ITEMID: 001-111690
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF HERRMANN v. GERMANY
IMPORTANCE: 2
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Non-pecuniary damage - award
JUDGES: André Potocki;Angelika Nußberger;Corneliu Bîrsan;David Thór Björgvinsson;Dean Spielmann;Egbert Myjer;Erik Møse;Françoise Tulkens;Ganna Yudkivska;Isabelle Berro-Lefèvre;Josep Casadevall;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Nona Tsotsoria;Paulo Pinto De Albuquerque;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 10. The applicant was born in 1955 and lives in Stutensee.
11. Under the German Federal Hunting Act (Bundesjagdgesetz), owners of hunting grounds with a surface area of less than 75 hectares are de jure members of a hunting association (Jagdgenossenschaft), while owners of larger plots of land manage their own hunting district. The applicant owns two landholdings in Rhineland-Palatinate of less than 75 hectares each, which he inherited in 1993 from his late mother. He is thus a de jure member of a hunting association, in this case the hunting association of the municipality of Langsur.
12. On 14 February 2003 the applicant, who is opposed to hunting on ethical grounds, filed a request with the hunting authority seeking to terminate his membership of the hunting association. The authority rejected his request on the grounds that his membership was prescribed by law and that there was no provision for the termination of membership.
13. The applicant brought proceedings before the Trier Administrative Court. Relying in particular on the Court’s judgment in the case of Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999III), he requested the Administrative Court to find it established that he was not a member of the hunting association of the municipality of Langsur.
14. On 14 January 2004 the Administrative Court rejected the applicant’s request. It considered that the Federal Hunting Act did not violate the applicant’s rights. With regard to the Chassagnou judgment, the Administrative Court took the view that the situation in Germany differed from that in France. It observed, in particular, that German owners of hunting grounds were able, by virtue of their membership of the hunting association, to influence the decision-making process as to how the relevant hunting rights should be exercised. Furthermore, they had the right to receive a share of the profits derived from the exercise of those hunting rights. All owners of plots which were too small to allow proper management of hunting rights joined a hunting association. The court further considered that the hunting associations not only served the leisure interests of those who exercised the hunting rights, but also imposed certain specific obligations on them which served the general interest, in particular a duty to manage game stocks with the aim of maintaining varied and healthy game populations and a duty to prevent damage caused by wild game. They were further obliged to comply with specific quotas set by the authorities for the hunting of game. These duties applied in the same way to the owners of hunting grounds of more than 75 hectares, notwithstanding the fact that these bigger plots were not grouped together in common hunting districts.
15. On 13 July 2004 and 14 April 2005 the Rhineland-Palatinate Administrative Court of Appeal and the Federal Administrative Court dismissed the appeals lodged by the applicant, on the same grounds as the Administrative Court.
16. On 13 December 2006 the Federal Constitutional Court (1 BvR 2084/05) refused to admit a constitutional complaint by the applicant for adjudication. It noted at the outset that the provisions of the Federal Hunting Act did not violate the applicant’s right to the peaceful enjoyment of his property, but defined and limited the exercise of that right in a proportionate manner. The relevant provisions pursued legitimate aims, were necessary and did not impose an excessive burden on landowners.
17. When defining the content and limits of property rights, the legislature had to weigh the landowners’ legitimate interests against the general interest. It had, in particular, to respect the principles of proportionality and equal treatment. The limitations imposed on the exercise of property rights must not infringe the core area of the protected right. The margin of appreciation allowed to the legislature depended on the specific context; the more important the social considerations, the wider the margin of appreciation.
18. Applying these principles to the instant case, the Federal Constitutional Court considered that the applicant’s compulsory membership of a hunting association did not violate his property rights. The core area of that right had not been infringed. The Federal Hunting Act pursued the legitimate aims of preserving game in a manner adapted to the rural and cultural environment and ensuring healthy and varied wildlife, aims encompassed in the notion of “management and protection of game stocks” (Hege). Under the Federal Hunting Act, gamekeeping was a means not only of preventing damage caused by wildlife, but also of avoiding any impediment to the use of the land for agriculture, forestry and fishing. These aims served the general interest.
19. Compulsory membership of a hunting association was an appropriate and necessary means of achieving those aims. Referring to paragraph 79 of the Chassagnou judgment, cited above, the Constitutional Court considered that the European Court of Human Rights had acknowledged that it was undoubtedly in the general interest to avoid unregulated hunting and encourage the rational management of game stocks. Compulsory membership of a hunting association was also a proportionate means. The impact on property rights was not particularly serious and did not outweigh the general interest in the rational management of game stocks. Furthermore, the Federal Hunting Act conferred on every member of the hunting association the right to participate in the decisionmaking process within the association and to receive a share of the profits derived from the leasing of the hunting rights.
20. The Constitutional Court further considered that there had been no violation of the applicant’s right to freedom of conscience. It noted that in paragraph 114 of the Chassagnou judgment the European Court of Human Rights had accepted that the convictions of the applicants in that case attained a certain level of cogency, cohesion and importance and were therefore worthy of respect in a democratic society. The Constitutional Court left open the question whether this assessment was correct in Mr Herrmann’s case. It agreed, however, to take this assumption as a starting point as it considered that in any case there had been no violation of Article 4 of the Basic Law (see paragraph 25 below). It was doubtful whether there had been any interference with the applicant’s right to freedom of conscience. Even assuming that there had been, it was, in any event, not of a serious nature. As the applicant was not forced to participate in hunting himself and did not have to take any decision in that respect, the court considered that he had not been placed in a position of conflict of conscience. It further observed that the right to freedom of conscience did not encompass a right to have the entire legal order made subject to one’s own ethical standards. If the legal order distributed the right to make use of a certain property among several stakeholders, the owner’s conscience did not necessarily outweigh the other stakeholders’ constitutional rights. If the applicant’s landholding – and those of other owners who were opposed to hunting – were taken out of the common hunting districts because of the landowners’ convictions, the whole system of property ownership and management of game stocks would be jeopardised. The right to freedom of conscience did not outweigh the general interest in the instant case.
21. According to the Federal Constitutional Court, the applicant’s complaint did not come within the scope of the right to freedom of association because German hunting associations were of a public nature. They were vested with administrative, rule-making and disciplinary prerogatives and remained integrated within State structures. There was thus no doubt that the association was not characterised as “public” simply in order to remove it from the scope of Article 11 of the Convention.
22. The Federal Constitutional Court further considered that the applicant’s right to equal treatment had not been breached. The administrative courts had put forward relevant reasons for drawing a distinction between the owners of landholdings of less than 75 hectares and those of more than 75 hectares (see paragraph 11 above). Contrary to the situation in France, which had been examined by the Court in the Chassagnou judgment, the Federal Hunting Act applied to the whole of Germany and was binding on all landowners. The owners of land of more than 75 hectares had the same duties with regard to gamekeeping as those who belonged to hunting associations.
23. Finally, the Federal Constitutional Court observed that the administrative courts had considered the Chassagnou judgment and had emphasised the differences between German and French law as applicable at the relevant time.
24. Having been invited by the President of the Grand Chamber to provide the Court with additional information regarding the actual use of the applicant’s land, the Government submitted a declaration by the farmer who had taken out a lease on the agricultural land to which the applicant’s plots belonged. The farmer submitted that she regularly used the land to raise cattle destined for slaughter. This was confirmed in a written statement by the mayor of the municipality of Langsur. The applicant submitted that he had visited the plots several times over the previous years without ever seeing any cattle. He had never given permission for his land to be used in that way and would take legal action against any possible abuse.
25. The Basic Law provides:
“(1) Freedom of faith and conscience and freedom to profess a religious or philosophical creed shall be inviolable.”
“(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the law.
(2) Property entails obligations. Its use shall also serve the public good.”
“Mindful also of its responsibility toward future generations, the State shall protect the natural foundations of life and animals through legislation and, in accordance with law and justice, through executive and judicial measures, all within the framework of the constitutional order.”
“(1) On matters falling within the scope of concurrent legislative powers, the Länder shall have power to legislate so long as and to the extent that the Federation has not exercised its legislative powers by enacting a law.
(2) ...
(3) If the Federation has made use of its power to legislate, the Länder may enact laws at variance with this legislation with respect to:
1. hunting (except for the law on hunting licenses);
...
Federal laws on these matters shall enter into force no earlier than six months following their promulgation unless otherwise provided with the consent of the Bundesrat. As regards the relationship between Federal law and the laws of the Länder, the more recent law shall take precedence in respect of matters coming within the scope of the first sentence.”
26. Section 960(1)(1) of the Civil Code provides:
“Wild animals shall be ownerless as long as they are not in captivity. ...”
27. Section 1 of the Federal Hunting Act (Bundesjagdgesetz) reads as follows:
“(1) Hunting rights shall comprise the exclusive rights to protect, hunt and acquire ownership of wild game in a specific area. Hunting rights shall be linked to a duty to manage and protect game stocks (Pflicht zur Hege).
