ITEMID: 001-99666
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KEMEVUAKO v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Eduardo Lutete Kemevuako, is an Angolan national who lives in Soesterberg. He is represented before the Court by Mr W.A. Venema, a lawyer practising in Rijsbergen.
2. Netherlands on 6 July 2001 and requested asylum. In the course of interviews held with immigration officials, he stated that he had been born on 20 May 1985. In 1996 or 1997 he had been taken away from his parents by soldiers of the Angolan Government, who had taken him to a military base where he had stayed for four or five years and where he had received education. He had not been allowed to leave the premises. During the last half year of his stay at the military base, he had been trained to become a soldier. After having heard that he had to fight against troops of the National Union for the Total Independence of Angola (“UNITA”) he had managed to escape the base with the help of his uncle, who had also been stationed there.
3. During the first interview held with the immigration authorities the applicant consented to cooperate in an age-verification examination. This radiographic examination was performed on 18 July 2001 and disclosed that the applicant was about 20 years old and must thus have been born in 1981 rather than in 1985.
4. On 22 July 2001 the applicant's asylum request was rejected by the Deputy Minister of Justice (staatssecretaris van Justitie), who found that the applicant's account could not be considered credible. The applicant lodged appeals, but eventually to no avail. After the Regional Court (rechtbank) of The Hague had quashed the rejection of the asylum request three consecutive times for formal reasons or because it lacked adequate reasoning, the immigration authorities again refused to grant the applicant a residence permit for the purpose of asylum on 4 January 2007. The subsequent appeal of the applicant was rejected by the Regional Court of The Hague, sitting in Utrecht, on 19 July 2007. The Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State, “the Division”) upheld the judgment of the Regional Court on 5 September 2007. No further appeal lay against this decision.
5. On 13 March 2008 the applicant applied for a residence permit “at the discretion of the Deputy Minister” (conform beschikking staatssecretaris), arguing that he had been residing in the Netherlands for seven years, during which period he had become integrated into Dutch society and had developed personal, social and economic ties as a result of the course in electrical engineering he had been following, his membership of a football club, and his adherence to the Jehovah's Witnesses.
6. The request was denied by the Deputy Minister on 13 March 2008 for the reason that the applicant did not hold a provisional residence visa (machtiging tot voorlopig verblijf), which was to be applied for at a representation of the Netherlands in the country of origin and which is a prerequisite for the grant of a residence permit for purposes not related to asylum.
7. The applicant filed an objection (bezwaar) against this decision, arguing that he ought to be exempted from the visa requirement. The Deputy Minister dismissed the objection on 15 August 2008, after which the applicant lodged an appeal with the Regional Court of The Hague, sitting in Breda.
8. In order to be able to await the outcome of the objection and, subsequently, the appeal proceedings in the Netherlands, the applicant also applied for a provisional measure (voorlopige voorziening). By judgment of 8 January 2009, the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in Breda, quashed the Deputy Minister's decision on the objection for lacking adequate reasoning. However, the judge upheld the legal consequences and, at the same time, rejected the request for a provisional measure. The provisional-measures judge reiterated that the ratio of the visa requirement for obtaining a residence permit for purposes not related to asylum lay in preventing the national authorities, prior to a decision on a person's request for admission having been taken, from being confronted with a fait accompli as a result of that person's presence in the Netherlands. Furthermore, the provisional-measures judge considered that the authorities were not under a positive obligation to exempt the applicant from the visa requirement, as the fact that the applicant had been allowed to reside in the Netherlands for six years pending the asylum proceedings could not be considered a special circumstance on the basis of which he should be exempted from the visa requirement. No other circumstances had been submitted justifying the conclusion that the decision not to exempt the applicant from the visa requirement constituted an exceptional hardship (onbillijkheid van overwegende aard) and neither had any such circumstances appeared. The provisional-measures judge added that since the obligation to leave the Netherlands in order to apply for a visa was in principle only temporary in nature, it was only in exceptional cases that the refusal to exempt an alien from the visa requirement would amount to an unjustified interference with that alien's right to respect for private life.
9. On 15 June 2009 the Division upheld the judgment of the provisional-measures judge. No further appeal lay against this decision. On that same day, the judgment of the Division was sent to the applicant pursuant to article 8:79 of the General Administrative Law Act (Algemene Wet Bestuursrecht).


ITEMID: 001-79432
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF EVRENOS ÖNEN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1937 and lives in İzmir.
5. The applicant is the owner of a potable and industrial water station in İzmir. By a letter dated 9 July 2001 the authorities from the İzmir Health Directorate informed the Karşıyaka Public Prosecutor about the fact that the applicant's company was not complying with the requirements of the relevant regulation concerning the packaging and marketing of spring and mineral waters.
6. On 24 August 2001, in his statements taken by the Karşıyaka Public Prosecutor, the applicant maintained that he had been already told by the authorities that the way he was selling water was in breach of the relevant regulation and that he had consequently closed his business earlier that year.
7. On 28 November 2001 the Karşıyaka Public Prosecutor issued an advance payment order of 1,898,208,000 Turkish Liras (TRL) for the applicant, for failure to respect the rule concerning the packaging and marketing of spring and mineral waters, provided in decree law no. 560. The applicant did not pay the fine within ten days as required by the order.
8. On 14 December 2001 the applicant filed a petition with the Karşıyaka Magistrate's Court, challenging the decision of the Public Prosecutor. He claimed that he had already made a payment. In his submissions to the court, the Public Prosecutor explained that the payment made by the applicant was for a previous offence, which took place on 26 May 1999.
9. On 22 January 2002 the Karşıyaka Magistrate's Court dismissed the objection and issued a penal order, by which it increased the fine to TRL 2,847.312.000, due to the applicant's failure to comply with the advance payment order.
10. On 19 February 2002 the applicant filed an objection with the Karşıyaka Criminal Court of First Instance, against the penal order of 22 January 2002, alleging, in particular, a breach of Article 6 § 3 (c) of the Convention.
11. On 4 March 2002 the Karşıyaka Criminal Court of First Instance upheld the decision of the Magistrate's Court, holding that it was in accordance with the law.
12. The applicant paid the fine on 3 May 2002, 28 May 2002 and 2 July 2002, in three equal instalments.
13. Article 17 Decree law no. 560 (amended by law no. 4128) on the packaging and marketing of spring and mineral waters, provides that the manufacturing, packaging and selling of the spring and mineral waters are under the authorisation of the Ministry of Health. The principles and procedural requirements concerning these subject matters are regulated by the Ministry of Health. Article 18 A (l) of the same law provides that a company who acts in breach of Article 17 of the decree law no. 560 would be closed, affixed with a seal and be subject to a fine. Should the company commit the same offence again, the fine would be doubled.
14. Article 465 § 4 of the former Criminal Code provide as follows:
“If the action does not cause any sickness or prevent the victim from attending his/her usual occupation (...) the offender shall be sentenced to 2 to 6 months' imprisonment or to a fine of TRL 200 to 2,500. However, the legal proceedings may be initiated only upon the victim's complaint.”
15. The relevant Articles of the Code of Criminal Procedure which was in force at the time of the events, read as follows:
“Save the exceptional circumstances described by law, the courts shall decide on objections filed against the penal orders without holding a hearing.
If the objection is upheld, the same court shall decide on the merits of the case.”
“The judge at the Magistrates' Court may, without holding a hearing, rule on the offences which are within the jurisdiction of the Magistrates' Court and it may subsequently issue a penal order.
