ITEMID: 001-96337
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MIKAYIL MAMMADOV v. AZERBAIJAN
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 2;Violation of Art. 2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1961 in Gubadly and currently lives in Sumgayit.
6. The applicant and his family are internally displaced persons from Gubadly. In 1993, during the occupation of the region by Armenian military forces, they fled their permanent place of residence and came to Sumgayit.
7. After their flight from Gubadly, the applicant's family of six (himself, his wife, three children and the applicant's mother-in-law) resided temporarily in various places in Sumgayit. Immediately prior to the events outlined below they lived in a room in a State-owned hostel.
8. From 17 June to 5 July 1999 the applicant's wife, Chichek Mammadova, underwent in-patient treatment in the Sumgayit City Emergency Hospital with a diagnosis of “closed craniocerebral injury, brain concussion; contusion of soft tissues of the crown of the head; hysterical psychosis”.
9. In late 2003 the applicant discovered that there were three vacant rooms in an old administrative building that belonged to the Sumgayit City Military Commissariat (the army recruitment office), which, however, no longer occupied the building. Part of the building was occupied by an association of war veterans, but the rooms that the applicant was interested in were abandoned and in a state of neglect. The rooms were located in auxiliary premises which had a separate entrance from the rear side of the building. The applicant occupied these rooms and conducted substantial repair work there for three months. According to him, the other occupants of the building were aware of his activities but did not object to them. Likewise, according to the applicant, there were no objections by any public authorities to the repair works carried out by him.
10. After completing the repair works, at the end of 2003 the applicant left his hostel room and moved into the new dwelling together with his family.
11. On 26 March 2004 two officials (E.G. and Y.A.) of the Sumgayit City Executive Authority (“the SCEA”), an employee of the local housing maintenance and utilities board (K.A.) and a number of police officers arrived in the applicant's new dwelling. They had no court order for his eviction.
12. At an unspecified time after the arrival of the above-mentioned officials, the applicant's wife, Chichek Mammadova, poured some kerosene on herself and ignited it, apparently in protest at what she perceived as the authorities' intention to evict her family. It appears that at least one of the police officers helped put out the fire on her body, using a blanket he found inside the applicant's home. Chichek Mammadova's brother, who arrived slightly later, took her to hospital by taxi.
13. Following this incident, the police loaded the possessions of the applicant's family onto a lorry and transported them back to the hostel where the applicant's family had previously resided.
14. The applicant's wife suffered multiple second- and third-degree burns affecting 50% of the body surface. On 30 March 2004 she died in hospital of complications resulting from her injuries. The results of the autopsy released on 2 April 2004 confirmed that the death had been caused by the extensive burns to her body surface.
15. According to the applicant, prior to 26 March 2004 he was summoned several times to meet the SCEA officials, who orally demanded him to vacate the rooms in the old Commissariat building and even asked him for a bribe in order to allow him to stay there. He refused their demands.
16. On 26 March 2004 E.G., Y.A. and a large number of police officers arrived in the applicant's new dwelling and demanded that he and his family immediately vacate the premises. The applicant estimated the total number of police officers at around twenty-five to thirty, noting that most of them were equipped with batons. When the applicant and his family members refused, the police used force on the applicant and his mother-in-law.
17. At this time Chichek Mammadova experienced a state of shock and psychological anxiety. She poured some kerosene on herself and threatened to set fire to herself if the police officers did not leave immediately. However, the SCEA officials and police officers did not take her threats seriously. E.G. even offered her a box of matches, mockingly encouraging her to keep her word and set fire to herself.
18. At that moment, the applicant was outside trying to help one of his children, who had fainted a few moments earlier from fright. Therefore, the applicant could not immediately rescue his wife. According to the applicant, none of the police officers made an attempt to rescue her, because they were all busy carrying the applicant's possessions and loading them onto a lorry.
19. Only Chichek Mammadova's sister, who was also in the vicinity, came to her rescue and extinguished the fire. Only one police officer offered some belated assistance. By this time, Chichek Mammadova had already suffered serious burns. Her brother, who arrived shortly after the incident, took her to hospital by taxi.
20. According to the Government, at 11 a.m. on 26 March 2004 two SCEA officials, accompanied by five police officers, visited the premises occupied by the applicant's family. The aim of the visit was merely to explain to the applicant that his family was occupying these premises illegally. The applicant immediately left, together with a child of his, and went to a post office to send a complaint against the SCEA officials and the police. After the applicant had left, his wife supposed that her family would be evicted by force. She became anxious and set fire to herself in protest. None of the State officials present had provoked her to do so. A few minutes later her close relatives took her to hospital.
21. Following this, the officials decided, on the spot, to move the applicant's family's belongings back to the hostel where they had previously resided.
22. An investigator of the Sumgayit City Prosecutor's Office carried out a preliminary inquiry into the circumstances of Chichek Mammadova's death.
23. It appears that the investigator questioned a number of witnesses, including the applicant, his mother-in-law, his sister-in-law, the municipal employee K.A., the SCEA officials E.G. and Y.A., and seven police officers (J.M., C.V., N.A., E.N., N.G., N.I. and S.S.) (see summaries of the relevant witness testimonies in section F. below).
24. By a decision of 14 May 2004 an investigator of the Sumgayit City Prosecutor's Office decided not to institute criminal proceedings in connection with the death of the applicant's wife.
25. Based on the witness testimonies, the investigator concluded that there was no proof supporting the applicant's allegations that E.G. and Y.A. had entered the applicant's dwelling, that E.G. had offered matches to Chichek Mammadova, that E.G. had ever asked the applicant for a bribe, or that any police officers had used force against Chichek Mammadova. As there were no indications that any third persons had been in any way responsible for the fact that the applicant's wife had attempted suicide, there were no grounds to institute criminal proceedings.
26. Following this decision, the applicant sent a number of letters to the Sumgayit City Prosecutor's Office asking for a new investigation into the circumstances of his wife's death with a view to determining the responsibility of the SCEA officials and police officers involved in the incident. The Sumgayit City Prosecutor's Office replied, with similarly worded letters, on 15 July, 20 July, 3 September and 28 September 2004. It was noted in these letters that Chichek Mammadova's death had been suicide and that the preliminary inquiry could not establish any responsibility on the part of the State officials in her death. It was also noted, however, that:
“... during the investigation into the circumstances of the death of Chichek [Mammadova], it was revealed that officials of the City Executive Authority and certain officers of the Sumgayit City Police Office had committed a number of errors [in performing their official duties. The matter has been referred] to the senior management of the City Executive Authority and the City Police Office with a view to eliminating such errors and ensuring that they are not repeated in the future, as well as taking relevant measures against the persons who have committed these errors. ...
... moreover, a report was submitted to the Sumgayit City Police Office in respect of the officers of the Sumgayit City Police Office who exceeded their authority by participating, without a relevant court order, in an operation to evict you from the building where you had settled illegally; the officers responsible for the misconduct have been punished under the disciplinary procedure.”
27. In March 2005 the applicant lodged a complaint with the Sumgayit City Court against the decision of the Sumgayit City Prosecutor's Office of 14 May 2004. On 1 April 2005 the Sumgayit City Court dismissed the applicant's complaint and upheld the decision of 14 May 2004. It noted that the inquiry did not reveal any evidence that a criminal offence had been committed and that, therefore, the decision of 14 May 2004 was lawful.
28. On 25 May 2005 the Prosecutor General quashed the Sumgayit City Prosecutor's Office's decision of 14 May 2004 on the refusal to institute criminal proceedings. On 14 June 2005 the case was forwarded to the Binagadi District Prosecutor's Office for an additional inquiry.
29. In the period from 24 June to 12 August 2005, the investigator of the Binagadi District Prosecutor's Office questioned a number of witnesses (mostly the same ones as those who had been questioned before) and obtained written testimonies from them (see section F. below).