(2) The management of game stocks shall be aimed at maintaining varied and healthy game populations at a level compatible with care of the land and with the prevailing cultural conditions and at preventing damage caused by game ...
(3) Persons engaging in hunting shall abide by the commonly accepted standards of the German ethical principles governing hunting (deutsche Weidgerechtigkeit).
(4) Hunting shall encompass the search for, pursuit, killing and catching of wild game.
...”
28. The Federal Hunting Act distinguishes between hunting rights (Jagdrecht) and the exercise of hunting rights (Ausübung des Jagdrechts). The landowner has hunting rights over his or her property. The exercise of hunting rights is regulated by the following sections of the Hunting Act:
“Hunting rights may be exercised either in private hunting districts (section 7) or in common hunting districts (section 8).”
“The hunt shall be suspended on land which does not belong to a hunting district, and on enclosed properties (befriedete Bezirke). Limited exercise of hunting rights may be permitted. This law does not apply to zoological gardens.”
29. Section 7 provides, inter alia, that plots of at least 75 hectares which can be used for agriculture, forestry or fishing and which belong to a single owner constitute private hunting districts.
30. Section 8 provides that all land which does not belong to a private hunting district constitutes a common hunting district if it has an overall surface area of at least 150 hectares. The owners of land belonging to a common hunting district are de jure members of a hunting association according to the following provisions:
“The owners of land belonging to a common hunting district shall form a hunting association. The owners of land on which hunting is prohibited shall not belong to the hunting association.”
“(1) The hunting association shall as a rule operate the hunt on a leasehold basis. The lease may be limited to the members of the association.
(2) The hunting association shall be allowed to lease out the hunting rights on its own account. With the agreement of the competent authority, it may decide to suspend the hunt (Ruhen der Jagd).
(3) The association shall decide on the use to be made of the net profits from the hunt. If the association decides not to distribute them among the owners of the hunting grounds according to the amount of land they own, each owner who contests this decision shall be allowed to claim his or her share. ...”
31. The practice of hunting is regulated as follows:
“(1) Hunting shall be prohibited in areas where it would, in the specific circumstances, disturb public peace, order or safety or endanger human life.
(2) Hunting in nature and wildlife conservation areas and in national and wildlife parks shall be regulated by the Länder.”
“The shooting of game is to be regulated in a manner which fully safeguards the legitimate interest of agriculture, fishery and forestry in being protected from damage caused by wild game, and which takes into account the requirements of the conservation of nature and the landscape. Subject to these restrictions, the regulation of game shooting shall contribute to maintaining a healthy population of all domestic game in adequate numbers and, in particular, to ensuring the protection of endangered species.”
32. Liability for damage caused by game is regulated as follows:
“If a plot belonging to a common hunting district or being incorporated in a common hunting district is damaged by cloven-hoofed game, wild rabbits or pheasants, the hunting association shall compensate the landowner for the damage. The cost of compensation shall be borne by the members of the association in proportion to the size of their respective plots. If the leaseholder of the hunt has assumed partial or full liability for compensation in respect of game damage, he or she shall be liable. The hunting association shall remain liable if the person who sustained the damage is unable to obtain compensation from the leaseholder.”
“(1) Hunting association are public-law corporations. They are subject to State supervision, exercised by the local hunting authority ... Each hunting association shall create its own statutes (Satzung). The statutes must be approved by the supervisory authority unless they are in accordance with the model statutes issued by the highest hunting authority; in this case, notice of the statutes shall be given to the local hunting authority. If the hunting association fails to create statutes within one year after the issue of the model statutes, the supervisory authority shall create and publish them ... at the association’s expense.
...
(4) Cost orders (Umlageforderungen) shall be enforced in accordance with the provisions of the law on the enforcement of administrative acts. The powers of enforcement shall be exercised by the treasury office responsible for enforcing the claims of the municipality in which the association is situated ...”
34. The research undertaken by the Court in relation to forty Council of Europe member States shows that membership of a hunting association is not compulsory in thirty-four countries (Albania, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Montenegro, the Netherlands, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom). In Austria, France and Sweden membership of a hunting association is obligatory in principle. The legislation in Georgia and in Switzerland makes no provision for hunting associations. Lastly, hunting is not practised in Monaco.
35. Considerable differences exist between these member States’ laws as regards the obligation for landowners to tolerate hunting on their land. Of the thirty-nine member States in which hunting is practised, eighteen (Albania, Azerbaijan, Belgium, Estonia, Finland, Georgia, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Portugal, “the former Yugoslav Republic of Macedonia”, the United Kingdom and Ukraine) do not oblige landowners to tolerate hunting, while eighteen others (Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Greece, Italy, Montenegro, Poland, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden and Turkey) do. However, both groups provide for exceptions of varying degrees to their respective rules. In France and the Czech Republic, the obligation to tolerate hunting depends on the specific situation regarding the plot of land and on administrative decisions. In Switzerland, there is no legislation governing the obligation to tolerate hunting.
36. In four member States the legislation or case-law has been amended following the Court’s judgment in the case of Chassagnou and Others, cited above. In France, under the Loi Voynet of 26 July 2000, owners of land who are opposed to hunting for ethical reasons may, under certain conditions, request the termination of their membership of a hunting association. In Lithuania, following a ruling by the Constitutional Court, section 13(2) of the Hunting Act ceased to apply on 19 May 2005. Under this provision, landowners could object to hunting on their land only in cases where it might cause damage to their crops or forest land. In Luxembourg, in the wake of the judgments in Schneider v. Luxembourg (no. 2113/04, 10 July 2007) and Chassagnou and Others, cited above, the Hunting Act of 20 July 1929 was repealed and a new Act entered into force on 31 May 2011. It provides that landowners opposed to hunting on their land may, under certain conditions, request termination of their membership of a hunting association. Lastly, in the Czech Republic, the Constitutional Court ruled on 13 December 2006 that the administrative authority had to decide whether land could be included in a hunting district by weighing the different interests at stake in the light of the principles set out in the Chassagnou judgment.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1
P1-1-2


ITEMID: 001-92030
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MURADOVA v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1949 and lives in Baku.
6. On 15 October 2003 presidential elections were held in Azerbaijan. The candidate of the opposition Musavat Party lost the election.
7. On the evening of the election day a group of opposition supporters gathered in front of the Musavat Party’s headquarters in the centre of Baku, claiming their candidate’s victory in the election. At this time there were some violent altercations between opposition supporters and the security forces.
8. At around 2 p.m. on 16 October a number of opposition supporters started gathering near the State Carpet Museum, in the centre of Baku, to protest the election results. The crowd then started moving towards Azadliq Square, the main square in the city. It was reported that, on their way, some people in the crowd began damaging cars, buildings, benches and other urban constructions. It was also claimed that the organisers of this unauthorised demonstration and certain leaders of the opposition parties were inciting their followers to violence.
9. Police officers who had been deployed at Azadliq Square were attacked by some of the demonstrators. Shortly thereafter large numbers of riot police and military personnel, fully equipped with helmets, shields and truncheons, arrived in the square. The situation quickly escalated into public disorder and violent clashes occurred between the crowd and the police.
10. At around 6 p.m. the demonstration was dispersed. Hundreds of people were arrested during the events of 16 October and in their aftermath.
11. The applicant was at Azadliq Square when the demonstration was being dispersed and suffered a serious injury to her right eye. The parties disagreed as to what exactly happened to the applicant on that day.
12. According to the applicant, the number of police and military personnel deployed at Azadliq Square far exceeded the number of demonstrators. The police and military forces attacked the demonstrators suddenly, without any demands to disperse peacefully or any other prior warning. They used excessive force and clubbed anyone who happened to be in their way. A number of people were injured and at least one man died as a result of police brutality.
13. As the police and military forces started to gain ground, people panicked as they attempted to run from the square. The applicant also tried to escape, but someone in the crowd pushed her from behind and she fell to the ground. She lifted her head and saw several policemen in helmets standing in front of her. She extended her arm in their direction, asking them to help her stand up. At this moment one of the policemen struck her forcefully in the right eye with a truncheon. The applicant immediately lost the sight in her right eye. The policeman attempted to hit her again, but she managed to evade the second blow.
14. A number of unknown individuals took her to Pharmacy no. 259, which was located nearby. The pharmacy’s employees were trying to provide first aid to a number of other injured people who were already there.
15. At some point a number of soldiers attempted to enter the pharmacy, apparently with the intention of attacking the people inside, but were prevented from doing so by a person named I.G. and a pharmacy employee. A little later an ambulance arrived and took the applicant and four other injured people to an emergency clinic.
16. The Government stated that, during the disorder, more than twenty peaceful civilians were injured and serious damage was inflicted on various public and private property.
17. However, the Government disputed the applicant’s version of the incident when she had suffered her injury. With reference to the investigation carried out by the domestic authorities (see sections C. and D. below), they maintained that the applicant’s injury was not caused by the police and that the injury was suffered as a result of her falling down on a blunt object.