Only the sentencing to a fine, an imprisonment up to three months, a suspension of a certain profession and a seizure (...) may be adjudicated by a penal order. (...)”
“If the judge at the Magistrates' Court considers that the lack of a hearing may put the offender in an unfavourable situation, then it could be decided to hold a hearing. “
“In addition to the conviction, it should be noted in the penal order, the designation of the offence, the applicable provisions of law, the relevant evidence, and the possibility of raising an objection within eight days after its notification (...). The petition which raises an objection to the penal order shall be approved by the trial judge. (...)”
“A hearing shall be held if the objection is raised against an imprisonment sentence given by a penal order. (...)
The suspect can be represented by a defence counsel during the hearing. (...)
The objections against the penal orders (...) are examined by a judge at the criminal court of first instance, in line with the procedure described under Articles 301, 302 and 303. The objection would suspend the execution of the penal order.”
16. In a judgment given on 30 June 2004 the Constitutional Court declared Article 390 § 3 of the Code of Criminal Procedure unconstitutional and a nullity. It held that lack of a public hearing before the Criminal Court of First Instance that examines the objections against the penal orders, would be in breach of the right guaranteed under Article 6 of the Convention, as well as Article 36 of the Constitution.
17. Additionally, the new Criminal Code and the Code of Criminal Procedure which came into force on 1 June 2005, contain no provision concerning penal orders.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-100832
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: LOSKA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Pavol Lóška, is a Slovakian national who was born in 1937 and lives in Michalovce. The respondent Government were represented by their Agent, Ms A. Poláčková, who was succeeded in that function by Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant receives an old-age pension. At the same time, he is still economically active as a self-employed entrepreneur. He has an ongoing dispute with the Social Security Administration (SSA) concerning the contributions he is required to make to the social security funds in his capacity as a pensioner who is self-employed.
On 10 February 1999 the SSA quashed two decisions of 26 November 1998 and took four separate new decisions ordering the applicant to pay contributions for 1998 and 1999 and financial penalties for late payment of contributions for those years. The applicant's appeal was unsuccessful and the decisions were upheld by the SSA appellate body on 8 April 1999.
Although the applicant could have challenged the decisions of 10 February 1999 by way of an administrative-law appeal to the courts, he did not do so. He nevertheless lodged an unsuccessful request, which had no suspensive effect, for a review by the public prosecution service, which was at the latter's discretion. The decisions of 10 February 1999 thus became final and binding.
The SSA subsequently commissioned a judicial enforcement officer (súdny exekútor) to enforce the amounts due. The enforcement was authorised by the Michalovce District Court (Okresný súd) on 14 March 2000. The enforcement was to be carried out in the form of deductions from the applicant's old-age pension.
On 18 April 2000 the applicant challenged the enforcement by way of an appeal (námietka). He contended mainly that the decisions of 10 February 1999 had been flawed by numerous mistakes in calculation and formal irregularities.
On 2 January 2001 the SSA quashed the decisions of 10 February 1999 upon an extraordinary review outside the framework of the appellate procedure in so far as they concerned the contributions and penalty for the year 1998. The SSA informed the judicial enforcement officer accordingly and advised him that all that remained to be enforced were the decisions concerning the contributions and penalty for 1999.
On 26 November 2002 the District Court dismissed the applicant's enforcement appeal, observing that it was aimed at substantive elements of the enforced decisions while the review of such elements fell within the framework of the appellate procedure and outside the scope of the enforcement procedure. No mention was made of the decision of 2 January 2001 to quash the decisions of 10 February 1999 concerning the year 1998.
The written version of the decision of 26 November 2002, which was not subject to appeal, was mislaid and only came to the attention of the judicial enforcement officer on 27 August 2004.
Meanwhile, on 7 May 2003, the Constitutional Court (Ústavný súd) had declared the applicant's complaint under Article 127 of the Constitution that the decision of 26 November 2002 was arbitrary, unfair and wrong and that the procedure leading to it was unfair, inadmissible on account of the lack of legal representation, which was mandatory. The Constitutional Court took that decision having previously dismissed the applicant's request for legal aid on the ground that his complaint had no prospect of success.
By 3 August 2004 the applicant had paid the entire amount due under all the decisions of 10 February 1999. The amount corresponding to the decisions concerning the year 1998 was later returned to him. Consequently, the enforcement proceedings were discontinued on 7 September 2004.


ITEMID: 001-68673
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF GUDELJEVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1966 and lives in Poreč.
5. On 7 January 1994 the applicant instituted civil proceedings in the Virovitica Municipal Court (Općinski sud u Virovitici) against the insurance company C. seeking payment on the basis of an insurance contract.
6. On 22 February 1996 the applicant’s claim was dismissed. The applicant appealed against the judgment on 20 March 1996.
7. On 18 July 1996 the Bjelovar County Court (Županijski sud u Bjelovaru) dismissed his appeal and upheld the first instance judgment.
8. On 7 October 1996 the applicant filed a request for revision on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske). The Supreme Court rejected the applicant’s request on 7 June 2001. The judgment was served on the applicant on 24 October 2001.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88427
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LAWRENCE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Bonitto Lawrence, is a British national who was born in 1937 and lives in London. He was represented before the Court by Ms R. White, a welfare rights worker in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 7 March 2001. In June 2001, the applicant made a claim for widows’ benefits, namely Widow’s Pension. On 5 September 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-94404
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TALABER v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1953 and lives in Budapest.
6. In November 2003 the Budapest I/XII District Public Prosecutor charged the applicant with disorderly conduct and vandalism, punishable by three years of imprisonment.
7. The Budapest Central District Court held hearings on 22 January, 28 March and 28 April 2004. On the latter date it found the applicant guilty of vandalism and fined him 90,000 Hungarian forints (HUF) (approximately 337 euros (EUR)). The District Court relied on documentary evidence, the opinion of an expert, and the testimony of witnesses and the applicant.
8. The applicant appealed, seeking acquittal on the ground that the judgment was ill-founded, and requested the court to hold a public hearing. The Budapest Chief prosecutor also appealed, and requested the court to quash the first-instance judgment and remit the case to the District Court because of shortcomings in the finding of facts.
9. The Budapest Regional Court notified the applicant’s lawyer that it would determine the appeal sitting in camera. In reply, the lawyer put forward supplementary arguments and again requested the court to hold a public hearing.
10. On 7 April 2005 the Regional Court held a session in camera and upheld the applicant’s conviction. The applicant, his lawyer and the prosecutor were absent.
11. The Regional Court reviewed the entirety of the proceedings and established their lawfulness. Furthermore, it considered that the findings of fact by the first-instance court were not ill-founded within the meaning of section 351(2) of the New Code of Criminal Procedure, and were thus suitable for an appellate review without taking further evidence.
12. However, the Regional Court, relying on the existing case file, modified the findings of fact as established by the first-instance court. When delivering its judgement, it relied on the modified facts.
13. Act no. XIX of 1998 on the [New] Code of Criminal Procedure provides, in so far as relevant, as follows:
“... (3) An appeal may concern questions of fact or law.”
“(1) The second-instance court shall base its decision on the facts as established by the first-instance court unless the first-instance judgment is ill-founded....
(2) The first-instance judgment is ill-founded if:
a) the facts have not been explored;
b) the first-instance court has failed to establish the facts or the findings of fact are deficient;
c) the findings of fact are in contradiction with the contents of the documents;
d) the first-instance court has drawn incorrect conclusions from the findings of fact in regard to a further fact.”