30. On 20 July 2005 the investigator requested an expert opinion on Chichek Mammadova's mental condition prior to her death and how it might have affected her actions leading to the suicide. In an expert opinion of 10 August 2005 an expert psychiatrist, having studied Chichek Mammadova's medical records and comments by people who had known her, concluded as follows:
“No symptoms of a psychogenic-depressive reaction potentially causing her suicide can be observed in Chichek Mammadova's personality and mental traits. However, in the period preceding Chichek Mammadova's death, she had experienced a state of emotional stress of a degree capable of influencing her behaviour.”
31. On 17 August 2005 the investigator issued a decision refusing to institute criminal proceedings. The decision stated, inter alia:
“[According to the expert opinion of 10 August 2005,] the act of self-immolation by Chichek Mammadova was carried out in an attempt to prevent [her family's eviction]. During the incident, she found herself in the extreme circumstances of facing eviction from the rooms that [her family] had occupied, and reacted inadequately by selfimmolating in an ostentatious manner, having decided that it would attract the attention of those who were around her, evoke in them feelings of compassion towards herself, and help her resolve the conflict situation she encountered. In the period preceding her death, Chichek Mammadova had experienced emotional stress of a degree that could have influenced her subsequent actions.
... the additional inquiry revealed that no other person had incited Chichek Mammadova to commit suicide by means of either ill-treating her, debasing her dignity or intimidating her.
The claims of [the applicant] have not been confirmed during the additional inquiry ... It was established that the [SCEA and police] officials had carried out their official duties in a lawful manner, had given lawful instructions and had not committed any breaches of law when implementing those instructions, and that there had been no corpus delicti in [their] actions.
Therefore ... the institution of criminal proceedings should be refused.”
32. It appears that, following this decision, the applicant sent a number of letters to the Prosecutor General's Office, complaining that the investigation into the circumstances of his wife's death had been inadequate. In letters of 22 September and 10 October 2005 the Prosecutor General's Office responded that the inquiry by the Binagadi District Prosecutor's Office did not reveal any criminal elements in the actions of the State officials and that the applicant could challenge the decision of the Binagadi District Prosecutor's Office of 17 August 2005 in the courts. The applicant did not lodge a judicial complaint.
33. On 7 June 2006 the First Deputy to the Prosecutor General quashed the decision of the Binagadi District Prosecutor's Office of 17 August 2005 on the refusal to institute criminal proceedings. Having regard to the contradictory testimonies of key witnesses and indications of possible breaches of law by the SCEA and police officials, the First Deputy to the Prosecutor General found that the inquiry had been incomplete and instituted criminal proceedings under Article 125 (incitement to suicide) of the Criminal Code. The Binagadi District Prosecutor's Office was instructed to carry out the investigation.
34. On 10 June 2006 the applicant was given the procedural status of a “legal successor to a victim of crime”. In June and July 2006 the applicant submitted to the investigator a number of petitions requesting him, inter alia, to summon certain additional witnesses and to remove certain SCEA and police officials from their official posts during the investigation period. On 1 August 2006 the investigator rejected these petitions.
35. It appears that the investigator again questioned mostly the same group of witnesses who had been questioned before (see paragraphs 23 and 29 above and section F. below).
36. On 7 September 2006 the three-month investigation period was extended for another two months.
37. On 1 October 2006 the investigation was suspended. On 14 November 2006 it was resumed. No documents are available in the case file in respect of these procedural events.
38. On 15 November 2006 the investigator from the Binagadi District Prosecutor's Office again suspended the investigation, owing to the inability “to determine the perpetrator of the criminal offence” of incitement to suicide.
39. The applicant lodged a judicial complaint against the investigator's decision of 15 November 2006 to suspend the investigation. On 19 March 2007 the Binagadi District Court quashed the impugned decision and instructed the Binagadi District Prosecutor's Office to resume the investigation. The court noted, inter alia:
“It appears from the material in the case file that the criminal investigation has not been full and comprehensive, and there was no basis for suspending the criminal proceedings as no face-to-face confrontations between witnesses have been held, and it has not been determined whether there were lawful grounds for the [SCEA and police] officials to enter the residential premises and remove the victim's belongings from there, whether the police officers indeed went to the scene of the incident with the aim of carrying out prophylactic measures, whether such prophylactic measures were lawful, whether any physical force were used against the residents of the premises, and whether the [State officials] at the scene of the incident abused their official authority.”
40. On 9 April 2007 the investigation was resumed. However, on 25 April 2007 the investigator of the Binagadi District Prosecutor's Office decided to suspend the investigation again. In his decision he noted that, after the resumption of the investigation on 9 April 2007, “a number of investigative steps ha[d] been carried out”; however, it was still impossible to determine the perpetrator of the offence of incitement to suicide. The nature of such investigative acts was unspecified.
41. The applicant lodged a judicial complaint against the investigator's decision of 25 April 2007 to suspend the investigation. On 7 June 2007 the Binagadi District Court dismissed the applicant's complaint and upheld the investigator's decision. On 4 July 2007 the Court of Appeal upheld the Binagadi District Court's decision.
42. On 16 September 2008 the investigator of the Binagadi District Prosecutor's Office issued a decision terminating the criminal proceedings on account of the absence of corpus delicti for the purposes of Article 125 of the Criminal Code in the actions of any of the persons involved in the incident resulting in the applicant's wife's self-immolation. The decision contained, inter alia, the following findings:
“From 5 March 2004 the [SCEA] became aware of the fact that [the applicant and his family] had changed, of their own free will [without authorisation], their place of residence and were illegally residing in a State-owned non-residential building. Despite several early warnings given by [SCEA and police] officials, [the applicant and his family] continued to illegally reside in those non-residential premises.
At around 11 a.m. on 26 March 2004, pursuant to an instruction by the [SCEA's] senior administration, [SCEA officials E.G. and Y.A.], police officers [N.G., E.N., N.A., C.V.], and the Deputy Head of the Sumgayit City Police Office J.M. went ... to the above address to have a prophylactic conversation with [the applicant and his family].
During the prophylactic conversation ... Chichek Mammadova became anxious and, having presumed that [her family] would be evicted from the premises, poured kerosene on herself and ignited it; a state of tension ensued at the scene of the incident; Chichek Mammadova was taken to hospital by her relatives; her husband [the applicant] had left the scene prior to Chichek Mammadova's self-immolation to send a complaint by telegram; as a result, a process of eviction was started in accordance with an instruction given on the spot by [E.G. and Y.A.]; the police officers loaded [the applicant's] belongings onto a lorry and transported them to [the hostel where the applicant's family had previously lived] and delivered them to [R.N.], the superintendent of the hostel.
It has been determined that the senior administration of [the SCEA] sent [E.G. and Y.A.] with the purpose of carrying out prophylactic measures in respect of the internally displaced persons who were illegally occupying the State-owned nonresidential premises in order to ensure that [the latter] vacated the premises voluntarily, and that the senior management of [the SCEA] did not instruct its officials to evict the internally displaced persons by force. However, after [the applicant's] wife Chichek Mammadova, who was suffering from a mental illness, had set fire to herself, [E.G. and Y.A.] instructed the police officers to move out the [applicant's] belongings, organised the transportation of those belongings to the hostel..., delivered them to the superintendent [R.N.] and signed a deed of delivery. ...
It has been determined that, pursuant to an oral instruction from [the SCEA], the police officers were sent to the above-mentioned address by the administration of the Sumgayit City Police Office in order to participate in carrying out the prophylactic measures and, after the act of self-immolation by Chichek Mammadova, received an instruction directly from [E.G. and Y.A.] to move [the applicant's] belongings.
[Summaries of witness testimonies and forensic evidence follow.]
Pursuant to Article 5 of the Law on Social Protection of Internally Displaced Persons and Individuals Equated to Them of 21 May 1999, the relevant local executive authorities are responsible for temporary housing of internally displaced persons. Internally displaced persons may be allowed to settle temporarily on their own only if the rights and lawful interests of other persons are not infringed. Otherwise, the relevant executive authority must ensure resettlement of the internally displaced persons to other accommodation ...