18. On 16 October 2003 the applicant was taken to an emergency clinic. The medical record indicated that she was diagnosed with “haemophthalmia [bleeding into the eyeball] and contusion of the right eye; a bruised wound of the right supraorbital ridge”. It was noted that the applicant “suffered the injury during the well-known events which took place in the city on 16 October 2003”.
19. After receiving initial treatment, on 17 October the applicant was transferred to the Institute of Eye Diseases, a hospital specialising in ophthalmology. She was admitted with a diagnosis of “severe rupture of the OD [right eye] sclera, ... hyphema [blood in the anterior chamber of the eye], haemophthalmia, stitched injury of the supraorbital ridge”. The applicant told the doctors that she had suffered the injury as a result of a blow by a police truncheon.
20. On 17 October 2003 urgent surgery was performed on the applicant. Despite the surgery, she became permanently blind in her right eye.
21. On 4 November 2003 the applicant was discharged from the hospital. She claimed that a few weeks later the sight in her left eye also started to deteriorate rapidly.
22. On 24 February 2004 the applicant filed a criminal complaint with the Chief Prosecutor’s Office, asking that the policeman who had hit her with the truncheon be identified and incriminated. On an unspecified date she also lodged a petition asking to be granted the formal status of a “victim of crime” (zərər çəkmiş şəxs).
23. By that time the Chief Prosecutor’s Office had already instituted criminal proceedings concerning the public disorder which took place on 16 October 2003. It appears that this criminal case concerned the offences against public order allegedly committed by the demonstrators, and did not concern any violations allegedly committed by the police during the events in question. No separate criminal proceedings were instituted on the basis of the applicant’s complaint and her letter was admitted to the case file of the above-mentioned criminal case.
24. On 13 and 16 March 2004 the applicant was interrogated by an investigator as a witness (not as a “victim of crime”). According to the applicant’s testimony, on 16 October 2003 she went to the seaside park (located across the road from both the State Carpet Museum and Azadliq Square) and sat on a bench to read a newspaper. At around 1.30 p.m. she saw about 200 people in the park, shouting slogans and protesting the election results. She joined this group because she too was discontent with the election. The group headed in the direction of the State Carpet Museum and, from there, to Azadliq Square. About 15-20 young people in the crowd were destroying things on their way, while some also attacked a group of policemen standing near the museum. The applicant and others in the crowd admonished these young people for their actions. When she arrived in Azadliq Square she saw that more people had already gathered there, including some opposition leaders. She also saw that riot police and military personnel were arriving and grouping in one corner of the square. She did not hear the police or the military issue any demands to the crowd to disperse and leave the square. Suddenly the crowd and the police forces clashed. The demonstrators were throwing stones and pieces of wood and metal at the police, while the latter advanced upon the crowd, beating the demonstrators with rubber truncheons. When the police started gaining the upper hand, people started panicking and running away.
25. The applicant continued as follows:
“... I wanted to go home. When I was walking between the trees [in one corner of Azadliq Square] I was pushed from behind by people who were running past me and fell to the ground. ... I asked an approaching policeman, who was dressed in a helmet and black uniform and was holding a truncheon and a shield, to help me stand up. Instead of helping me, the policeman hit me over my right eye with the truncheon. I held my eye crying, and when I said to him: “What have I done to you that you hit me?”, I saw him raising his arm to hit me again. At this point I felt that some other policemen standing nearby said something to him, and then all of them went away from me. I could not see any rank insignia on their shoulders. I would not be able to recognise the policeman who hit me and the policemen who were near him. It is possible that some of the civilians who were nearby saw [this incident], but I do not know specifically who witnessed it. I stood up by myself and while I was hobbling in the direction of Pharmacy no. 259, an unknown old man took me by the arm and accompanied me to the pharmacy so that I could get medical aid. That man left after we arrived at the pharmacy. The pharmacy was all covered with blood, [and] there were several injured civilians inside. At this point some soldiers approached the pharmacy and started knocking on the window, and a grey-haired old woman who was an employee of the pharmacy [admonished them]. At the same time, when I.G., whom I recognised because he used to be a television journalist, tried to open the door of the pharmacy [from inside], one of the soldiers [who was standing outside] tried to hit him with a truncheon but missed. The reason [I.G. wanted to open the door and go outside] was that he wanted to call an ambulance for the injured... After a while an ambulance took us to a hospital... In the hospital, I received stitches on my wounded eyebrow, and the next day I was transferred to the Institute of Eye Diseases... There I underwent an operation which lasted about 3 hours... However, the surgery did not help and my right eye became completely blind...”
26. On 21 March 2004 the investigator requested a forensic expert’s opinion on the applicant’s injuries. According to the forensic report of 28 July 2004 (“the First Forensic Report”), issued by an expert of the Forensic Medicine and Pathological Anatomy Department of the Ministry of Health, the forensic examination started on 24 March 2004 and ended on 28 July 2004.
27. The First Forensic Report was eight pages long and mostly consisted of copied extracts from the applicant’s medical records. Inter alia, the report contained the following description of the injury:
“The size of the right eyeball has shrunk, and [the eyeball] has sunk into the eye socket. The symmetry of the right eye and the left eye has been disrupted and remains in a deformed state. The circumference of the right eye’s cornea is [diminished] in comparison with the left eye’s cornea. Its anterior spherical shape is deformed. A [scar] is observable on the upper side of the cornea. The round shape of the right eye’s iris is deformed and contains a whitish substance. There is a slanted whitish scar measuring 3x0.5 cm on the right supraorbital ridge.”
28. The report concluded, on the basis of previous medical records and diagnoses, that the applicant had indeed suffered injuries to her right eye, resulting in irreversible deformation of her face, which were not lifethreatening but nevertheless qualified as severely harmful to health. It was noted that “[based on the available materials] it cannot be excluded that these injuries ... were caused on 16 October 2003 by a blow (blows) from a narrowly-shaped hard blunt object ... in the circumstances described by the applicant ... or other circumstances”. However, the expert was unable to reach a definitive conclusion as to the cause of the injury, noting that such a conclusion could be made by a medical board comprised of experts specialised in ophthalmology.
29. In the meantime, prior to the delivery of this forensic report, on 25 May 2004 the applicant wrote a letter to the Chief Prosecutor, complaining, inter alia, that, instead of taking a formal procedural decision ordering a forensic examination, the investigator had simply informed her about the request for a forensic examination by a letter. She also complained that the appointed forensic expert had delayed the examination and avoided examining her in person under various pretexts. On 21 July 2004 she wrote another letter to the Chief Prosecutor, reiterating the above complaints. It appears that none of these letters were answered.
30. According to the applicant, she had not seen the First Forensic Report prior to the receipt of the Government’s observations in the present proceedings before the Court.
31. On 13 September 2004 the investigator ordered another forensic examination. The experts were asked, inter alia, the following specific questions:
“4. To determine whether the loss by M. Muradova of the vision in her right eye was the direct result of the initial injury or of any errors committed during the subsequent medical treatment.
5. To determine whether the injury sustained by M. Muradova was caused in the circumstances described by her, i.e. as a result of falling down during the incident or as a result of being struck with a truncheon by a policeman.”
32. According to the forensic report of 25 October 2004 (“the Second Forensic Report”), this examination was carried out from 13 September 2004 to 22 October 2004 by a board of four experts of the Forensic Medicine and Pathological Anatomy Department of the Ministry of Health, including one expert specialised in ophthalmology.
33. The Second Forensic Report was seven pages long. The report consisted almost entirely of copied extracts from the First Forensic Report and the applicant’s medical records. It was noted that she had received adequate medical treatment both in the emergency clinic and the Institute of Eye Diseases and that the medical personnel had committed no errors.
34. The body of the report did not contain any analysis as to possible causes of the injuries sustained by the applicant.
35. In the conclusion part of the report, the following answers were given to the questions asked (see paragraph 31 above):
“4. The full loss by M. Muradova of the vision in her right eye was caused by the trauma suffered by her.
5. No damage typically attributatle to a police truncheon have been discovered on M. Muradova’s person.”
36. According to the applicant, she had not seen the Second Forensic Report prior to the receipt of the Government’s observations in the present proceedings before the Court.
37. On 26 November 2004 the investigator issued a decision to discontinue the criminal investigation.
38. According to this decision, in addition to the applicant, a total of eight witnesses had been questioned in connection with the applicant’s complaint. All of these witnesses were shown a photo of the applicant and none of them recognised her.
39. Six of the witnesses were policemen who had been present at or near Azadliq Square during the dispersal of the unauthorised demonstration of 16 October 2003. All of them testified that they had not known the applicant, that they themselves had not hit the applicant with a truncheon, and that they had not seen any woman being hit by a policeman during the events of 16 October 2003. They also surmised that the applicant had suffered her injury as a result of her own actions, i.e. falling down while running away from Azadliq Square, or being pushed by people in the crowd.
40. The remaining two witnesses, A.V. and R.G., were employees of Pharmacy no. 259. They were both male. Both of them testified that they had been at work on 16 October 2003, that they had not seen any injured woman brought to the pharmacy on that day, had not known the applicant and had not seen how she had sustained her injury.