“... (2) In order to eliminate the ill-foundedness of the first-instance judgment, evidence may be taken if the findings of fact have not been established or are deficient. Evidence shall be taken ... at a hearing.”
“(1) Within 30 days of receiving the file, the president of the panel in charge shall schedule, in order to deal with an appeal, deliberations in camera (tanácsülés), a public session (nyilvános ülés) or a hearing (tárgyalás). ...”
“(1) The second-instance court shall hold a public session, if – the first-instance judgment being ill-founded – the complete and/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions, or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence.
(2) The second-instance court shall summon to the public session those persons whose hearing it deems necessary ...”
“(1) The second-instance court shall notify the public prosecutor and – if they are not summoned -– ... the defendant and his lawyer of the public session. ...”
“(2) In order to take evidence, a hearing (tárgyalás) ... shall be scheduled.”
“(1) The court’s final decision on the merits is susceptible to a [Supreme Court] review (felülvizsgálat) if ...
c) the decision has been adopted amidst procedural irregularities within the meaning of section 373(1) subparagraphs II to IV.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-127612
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF TÜZÜN v. TURKEY
IMPORTANCE: 4
CONCLUSION: No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 4. The applicant was born in 1984 and lives in İzmir.
5. On an unspecified date the İzmir police received an anonymous telephone message which concerned the applicant.
6. On 30 May 2006 the İzmir police received another phone call from the same person stating that the applicant was in the house of a certain S.T., brother of the applicant’s fiancée.
7. According to the house search and seizure report drafted on the same day at 1.30 p.m., the İzmir police conducted a drug-related operation targeting S.T.’s house, under the supervision of the İzmir public prosecutor. The report stated that the applicant had given a false name and resisted the police when the officers showed him their search warrant. According to the report, the applicant physically attacked and injured two officers. He then fell and hit his head on the door. Four officers handcuffed him by pinning him to the floor by the arms and shoulders. During the search, the officers found ecstasy pills in the house. They also found a weapon hidden under a sofa. The report was signed by nine police officers, the applicant and the applicant’s fiancée, Ş.T. The applicant was subsequently arrested and placed in police custody.
8. At 1 p.m. on the same day the applicant was examined by a doctor at the Alsancak State Hospital, who observed a two-centimetre-long laceration on the scalp with an oedema around it on the left parietal region, a bruise on the front of his neck (under the chin), a minor erythema on his right cheek, and pain and another slight erythema in the right lumbar region.
9. On the same day A.T.E. and M.A., two police officers from the team that had effected the applicant’s arrest, were also examined by the same doctor. The doctor observed an erythema in the abdominal region, three bruises and erythemas on the right of the back, and erythemas on both arms of A.T.E.’s body. As regards M.A., the doctor noted an erythema of 20 cm on the left arm and a bruise of 5 cm x 5 cm on the left side of the abdominal region.
10. At 8.40 p.m. on the same day A.T.E. and M.A gave statements to police officers in their capacity as complainants and victims. They submitted that the applicant had resisted arrest and had insulted and physically attacked them. According to the officers, the applicant had fallen and hit his head on the door and had then been arrested. At 10 p.m. the applicant gave statements to the police and alleged that he had been beaten by police officers and injured during his arrest.
11. On 31 May 2006 the applicant was once again examined by a doctor, who noted a red lesion measuring 2 cm x 2 cm on his right upper arm and a complaint of intense pain in the right part of his back.
12. On the same day the applicant was brought before the İzmir Magistrates’ Court. The judge informed him that he was charged with insulting and resisting the police officers as well as causing them injuries. The applicant denied the allegation that he had insulted and resisted the police officers. He maintained that he had been hit on the head by police officers with a weapon and beaten with truncheons and guns during the house search. The judge subsequently ordered the applicant’s pre-trial detention.
13. On 20 June 2006 the İzmir public prosecutor filed a bill of indictment with the İzmir Criminal Court against the applicant charging him with resisting the police, insulting public officials and possession of firearms without a licence.
14. During the trial, the İzmir Criminal Court took statements from the two police officers who had affected the applicant’s arrest, the applicant and other police officers who had arrested him. The police officers maintained before the court that they had been kicked and punched by the applicant, who had resisted arrest, and that they had obtained medical reports in support of their allegations. They further maintained that the applicant had insulted them in Kurdish and in Turkish. The applicant claimed that he had not resisted arrest or insulted the officers and that in any case he had been unable to resist arrest on account of the number of arresting officers.
15. On 25 January 2007 the İzmir Criminal Court convicted the applicant of the aforementioned offences and sentenced him to a total of two years and nine months’ imprisonment. The court found it established – on the basis of the arrest and search report, medical reports, the expert assessments of the firearm, and the statements of the complainants, the applicant and witnesses – that the applicant had insulted and resisted the police officers and had been in possession of an unlicensed firearm.
16. On 5 November 2009 the Court of Cassation quashed the judgment of 25 January 2007, holding that the first-instance court should have examined whether it was appropriate to suspend the delivery of the judgment (hükmün açıklanmasının geri bırakılması).
17. On 10 March 2010 the first-instance court once again convicted the applicant of the same offences and sentenced him to a total of two years and nine months’ imprisonment and a fine of 450 Turkish liras.
18. According to the information obtained by the Registry from the website of the Court of Cassation, on 22 May 2012 the Court of Cassation upheld the judgment of 10 March 2010.
19. In the meantime, on 25 July 2006 the applicant applied to the İzmir public prosecutor’s office requesting that the police officers who had arrested him be punished for injuring him by using excessive force during his arrest.
20. On 29 August 2006 the İzmir public prosecutor issued a decision not to bring criminal proceedings against the arresting police officers as he found it established that the applicant had insulted and physically attacked the officers and resisted arrest. The public prosecutor noted that the applicant, A.T.E. and M.A. had fallen during the struggle and sustained injuries. According to the public prosecutor, the police officers had handcuffed the applicant by using force when he was on the floor. He found that there was no concrete evidence other than the complainant’s allegations that the members of the security forces had illtreated him. The public prosecutor considered that the force employed by the police had not been excessive and that the officers had acted within the scope of their duties. The public prosecutor did not question the applicant, the accused police officers or any other witnesses before giving his decision.
21. On 10 October 2006 the applicant objected to the decision of 29 August 2006.
22. On 8 January 2007 the Karşıyaka Assize Court dismissed the objection.
23. On an unspecified date, an investigator initiated a disciplinary investigation in respect of A.T.E. and M.A. Within the context of this investigation, between 4 September and 27 October 2006 the investigator took statements from the applicant, his fiancée, Ş.T., A.T.E. and M.A. and two other police officers who had effected the applicant’s arrest. The applicant and his fiancée stated that the applicant had been beaten by the police officers. The applicant stated that he had not insulted or attacked the arresting officers and that he had been hit with sticks and firearms. The police officers, on the other hand, maintained that the applicant had insulted them, had chanted slogans, had kicked and punched A.T.E. and M.A. and had fallen and hit his head on the door during the struggle.
24. On 18 January 2007 the Provincial Police Disciplinary Board attached to the İzmir governor’s office held that there was no reason to subject A.T.E. and M.A. to disciplinary sanctions and considered that they had acted within the scope of their duties during the arrest.
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-67586
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF ZASKIEWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. On 21 February 1994 the applicant filed with the Łódź Regional Court (sąd wojewódzki) an action in which he claimed damages from one of his partners in a partnership allegedly responsible for a sale of the partnership's property without the applicant's prior approval. He sued also a certain company X which had purchased that property.