Pursuant to clause 4 of the Regulations on Resettlement of Internally Displaced Persons to Other Accommodation, adopted in Cabinet of Ministers Resolution No. 200 of 24 December 1999, in cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals, the local executive authorities must provide the former with other suitable accommodation.
According to a statement received from the Sumgayit City Court, there has been no judicial order for the eviction of [the applicant] from the premises where he had settled.
[A summary of the expert opinion on Chichek Mammadova's mental state follows.]
The investigation did not reveal evidence in support of [the applicant's] allegations that [the SCEA] officials demanded a bribe from him, abused or exceeded their authority, or unlawfully evicted [the applicant's family], or that the police officers ... abused or exceeded their authority, or used force against [the applicant] and his family members or his mother-in-law. The decisions and actions of [the SCEA and police] officials taken in connection with the premises illegally occupied [by the applicant's family] were lawful and did not transgress the limits specified by the legislation [in force]. The actions of [the SCEA and police] officials did not contain any elements of offences under Articles 308, 309, 311 and 125 of the Criminal Code or any other criminal offences.
Moreover, the investigation revealed no indications that Chichek Mammadova was driven to commit suicide by way of ill-treatment debasing her dignity or threatening her, and found no person guilty of such acts. No elements of an offence under Article 125 of the Criminal Code have been established in the actions of any person [in connection with this incident].”
43. Below are summaries of testimonies of the witnesses questioned at various times by the investigation authorities in the course of the abovementioned proceedings. The summaries have been derived either from copies of the witness depositions submitted by the Government in their observations or from the texts of the investigation authorities' decisions, or both. It appears that a number of the witnesses were questioned more than once; in such cases, the summary includes the content of all their testimonies.
44. The applicant testified that, prior to 26 March 2004, he had been called to the SCEA several times and had been demanded to vacate the premises in the Sumgayit Commissariat. On one occasion, he had been accompanied to the SCEA by a police officer, C.V. The applicant claimed that, during these meetings with the SCEA officials, he had been asked for a bribe.
45. At 11 a.m. on 26 March 2004 K.A. knocked on the applicant's door and did not tell him the real reason for her visit when he asked. When he opened the door, K.A. entered the dwelling with E.G., followed by police officers N.I., S.S. and C.V. (whom the applicant identified by their first names), and several other police officers unknown to him. A “large number” of other unknown police officers remained outside. N.I., S.S. and C.V. used force on the applicant immediately after they had gone inside. The applicant's wife, who witnessed this, asked the police officers why they were doing this and threatened to set fire to herself. In reply, E.G. mockingly challenged her to do so. At that moment, the applicant was able to escape from the police officers and go outside in search of a phone to call his relatives for assistance. When he came back, he saw a burnt blanket at the entrance of the dwelling and found out that his wife had performed selfimmolation and had been taken to hospital. He went to the hospital to see his wife. From the hospital he went to a post office to send telegrams to various authorities complaining about the incident. When he came back to his dwelling from the post office, he saw that his possessions had been removed.
46. The testimony of the applicant's mother-in-law mostly corroborated the applicant's statements. Unlike him, she was inside the dwelling during the entire incident. She estimated that there had been around twenty to twenty-five officials and police officers during the incident and noted that they all had entered the dwelling. She also noted that, at one point, police officer N.I. had used force on the applicant by twisting his arms. She further submitted that E.G. had gone inside the dwelling and provoked Chichek Mammadova by offering her a box of matches. Following this, Chichek went into another room and emerged from it burning. One of the police officers helped put out the fire by throwing a blanket and a carpet on Chichek Mammadova.
47. The applicant's sister-in-law was in accord with her mother's testimony.
48. E.G. stated that the applicant and his family members had been notified earlier about the illegality of their actions and had been asked to vacate their dwelling in the Commissariat building. On 25 March 2004 S.R., a head of department at the SCEA, instructed him and another colleague of his (F.K.) to participate, as “observers” from the SCEA, in the “prophylactic measures” that would be taken the next day in connection with the applicant's illegal occupation of part of the Commissariat building. On 26 March 2004 he went to that address together with Y.A., while F.K. joined them much later. There were already an unspecified number of police officers there. An unspecified number of unidentified relatives and friends of the applicant were also there. The latter verbally insulted him and Y.A. The Deputy Head of the Sumgayit City Police Office (J.M.) was also there and spoke to the applicant about vacating the premises.
49. E.G. specified that K.A. had knocked on the applicant's door and, immediately after it had been opened, several policemen had gone inside and spoken to the applicant. E.G. himself was standing, together with Y.A., outside the building, about 40-50 metres away from the entrance to the applicant's dwelling. “A little while later”, he heard screams from inside the applicant's dwelling and saw the police officers bring out Chichek Mammadova, who was badly burnt and was then taken to hospital. The applicant was not there at this time, as he had gone away somewhere. After Chichek Mammadova had been driven away, the premises occupied by the applicant and his possessions were left unattended by his family members, so they were loaded onto a lorry and taken to a more “secure place”, that is, the hostel where the applicant had lived before.
50. E.G. denied speaking to the applicant prior to the incident and asking for any bribe from him. He also denied offering any matches to Chichek Mammadova and repeatedly insisted that he had been standing outside when she had immolated herself. He noted that the police officers had not used any force against the applicant or his family members. He also denied issuing any instructions to move the applicant's possessions out of the dwelling and stated that the police officers had decided to do so by themselves.
51. Y.A. testified that, on 26 March 2004, his colleagues E.G. and F.K. had asked him to accompany them to the premises that the applicant had illegally occupied. When they arrived, there were already an unspecified number of police officers and an unspecified number of the applicant's relatives and friends. He and E.G. were standing outside the building, a significant distance away from the entrance to the premises occupied by the applicant. A little while later, they heard a commotion inside the premises and saw several police officers run inside. The latter brought out a badly burnt woman and sent her to a hospital. One of the police officers, E.N., helped put out the fire and, as a result, suffered a burn injury to his hand. (However, in another deposition Y.A. slightly changed his recollection of the above events and specified that, after K.A. and several police officers had knocked on the applicant's door, they had all gone inside. A little while later, Y.A. heard screams from the inside and heard the police officers bring out Chichek Mammadova.)
52. The applicant, by this time, had gone away somewhere else and there was a state of confusion and disarray at the scene of the incident. Therefore, the applicant's possessions were loaded onto a lorry and taken to a more secure place (the hostel) for “temporary storage”. Subsequently, the applicant reclaimed his possessions and took them back to the same premises in the Commissariat building that he had illegally occupied.
53. Y.A. insisted that he and E.G. had been standing outside when Chichek Mammadova had immolated herself and that E.G. had never offered any matches to her. He submitted that the police officers had not used any force against the applicant or his family members.
54. F.K. testified that S.R., a head of department at the SCEA, had instructed him and E.G. to participate, as “observers” from the SCEA, in the “prophylactic measures” that would be taken the next day in connection with the applicant's illegal occupation of the premises in the Commissariat building. However, in the early morning of 26 March 2004 he was away on another assignment and arrived at the scene of the incident only after Chichek Mammadova had immolated herself. He had assisted in the transportation and delivery of the applicant's possessions to the hostel's superintendent.
55. S.R. testified that, in early March 2004, he had received information that a family of internally displaced persons had illegally settled in the administrative building of the Sumgayit Commissariat. Thereafter, the applicant came to the SCEA to meet him personally and asked him to allow his family to stay in that building. However, S.R. refused, stating that the applicant's actions were illegal.
56. He further noted that, on 26 March 2004, he had instructed E.G. and Y.A. to go to the applicant's premises and have a “prophylactic conversation” with the latter. He also requested the Sumgayit City Police Office to send some police officers there in order to “avoid any incidents”. However, S.R. insisted that he had not instructed either E.G. and Y.A. or the police officers to evict the applicant's family by force. The applicant's possessions were moved out of the premises only after the act of selfimmolation by Chichek Mammadova pursuant to a decision taken on the spot by the SCEA officials, in order to preserve the possessions from possible theft in the atmosphere of confusion which ensued at the scene of the incident.