41. The decision further stated that none of the police or military personnel present at Azadliq Square during the events of 16 October 2003 had been presented to the applicant for identification, because in her testimony she had stated that she would not be able to recognise the person who had allegedly caused her injury.
42. Further, according to the investigator, the Second Forensic Report “stated that ... [the applicant’s injuries] were a result of her falling down and her head striking an outstanding blunt object located on the ground, and that there were no damage on her person typically attributable to a blow from a police truncheon”.
43. The investigator concluded that it could not be established that the applicant had been struck by a policeman and determined that the applicant had received the injuries as a result of her own actions. Accordingly, it was found that no crime had been committed (cinayət hadisəsinin olmaması) and that the applicant’s petition to be recognised as a “victim of crime” should be rejected. For these reasons, the investigator decided to discontinue the investigation into the applicant’s allegations.
44. According to the Government, the applicant was sent a copy of this decision by a letter of 26 November 2004. According to the applicant, she was never informed of this decision.
45. In the meantime, in March 2004 the applicant lodged a civil action with the Sabail District Court against the Ministry of Internal Affairs, claiming monetary compensation for her injury. On 15 March 2004 the Sabail District Court refused to examine the case, noting that compensation claims against the State should indicate the Ministry of Finance as a codefendant and should be lodged with the Nasimi District Court.
46. On an unspecified date the applicant lodged her civil claim with the Nasimi District Court, indicating the Ministry of Internal Affairs and the Ministry of Finance as co-defendants and claiming compensation for her injury.
47. By a letter of 18 May 2004, the Chief Prosecutor’s Office informed the Nasimi District Court that a criminal investigation in respect of the applicant’s allegations was in progress.
48. On 7 June 2004 the Nasimi District Court held its first hearing and heard the submissions of the applicant and co-defendants. The applicant gave her account of the incident leading to her injury and reiterated her claim. The counsel for the first defendant, the Ministry of Internal Affairs, submitted that the applicant had filed a criminal complaint which was pending before the investigation authorities. He further argued that the police had been entitled to use force against the crowd during the events of 16 October 2003 because the manifestation had been unauthorised and its participants had been causing public disorder. In any event, he maintained that the police had not inflicted any injuries on the applicant and that her claims were unsubstantiated. The counsel for the Ministry of Finance submitted that he was in accord with the submissions of the first defendant.
49. On 18 June 2004 the Nasimi District Court heard oral testimonies by three witnesses who testified on behalf of the applicant.
50. Mr I.G. (the man whom the applicant mentioned in her testimony, cited in paragraph 25 above) testified as follows (the trial transcript omitted the questions asked by the parties’ counsels during cross-interrogation, but contained the record of the witness’s answers to them):
“On 16 October 2003 I saw M. Muradova, who was wounded in her eye, in Pharmacy no. 259. At that time, some policemen tried to enter the pharmacy and, when I wanted to open the entrance door, they tried to kick me. I did not see who had hit M. Muradova and cannot say anything in this respect.
[Answers to cross-interrogation by the applicant’s counsel:]
- No, I did not see the claimant M. Muradova being hit by a policeman.
- Yes, as M. Muradova was injured, I called an ambulance on that day.
- Yes, when I saw M. Muradova at Azadliq Square, her eye had already been put out and her face was covered with blood.
- Yes, when I opened the door of the pharmacy, [they] wanted to kick me, but I evaded the kick by quickly closing the door.
[Answer to cross-interrogation by the defendant’s counsel:]
- No, I did not see the claimant M. Muradova being hit by a policeman.”
51. Ms A.A. testified as follows:
“[People] were gathering at Azadliq Square at around 2 p.m. on 16 October 2003. At that time I was near the Government House [located on Azadliq Square], and I saw the police and special forces attack the people who had gathered at Azadliq Square without any warning and start to beat them with truncheons. I was there on that day and I saw the claimant, whose name I learnt thereafter, falling to the ground as a result of being pushed [in the crowd] and [I saw] police officers in black uniforms, wearing protective helmets on their heads and holding truncheons in their hands. She [the applicant] extended her arm towards those police officers and asked them to help her stand up, but one of the police officers struck her forcefully in her right eye with his truncheon. When the police officer attempted to hit her again, she evaded the blow by moving away her head. Then some civilians took her to Pharmacy no. 259 which was located nearby. She was given some first aid in the pharmacy and thereafter she and other injured people in the pharmacy were taken to hospital by ambulance.
[Answers to cross-interrogation by the applicant’s counsel:]
- Yes, I was among those who gathered at Azadliq Square on 16 October 2003.
- Yes, M. Muradova, whom I had not known before, was there on that day.
- Yes, on 16 October 2003 I saw that M. Muradova fell to the ground and that one of the police officers hit her with the truncheon that he was holding.
- Yes, M. Muradova’s eye was injured as a result of the blow inflicted by the police officer.
- Yes, she was given medical aid in the ‘Green Pharmacy’ located nearby and was then taken to a hospital by an ambulance.
[Answer to cross-interrogation by the defendant’s counsel:]
- No, I would not be able to recognise the police officer who hit M. Muradova.
- Yes, I had known [G.G.] before, but I saw M. Muradova for the first time at [Azadliq Square].”
52. Ms G.G. testified as follows:
“I had not known the claimant before. I was an observer in Polling Station no. 246 during the presidential election of 15 October 2003. At around 2-3 p.m. on 16 October 2003, near Azadliq Square, I saw M. Muradova fall to the ground and ask some masked police officers with truncheons in their hands not to hit her, but one of the police officers hit M. Muradova with his truncheon and, as a result, her eye was injured. I bought medication for [the applicant] from the ‘Green Pharmacy’.
[Answers to cross-interrogation by the applicant’s counsel:]
- Yes, on 16 October 2003 I saw M. Muradova, whose name I learnt later, falling to the ground at Azadliq Square.
- Yes, on 16 October 2003 one of the police officers who were at Azadliq Square hit M. Muradova in the eye area with his truncheon.
- No, I had not known M. Muradova before.
- Yes, one man brought M. Muradova, I saw that her eye was bleeding.
[Answer to cross-interrogation by the defendant’s counsel:]
- Yes, I was told that the medication necessary for M. Muradova was available at the ‘Green Pharmacy’, located nearby.”
53. On the same day, 18 June 2004, the Nasimi District Court delivered its judgment, dismissing the applicant’s claim. Having regard to the medical records, the court noted that the applicant had suffered an injury to her eye. However, it considered that she failed to substantiate her allegation that the injury had been inflicted by a police officer. In particular, the court assessed the witness testimonies as follows:
“During the hearing Ms G.G., heard by the court as a witness, testified that she had not personally known M. Muradova previously. ... At around 2-3 p.m. on 16 October 2003 she saw that M. Muradova fell to the ground and that she asked the masked policemen, holding truncheons in their hands, not to hit her. However, one of the policemen hit M. Muradova with his truncheon. As a result, M. Muradova suffered an injury to her eye. [The witness] bought some medication for M. Muradova from the ‘Green Pharmacy’.
Ms A.A., a witness, gave a similar testimony.
Mr I.G., a witness, testified that on 16 October 2003 he saw M. Muradova with an injured eye in Pharmacy no. 259. ... He did not see who had beaten the applicant.
In accordance with Article 77.1 of the Code of Criminal Procedure of the Republic of Azerbaijan, each party must prove any allegations which it makes in support of its claims and objections.
During the hearing, M. Muradova has failed to prove the allegations she made in her judicial claim.
The court finds that the testimonies of witnesses heard during the trial cannot serve as a ground for upholding the applicant’s claim.
Having assessed the above, the court concludes that the claim must be rejected as unsubstantiated.”
54. On 17 September 2004 the Court of Appeal upheld the first-instance court’s judgment, noting, without any further elaboration, that the applicant had been unable to prove her allegations.
55. On 2 February 2005 the Supreme Court upheld the lower courts’ judgments.
56. Police officers may use special equipment in respect of offenders in the event of, inter alia, a mutiny or mass unrest (Article 26.II). “Special equipment” is defined as truncheons, arm-restraining instruments, tear gas, rubber bullets, water cannons and other means (Articles 1). Physical force, special equipment or firearms may be used when absolutely necessary in a manner proportionate to the danger posed. Loss of life caused by such absolutely necessary use of physical force, special equipment or firearms cannot be considered as a violation of the right to life (Article 26.VI). The police authorities must perform an enquiry into every incident involving the use of physical force, special equipment or firearms and issue a relevant opinion concerning its lawfulness (Article 26.VII). Unlawful use of force by a police officer entails the officer’s responsibility under the relevant legislation (Article 26.IX).
57. Police officers may use physical force, special equipment or firearms only in the event of absolute necessity or necessary self-defence, after all other means of coercion have failed to produce the required result, and depending on the gravity of the offence and the personality of the offender (Article 27.I.1). Persons injured as a result of the use of physical force, special equipment or firearms must be provided with necessary medical aid (Article 27.I.5). The police officer must inform the relevant police authority, in writing, about the instances in which he or she used physical force, special equipment or firearms (Article 27.I.7). The relevant prosecutor must also be informed about such use of force within 24 hours (Article 27.I.8).