9. On 10 March 1994 the court exempted the applicant from court fees.
10. On 14 March 1994 it refused the applicant's request for an interim measure. His appeal against that decision was dismissed on 16 May 1994 by the Łódź Court of Appeal (sąd apelacyjny).
11. On 5 May 1994 the applicant submitted pleadings with a ninety-five-page annex. In July and October 1994, as well as in December 1995, he submitted further pleadings and requested the summoning of five witnesses.
12. The Regional Court held a hearing on 11 January 1996. It completed the examination of the case and informed the parties that it would pronounce its judgment on 25 January 1996. Subsequently, the applicant submitted pleadings containing motions concerning evidence. On 25 January 1996 the court resumed the examination of the case.
13. The hearing scheduled for 27 February 1996 was adjourned because of the absence of a lay judge.
14. On 27 March 1996 the court held a hearing.
15. On 10 April 1996 it declared its lack of jurisdiction over the applicant's claims in respect of his partner and transferred that part of the case to the Łódź District Court (sąd rejonowy).
16. The Regional Court held hearings on 26 November 1996, as well as on 29 January, 1 April and 23 July 1997. It ordered an expert opinion.
17. On 15 September 1997 the court refused the applicant's request for an interim measure.
18. The expert opinion was submitted on 5 February 1998.
19. Subsequently, the applicant challenged that opinion.
20. At the hearing held on 11 May 1998 the court ordered a supplementary expert opinion.
21. At the hearing of 25 June 1998 the court completed the examination of the case.
22. Subsequently, the applicant filed a petition in which he complained about certain errors in the minutes from that hearing. On 7 July 1998 the court issued a decision concerning those errors.
23. On 6 July 1998 the applicant submitted pleadings. On 9 July 1998 the court resumed the proceedings and requested the applicant to specify his claim.
24. In September 1998 the applicant requested the court to summon a customs office to join the proceedings as an intervener for the applicant.
25. At the hearing held on 9 November 1998 the court dismissed that request. The applicant requested the written reasoning of that decision. On 18 November 1998 his request was rejected as not provided for by the law.
26. On 19 November 1998 the court gave judgment. It awarded the applicant 32,345.23 Polish zlotys with interest. Both the applicant and the defendant company appealed.
27. The Łódź Court of Appeal held hearings on 9 April and 1 June 1999.
28. On 15 June 1999 it gave judgment. The court amended the judgment of the first-instance court in that it dismissed the action filed by the applicant. He received a copy of the written reasoning of that judgment on 4 April 2000. On 4 May 2000 the applicant lodged with the Supreme Court a cassation appeal against that judgment.
29. On 16 January 2002 the Supreme Court dismissed that appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79062
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BLOKHIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Yevgeniy Dmitryevich Blokhin, is a Russian national who was born in 1944 and lives in Moscow. The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 June 1999 the Prefect of the Eastern Administrative District of Moscow decided that balconies of a block of flats in which the applicant lived were dilapidated and should have been demolished for safety reasons.
On 20 October 2000 the applicant appealed against the decision of 9 June 1999 to the Preobrazhenskiy District Court of Moscow. He argued that the demolition of his balcony had been unlawful and violated the requirements of the law.
On 1 February 2001 the Preobrazhenskiy District Court adjourned the examination of the action and asked the applicant to clarify his claims before 1 March 2001.
According to the Government, on 7 February 2001 the Preobrazhenskiy District Court sent a copy of the decision of 1 February 2001 to the applicant. The Government relied on a list of documents enclosed in the file of the applicant’s case showing that the local post office had accepted the letter of 7 February 2001 for delivery to the applicant. The applicant argued that he had not received the letter of 7 February 2001.
On 9 and 26 March 2001 the applicant complained about the court’s inactivity in his case. The Preobrazhenskiy District Court received the complaints on 15 March and 10 April 2001, respectively.
On 21 May and 1 June 2001 the President of the Preobrazhenskiy District Court sent two identical letters to the applicant informing him that on 1 February 2001 the Preobrazhenskiy District Court had suspended the adjudication of his action and granted him an extension until 1 March 2001 for clarification of his claim. The President also noted that due to the fact that the applicant had not corrected the defects, his statement of claim with accompanying documents would be returned to him. The applicant alleges that he only received the letters of 21 May and 1 June 2001 on 9 and 14 June 2001, respectively.
On 14 June 2001 the applicant received a letter of 6 June 2001 from the Preobrazhenskiy District Court. The District Court returned his statement of claim and accompanying documents because he had not complied with the decision of 1 February 2001.
On 4 February 2002 the applicant complied with the instructions set out in the decision of 1 February 2001 and resubmitted his complaint about the Prefect’s decision of 9 June 1999 to the Preobrazhenskiy District Court.
On 30 October 2002 the Preobrazhenskiy District Court dismissed the applicant’s action. The judgment became final on 30 January 2003 when the Moscow City Court upheld it on appeal.
From 24 October 2000 the applicant was a party to a dispute in which he attempted to challenge a Moscow Government’s regulation of 13 June 1995 concerning assessment of living surface in housing premises.
On 27 February 2001 the Supreme Court of the Russian Federation, in the final instance, dismissed the applicant’s complaint.


ITEMID: 001-91606
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BYCHKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1975. He is currently serving a prison sentence.
6. On 31 May 2000 the applicant, a tax police officer, was arrested. He was later remanded in custody on suspicion of banditry, robbery and abuse of power. His detention was subsequently extended on several occasions.
7. The proceedings against the applicant and co-accused were surrounded by an extensive media campaign. In particular, on 6 June 2000 the Segodnia daily newspaper published an article which contained a detailed description by a journalist of the charges against the applicant and co-accused. According to the applicant’s submissions, similar statements were repeated in other Moscow newspapers («Московский Комсомолец») in June 2000. The applicant asserted that the prosecutor had included these articles in the case file as evidence against him.
8. In April 2001 the pre-trial investigation was completed and the case was referred to the Moscow City Court.
9. On 8 May 2002 the Moscow City Court convicted the applicant as charged and sentenced him to thirteen years’ imprisonment. The court relied on statements of many witnesses, including co-defendants and victims, and forensic expert reports.
10. On 1 October 2002 the Supreme Court of Russia, acting on appeal, quashed the judgment due to procedural defects and remitted the case for a fresh examination.
11. On 19 February 2003 the Moscow City Court convicted the applicant as charged and sentenced him to twelve years and six months’ imprisonment. During the trial the defendants, relying on their right to silence, refused to testify. The court based its findings on numerous witnesses’ depositions and submissions by the defendants during the pre-trial investigation.
12. According to the applicant, on 9 June 2003 another Moscow newspaper («Российский Курьер») published an article discussing the applicant’s criminal case.
13. On 29 July 2003 the Supreme Court of Russia, acting on appeal, upheld the judgment with minor changes.
14. From 5 June 2000 to 9 September 2003 the applicant was detained in facilities nos. IZ-77/2 and IZ-77/3 in Moscow.
15. According to certificates issued on 15 February 2006 by the acting facility director, and produced by the Government, the applicant was kept in eight cells. From 5 June to 27 October 2000 he was detained in cells nos. 314, 501, 146 and 218. According to the Government, the information on the number of inmates during the above period was not available as the documents had been destroyed.
