requirements of the criminal procedural legislation and which had been explored at the hearings and properly evaluated by the court”. Furthermore, it saw “no indication of any gross violations of the provisions of the Code of Criminal Procedure during the investigation, or any misapplication by the court of the criminal law”. Lastly, the Supreme Court noted that the Donetsk Court had rightly dismissed as unsubstantiated the applicant's allegation that he had incriminated himself under duress.
21. After his conviction the applicant was moved to Yenakiyeve Prison no. 52 to serve his sentence.
22. After complaining that he was suffering from shortness of breath and a sore throat, on 11 February 2008 the applicant was taken to the Donetsk Regional Hospital at Prison no. 124 for a medical examination and treatment. He was diagnosed with chronic pharyngitis, iron deficiency, anaemia and hypertension. Furthermore, the applicant tested HIV-positive and was registered as an asymptomatic HIV carrier at the first clinical stage of the disease according to the WHO classification.
23. In March 2008, after blood tests had confirmed the HIV diagnosis, a doctor specialising in HIV/Aids met with the applicant and explained to him, in particular, that his disease was at such an early stage that no medical treatment was required, and that at a more advanced stage antiretroviral therapy would be considered.
24. Later in March 2008 the applicant was moved back to Prison no. 52, where he continued to serve his sentence.
25. Under paragraph 1 of Article 115 premeditated murder is punishable by imprisonment for a term of seven to fifteen years. Under paragraph 2 of Article 115, premeditated murder for profit and/or committed by a group of persons upon prior conspiracy, is punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.
26. Under Article 187, robbery by a group of persons upon prior conspiracy, or by a person who has previously committed robbery, is punishable by imprisonment for a term of seven to ten years, with confiscation of property (paragraph 2); the penalty is increased to fifteen years' imprisonment in the case of a robbery of large amounts of property, or committed by an organised group, or coupled with the infliction of serious bodily injuries (paragraph 4).
27. Under paragraph 3 of Article 289, carjacking coupled with violence endangering the victim's life or health, or under the threat of such violence, or committed by an organised group, involving of a vehicle whose value exceeds two hundred and fifty times the minimum non-taxable income, is punishable by imprisonment for a term of ten to fifteen years, with confiscation of property.
28. According to paragraph 1 of Article 64, life imprisonment is envisaged as a penalty for particularly serious crimes and is applied only in the cases explicitly provided for by the Criminal Code, where the court does not find it appropriate to apply a fixed term of imprisonment. Paragraph 2 of this Article exempts from life imprisonment certain categories of person (pregnant women, minors and the elderly).
29. Under Article 70, the total penalty for several criminal offences must be established by the absorption by the most severe punishment of the less severe one(s).
30. Article 45 provides that legal representation during the inquiry, the pre-trial investigation and the trial before the first-instance court is obligatory if, inter alia, the possible penalty is a life sentence. It further specifies that in this case the legal representation must be provided from the moment of the arrest or bringing charges against the person.
31. Under Article 46, a suspect, accused or defendant may dispense with the invited or appointed counsel at any stage of the proceedings. Such a waiver is possible only at the initiative of the suspect, accused or defendant and does not preclude him/her from appointing the same or a different counsel at a later stage of the proceedings (paragraph 1). However, a waiver of counsel in the cases covered by Article 45 should be based on reasoning found to be satisfactory by the inquiry officer, the investigator or the court (paragraph 3). Should it be accepted, the suspect, accused or defendant has up to three days to replace the counsel (paragraph 4). If he/she fails to do so within the set time-limit and if his/her legal representation is mandatory under Article 45 of the Code, a legal representative must be appointed by the inquiry officer, investigator or judge, depending on the stage of the proceedings (paragraph 5).
32. According to Article 103, the inquiry comprises operational and investigative activities aimed at establishing the facts of a crime and the suspected offenders.
33. According to paragraph 1 of Article 370, substantial violations of the requirements of the criminal procedural legislation are considered to be those which have impeded or could have impeded the court in the complete and thorough examination of a case and in issuing a lawful, reasoned and just verdict. Paragraph 2 of this Article lists a violation of the right of an accused to defence among the substantial violations of the requirements of the criminal procedural legislation which warrant the quashing of a verdict in any event (that is, regardless of whether the requirements of paragraph 1 have been met).
34. Article 390 provides for a person having lodged an appeal in cassation the right to supplement, amend or withdraw it before the beginning of the examination of the case in the cassation court.
35. The provisions concerning the obligation to institute criminal proceedings and investigate a crime can be found in the judgment of 27 November 2008 in the case of Spinov v. Ukraine (no. 34331/03, §§ 3233); those concerning judicial challenges to decisions of an inquiry body, investigator or prosecutor not to institute criminal proceedings can be found in the judgment of 25 October 2007 in the case of Yakovenko v. Ukraine (no. 15825/06, §§ 46-47).
36. The Rules on Medical and Sanitary Care in Detention Centres and Penitentiaries, approved by Decree no. 3/6 of 18 January 2000 of the State Department for Execution of Sentences, stipulate that medical assistance to HIV-infected persons is to be provided on the same basis as to everybody else (paragraph 4.3.4). The Rules also contain recommendations on counselling before and after HIV-testing, according to which this should be accessible, informative and supportive (annex 28 to paragraph 4.3.4). Paragraph 6.1.9 of these Rules provides for preventive medical examinations of detainees on an annual basis, with the participation of a therapist, psychiatrist and dentist, as well as a doctor of another speciality, possibly from outside the detention facility, as required.
37. The relevant provisions of Decree No 186/607 of 15 November 2005 of the Ministry of Health and the State Department for Execution of Sentences on the Antiretroviral Treatment of Persons with HIV/AIDS Detained in Prisons and Pre-Trial Detention Centres are summarised in the case of Yakovenko (cited above, §§ 49-52).
38. The relevant international documents concerning access to a lawyer during police custody are summarised in the judgments of Salduz v. Turkey [GC], no. 36391/02, §§ 37-38, 41 and 44, 27 November 2008, and Panovits v. Cyprus, no. 4268/04, § 45, 11 December 2008).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1