58. Military servicemen must issue a prior warning about their intention to use physical force, special equipment, firearms or combat equipment, and allow sufficient time for compliance with their demands prior to resorting to such use of force. However, exceptions are made in cases where issuance of such prior warning would be untimely or impossible, or where a delay in the use of force would create danger to human health or life or other serious consequences. Military servicemen are required to provide first aid to injured persons and to inform the relevant prosecutor about any cases of injuries or death resulting from the use of force. Use of force by military servicemen in excess of their competence entails their responsibility under the relevant legislation (Article 19).
59. If necessary, the following special equipment may be used in cases of mass unrest: rubber truncheons, tear gas, light- and noise-emitting distracting devices, water cannons, armoured vehicles and service dogs (Article 21).
60. Under Articles 39.1.1 and 41.1 of the Code of Criminal Procedure of 2000 (“the CCrP”), criminal proceedings may not be instituted and, if instituted, must be discontinued at any stage of the pre-trial proceedings if it is found that no crime has been committed (cinayət hadisəsi olmadıqda).
61. If there are sufficient grounds to consider that a person has sustained direct moral, physical or material damage as a result of an act proscribed by criminal law, this person shall be recognised as a “victim of crime” (zərər çəkmiş şəxs) (Article 87.1). If there are not sufficient grounds for recognising a person as a “victim of crime” at the time of institution of criminal proceedings, a decision to grant “victim of crime” status shall be taken (either by a preliminary investigator, investigator, prosecutor or court) as soon as the existence of such grounds is established (Article 87.4).
62. A person recognised as a “victim of crime” has, inter alia, the following procedural rights: to submit materials to the criminal case file; to request the status of a private prosecutor at any pre-trial stage; to make objections to the actions of the criminal prosecution authority; to lodge petitions; to have access to transcripts and documents in the case file; to be informed about and to obtain copies of the procedural decisions of the criminal prosecution authority (including a decision to discontinue the criminal proceedings); to lodge appeals against procedural actions or decisions, etc. (Article 87.6). In contrast, a person participating in the proceedings as a witness is entitled to have access only to those transcripts and documents which are related to him or her (Article 95.6.8).
63. Parties to criminal proceedings (and other persons involved in such proceedings in cases specified in the CCrP) are entitled to complain about procedural actions or decisions by the criminal prosecution authority. Procedural actions or decisions by the preliminary investigator or the investigator may be appealed to the supervising prosecutor and the procedural actions or decisions of the latter may be appealed to the hierarchically superior prosecutor (Articles 122.2.1 and 122.2.2). Certain types of procedural actions or decisions (of the preliminary investigator, investigator or supervising prosecutor) stipulated in Article 449.3 of the CCrP may be appealed directly to the supervising court (Article 122.2.3).
64. The following persons may lodge complaints against the procedural actions or decisions of the criminal prosecution authority directly with the supervising court: (1) the accused person (or a suspect) and his or her representative; (2) the aggrieved party (victim of the crime) and his or her representative; and (3) other persons whose rights have been violated by the impugned action or decision (Article 449.2). A decision to discontinue the criminal proceedings may be appealed, inter alia, to a supervising court (Article 449.3.5).
65. Articles 264-272 of the CCrP provide for a procedure of carrying out expert examinations. In particular, Article 268.1.4 provides that a person suspected or accused of committing a criminal offence has a right, inter alia, to procure an “alternative expert examination” and request that the results of such examination be admitted to the criminal file.
66. Under Article 77.1 of the Code of Civil Procedure of 2000 (“the CCP”), each party in civil proceedings bears the burden of proving the grounds for their respective claims and objections.
67. Under Article 254.1.4 of the CCP, a judge must suspend the civil proceedings if it is impossible to examine the claim prior to the completion of another set of constitutional, civil, criminal or administrative proceedings precluding such examination.
68. Under Article 265.4 of the CCP, if upon examination of a civil claim a court discloses an appearance of criminal elements in the actions of the parties to the case or other persons, it must deliver a special ruling (xüsusi qərardad) informing a public prosecutor thereof.
69. The relevant extracts from the Code of Conduct for Law Enforcement Officials (adopted by the UN General Assembly Resolution 34/169 of 17 November 1979) reads:
Article 3
“Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.”
Article 5
“No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.”
70. The relevant extracts from the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990) read:
“... 2. Governments and law enforcement agencies should develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing death or injury to persons. For the same purpose, it should also be possible for law enforcement officials to be equipped with self-defensive equipment such as shields, helmets, bullet-proof vests and bullet-proof means of transportation, in order to decrease the need to use weapons of any kind.
3. The development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled.
4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.
5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:
(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;
(b) Minimize damage and injury, and respect and preserve human life;
(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment; ...
6. Where injury or death is caused by the use of force and firearms by law enforcement officials, they shall report the incident promptly to their superiors, in accordance with principle 22.
7. Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.
8. Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles. ...
... 22. Governments and law enforcement agencies shall establish effective reporting and review procedures for all incidents referred to in principles 6 and 11 (f). For incidents reported pursuant to these principles, Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.
23. Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.
24. Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.”
71. The relevant extracts from Functioning of democratic institutions in Azerbaijan, Report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee), by co-rapporteurs Mr Gross and Mr Martínez Casañ (12 January 2004, Doc. 10030), read:
“D. Post-election events
34. Security forces maintained a heavy presence around Musavat headquarters since early afternoon on polling day. In the evening supporters of the Musavat party gathered in front of the party’s office and this meeting, although not authorized by the authorities, was described as rather peaceful. Shortly after the closing of the poling stations, Musavat supporters announced the victory of the leaders of the party. Some turmoil started and the demonstration was strongly repressed by policemen. Alleging they had to enter the party office to arrest party officials, security forces started to use force against the protesters and violent fights followed.
35. Once the preliminary final results had been announced on the following day, the Musavat party denounced them as unrealistic and falsified and called for a demonstration in the main square of the capital. During the demonstration, the demonstrators stole a police vehicle and charged against the police forces killing a policeman. In the clashes which followed, several persons, both demonstrators and policemen, were seriously wounded. Several other sources indicated that four persons died during the clashes.”
72. The relevant extracts from The Organisation for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Report from the Trial Monitoring Project in Azerbaijan 2003-2004 (4 February 2005) read:
“In the immediate aftermath of the elections, demonstrations took place on 15 and 16 October, which resulted in violent clashes between security forces and demonstrators in Baku.
On the evening of 15 October in front of the Musavat Party Headquarters, members of the OSCE/ODIHR Election Observation Mission witnessed police attacking peaceful pro-opposition supporters. On 16 October, several thousand demonstrators and pro-opposition supporters gathered in Azadliq Square in the centre of Baku to protest what they considered to have been a stolen election.
On their way to the square demonstrators were witnessed vandalizing buildings and vehicles, and attacking police forces with metal bars and stones. At the square, demonstrators were rapidly surrounded by police and security forces, which used overwhelming force to disperse the crowd. Security forces were witnessed beating demonstrators with truncheons after they had been detained and no longer posed any danger or as they were fleeing the area. Video tape recordings provide evidence of the scale of excessive force and brutality used by government forces to overwhelm the demonstrators.
The violence was followed by a wave of detentions. According to officials, the detainees were persons involved in the violent activities or responsible for organizing the violence. ... The Minister of Interior reported that over 600 persons were detained following the violent clashes. ...
The majority of the people detained in connection with the elections were later released without charge. In total, 129 persons were charged with criminal offences in connection with the post-election clashes, of whom 125 had been brought to trial at the time this report was prepared. ...
At the time of the writing of this report, the OSCE/ODIHR was unaware of any cases of charges having been brought against police officers or other officials for brutality or excessive use of force against demonstrators.”
73. The relevant extract from the 2003 Report of the International Helsinki Federation for Human Rights reads:
“On the evening of 15 October and the following day, clashes between the police (and the military) and protesters grew into a massively violent confrontation as the opposition protested the flawed elections. The police and the military surrounded the Azadliq (Liberty) Square using tear gas, rubber bullets, police dogs and truncheons on protesters. They brutally beat protesters, even after they had fallen to the ground, injuring scores of people, as well as members of the press. Many police officers were also injured. At the time of this writing the number of casualties was not year clear: depending on sources, two to four deaths were reported, along with dozens of injuries, including a five-year old child. Azerbaijani authorities maintained that the mass unrest was instigated by the opposition leaders in order to destabilize Azerbaijan, but according to numerous accounts, the police actions were unprovoked.”
74. The relevant extract from the 2004 Report of the International Helsinki Federation for Human Rights reads:
“On 16 October, opposition activists tried to conduct an unapproved meeting at Azadliq, the central plaza in Baku. They were beaten by the police. One of the activists, 52-year old Hamidaga Zahidov, was beaten to death by police, while hundreds of others were injured. The protesters resisted by throwing stones and injuring dozens of policemen. In the ensuing criminal investigation, police cruelty was not investigated at all. Moreover, in a joint statement by the Ministry of Internal Affairs and the Prosecutor’s Office, the opposition was accused for being responsible for the death of a protester.”