16. Further, the Government submitted that from 27 October 2000 to 22 January 2002 there had been fifteen detainees on average together with the applicant in cell no. 501, which was designed for thirty-eight persons. From 22 January to 12 February 2002 there were four detainees on average in cell no. 27, which was designed for six persons. From 12 February to 17 April 2002 there were ten detainees on average in cell no. 51, which was designed for eight persons. From 17 April to 17 May 2002 there were twenty-five detainees on average in cell no. 140, which was designed for twenty-two persons. There were fifty-one detainees on average in the same cell from 28 October 2002 to 16 February 2003. From 17 to 30 May 2002 there were two detainees on average in cell no. 37, which was designed for six persons. From 16 February to 28 June 2003 there were twenty-eight detainees on average in cell no. 146, which was designed for twenty persons. Finally, from 28 June to 14 August 2003 there were twenty detainees in cell no. 2, which was designed for twenty-two persons.
17. The Government supported their assertions with copies of extracts from registration logs showing the number of detainees on 1 December 2001, 12 and 13 February, 1 and 2 April, 14 and 15 April, 18 and 19 May, 30 and 31 October 2002, 12 and 13 June, and 2 and 3 August 2003. The registration logs did not include the detainees’ names. The Government did not provide the Court with information on the cell measurements.
18. The applicant contested this information in part. He stated that from 9 to 19 July 2000 he had shared cell no. 146, which measured 48 sq. m, with up to seventy detainees. There were thirty-eight detainees in the same cell as the applicant from 15 February to 31 March 2002 and from 15 February 2003 to 16 August 2003, and they had to sleep in shifts. Further, according to the applicant, cell no. 501 measuring 36 sq. m, in which he was kept from 19 July to 24 August 2000 and from 24 September 2000 to 18 January 2001, housed thirty-eight detainees. From 4 October 2002 to 15 February 2003 the applicant was kept in cell no. 140, measuring 48 sq. m, with at least thirty-seven other detainees.
19. From 30 May to 29 October 2002 and from 14 August to 9 September 2003 the applicant was kept in detention facility no. IZ-77/3 in Moscow, in cells nos. 524 and 523 respectively. According to the Government, in cell no. 524 he was kept at different periods with twenty-one to thirty-four other detainees; and in cell no. 523 with twenty-one to twenty-four detainees.
20. The applicant stated that both cells measured 30 sq. m and there were thirty persons there with him.
21. The Government, relying on the information provided by the Federal Service for the Execution of Sentences, submitted, with respect to both facilities, that the cells had been ventilated naturally through the windows. Each cell also had a ventilation shaft. The cells had natural light and the metal shutters (“eyelashes”) were removed on 25 November 2002 following a relevant directive of the Ministry of Justice. Furthermore there were twenty-four-hour artificial lights, as well as security lights. The partition around the toilet offered sufficient privacy.
22. The applicant disagreed with the Government’s description and submitted that the sanitary conditions had been unsatisfactory. The windows of the cells let almost no daylight in as they were covered with “eyelashes”, and due to insufficient daylight the applicant’s eyesight deteriorated significantly during the period of detention. Toilet facilities were not separated from the living area, the cells had no ventilation and the air was always stuffy. Smoking was not restricted in the cells, which exposed the applicant, who is a non-smoker, to heavy tobacco smoke and made him feel sick. The cells were infected with bed-bugs and lice but the administration did not provide any insecticides.
23. The applicant produced written statements by Mr M., who had been detained in cell no. 501 in detention facility IZ-77/2 in 2000-2002, and Mr V. who had been detained together with the applicant from 17 November 2002 to 15 February 2003 in cell no. 140 and from 15 February to 16 August 2003 in cell no. 146 in detention facility IZ-77/2. They confirmed the applicant’s account of the conditions of detention there, including information on cell measurements, number of detainees and sanitary conditions.
24. Section 23 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. According to section 24, administration of detention facilities shall meet the sanitary and hygienic requirements which secure the detainees’ health.
25. Relevant international documents and reports concerning the conditions in Russian penitentiary establishments can be found in the judgment of 25 October 2005 in the case of Fedotov v. Russia, (no. 5140/02, §§ 54-55), judgment of 10 May 2007 in the case of Benediktov v. Russia, (no. 106/02, § 21) and judgment of 8 November 2005 in the case of Khudoyorov v. Russia (no. 6847/02, §§ 97-98).
VIOLATED_ARTICLES: 3


ITEMID: 001-92180
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MBENGEH v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Ousman Mbengeh, is a Gambian national who was born in 1971 and lived, at the time of lodging his application with the Court, in Helsinki. He is represented before the Court by Ms K. Heimonen, a lawyer practising in Espoo.
and as they appear from the documents on the file, may be summarised as follows.
The applicant arrived in Finland on an unspecified date. On 25 January 1995 he married a Finnish citizen, who gave birth to their son in 1996. The three of them lived together until the applicant’s deportation to his country of origin, Gambia, in 2006.
In 1995 the applicant had obtained a temporary residence permit based on the marriage. In 1998 he was granted a permanent residence permit.
On 25 April 2003 the Helsinki District Court (käräjäoikeus, tingsrätten) convicted the applicant of an aggravated narcotics offence for having dealt in heroin during the period from May 2002 to January 2003 and sentenced him to six years’ imprisonment. The conviction was upheld by the Helsinki Court of Appeal (hovioikeus, hovrätten) on 14 January 2004 although the sentence was reduced to four years’ imprisonment. On 27 January 2006 the Supreme Court (korkein oikeus, högsta domstolen) upheld the conviction and sentence.
On 10 November 2004 the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) decided to deport the applicant owing to his criminal activity and issued a five-year refusal of entry to the Schengen area. It considered that, through his criminal activity, he had endangered public order and safety. The Directorate of Immigration noted that, according to practice, aggravated offences usually resulted in the issuing of a refusal of entry which would normally remain in force until further notice. However, having regard to the applicant’s family ties to Finland, it considered that a refusal of entry for five years was appropriate.
On 8 August 2005 the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) quashed the decision because of the applicant’s long stay in Finland and his family ties.
The Directorate of Immigration appealed. On 20 October 2006 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), finding that the grounds for deportation were weightier than the applicant’s family ties and his eleven-year stay in Finland, quashed the Administrative Court’s decision and upheld the deportation order. The case turned on the fact that the applicant had been dealing in very dangerous drugs for monetary gain and in the circumstances, the deportation and refusal of entry would not be in breach of Article 8 of the Convention or Article 3 of the United Nations Convention on the Rights of the Child (1989; yleissopimus lapsen oikeuksista, konventionen om barnens rättigheter; SopS 60/1991).
On 7 December 2006 the applicant was deported to his country of origin.
Section 40(1) of the then Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 378/1991) provided, inter alia, that an alien convicted of a criminal offence which carried a sentence of one year or more or an alien who repeatedly committed offences could be deported.
Section 41 provided that when deciding on deportation regard must be had to all the relevant facts and the circumstances as a whole such as the duration of the stay, the relationship between a child and its parent and family and other ties to Finland. The nature of the offence within the meaning of section 40(1) was also relevant.
Under section 43 a refusal of entry could be issued for a maximum period of five years or until further notice.


ITEMID: 001-95645
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: DOVGAL v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicant, Ms Tetyana Mykhaylivna Dovgal, is a Ukrainian national who was born in 1953 and lives in Kryvyy Rig, Dnipropetrovsk region, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
By decree of 21 May 1981 the Kryvyy Rig City Executive Committee ordered all the buildings in the specified area, including the applicant’s house, to be demolished. The Committee also transferred the titles to the plots of land under these buildings and adjacent thereto to the Pivdenny Girnycho-Zbagachuvalny Kombinat (“the Company”), a publicly owned company at that time.