57. J.M. testified that he had received an oral instruction to carry out a “prophylactic conversation” with the applicant's family and to protect public order at the site during such “prophylactic” measures. For this purpose, he sent police officers E.N. and N.G. to the Commissariat building. He himself also went there at around noon on 26 March 2004 and talked to the applicant and the SCEA officials who were already there. About 5-10 minutes after his arrival, he heard screams from inside the applicant's dwelling and saw E.N. and N.G. go inside. The latter helped to put out the fire on Chichek Mammadova's body and to send her to hospital. Thereafter, he called more police officers to the scene in order to restore order and preserve the applicant's possessions.
58. C.V. testified that on 26 March 2004 he and his colleague N.A. had been told that the authorities would carry out a “prophylactic conversation” with the applicant and had been instructed to go to the Commissariat building with the aim of protecting public order. When they arrived at the site, there were four other police officers (J.M., E.N., N.G. and S.S.), as well as E.G., Y.A. and K.A. Then K.A. knocked on the door and the applicant came out. The applicant and J.M. engaged in a conversation. The other police officers, including himself, were standing nearby. E.G. and Y.A. were standing about 30 metres from the entrance to the dwelling. While J.M. and the applicant were talking, C.V. heard screams from inside. He and two other police officers (N.A. and E.N.) went inside and saw Chichek Mammadova on fire, coming out of a back room. The police officers, including himself, put out the fire on her body by throwing blankets on her. At this time, the applicant went away somewhere, possibly to a post office. About 15 minutes later, one of Chichek Mammadova's relatives arrived and took her to hospital. Out of the applicant's family, only the applicant's elderly mother-in-law remained at the scene and she was in a state of shock because of her daughter's suicide attempt. The applicant's home possessions were essentially left unattended at this moment, so they were loaded onto a lorry and taken to a more secure place.
59. C.V. denied applying any force or pressure on the applicant or his family members. He did not assist in moving out the applicant's possessions.
60. N.A. testified that on 26 March 2004 he had received an instruction from his superiors to go to the Commissariat building with the aim of protecting public order during the eviction of the applicant's family. He went there together with C.V., another police officer. At an unspecified moment, he heard screams from inside the applicant's premises, and he and other police officers ran inside and saw Chichek Mammadova on fire. They helped put out the fire and took her to hospital. He returned to the scene around two hours later and saw that the applicant's possessions had been loaded onto a lorry. He denied applying any force or pressure on the applicant or his family members. According to him, E.G. was standing outside when Chichek Mammadova immolated herself, never went inside the applicant's premises and never offered her matches.
61. E.N. testified that on 26 March 2004 he had been told that the authorities would carry out a “prophylactic conversation” with the applicant and had been instructed to go to the Commissariat building with the aim of protecting public order. The aim of the “prophylactic conversation” was to persuade the applicant to vacate the illegally occupied premises voluntarily. There were a total of five police officers at the site (including himself, J.M., C.V., N.A. and N.G.). E.G. and Y.A. were also there and were standing some distance away from the premises, because the applicant's relatives and friends kept insulting them. During J.M.'s conversation with the applicant, E.N. heard screams from inside the premises and immediately ran there. He saw a woman on fire. He took a blanket and extinguished the fire on her body. While doing this, he himself was injured, suffering a burn to his hand.
62. E.N. denied applying any force or pressure on the applicant or his family members. He also did not assist in moving out the applicant's possessions, as he had to leave the scene to receive medical treatment for his injury.
63. N.G. testified that on 26 March 2004 he had been told that the authorities would carry out a “prophylactic conversation” with the applicant and had been instructed to go to the Commissariat building with the aim of protecting public order. He went there together with E.N., his colleague. While one of the police officers engaged in conversation with the applicant, E.G., Y.A. and all the police officers (including himself) were standing outside. At this moment, he heard screams from inside the premises. He and E.N. went inside. E.N. extinguished the fire on Chichek Mammadova's body and, while doing this, suffered an injury to his hand. He accompanied E.N., who needed medical treatment, to hospital. Chichek Mammadova was taken to hospital by her relatives. When he returned about an hour later, he saw that the applicant's possessions were being loaded onto a lorry by the applicant's own relatives and friends. Police officers were occasionally assisting them.
64. N.G. denied applying any force or pressure on the applicant or his family members. He insisted that all the police officers had been standing outside the applicant's premises when Chichek Mammadova had set fire to herself inside the premises. E.G. and Y.A. were also outside, further away from the building. Police officers N.I. and S.S. were not at the scene of the incident at the time of Chichek Mammadova's suicide attempt and arrived only after the incident.
65. N.I. was a police officer whom the applicant and his mother-in-law specifically identified by first name in their statements, alleging that N.I. had used force against the applicant.
66. N.I. testified that at around noon on 26 March 2004 he had received information that a woman had immolated herself at the Commissariat building and that a large crowd of people had gathered there. He went to the Commissariat building and saw a lorry loaded with various household items. He enquired of the officials who were there what had happened. He then left the site.
67. N.I. insisted that he had not participated in this operation, that he had not been at the scene of the incident at the time when Chichek Mammadova had attempted suicide, that he had not met the applicant before, and that he was unaware of any reasons why the applicant had specifically mentioned his name in his complaints.
68. S.S. was a police officer whom the applicant identified by first name in his testimony, alleging that S.S. had used force against him.
69. S.S. testified that at around noon on 26 March 2004 he had received an instruction by portable radio to go to the Commissariat building. When he arrived there at around 12.30 p.m., he found out that a woman had committed an act of self-immolation and had been taken to hospital. Other police officers told him the entire story. After he arrived, he only witnessed how the applicant's possessions were being loaded onto a lorry by the applicant's own relatives and friends. Police officers were occasionally assisting them. Out of the applicant's family, only his elderly mother-in-law was there. The applicant and his child had gone.
70. S.S. insisted that he had not been at the scene of the incident at the time when Chichek Mammadova had attempted suicide and that neither he nor any other police officer had used any force against the applicant or his family members.
71. K.A. stated that on 26 March 2004 her colleague at the Housing Maintenance and Utilities Board, B.I., had requested her to go to the applicant's dwelling following an instruction received from the SCEA. When she arrived there, she saw E.G., Y.A. and five or six police officers. E.G. and Y.A. told her that they needed a female to knock on the applicant's door and asked her to do it. When the door was opened, both the police officers and the SCEA officials quickly entered inside. Before she knocked on the door, Y.A. had also instructed her to procure a lorry. Therefore, she immediately left the scene after knocking on the door. For this reason, she did not witness the act of self-immolation by the applicant's wife. When she returned to the scene of the incident about 30 minutes later, she heard that Chichek Mammadova had attempted suicide and had been taken to hospital. K.A. was then asked to enter the applicant's dwelling and write an itemised list of the applicant's household items that were being loaded onto the lorry. She did not want to do this, but did so under forceful orders from the SCEA officials.
72. B.I. stated that he had gone to the applicant's dwelling together with K.A., but had left before all the events had happened because of other urgent business. During the short period when he was there, he saw five or six police officers standing near the Commissariat building and E.G. and Y.A. standing a little further away.
73. T.M. testified that at around 1 p.m. on 26 March 2004 she had heard about the incident in the Commissariat building. She immediately went there together with a camera operator. However, when they arrived, everything was over and they could not get any video footage of the relevant events. Thereafter, she went to the hospital where Chichek Mammadova had been taken, but was not able to interview her.
74. R.N. was the superintendent of the State-owned hostel where the applicant's family used to live before they moved to the new dwelling at the Commissariat building. According to him, the applicant's family lived in his hostel from 1994 to January 2004. The applicant's wife suffered from a “nervous disease” and was “mentally unstable”. In January 2004 the applicant's family left the hostel. On 26 March 2004 the SCEA officials and police officers brought the applicant's household possessions back to the hostel for “temporary storage” (as they explained). He signed the list of items and locked the applicant's possessions in a separate room. On 6 April 2004 the applicant reclaimed his possessions.