75. The relevant extract from the 2003 Country Report on Human Rights and Practices of the US Department of State, released by the Bureau of Democracy, Human Rights, and Labor on 25 February 2004, reads:
“On October 16, a large crowd gathered for an unsanctioned demonstration in downtown Baku that turned violent. Protestors marched from Musavat headquarters to Azadliq Square and along the way beat dozens of security officers, destroyed security forces’ vehicles, and damaged government buildings. As several thousand security forces surrounded the square, a group of protestors attacked the security forces, who stormed the demonstrators with tear gas and truncheons, while unknown demonstrators drove a stolen military truck into police lines. Security forces responded with excessive force, beating many demonstrators, sometimes to the point of unconsciousness and even after they were trying to leave the area or were detained, killing one and reportedly injuring at least 300 persons.”
76. The relevant extracts from the Human Rights Watch press release of 17 October 2003 (Azerbaijan: Post-Election Clashes Turn Deadly) read:
“Thousands of opposition protesters took to the streets of Baku, the capital, at 2:00 p.m. yesterday. The demonstration quickly grew violent, in part because once the protesters began to congregate, police and military forces immediately surrounded them. The protesters drove away members of the security forces there and marched to Baku’s Azadliq (Freedom) Square. During their march, protesters severely beat some police officers and soldiers, who remain hospitalized. The protesters also destroyed a number of police and military vehicles, and damaged government buildings along the way.
Soon after the opposition protesters arrived at Azadliq Square, several thousand riot police and military troops surrounded the entire plaza. Riot police and military stormed the opposition protest, using tear gas, rubber bullets, police dogs and truncheons. From the roof of a nearby building, a Human Rights Watch researcher saw police and military troops chase down protesters, surround them and viciously beat them. Many of the protesters continued to be beaten after they had fallen to the ground. Human Rights Watch observed a number of civilian pro-governmental supporters participating in the beatings with the security forces.
Police beat to death at least one person, Hamidagha Zakhidov, 52, whose body Human Rights Watch viewed after the protests. His body was completely black and blue, and his head smashed and bloody...
So far, an estimated 300 persons have sustained serious injuries during the clashes, according to local hospital officials and other sources. Many of the wounded were unable to walk and had to be carried away from the square. Human Rights Watch has conducted interviews with more than a dozen of the wounded, all of who describe being surrounded by groups of riot police and military troops who beat them severely, leaving many unconscious. ... Also among the injured are several dozen police and army personnel.”
77. The relevant extract from the Human Rights Watch World Report 2005 (Events of 2004, Country Summary: Azerbaijan) reads:
“Post-Election Trials
Over one hundred opposition party members and supporters were tried on charges relating to the post-election violence. Only four were released on bail, the rest remained in pre-trial detention for up to six months. Azerbaijani courts convicted all of the defendants, sentencing forty-six people to custodial sentences ranging from two to six years. The remainder were released on three- to five-year suspended prison sentences. On October 22, the Court of Grave Crimes sentenced seven opposition leaders to between two-and-a-half and five years in prison for their role in the postelection violence.”
VIOLATED_ARTICLES: 3


ITEMID: 001-102268
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF ZJEDNOCZONE BROWARY WARSZAWSKIE HABERBUSCH I SCHIELE S.A. v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Ján Šikuta;Lech Garlicki
TEXT: 5. The applicant is a join-stock company with its registered seat in Warszawa.
6. By way of an administrative decision of 29 November 1948 a property owned by the applicant and located in Warsaw was expropriated pursuant to provisions of the 1946 Law on transfer to the State of the ownership of the main branches of the national economy (Ustawa z 3 stycznia 1946 r. o przejęciu na wlasność Państwa podstawowych gałęzi gospodarki narodowej).
7. On 12 June 1991 the applicant lodged with the Ministry of Industry and Agriculture an application to have the expropriation decision declared null and void. The proceedings were subsequently conducted before the Minister of Finance.
8. On 30 October 2000 the Minister of Finance gave a decision and refused to declare the expropriation decision null and void.
9. On 17 November 2000 the applicant's lawyer requested the Minister of Finance to re-examine the case.
10. On 9 January 2001 the Minister of Finance upheld his own decision of 30 October 2000.
11. On 12 February 2001 the applicant lodged a complaint with the Supreme Administrative Court.
12. On 18 November 2002 the Supreme Administrative Court quashed both decisions of the Minister of Finance.
13. On 27 March 2003 the Minister of Finance gave a decision and stayed the proceedings finding that the examination of the case was dependent on the establishment of the components of the applicant's enterprise (ustalenie składników przedsiębiorstwa skarżącego), which fell within the competence of the Minister of Agriculture. On the same day the Minister of Finance requested the Minister of Agriculture to resolve the preliminary issue (zagadnienie wstępne) referred to above. Since then, the proceedings have been pending before the Minister of Finance.
14. On an unspecified date the applicant appealed against the decision to stay the proceedings.
15. On 30 April 2003 the Minister of Finance upheld the challenged decision. Since that date the proceedings have been stayed before the Minister of Finance.
16. On 2 February 2005 the Minister of Agriculture gave a decision and stayed the proceedings.
17. The applicant requested a re-examination of the case.
18. On 18 April 2007 the Minister of Agriculture upheld his decision.
19. The applicant lodged a complaint with the Regional Administrative Court.
20. On 25 September 2007 the Warsaw Regional Administrative Court found the complaint well-founded and quashed both decisions of the Minister of Agriculture.
21. Subsequently, on 20 March 2008 the Minister of Agriculture gave a decision and discontinued the proceedings.
22. The applicant again requested a re-examination of the case.
23. On 5 February 2009 the Minister of Agriculture upheld his decision.
24. The applicant lodged a complaint with the Regional Administrative Court.
25. On 17 July 2009 the Warsaw Regional Administrative Court quashed both decisions of the Minister of Agriculture.
26. The proceedings are pending before the Minister of Agriculture.
27. On an unspecified date in 2004 the applicant lodged a complaint about the inactivity on the part of the Minister of Agriculture.
28. On 19 October 2004 the Warsaw Regional Administrative Court found the complaint well-founded and ordered that the Minister of Agriculture give a decision on the preliminary issue within one month of the court's judgment.
29. The Minister failed to comply with the court's order and therefore, on 3 August 2005, the applicant requested the Warsaw Regional Administrative Court to impose a fine on him.
30. On 9 March 2006 the Warsaw Regional Administrative Court dismissed the complaint finding that on 4 February 2005 the Minister had given a decision and stayed the relevant proceedings. Therefore, although he did not give a decision on the merits, it could not be said that the Minister was completely inactive.
31. The applicant lodged a cassation appeal with the Supreme Administrative Court, which was dismissed on 14 November 2006.
32. Subsequently, on 20 March 2007, the applicant again complained to the Warsaw Regional Administrative Court about the inactivity on the part of the Minister of Agriculture.
33. On 13 July 2007 the Warsaw Regional Administrative Court discontinued the proceedings as being pointless finding that, on 18 April 2007, the Minister of Agriculture had given a decision and upheld his own decision to stay the proceedings.
34. The relevant domestic law on remedies for inaction on the part of the administrative authorities is set out in the Court's judgment in the case of Grabiński v. Poland, no. 43702/02, §§ 6065, 17 October 2006.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70577
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: HUKIC v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Sead Hukic, Mrs Sabina Hukic and their two children, Dzenita and Jasmin, are nationals of Bosnia and Herzegovina, and were born in 1967, 1972, 1993 and 2000, respectively. They are currently in Sweden. They were represented before the Court by Mr J. Wahlström, a lawyer practising in Lund.
s, may be summarised as follows.
The applicants are Bosniacs and, until their departure from Bosnia and Herzegovina, they lived in Tuzla. On 17 January 2003 the first applicant arrived in Sweden and applied for asylum and a residence permit. On 3 February 2003 the other three applicants arrived and joined the first applicant’s request for asylum and residence permits. Before the Migration Board (Migrationsverket) they stated that their primary reason for requesting asylum was that the fourth applicant suffered from Down’s syndrome (a genetic disorder that causes mental retardation, severe learning disabilities and other problems) and epilepsy for which he had received no treatment or care in Bosnia and Herzegovina. On the contrary, he had been considered as a lower ranking person and treated in a degrading manner by physicians and people in their surroundings.
The applicants’ second reason for requesting asylum was that the first applicant had belonged to a special unit of the police which, in November 2001, had arrested F.O., a dangerous criminal with ties to the mafia who had been wanted by Interpol. F.O. had tried to escape but the first applicant and another police officer had managed to catch him. On his arrest, F.O. had repeatedly threatened the first applicant. After about six to eight months in prison, F.O. had been released. However, just after F.O.’s arrest, the applicants had started to receive telephone threats and the first applicant had been attacked by unknown men in January 2002 and again in March, June, September and December 2002. Each time he had managed to defend himself but his aggressors had threatened him and had mentioned F.O.’s name. The first applicant had talked to his superiors about the threats and attacks, but he had received no support or protection. Thus, he had had to leave the country since F.O. had contacts all over the country and the applicants therefore would not be safe anywhere in Bosnia and Herzegovina.