In the period between April and June 2002 the Company, which by that time had been reorganised into a joint stock company 25.78% of whose shares belonged to the State (ВАТ “Південний гірничо-збагачувальний комбінат”), implemented the above decree and demolished the applicant’s house.
On 27 March 2003 the Dnipropetrovsk Commercial Court (Господарський суд Дніпропетровської області, “the Commercial Court”) instituted insolvency proceedings against the Company.
By a judgment of 2 April 2004 the Inguletsky District Court of Kryvyy Rig (Інгулецький районний суд м. Кривого Рогу; “the District Court”) allowed the applicant’s claim for damages and awarded her the total amount of 46,532.02 Ukrainian hryvnias (UAH) (about 7,259.07 euros (EUR) at the material time), to be paid by the Company.
By order of 27 May 2004 the Cabinet of Ministers of Ukraine approved the privatisation of the Company and instructed the relevant authorities to make the necessary arrangements. By August 2004, according to the Government, the State’s share in the Company had been sold.
On 10 September 2004, after the judgment had become final, the State Bailiffs’ Service instituted enforcement proceedings.
On 16 October 2004 the State Bailiffs’ Service suspended the enforcement proceedings in view of the insolvency proceedings pending against the Company before the Commercial Court.
Subsequently the insolvency proceedings against the Company were terminated and reopened, and the State Bailiffs’ Service resumed and suspended the enforcement proceedings accordingly. Apparently, the applicant did not try to register as a creditor in any of the insolvency proceedings against the debtor Company.
On 16 November 2006 the Commercial Court adopted an amicable agreement between the creditors and the Company, under which the creditors’ claims against the Company, including the claims of those who were not registered in the insolvency proceedings but sought payment of the debts within the enforcement proceedings only, were deemed to be paid off. Accordingly, the insolvency proceedings against the Company were terminated.
On 12 March 2007 the State Bailiffs’ Service terminated the enforcement proceedings relating to the judgment in the applicant’s favour, referring to the amicable agreement adopted on 16 November 2006.
On 18 April 2007 the applicant challenged the bailiff’s decision of 12 March 2007 before the District Court. On 6 July 2007 the court dismissed her complaint as time-barred. The applicant did not appeal against the latter decision.
On 29 January 2008 the Commercial Court terminated the amicable agreement because of the Company’s failure to comply with its terms, and resumed the insolvency proceedings against the Company.
On 29 February 2008 the applicant instituted proceedings in the District Court against the State Bailiffs’ Service, challenging the decision of 12 March 2007. On 6 June 2008 the court dismissed the applicant’s claim because of the applicant’s repeated failure to appear before the court. The applicant did not appeal against the latter decision.
On 26 January 2009 the State Bailiffs’ Service, having resumed the enforcement proceedings, suspended them in view of the insolvency proceedings against the Company.
The judgment of 2 April 2004 remains unenforced.
The relevant domestic law on enforcement proceedings is summarised in the case of Ponomaryov v. Ukraine (no. 3236/03, §§ 29-31, 3 April 2008).
The relevant provisions of the Restoration of Solvency and Declaration of Bankruptcy Act of 14 May 1992 are summarised in the case of Trykhlib v. Ukraine (no. 58312/00, §§ 25-27, 20 September 2005). In addition, the Act defines a creditor as “a legal or natural person who has a pecuniary claim against the debtor which is corroborated by documents in accordance with the prescribed procedure”.


ITEMID: 001-23271
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: TAYLOR v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Thomas Patrick Taylor, is a United Kingdom national, born in 1933 and living in the Isle of Man. He is represented before the Court by Mr M. Spragg, a lawyer practising in London.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1994 the Serious Fraud Office ("SFO") was investigating a fraud involving US $8 million. The money obtained from the victim had passed through the hands of the applicant who was a solicitor practising in the Isle of Man or through a company with which the applicant was connected.
By letter dated 4 May 1994, a lawyer employed by the SFO made a formal request to the Attorney-General for the Isle of Man for his assistance in the investigation of the fraud. The letter requested the Attorney-General to exercise his powers to summon the applicant for an interview about the transactions. It presented the facts as they appeared to the SFO and depicted the applicant’s part in the transaction in such a way as to suggest that the SFO suspected him of being a party to the fraud. The letter concluded by stating that, given the facts outlined, the SFO considered the use by the Attorney-General of the relevant power to summon to be justified and desirable and it invited the Attorney-General to authorise that SFO lawyer and a police officer to exercise those powers on his behalf.
On 17 May 1994, the SFO lawyer and a colleague called upon Mr R who worked for the Law Society in the administration of the solicitors’ compensation fund to talk about the transaction which had given rise to a claim by the victim against the fund. The SFO lawyer made a file note of the interview which recorded Mr R’s view that the applicant should be struck off the roll of solicitors and the SFO lawyer’s contention that the applicant was a co-conspirator. On 3 June 1994 the Attorney-General sent the applicant a formal notice requiring him to attend for an interview but the applicant could not attend due to illness
Two individuals were indicted on charges of conspiracy to defraud and eventually convicted. A third suspect was in the United States and died before an application for extradition had run its course. The applicant, despite the suspicions noted above, was not charged.
One of the defendants had asked the applicant to give evidence on his behalf and, consequently, gave the applicant a file of documents which included “unused material” which had been disclosed, in accordance with recently established obligations, by the prosecution. The file included a copy of the letter of 4 May 1994 to the Attorney-General from the SFO and the file note of the meeting between the SFO lawyer and Mr R.
The applicant therefore commenced an action for libel against the SFO, the Law Society, the SFO lawyer and Mr R. The applicant alleged that the letter contained a libel published by the SFO and the SFO’s lawyer to the Attorney-General, that the file note contained a libel published by the SFO and the SFO’s lawyer to Mr R as well as a libel published by Mr R to the SFO’s lawyer and that both documents had been published by the SFO’s lawyer by their disclosure to the relevant defendant’s solicitor.
All four defendants took out summonses to strike out the action as an abuse of process. On 26 July 1996, the High Court judge struck out the action on the ground that the disclosure of the two documents to the defendant’s solicitors was subject to an implied undertaking that they would not be used for any purpose other than that defendant’s defence. The applicant could not, therefore, use them as the basis of a libel action without the leave of the court.
The applicant appealed. Shortly before his appeal was heard, the case of Mahon v. Rahn ([1998] Q.B. 424) was decided by the Court of Appeal. That court found that material disclosed by the prosecution to a defendant in criminal proceedings, whether obtained by compulsion or voluntarily, was not subject to any implied undertaking analogous to that which already existed in relation to material discovered in civil proceedings.
The Court of Appeal dismissed the applicant’s appeal in June 1997. It regarded the Mahon v. Rahn decision as a binding authority which obliged it to hold that the grounds upon which the High Court had struck out the action could not be sustained. But the court accepted the argument that the proceedings could be struck out as a result of an immunity from suit because the documents were brought into existence for the purposes of a criminal investigation.
The applicant appealed to the House of Lords on the ground that the Court of Appeal had extended the principle of immunity from suit beyond its proper sphere. The respondents, on the other hand, argued that the Mahon v. Rahn case had been wrongly decided and that the Court of Appeal judgment ought also to be upheld on the basis of the “implied undertaking”.