75. N.Q. testified that, prior to the applicant's eviction from his dwelling, he had gone to the SCEA together with the applicant with the purpose of obtaining permission for the applicant to stay in the dwelling. He noted that, during that meeting, the SCEA officers had explained to the applicant that he was occupying the dwelling illegally. They had not demanded any bribes from the applicant in return for permission to stay there.
76. S.B. was a member of an association of veterans which occupied part of the premises in the Commissariat building. He described in general how the applicant had carried out repair works in his dwelling. He noted that there had been no objections from any State authorities during the time when the applicant had carried out the work.
77. Article 2 of the Law on Social Protection of Internally Displaced Persons and Individuals Equated to Them of 21 May 1999 (“the IDP Social Protection Act”) provides as follows:
“Persons displaced from the place of their permanent residence in the territory of the Republic of Azerbaijan to other places within the territory of the country as a result of foreign military aggression, the occupation of certain territories or continuous gunfire shall be considered internally displaced persons subject to the provisions of this Law.”
78. Article 5 of the IDP Social Protection Act provides as follows:
“The relevant executive authority [the Cabinet of Ministers, the State Committee on Refugees' Affairs and local executive authorities, within the scope of their respective competence] shall deal with the housing of internally displaced persons. Residential, administrative and auxiliary buildings, as well as other buildings, shall be used for such housing purposes. Where there is no possibility of housing internally displaced persons in such buildings or where the population density in a specific settlement does not allow such a possibility, they shall be settled in camps specially set up for internally displaced persons. ...
Internally displaced persons may be allowed to temporarily settle on their own only if the rights and lawful interests of other persons are not infringed. Otherwise, the relevant executive authority must ensure resettlement of the internally displaced persons to other accommodation...”
79. Clause 4 of the Regulations on Resettlement of Internally Displaced Persons to Other Accommodation, adopted by the Cabinet of Ministers in Resolution No. 200 of 24 December 1999 (“the IDP Resettlement Regulations”), provides:
“In cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals, the former must be provided with other suitable accommodation.”
80. Article 125 (“Incitement to suicide”) of the Criminal Code provides as follows:
“Incitement of a person who is dependent on the inciter for material, service-related or other reasons to commit or attempt suicide by means of cruel treatment of this person, or by means of systematic denigration of his dignity, or by means of threats
shall be punishable by restraint of liberty for a term of up to three years or by imprisonment for a term of three to seven years.”
81. Articles 308, 309 and 311 of the Criminal Code deal respectively with the criminal offences of abuse of official authority, excess of official authority and bribe-taking.
82. By Article 87.6 of the Code of Criminal Procedure (“the CCrP”), a person recognised as a “victim of crime” has, inter alia, the following procedural rights: to submit material to the criminal case file; to request the status of a private prosecutor at any pre-trial stage; to object to 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); and to lodge appeals against procedural steps or decisions. 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).
83. On being informed about acts of a criminal character that are planned or have been carried out or on discovering a criminal event by himself or herself, a preliminary investigator, investigator or prosecutor must take the necessary steps to preserve and obtain the relevant evidence and must immediately begin an investigation (Article 38.1). The initial grounds for instituting criminal proceedings may be either statements about a planned or committed criminal offence submitted by individuals, or information received from companies, officials and the mass media, or direct discovery of a criminal offence by a preliminary investigator, investigator or prosecutor (Article 46.2).
84. Parties to criminal proceedings (and other persons involved in such proceedings in cases specified in the CCrP) are entitled to complain about procedural steps or decisions by the criminal prosecution authority. Procedural steps or decisions by the preliminary investigator or the investigator may be appealed against to the supervising prosecutor and the procedural steps or decisions of the latter may be appealed against to the hierarchically superior prosecutor (Articles 122.2.1 and 122.2.2). Certain types of procedural steps or decisions (of the preliminary investigator, investigator or supervising prosecutor) specified in Article 449.3 of the CCrP may be appealed against directly to the supervising court (Article 122.2.3).
85. A decision not to institute criminal proceedings is taken by a preliminary investigator, investigator or supervising prosecutor when there are no lawful grounds for instituting criminal proceedings (Article 212.1). Within 24 hours after its issuance, this decision is sent to the supervising prosecutor as well as to the person who had informed the law-enforcement authorities about the alleged criminal offence (Article 212.2). A decision not to institute criminal proceedings may be appealed against to the supervising prosecutor, or a prosecutor hierarchically superior to the supervising prosecutor, or to the supervising court (Article 212.3). If an appeal is lodged with the supervising court, the latter may either (a) quash the decision and draw the supervising prosecutor's attention to any breaches of the CCrP's provisions concerning the procedure for criminal inquiries and requirements for instituting criminal proceedings, or (b) uphold the decision not to institute criminal proceedings (Article 212.4.2).
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 2


ITEMID: 001-4861
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: MOORE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1950 and living in Bristol. He is represented before the Court by Mr B.C. Cox, a lawyer practising in Bristol
A.
In 1978 the applicant purchased Highcroft, a house and garden in Mangotsfield, Bristol, for GBP 23,000. At that time the property was in open countryside and according to the structure plan prepared pursuant to the Town and Country Planning Act 1971 (“the 1971 Act”), no significant development was planned for the area. The value of properties in the United Kingdom increased substantially, and by 1985 Highcroft was worth approximately GBP 150,000. On 16 April 1985, and again on 13 December 1989, the applicant was granted mortgage advances secured against his property.
In 1983, pursuant to the 1971 Act, Avon County Council proposed amendments to the structure plan, to permit a large development (the Emerson Green Development Plan, henceforth “the Plan”) consisting of three thousand, one hundred homes, a business park and an international science park. A consortium, the Emerson Green Development Company Limited, consisting of a number of national and international companies, was formed to develop the Plan. In July 1985 the Secretary of State modified and approved the structure plan. In 1985 representatives of Avon County Council and the Consortium met with small land-owners and assured them that their properties would be purchased at full value. The applicant’s property is situated within the area of the proposed science park and in 1987 planning permission was granted to convert it into a hotel.
In 1986 the applicant’s marriage failed. He appointed a firm of chartered surveyors to act on his behalf in negotiations for the sale of his property. On 20 November 1989 they reported an offer of GBP 150,000, which they recommended should be refused since it was some GBP 30,000 short of the market value at that time.
By January 1992 the Consortium had acquired 75% of the land covered by the Plan, which was disclosed on all searches made by potential purchasers, thus putting small home-owners such as the applicant in a weak bargaining position. In the early 1990s the applicant became unemployed and had difficulties in making his mortgage repayments. His attempts to sell Highcroft continued to be unsuccessful and by 21 September 1995, the chartered surveyors advised that the property was virtually unsaleable. In May 1996, the applicant owed the bank in excess of GBP 174,000. The property was repossessed and has remained vacant ever since. The bank report that in February 1998 they received an offer of GBP 135,000. The applicant has been advised that, but for the Plan, Highcroft’s market value would be around GBP 220,000.
In September 1997 Professor Anthony Bradley advised the applicant that he has no right under the Town and Country Planning Act 1990, Part VI, to require the local authority to purchase his property since the developers of the proposed science park are private rather than public authorities, and since Highcroft has been capable of use as a family home (“reasonably beneficial use”) throughout the relevant period (see below).
B. Relevant domestic law and practice
Where a proposed development is to be undertaken by a public authority, the “planning blight” that ensues may in some circumstances give rise to compensation. Thus the Town and Country Planning Act 1990 (“the 1990 Act”), Part VI, Chapter I, gives an owner a right to require the planning authority to buy his property where, as a result of a planning decision, the land has become “incapable of reasonably beneficial use” (sections 137-138).