On 16 May 2003 the Migration Board rejected the application. It noted that the purported threats and attacks had been carried out by criminals and were not sanctioned by the national authorities. It considered that the applicants had neither exhausted the possibilities to get help and protection in their home country nor shown that the national authorities would be unwilling or unable to help them. Thus, the applicants could not be granted asylum. As concerned the fourth applicant, the Migration Board considered that his handicap was not of such a kind that the family could be granted residence permits on humanitarian grounds. In reaching this conclusion, the Migration Board noted that there was medical care available in Bosnia and Herzegovina and considered that the availability of care of a higher standard in Sweden was not a reason to let the family stay.
On 26 February 2004 the Aliens Appeals Board (Utlänningsnämnden) upheld the Migration Board’s decision in full and ordered the applicants to leave Sweden within two weeks.
The applicants lodged a new application for residence permits on humanitarian grounds with the Aliens Appeals Board. They stated that the conditions for handicapped children were very poor in Bosnia and Herzegovina and that there was no care or treatment for persons with Down’s syndrome. Society’s attitude was that these children should not have been born. Although almost four years’ old, the fourth applicant could not yet walk, stand or eat by himself. Moreover, his legs were shaking, he had a low immune defence and was lacking thyroxin (a hormone that regulates the metabolic activity of the body by controlling the rate of oxidation in cells and, when too low, retards growth and mental development in children). In Sweden he was receiving treatment and rehabilitation measures which were essential for his development and to which he was responding positively.
On 17 June 2004 the Aliens Appeals Board rejected the new application. It stated that it had already considered the fourth applicant’s health in its previous decision and it found no reason to change that decision on the basis of the new information relied on by the applicants.
In the meantime, since the applicants had refused to leave Sweden voluntarily and the Aliens Appeals Board had refused to stay the enforcement of the deportation order awaiting its new decision, the matter had been handed over to the police who had scheduled their deportation to Bosnia and Herzegovina for 2 June 2004. However, on that date the applicants could not be found at their home. On 7 September 2004, the Danish immigration authorities requested Sweden to accept the family back in accordance with the Dublin Convention as they, on 26 June 2004, had requested asylum in Denmark. On 17 September 2004 the Migration Board accepted the request and, on 27 September 2004, the applicants were returned from Denmark to Sweden and renewed their request for asylum and residence permits. They maintained their earlier claims and added that during their stay in Denmark the fourth applicant’s health had regressed as he had not received proper medication and the entire family was in poor mental health. Furthermore, they had no economic resources to survive in Bosnia and Herzegovina and no social assistance.
On 5 October 2004 the Migration Board rejected the application. It observed that the applicants’ reasons for asylum had already been considered once and it found no grounds on which to change its former decision. It further decided that the applicants should be deported immediately since it was evident that they would not be granted asylum or leave to stay for any other reason. On 30 November 2004 the Aliens Appeals Board upheld the Migration Board’s decision in full.
The applicants lodged a new application for asylum with the Aliens Appeals Board, adding to their earlier claims that the first applicant had lodged a complaint with the European Union Police Mission concerning FO’s threats to his family which was being investigated. Although FO had now been convicted of serious crimes and was in prison, the result of the investigation could show that the applicants were in need of protection in Sweden. Moreover, the fourth applicant’s health had regressed somewhat and he was in need of more support and treatment.
On 14 February 2005 the Aliens Appeals Board rejected the new application on the grounds that it was up to the national authorities to protect the applicants against criminals within the country and that there were no circumstances which indicated that the authorities in Bosnia and Herzegovina’s situation, the Aliens Appeals Board found that it would not constitute a violation of humanitarian standards to deport the applicants to their home country.
On 19 May 2005 the Aliens Appeals Board rejected yet another new application for residence permits by the applicants as they had invoked no new circumstances.
The applicants have submitted two medical certificates concerning the fourth applicant, both issued by two specialists in child and youth neurology, Dr P. Sjöberg and Dr J. Landehag.
The first medical certificate was dated 16 March 2005 and stated that the fourth applicant was born with Down’s syndrome and that he had a lack of thyroxin. Moreover, he suffered from an epileptic illness (the Landau-Kleffner syndrome) which had caused him to lose his ability to talk and communicate. He received medication and treatment for his handicap and illnesses but was in need of regular examinations. Furthermore, it was very important that he followed continuous treatment on several levels in order to have some quality of life. This sort of treatment was not available in Bosnia and Herzegovina.
The second medical certificate was dated 30 May 2005 and, besides referring to the above certificate, it stated the following: The fourth applicant has Down’s syndrome and an epileptic illness which involves epileptic activities in the brain and the loss of language as well as the understanding of language. As concerns his Down’s syndrome, he was undergoing good rehabilitation training, physiotherapy, occupational therapy, special education and speech therapy. They were concentrating on communication and motor activity. His problems with swallowing would be examined by a speech therapist together with a dietician. He had shown clear progress after treatment with Lamictal (an anti-epileptic medicine) and had regained an interest in communication and could also pronounce one or two single words, a progress from having been completely wordless and almost without any interest in interplay with others. For the future, the physicians were planning continued rehabilitation and a renewed evaluation of his epilepsy to see how he had reacted to the medication. He would probably need an increased dose of Lamictal after the evaluation. In conclusion the physicians stated that he was reacting very well to the treatment and for this positive development to continue it was an absolute prerequisite that he remain in Sweden or another Western country where he could receive the same treatment.
The applicants submitted a letter, dated 3 June 2005, by Prof. Dr. H. Tahirovic, ScD, and Ass. Dr. M. Hasanhodzic, M.Sc. at the Clinic for Children’s Diseases, University Clinic in Tuzla, which provided the following information:
At the Clinic for Children’s Diseases it was possible to diagnose Down’s syndrome and to follow up the functions of the thyroid and to offer treatment for thyroid disorders. It was also possible to diagnose epilepsy, to prescribe Lamictal treatment and to have a child followed by neuro-paediatricians, endocrinologists, cardiologists, clinical geneticists and other specialists. However, at the moment, they could not promise that it would be possible to include a child in programmes of neuro-developing and stimulating exercises, speech pathology, psychological treatment or to include a child in a special school or pedagogical programme. Moreover, in the area, there were not enough institutions to receive and help all children with special needs and so parents were forced to care for their children and to implement necessary treatment in accordance with their financial capabilities.
According to information from 2002, there were special programmes for the social and health protection of children and families, the mentally handicapped, the elderly and civilian war victims. All ten cantons in Bosnia and Herzegovina provided social and child protection within 79 local centers. Most of these institutes had been modernized, and some had been newly established. There were also centers for persons with mental and physical handicaps.
Furthermore, in August 2001 the Act on the protection of mentally handicapped persons was adopted in Bosnia and Herzegovina. It provides for basic principles, means of organization and the realization of the protection of mentally handicapped persons, and it contains, inter alia, provisions relating to health care and the rights and obligations of beneficiaries.


ITEMID: 001-58908
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF VAN GEYSEGHEM v. BELGIUM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1+6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 8. Nicole Van Geyseghem, a nursery nurse born in 1942, is a Belgian citizen. At the time of lodging her application, she was living in Hoeilaart (Belgium).
9. The applicant and four others were prosecuted for importing drugs from Brazil on three occasions between 22 June 1986 and 21 March 1987, including 2.33 kilograms of cocaine on 20 March 1987, the date on which the applicant was arrested.
10. On 10 December 1992 the Brussels Criminal Court convicted the applicant in absentia (she had failed to appear even though she had been properly served with a summons) and sentenced her to four years’ imprisonment and a fine of 180,000 Belgian francs (BEF). The court also ordered her immediate arrest on the ground that there was reason to believe that she would attempt to evade enforcement of her sentence.
11. On 26 April 1993 Mrs Van Geyseghem applied to the same court to set aside its judgment.
12. She attended the hearing of her application. On 7 May 1993 the Brussels Criminal Court, after adversarial proceedings, sentenced her to three years’ imprisonment and a fine of BEF 60,000. The court held that there was no need to order the applicant’s immediate arrest as there was no cause to fear that she would attempt to evade enforcement of her sentence.
13. On 21 May 1993 both the applicant and the prosecution appealed.
14. Although the summons to appear had been served on her in accordance with the proper procedure, Mrs Van Geyseghem did not attend the appeal hearing and neither did a lawyer on her behalf. On 14 June 1993 the Brussels Court of Appeal, ruling in the applicant’s absence, upheld the judgment of 7 May 1993 in its entirety. It also ordered the applicant’s immediate arrest on the ground that there was reason to believe that she would attempt to evade enforcement of her sentence in view of its length and of the fact that she had failed to appear both at the appeal hearing and at the original trial.