On 29 October 1998, the House of Lords rejected the applicant’s appeal and upheld the respondents’ (Taylor v. the Serious Fraud Office [1999] A.C. 177). The five Law Lords were unanimous that the documents disclosed by the prosecution to the defence were disclosed subject to an implied undertaking to the court not to use the documents for any other purpose other than the conduct of the defence. The applicant’s attempt to do so was accordingly an abuse of process and had been rightly struck out on that ground. Four of the Law Lords further upheld the view of the Court of Appeal that the statements relied on by the plaintiffs to found the action were protected by absolute immunity and the proceedings were rightly struck out on that ground as well.
Lord Hoffmann considered that the two principles in debate were well established and that the question was rather the extent of their reach.
In particular, the first question was whether the public interest in the administration of justice required the implied undertaking (which had originated in the law of discovery in civil proceedings) to be applied to documents disclosed by the prosecution to the defence in criminal proceedings. Lord Hoffman considered that the Court of Appeal had erred in Mahon v. Rahn and concluded that the disclosure of documents by the prosecution as unused material under its common law obligations generated an implied undertaking that they would not be used for any collateral purpose. In support of this implied undertaking, he cited the interests (protection of privacy and confidentiality) of those giving statements to the police and to other investigatory bodies and of those mentioned in the statements.
Considering the arguments raised that there were other means to protect people who might be adversely affected by the collateral use of disclosed documents, such as the rules of public interest immunity and qualified privilege, he observed that the first was not designed to protect the same interests and could give only accidental protection and that qualified privilege also did not protect the privacy of persons mentioned in the statements and, as stated by Fry LJ in Munster v. Lamb (1883) 11 QBD 588, did not protect those involved in court proceedings from the harassment of litigation.
Although it was not therefore strictly necessary to consider the question of the application of an immunity from suit, Lord Hoffman went on to consider the matter on the basis that it was necessary to know whether, if the statements had been read out in open court, they could have been relied on thereafter for the purposes of a libel action. The immunity from suit in question was for those taking part in a trial (judges, advocates and witnesses) for anything written or spoken during the proceedings. It was absolute and could not be defeated even by proof of malice. The novel question was whether it could be extended to statements made to or by investigators for the purposes of a criminal investigation.
Lord Hoffman recalled that the general rule was that the extension of absolute privilege was to be viewed with the “most jealous suspicion, and resisted, unless its necessity is demonstrated”. He considered that it had been shown to be necessary for the administration of justice to extend the immunity from suit to those assisting investigators and to investigators themselves, and that the protection would apply to all statements which could be fairly said to be part of the process of investigating a crime or possible crime with a view to prosecution or a possible prosecution. It was, however, limited to actions in which the alleged statement constituted the cause of action (defamation) and so would not apply to an action for malicious prosecution.
He stated that the immunity:
“... is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say. It is generated by the circumstances in which the statement was made and it is not concerned with its use for any purpose other than as a cause of action.”
He went on to state that the test was a strict one and to fall within the immunity it had to be shown that the immunity was “necessary for the administration of justice”. It would not therefore cover “irrelevant and gratuitous libels”, statements extraneous to the investigation but could not be confined only to out-of-court statements of persons who were subsequently called as witnesses as the person had to know at the time at which he spoke whether or not the immunity attached. The same reasoning and necessity applied to the position of investigators:
“It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. In my view it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings.”
He noted that the implied undertaking and immunity were related:
“The implied undertaking prevents, as far as possible, the publication or dissemination of disclosed documents and therefore restricts the extent to which damage can be caused by defamatory statements which they may contain. In this sense, the injustice which may be caused by the fact that such defamatory statements are protected by the immunity is reduced.”
He observed as to the risk to the applicant from the statements concerned:
“<he> might have taken some comfort from the fact that the documents which showed that he had been under suspicion could go no further than the files of the SFO and <F.>‘s solicitors. They could not have damaged his reputation in the outside world. Instead, he chose to bring libel proceedings and (apparently due to the thoughtlessness of his solicitors) put the statements into the public domain by quoting them in extenso on a specially endorsed writ.”
Lord Hope similarly commented on the relationship between the two principles:
“I see the two solutions [implied undertaking and immunity] as complementary to each other. If the absolute privilege and the consequent immunity are to be kept within limits which are necessary for the administration of justice, they must be accompanied by a rule which restricts the use and dissemination of disclosed material. The purpose of the immunity is to ensure the integrity of the investigation process. The disclosure should extend no wider that is necessary to serve the public interest in the administration of justice. It should not be accompanied by risks to the good name of those who are not on trial from whom the protection of defamation proceedings has been removed by the immunity. So a restriction on the release and collateral use of the disclosed material by means of the implied undertaking can be seen as a necessary balance against possible harm which might flow from the absolute nature of the immunity.”


ITEMID: 001-61002
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF M.M. v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Costs and expenses partial award
JUDGES: Gaukur Jörundsson
TEXT: 9. The applicant is a Netherlands national, born in 1953 and living in The Hague. He has been a practising lawyer (advocaat) since 1979.
10. At the beginning of November 1993, the applicant agreed to act as defence counsel for a Mr K. in criminal proceedings brought against the latter. At that time, Mr K. was in pre-trial detention. In connection with this case, the applicant met several times with Mrs S., who at that time was Mr K.'s wife.
11. At some point Mrs S. told Mr K. that on 9 November 1993 the applicant had made sexual advances towards her. Mr K. informed the police officer investigating his case, Officer N., of this, who in turn informed the public prosecutor in charge of the investigation against Mr K., Public Prosecutor T. The latter gave instructions that a criminal complaint against the applicant should be filed with the vice squad. On this basis, Officer N. contacted both Mrs S. and Officer R. of the vice squad.
12. Mrs S. was initially reluctant to lodge a criminal complaint against the applicant as she feared that her word – the only evidence available – would be insufficient against that of the applicant.
13. Following discussions between Officers R. and R.K. of the vice squad and Public Prosecutor T., the suggestion was made to Mrs S. to connect a tape recorder to her telephone in order to allow her to tape incoming conversations with the applicant. Police officers subsequently connected a cassette tape recorder to Mrs S.'s telephone in her home and suggested that she steer her conversations with the applicant towards the latter's advances. Mrs S. was shown how to operate the device. The police came to her home twice in order to collect the recordings and load new cassette tapes into the tape recorder.
14. Mrs S. recorded three conversations with the applicant, which were transcribed by the police. These transcripts were added to the case-file on the investigation against the applicant.
15. The case was reported in the press. This induced two other women to come forward and lodge criminal complaints against the applicant: one Mrs V., who claimed to have been raped and sexually assaulted by the applicant, and one Mrs C., who also complained that she had been sexually assaulted by the applicant.
16. The applicant was subsequently summoned to appear on 14 April 1994 before the Regional Court (arrondissementsrechtbank) of The Hague on charges of sexual assault and rape.
17. In its judgment of 28 April 1994, following adversarial proceedings in the course of which a hearing was held on 14 April 1994, the Regional Court convicted the applicant of having sexually assaulted Mrs S. and Mrs C., and acquitted him of the charges brought in respect of Mrs V. The Regional Court sentenced the applicant to eight months' imprisonment, four months of which were suspended for a probationary period of two years.
18. Both the applicant and the public prosecutor lodged an appeal with the Court of Appeal (gerechtshof) of The Hague.
19. In its judgment of 16 June 1995, the Court of Appeal quashed the judgment of 28 April 1994, convicted the applicant of having sexually assaulted Mrs S. and Mrs C. and acquitted him of the charges in respect of Mrs V. It sentenced the applicant to four months' imprisonment, suspended for a probationary period of two years, and a fine of 10,000 Netherlands guilders. It based the applicant's conviction on statements taken from the applicant, Mrs S., Mrs C. and three other persons. The recorded telephone conversations were not relied on as evidence.