The 1990 Act further provides in Part VI, Chapter II, that owners have a right to require the planning authority to purchase land affected by “planning blight”, namely land “which may be required for the purposes of the functions of a government department, local authority or statutory undertakers, or of the British Coal Corporation” or land in an “action area” selected by the local authority for comprehensive treatment (Schedule 13, paragraph 1(a) and (b)).
The Parliamentary Ombudsman in his report on the problems of blight caused by the Channel Tunnel Rail Link (HC 193, 1994-95) pointed out that the statutory definition of planning blight is much narrower than the actual problem of blight caused by uncertainty over an area’s future.


ITEMID: 001-80349
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KARUNA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Aleksandr Dmitriyevich Karuna, is a Ukrainian national who was born in 1953 and lives in Vinnytsia. He is represented by Mr Paliy, a lawyer practicing in Vinnytsia region. The respondent Government are represented by Mr Yuri Zaytsev, its Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was discharged from the Military Forces on 14 September 1998 due to his bad state of health. The amount of his pension was determined on 25 December 1998.
In October 2004 the applicant instituted proceedings in the Leninsky District Court of Vinnytsia (the “Leninsky Court”) against the Vinnytsia Military Commissariat, seeking recalculation of his pension in view of the changes introduced to the legislation after his discharge.
On 12 May 2005 the Leninsky Court, in the absence of the respondent, dismissed the applicant’s claims as being unsubstantiated. In particular, it found that the applicant was not entitled to such an increase and that the amended legislation did not apply retroactively to the determination of the amount of his pension.
On 14 May 2005 the Commissariat informed the President of the Leninsky Court that it no longer intended to participate in civil proceedings concerning recalculation of pensions. It asked the President of that court to consider these cases in the absence of the Commissariat’s representative. It also filed written objections.
On 2 August 2005 the Vinnytsia Regional Court of Appeal upheld the judgment of 12 May 2005.
The applicant lodged an appeal in cassation with the Supreme Court.
On 27 October 2005 the Supreme Court, acting under paragraph 10 of Chapter 10 of the Transitional Provisions of the Code of Administrative Justice, transmitted the case-file to the Higher Administrative Court for examination. It adopted no formal procedural decision on the transfer, or lack of, jurisdiction to hear cassation appeals in administrative cases.
On 18 January 2006 the Higher Administrative Court rejected the applicant’s appeal in cassation as unsubstantiated. In particular, it upheld the reasoning of the Leninsky Court and the Vinnytsia Regional Court of Appeal. The Higher Administrative Court ruled that the previous court decisions were correct as they were based on the Resolution of the Plenary Supreme Court no. 4 of 15 April 2004.
On 1 June 2006, following communication of the case to the respondent Government, the Supreme Court gave a formal ruling by which it referred the applicant’s cassation appeal lodged with the Supreme Court to the Higher Administrative Court.
The applicant lodged no appeal in cassation with the Supreme Court against this decision.
1. Constitution of Ukraine, 28 June 1996
Article 125
“In Ukraine the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation.
The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction.
The respective high courts are the highest judicial bodies of specialised courts.
Courts of appeal and local courts shall operate in accordance with the law.
The creation of extraordinary and special courts shall not be permitted.”
2. Law of Ukraine on the Judicial System of 21 June 2001
Section 47
The Supreme Court of Ukraine - the highest judicial body
“1. The Supreme Court of Ukraine is the highest judicial body within the system of courts of general jurisdiction ...
2. The Supreme Court of Ukraine:
1) examines in cassation proceedings the decisions of courts of general jurisdiction in cases which, in accordance with procedural law, fall within its jurisdiction and / or re-examines all cases considered by courts of general jurisdiction...”
In accordance with Article 210 of the Code the court of cassation in administrative cases is the Higher Administrative Court of Ukraine.
Under Article 211 of the Code the parties to administrative proceedings may lodge cassation appeals with the Higher Administrative Court against the judgments or rulings of the first instance court and the court of appeal. The grounds for appeal in cassation are an erroneous application of the procedural or substantive law.
In accordance with Article 223 of the Code, the Higher Administrative Court can quash or amend judgments and rulings of the first instance courts and the courts of appeal or adopt a new judgment upon appeal in cassation.
In accordance with Article 235 of the Code, the Supreme Court reviews the decisions of the Higher Administrative Court in the course of extraordinary review proceedings (в порядку виключного провадження). In accordance with Article 235 § 2 such a review is a type of cassation review of the case. Under Article 237 of the Code, one of the two grounds for review is the lack of coherence in judicial practice and the difference in application of the same legal provision by different higher courts that examine appeals in cassation (Higher Administrative Court and Higher Commercial Court). The Supreme Court may also re-examine the case if there was a finding of an international judicial body that a judicial decision in an administrative case infringed Ukraine’s international obligations.
In accordance with paragraph 10 of Chapter VII of the Transitional Provisions of the Code, appeals in cassation which concern decisions of the courts of general jurisdiction (civil and commercial proceedings) given in administrative cases and which have not been examined by the Supreme Court by 1 September 2005 shall be transferred for examination to the Higher Administrative Court.
Article 43 of the Law states that the pensions shall be calculated on the basis of the salary paid to them, military rank, post occupied, time-in-service, etc. and other conditions determined by the Cabinet of Ministers.
On 25 March 2005 the Law was amended and the amounts of pensions were increased by 100%.
Paragraph 8 of the Resolution of the Plenary Supreme Court stated that, in accordance with Article 63 of Law no. 2262-ХІІ and paragraph 8 of Resolution no. 393 of the Cabinet of Ministers of Ukraine of 17 July 1992, recalculation of previously determined amounts of pensions should be effected with due regard to the base salary. Other relevant factors should be taken into account (payment for rank, position, time-in-service, conditions of military service, secrecy, etc.).
More specifically, the Plenary Court drew the courts’ attention to the fact that the pension legislation which was in force before 1 January 2005 did not provide for recalculation of pension on the basis of new changes introduced into legislation after the persons concerned had been discharged from the military. In particular, the Plenary Court considered that the Law no. 1769-ІV, which entered into force on 1 January 2005, did not have retroactive effect and therefore claims for recalculation of pension based on the changes to the base military salary or additional payments that were introduced after a person’s discharge from the military (i.e. before 1 January 2005) should not be allowed. Persons discharged from the military, who were given higher ranks after their retirement or discharge, had no right to recalculation of previously determined pension amounts.
In paragraph 9 of its Resolution, the Plenary Supreme Court informed the courts that a new law no. 2255-ІV governing the issues of recalculation of pensions for former military servicemen would become effective as of 1 January 2006. Under the new law, all military pensions should be subjected to recalculation in the event of any changes introduced to constituent parts of the payments for acting military servicemen (payment for rank, time-in-service, post occupied, etc.). Recalculation of pensions shall be effected from the date of recognition of this right and within the time-limits established by Article 51 § 2 of Law no. 2262-ХІІ. The Resolution also stated that under the new law military pensions should be recalculated, but without retroactive effect.
In accordance with paragraph 10 of the Resolution, recalculation of pensions under Article 51 of the Law no. 2262-ХІІ should be effected from the first day of every month following the month in which recalculation of pension was authorised by law. The Plenary Court informed the courts that where, in accordance with the legislative changes, a pensioner had obtained a right to an increase in his the pension, the difference should be paid for a period not exceeding twelve months.
The Plenary Court Resolution also recommended that in examining the instant category of cases the courts should take into account the categories of military servicemen discharged from the military due to its reform (Law of 15 June 2004 no. 1763-IV that entered into force on 8 July 2004). The law covered all military servicemen discharged from the military as of 1 January 2004 (Article 3 § 2 of the Law no. 1763-IV). In accordance with paragraph 11 of Article 1 of the Law no. 1763-IV, former military servicemen, who had attained the age of 45 and had served in the military for at least 15 years could receive an increase in the amount of pension of no more than 50 % of the base salary. The amounts of pensions were to be determined in accordance with the Law no. 2262-ХІІ.