15. On 26 August 1993 the applicant applied to set aside the Court of Appeal’s judgment. Her application was served on the prosecution by means of a bailiff’s writ, in which the hearing was set down for 13 September 1993.
16. The applicant did not attend the hearing in person. Her counsel, Mr Verstraeten, appeared and, relying on Article 185 § 2 of the Code of Criminal Procedure (see paragraph 20 below), stated that he was representing his client and would be making submissions to the effect that the prosecution had become time-barred between the delivery of the Court of Appeal’s judgment in absentia and the date on which the application to set it aside was to be heard by the Court of Appeal. The court refused Mrs Van Geyseghem’s counsel leave to address it and make submissions on his client’s behalf. At counsel’s request, the following was entered in the record of the hearing of 13 September 1993:
“The Court refuses Mr Rafael Verstraeten, of the Brussels Bar, leave to represent the appellant and to make submissions on her behalf to the effect that the prosecution is time-barred.”
17. In a judgment of 4 October 1993 the Court of Appeal declared the application void on the following grounds:
“Although the application has been filed in the proper form and within the statutory time, the appellant has failed to attend the hearing on the date set by her and has not adduced any evidence of force majeure preventing her from attending in person.”
18. The applicant lodged an appeal on points of law against the judgment of 4 October 1993. In her pleading she argued that the Court of Appeal’s refusal to grant her counsel leave to make submissions on her behalf had infringed her defence rights and Article 185 § 2 of the Code of Criminal Procedure, which provides that the accused may appear by counsel “where the hearing concerns only an objection [or] a matter unconnected with the merits of the case …”. In written submissions of 16 March 1994 summarising his address, the applicant’s counsel referred to the European Court’s judgment in the Poitrimol v. France case (23 November 1993, Series A no. 277-A).
19. The Court of Cassation dismissed her appeal in a judgment of 4 May 1994 in the following terms:
“The appellant submits that her counsel attended the hearing and that the Court of Appeal, in refusing him leave to represent her and make submissions on her behalf to the effect that the prosecution was time-barred – that is, to raise ‘an objection unconnected with the merits of the case’ – infringed Articles 185, 188 and 211 of the Code of Criminal Procedure and the general principle of law which requires that the rights of the defence be respected;
Where a trial or appeal court is dealing with charges which may attract a custodial sentence as the principal sentence, paragraph 2 of the above-mentioned Article 185 allows an accused to appear by counsel only ‘where the hearing concerns an objection, a matter unconnected with the merits of the case or the civil interests’;
Within the meaning of that provision, a claim that an action is time-barred is neither an objection nor a matter unconnected with the merits;
The ground of appeal has no basis in law.”
20. The relevant Articles of the Code of Criminal Procedure read as follows:
“1. The party claiming civil damages and the party liable to pay such damages shall attend the hearing or appear by counsel.
2. The accused shall attend the hearing. However, the accused may appear by counsel in the case of minor offences which do not attract a custodial sentence or where the hearing concerns an objection, a matter unconnected with the merits of the case or the civil interests.
The Criminal Court may still grant leave for the accused to appear by counsel where he provides evidence that he is unable to attend.
3. In any event, the Criminal Court may order the accused to attend. No appeal shall lie against such a decision.
The judgment in which the accused is ordered to attend shall be served on the party concerned on an application by the prosecution, together with a summons to attend on the date determined by the Criminal Court. Where the accused fails to attend, the court shall determine the matter in his absence.”
“If the accused fails to attend the hearing, he shall be tried in his absence.”
“An accused who is convicted in his absence may lodge an application to set aside the judgment within fifteen days of the date on which it was served on him.”
“An application to set aside shall automatically be effective as a summons to attend the first hearing following the expiry of fifteen days, or three days where the party lodging the application is in custody.
The application shall be void if the party who lodged it fails to attend the hearing. Save as hereinafter provided, no appeal by the party who lodged the application to set aside shall lie against the Criminal Court’s ruling.
Where appropriate, the court may make an interim award. Such an award shall be enforceable notwithstanding an appeal.”
“A judgment on appeal delivered in absentia may be challenged by means of an application to set aside made under the same procedure and within the same time-limits as a judgment delivered in absentia by the Criminal Court.
The application shall automatically be effective as a summons to attend the first hearing following the expiry of fifteen days, or three days where the party lodging the application is in custody.
The application to set aside shall be void if the party who lodged it fails to attend the hearing. No appeal by the party who lodged the application shall lie against the Court of Appeal’s ruling other than an appeal on points of law to the Court of Cassation.”
“The provisions of the preceding Articles which relate to the formalities of judicial investigations, the nature of evidence, the form, authenticity and signature of final judgments delivered at first instance, orders to pay costs and the penalties applicable under those Articles shall also apply to judgments delivered on appeal.”
21. Where an application to set aside has been declared void on the ground that the applicant failed to attend the hearing, the judgment which records the fact will itself be a judgment given in absentia. If the applicant again fails to attend the hearing, a second application by him to set aside will be inadmissible, in accordance with the maxim “opposition sur opposition ne vaut” (an application to set aside a judgment delivered in absentia on an application to set aside an earlier judgment delivered in absentia is ineffective). Were the convicted person able to lodge a further application to set aside the decision of the court which refused in absentia his application to set aside an initial decision also delivered in absentia, he could, by failing to attend and lodging one application after another, indefinitely hinder the enforcement of any conviction and thus paralyse the administration of justice.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-61366
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF D.M. v. POLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1927 and lives in Zamość, Poland.
5. In 1991 the applicant noticed a lump on her neck and went to the Lublin Hospital. After a general examination she was diagnosed with a noncancerous salivary gland tumor. In October 1991 she underwent a surgery. Only after her operation were the relevant tests carried out, which proved the malignant nature of her tumor. Subsequently, the applicant turned to another hospital, in Szczecin, where she underwent a second operation. This additional surgery has led to serious complications such as jaundice and post-traumatic stress disorder.
6. On 27 January 1994 the applicant initiated before the Lublin District Court (Sąd Rejonowy w Lublinie) civil proceedings for compensation against the State Treasury represented by the Lublin Hospital. She claimed that she was a victim of medical malpractice because of the errors committed while making the diagnosis and during the first surgery which led to additional surgery and caused enormous suffering and general deterioration of her health.
7. On 17 March 1994 the applicant was partly exempted from the courtfees.
8. On 20 June 1994 the trial court held a first hearing.
9. Between 21 November 1994 and 28 March 1995 six hearings were held. The trial court heard witnesses and the applicant, and ordered preparation of expert opinions.
10. In April and July 1995 two expert opinions prepared by the Lublin Medical Academy were submitted to the court.
11. Between 29 March 1995 and 19 August 1996 no hearings were held.
12. At the hearings held on 20 August and 10 December 1996 the court ordered two additional expert medical opinions.
13. On 17 March 1997 the court, sitting in camera, dismissed the parties’ applications for another expert opinion because they had failed to pay the costs of the opinion.
14. At the hearing held on 4 April 1997 the court allowed the parties’ application for an additional expert opinion.
15. On 9 June 1997 the opinion was submitted to the court.
16. Subsequently, the trial court held hearings on 2 September and 27 November 1997.
17. In 1998 the trial court held in total six hearings and on 24 November 1998 it gave judgment. It awarded the applicant PLN 3,500 in compensation and dismissed the remaining part of her action.
18. Both parties appealed against the judgment.
19. On 6 May 1999 the Lublin Regional Court (Sąd Wojewódzki) held a hearing and on 20 May 1999 it gave judgment. The court quashed the firstinstance judgment and remitted the case to the Lublin District Court.
20. On 4 November 1999 the trial court held the first hearing at which the applicant changed the value of her claim. In consequence, the case was transferred to the Lublin Regional Court.
21. Subsequently, hearings were held on 25 January and 21 March 2000.
22. On 4 May 2000 the trial court, sitting in camera, decided that in view of the changes in the law on the administrative organisation of Poland the Lublin Governor would represent the Lublin Hospital.
23. On 18 July 2000 the applicant further extended her action. She requested PLN 35,000 as compensation for non-pecuniary and pecuniary damage.
24. On 7 September 2000 the trial court, sitting in camera, ordered two medical expert opinions. The court also exempted the applicant from the courtfees for the extended value of her claim.
25. On 11 September, 11 December 2001 and 23 January 2002 the court held hearings.
26. On 1 February 2002 the Lublin Regional Court gave judgment. It awarded the applicant PLN 20,000 for non-pecuniary damage and PLN 4,000 for pecuniary damage. The court found, inter alia, that the surgery carried out in the Lublin Hospital did not satisfy the requirements of diligent medical care (niezgodna z zasadami sztuki lekarskiej) and was done without the obligatory consent of the applicant. The malpractice during the surgery had to be remedied by the second, additional, operation which resulted in unnecessary physical and psychological suffering on the part of the applicant and prolonged the period of insecurity about the final diagnosis of her life-threatening illness.
27. The parties did not appeal against this judgment and it became final.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1