20. The applicant's subsequent appeal on points of law was rejected by the Supreme Court (Hoge Raad) on 18 February 1997.
21. In so far as is relevant to the case before the Court, the applicant complained under inter alia Article 8 of the Convention that the Court of Appeal had wrongly rejected his argument that the prosecution should be declared inadmissible or that evidence had been unlawfully obtained in respect of the recordings made of his telephone conversations with Mrs S. The Supreme Court dismissed this complaint in the following terms:
“6.2.2. It is ... correctly assumed in the grounds of appeal on points of law that no interference by any public authority is permitted in the exercise of the right to 'respect for his private life and his correspondence' guaranteed by Article 8 § 1 of the Convention unless, and to the extent, provided for by law.
6.3.1. What is decisive in the instant case is therefore the answer to the question whether, noting the part played by the police in the recording of the telephone conversations that S. has had with the suspect, there has been an interference by the police in the exercise of the right of the accused to 'respect for his private life and his correspondence'.
6.3.2. Against the background of the facts and circumstances ... the finding of the Court of Appeal that the police has not acted in such a directive manner – in which finding the Court of Appeal apparently had in mind the entire part played by the police in the recording of the telephone conversations by S. – that there has been an interference by any public authority within the meaning of Article 8 § 2 of the Convention is not incomprehensible, and furthermore it does not reflect an incorrect understanding of the law, in particular, not as regards the contents of that provision of the Convention ...
After all, [the case] concerns in essence a (female) victim of a sexual offence, this woman not having any other prima facie evidence than her own account and to whom the police has given information about a possibility for her to obtain additional proof and to whom and to this end the police has subsequently provided practical (technical) aid for performing certain acts – the recording, in her own home and in the absence of the police and with the aid of a device connected by the police to her own telephone line, of an incoming telephone conversation which the perpetrator conducts with her –, which act does not, for that woman, she being a party to the telephone conversation recorded, constitute an act prohibited by law.
Nor does the finding that the circumstance that the suspect in his capacity of practising lawyer has a 'privileged status' is not relevant in this matter reflect an incorrect understanding of the law. On the above grounds, the Court of Appeal could conclude that this was not a situation referred to in Article 125g of the Code of Criminal Procedure. The findings of the Court of Appeal are sufficiently reasoned.”
22. At the relevant time, Articles 125f-h of the Code of Criminal Procedure (Wetboek van Strafvordering) provided as follows:
Article 125f
“1. In case of discovery in flagrante delicto of a criminal offence in respect of which detention on remand is permitted, or of the criminal offence referred to in Article 138a of the Criminal Code (Wetboek van Strafrecht) <i.e. bugging and the unlawful interception of communications by computer>, any person employed by the holder of the concession referred to in Article 3, first paragraph, of the Telecommunication Services Act (Wet op de telecommunicatievoorzieningen) (...) shall, when so required, provide to the Public Prosecutor, or during the preliminary judicial investigation (gerechtelijk vooronderzoek), to the investigating judge, all desired information concerning all traffic not intended for the public that has taken place through the telecommunication infrastructure and in respect of which there is a presumption that the person suspected of the offence has taken part in it.
2. Articles 217 – 219 shall apply by analogy.”
Article 125g
“During the preliminary judicial investigation the investigating judge is empowered, if the investigation urgently so requires and if it concerns a criminal offence in respect of which detention on remand is permitted, to determine that data traffic through the telecommunications infrastructure that is not intended for the public, and in respect of which there is a presumption that the person suspected of the offence is taking part in it, shall be tapped or recorded by an officer with powers of investigation (opsporingsambtenaar). An official record of the tapping or the recording shall be made within forty-eight hours.”
Article 125h
“1. The investigating judge shall order the destruction in his presence, as soon as possible, of the official records and other objects from which information can be derived that he has obtained as a result of the information referred to in Article 125f, or that has been obtained by tapping as referred to in the preceding Article, and which is of no importance to the investigation. An official record of the tapping or the recording shall be made without delay.
2. The investigating judge shall, in the same way, order the destruction without delay of official records and other objects as referred to in the previous paragraph in so far as they relate to statements made by or to a person who, pursuant to Article 218, would be able to decline to give evidence if he were questioned as a witness as to the content of those statements.
3. The investigating judge shall add the other official records and other objects as referred to in the first paragraph to the case-file no later than the moment at which the decision to close the preliminary judicial investigation becomes final.
4. The public prosecutor shall order the destruction in his presence of the official records or other objects from which information can be derived that he has obtained as a result of the information referred to in Article 125f, if he does not seek the opening of a preliminary judicial investigation within one month after obtaining that information. He shall make an official record of the destruction.”
23. Article 218 of the Code of Criminal Procedure, which is referred to in the provisions quoted above, provides as follows:
“Persons who, by virtue of their position, their profession or their office, are bound to secrecy may ... decline to give evidence or to answer particular questions, but only in relation to matters the knowledge of which is entrusted to them in that capacity.”
24. Guidelines for the Interception of Telephone Conversations (Richtlijnen Onderzoek van Telefoongesprekken) of 2 July 1984, a copy of which could be obtained by any interested person, set out the way in which the power to intercept telephone conversations was to be exercised in practice. These Guidelines, which were in the nature of published policy and official instructions rather than “law”, were issued in the form of a circular letter from the senior public prosecutors to the police. The model of this circular letter was published in, inter alia, the Netherlands Journal for Human Rights (Nederlands Tijdschrift voor de Mensenrechten) of July/August 1989, pages 545 and following. According to these Guidelines, the procedure to be followed was this:
25. The interception and recording of telephone conversations should be considered only if it could lead to the detection of crimes which, in view of their nature or frequency or the organised context in which they were committed, constituted a serious interference with the legal order. It should be limited to those cases in which the aim pursued could not reasonably be achieved otherwise.
26. A police officer in charge of an investigation who considered such a measure indicated was, after consulting his commanding officer, to discuss the matter with the public prosecutor. The latter, if he agreed with the police officer, was to discuss it with the investigating judge. If the public prosecutor decided that the measure was necessary, the police officer in charge of the investigation was to provide certain necessary factual information in the form of a written report. The public prosecutor would then submit this report to the investigating judge and ask for permission in writing to proceed with the measure.
27. An official record was to be made of all interceptions, even if they yielded nothing useful, within forty-eight hours. Any recordings, transcripts or documents were to be kept in such a way that they were not accessible to persons not involved in the case. The tapes, with a final report, should be submitted to the investigating judge, with an indication of the number of copies still in the hands of the police. If the investigating judge decided that any part of the recordings or transcripts was to be destroyed, the copies too should be handed to him for that purpose.
28. Articles 125f-h of the Code of Criminal Procedure (see paragraph 22 above) were repealed by the Act of 19 October 1998, Staatsblad (Official Gazette) 1998, no. 610, with effect from 1 February 2000. It is now provided that the public prosecutor may order the recording of telecommunications if the investigation urgently so requires; if the criminal offence concerned is one in respect of which detention on remand is permitted; and which, in view of its nature or its connection with other criminal acts committed by the suspect, the criminal offence concerned constitutes a serious interference with the legal order (Article 126m § 1 of the Code of Criminal Procedure). The requirement of a preliminary judicial investigation no longer applies, nor is there any involvement of an investigating judge.
VIOLATED_ARTICLES: 8