In accordance with paragraph 14 of the Resolution, the courts in examining military pension cases had to take into account that under Article 55 of the Law no. 2262-ХІІ the amounts of pensions already determined for their recipients under the law were to be paid for the previous period of no more than three years before the pensioner requested recalculation. Also, the sums of pension not received by the pensioner due to the fault of the body determining the amount of pension were to be paid for the previous period without any time limitation.
Under paragraph 15 of the Resolution of the Plenary Court, pensioners had the right to receive compensation for pecuniary and non-pecuniary damage, in accordance with the procedure established by law (Article 17 of the Law no. 2011-ХІІ “On Social and Legal Protection of the Military Servicemen and Members of their Families” of 20 December 1991).
The Government provided the following resolution of the Administrative division of the Supreme Court:
- Resolution of 14 February 2006 (case no. 21-321 во 05);
- Resolution of 18 April 2006 (case no. 21-138 сво 05);
- Resolution of 23 May 2006 (case no. 21-238 во 05);
- Resolution of 4 July 2006 (case no. 21-60 во 06).
The applicant referred to the following judgments given by the Leninsky District Court of Vinnytsia, in which the claimants’ requests for recalculation of their pensions were allowed:
- judgment of 6 October 2004 (case no. 2-8/85/04p.);
- judgment of 21 January 2005 in the case of B.V.V. against the Military Enlistment Office;
- judgment of 24 February 2005 (case no. 2-814/05p.);
- judgment of 24 February 2005 (case no. 2-741/05p.);
- judgment of 19 April 2005 (case no. 2-2061/05p.);
- judgment of 13 May 2005 (case no. 2-2889/05p.).
The Government referred to the following judgments given by the domestic courts, in which the claims for recalculation of pensions were rejected:
- rulings and judgments of the L’viv Regional Court of Appeal of 28 February (two rulings) and 28 March (four judgments) 2005.


ITEMID: 001-67908
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: BISERICA SFANTUL HARALAMBIE AND OTHERS v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: Biserica Sfantul Haralambie (Saint Haralambie Church, hereinafter “the applicant church”), is a church registered in Moldova. The second, third, fourth and fifth applicants (Mr Mihail Gondiu, Mr Arcadie Bulban, Mr Dumitru David, Mr Dumitru Croitoru) are Moldovan nationals, were born in 1959, 1931, 1947 and 1948, respectively and they live in Chisinau. All applicants are represented before the Court by Mr A. Guzun, a lawyer practising in Chisinau.
The facts of the case, as submitted by the applicants, may be summarised as follows.
By a decision of 1995, the Government decided to return to the applicant church a church building together with three auxiliary buildings and to repair the church. The restitution and repair was to be carried out within five years of the decision. However, the authorities only partly complied: the church was returned but not repaired and none of the auxiliary houses were returned.
In 2001 the applicant church addressed the State Agency for Cults which, in turn, requested the Government to comply with their decision. There was no response so the applicant church took proceedings in the Court of Appeal. On 24 August 2001 that court rejected the action because they had failed to attempt to resolve the issue by addressing the Government directly. The applicant church appealed to the Supreme Court of Justice claiming that it had not been properly summoned to the hearing (so it was not represented there) and that the Court of Appeal had missed the three-day deadline for summarily rejecting its application but nevertheless decided on the admissibility of the claim without giving it the opportunity to modify its application or present supporting documents or arguments. On 31 October 2001 the Supreme Court of Justice held a hearing at which the applicant was present and rejected its appeal.
The applicant church then addressed the Government directly. The latter responded that implementation of the 1995 decision was the responsibility of the municipality.
The applicant church then took a new action against the Government in the Court of Appeal. On 17 July 2002 that court found that it was not competent but that the first instance ordinary courts were: the complaint was not about the 1995 decision itself but rather about the action and inaction of the authorities implementing it. The applicant church was not represented at the hearing because, it claims, it was not properly summoned. On 30 October 2002 the Supreme Court of Justice rejected the applicant church's appeal. The applicant was represented at the Supreme Court hearing.
The applicant church did not initiate further proceedings.
The relevant provisions of the Code of Civil Procedure in force at the relevant time read as follows:
“Article 28/2:
The Court of Appeal:
1) judges as a first instance court proceedings against actions of the authorities of the central public administration and of their officials done in violation of the law or in excess of competence and which violate the rights of citizens;
...
Article 131: Acceptance for examination and refusal to examine civil law suits
The judge determines whether a civil action is to be accepted for examination.
The judge shall refuse to receive an action:
...
2) if the interested person who filed the action did not complete the pre-trial settlement procedure through the use of extra-judicial means or the procedure established by law for the particular type of action;
...
7) if the court is not competent to examine the case;
...
Article 313: Powers of the court of appeal
The court of appeal has the power:
1) to reject the appeal and maintain the judgment, finding or decision; or
2) to accept the appeal.
...”
The relevant provisions of the Law on Administrative Justice in force at the relevant time read:
“Article 3: The object of an action in administrative law
...
(2) The failure to resolve, within the period prescribed by law, a query regarding a right recognised by law may itself constitute the object of an action in administrative law.
...”


ITEMID: 001-90060
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MATYUSH v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3;No violation of Art. 5-1;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 6. The applicant was born in 1964 and lives in the town of Solnechnogorsk in the Moscow Region.
7. On 8 March 1999 the applicant was arrested on suspicion of having committed franchise fraud, that is, having organised a financial pyramid scheme in which more than one hundred persons had been enrolled and which had caused fraudulent losses of over 23,000,000 Russian roubles. Three days later a prosecutor authorised the applicant’s placement in custody on the ground that she was charged with a serious criminal offence and was liable to abscond and pervert the course of justice.
8. On 6 May and 2 July 1999 the Omsk Regional Prosecutor extended the applicant’s detention until 8 July and 8 September 1999 respectively, having regard to the gravity of the charges.
9. On 3 September and 29 November 1999 a deputy Prosecutor General of the Russian Federation, invoking the same grounds as in the previous detention orders, authorised the extension of the applicant’s detention until 8 December 1999 and 8 March 2000 respectively.
10. On 25 February and 26 June 2000 the acting Prosecutor General of the Russian Federation authorised further extensions of the applicant’s detention until 8 July and 8 September 2000 respectively. The reasons for both extensions were the same: the gravity of the charges and the applicant’s liability to abscond and pervert the course of justice.
11. On 15 August 2000 the Omsk Regional Prosecutor asked the Omsk Regional Court to extend the applicant’s detention for an additional six months because the applicant needed additional time to read the case file. The prosecutor also noted that the applicant and her co-defendants had participated in an organised criminal offence, had been charged with serious criminal offences, and had influenced other defendants, witnesses and victims. They were liable to abscond and pervert the course of justice.
12. On 23 August 2000 the President of the Omsk Regional Court wrote in the corner on the first page of the prosecutor’s application that he authorised the extension of the applicant’s and her co-defendants’ detention until 8 March 2001.
13. On an unspecified date the applicant and her co-defendants appealed against the order of 23 August 2000. They claimed that the maximum eighteen-month period of their detention would expire on 8 September 2000. An extension of the detention beyond eighteen months was possible only if the defendant needed more time to read the case file. The applicant insisted that she had finished studying the file and that there were therefore no grounds for a further extension.
14. On 22 November 2000 the Supreme Court of the Russian Federation examined the applicant’s and her co-defendants’ appeals against the order of 23 August 2000, quashed it and remitted the matter to the Omsk Regional Court for fresh examination. The relevant part of the Supreme Court’s decision reads as follows:
“By virtue of Articles 220-1 and 220-2 of the RSFSR Code of Criminal Procedure the judge has to examine the lawfulness and well-foundedness of the request for extension of the detention of Ms Matyush... and has to issue a reasoned decision as required by paragraph 8 of Article 220-2 of the RSFSR Code of Criminal Procedure.
Moreover, paragraph 2 of Article 102 of the RSFSR Code of Criminal Procedure requires that [a court] should prepare minutes of a court hearing in which the issue of extension of detention is examined... [the minutes] should indicate who participated in the hearing and should reflect the progress of the examination of the materials.
The minutes of the court hearing and the reasoned decision of the judge were not included in the materials presented to the Supreme Court of the Russian Federation, which constitutes a gross violation of the requirements of the RSFSR Code of Criminal Procedure.
Accordingly, the decision [of the President of the Regional Court] should be quashed and the case file should be sent for re-examination.
The Supreme Court cannot accept counsel’s requests for Ms Matyush’s release... because [the Supreme Court] is unable to conclude from the presented decision whether [she] is detained lawfully or unlawfully, and counsel’s arguments are based on this circumstance.
In the course of the fresh consideration of the file, the [Regional] Court has to examine thoroughly all the arguments set out in the application by the Omsk Regional Prosecutor and to give a reasoned decision.
On the basis of the foregoing, and in accordance with Articles 332 and 339 of the RSFSR Code of Criminal Procedure, the Court decides:
To quash the decision of 23 August 2000 of the President of the Omsk Regional Court by which an extension of Ms Matyush’s... detention was authorised and to refer the case back for fresh consideration...
The preventive measure applied to Ms Matyush... should remain unchanged, namely detention on remand.”
15. On 19 January 2001 the Omsk Regional Court extended the applicant’s detention until 8 March 2001, noting the gravity of the charges against her. The Regional Court held that the gravity of the charges could serve as the sole ground for the detention, but it also pointed to the applicant’s failure to finish studying the file.
16. On 3 May 2001 the Supreme Court upheld the decision of 19 January 2001, stating that the applicant had been charged with especially serious criminal offences and her detention had been authorised and extended a number of times in accordance with the requirements of the RSFSR Code of Criminal Procedure. The request for extension of the applicant’s detention until 8 March 2001 had also been lodged in compliance with Russian law. The applicant did not have a permanent place of residence in the Omsk Region, where the investigation was being conducted, and she was liable to abscond. The extension of the applicant’s detention had been necessary as she had continued reading the case file.
17. On 2 March 2001 the bill of indictment was served on the applicant. She was charged with aggravated fraud, forgery of documents, money laundering and organisation of a criminal enterprise. Five days later the case was referred for trial.
18. On 10 July 2001 the Omsk Regional Court scheduled the first trial hearing. It also examined requests by the applicant and her co-defendants for release and dismissed them on the ground of the gravity of the charges.
19. In July 2001 the applicant appealed against the order, arguing that the Regional Court had failed to issue a reasoned decision concerning the extension of her detention. Three of the applicant’s co-defendants also appealed and sought leave to appear at the appeal hearing. The applicant did not file such a request.
20. On 25 October 2002 the Supreme Court of the Russian Federation upheld the decision of 10 July 2001, noting that the Regional Court had acted within its competence. The Supreme Court further held as follows:
“By virtue of Article 96 § 1 of the RSFSR Code of Criminal Procedure... in force at the time the Regional Court issued its decision [of 10 July 2001], detention could be authorised as a preventive measure in respect of persons suspected or accused of having committed a criminal offence punishable by more than two years’ imprisonment.
As appears from the presented materials, Ms Matyush... was charged with criminal offences punishable by more than two years’ imprisonment. Having regard to this circumstance, the investigating authorities correctly applied the preventive measure.
By virtue of Article 222 of the RSFSR Code of Criminal Procedure, when a judge schedules a court hearing, he should, among other issues, determine matters concerning the adjustment or annulment of preventive measures.
When there is a necessity to annul a preventive measure or to change it to a stricter or a more lenient one, a judge determines the matter and gives a decision accordingly.
As appears from the materials submitted, the [Regional Court] did not determine an issue concerning the change or annulment of the preventive measure and, accordingly, there was no need to issue a decision on the matter.”
21. On 1 July 2002 the new Code of Criminal Procedure became effective.
22. On the same day the Omsk Regional Court, by the same decision, extended the applicant’s and her co-defendants’ detention until 1 October 2002, holding that they were charged with especially serious criminal offences, had no place of residence in the Omsk Region and were liable to abscond. It appears that at the hearing the applicant unsuccessfully challenged the composition of the bench.
23. The applicant and her co-defendants lodged appeals against the decision. Three of the co-defendants, but not the applicant, sought leave to appear at the appeal hearing.
24. On 25 October 2002 the Supreme Court of the Russian Federation upheld the decision of 1 July 2002, confirming that the gravity of the charges could serve as the sole ground for the applicant’s and her co-defendants’ continuing detention. The applicant’s lawyer, who had been duly notified of the hearing, did not attend.
25. On 1 October 2002 the Omsk Regional Court authorised a further extension of the applicant’s and her co-defendants’ detention until 1 January 2003. It relied on the gravity of the charges against them as the ground for the extension.
26. The applicant appealed, arguing that the gravity of the charges could no longer serve as the reason for her continuing detention and that her detention was excessively long.
27. On 17 April 2003 the Supreme Court of the Russian Federation upheld the decision of 1 October 2002, holding that the applicant and her co-defendants were charged with serious criminal offences and that that ground was sufficient to authorise their detention for an additional three months.
28. On 25 December 2002 the Omsk Regional Court, once again relying on the gravity of the charges, extended the applicant’s and her co-defendants’ detention for an additional three months, until 1 April 2003.
29. The applicant appealed. She did not seek leave to appear. In the meantime, on 31 March 2003 the Omsk Regional Court authorised a further extension of the detention for an additional three months, until 1 July 2003, on the ground of the gravity of the charges.
30. On 17 April 2003 the Supreme Court of the Russian Federation quashed the decision of 25 December 2002 and authorised the applicant’s release on a written undertaking not to leave the town. The relevant part of the decision reads as follows:
“By virtue of Article 255 of the Russian Federation Code of Criminal Procedure, a court which has jurisdiction to examine a case has the right to extend the detention of a defendant after the expiry of the six-month period following the committal of the case for trial.
A court decision concerning a preventive measure, the type of measure taken, an extension of detention or a change of a preventive measure should be reasoned.
When indicating the grounds for its decision concerning the extension of the detention, the court has to take into account not only the seriousness of a criminal offence with which a defendant was charged, but also other grounds and circumstances, as indicated in Articles 97 and 99 of the Code of Criminal Procedure.
This requirement of the law was not complied with when the [Regional] Court determined the matter of the extension of the defendants’ detention.
As follows from the materials submitted, when extending the detention of Ms Matyush... and identifying the grounds for the extension of the detention, the court referred only to the fact that the defendants were charged with serious and particularly serious criminal offences.
Furthermore, the court decision did not indicate what had served as the grounds for the extension of the detention or whether the court could have concluded that the defendants would abscond, continue criminal activities, threaten witnesses and other parties to the proceedings, and so on.
When the gravity of the charges is taken into account, [the court] should also have regard to all the legal characteristics of the criminal offence and of the person who committed it.
In particular, it is necessary to consider the character and degree of a threat to society posed by the criminal offence in question, the state of health of the defendant, his family status, including the right of detainees to trial within a reasonable time or to release pending trial as provided for by Article 5 of the European Convention on Human Rights.
As is rightfully pointed out in the grounds of appeal, the court did not take into account those circumstances and did not examine the [defendants’] arguments.
...
Having regard to the fact that the court breached the requirements of the law while determining the issue of detention and that the case is currently at the final stage of court proceedings..., the [Supreme Court] considers that the defendants cannot influence other parties to the proceedings, that they have permanent places of residence, and that they were detained for a long time [over four years], which had a negative influence on the state of their health,... and the preventive measure should be changed to written undertakings not to leave the town.”
31. According to the Government, on 17 April 2003 a copy of the decision of the Supreme Court was sent by special courier to Omsk, where the applicant was being detained, and arrived there on 21 April 2003. The applicant was released on the same day.
32. On 21 April 2004 the Omsk Regional Court, composed of Mr Tsvetkov, the presiding judge, Ms Moskalenko and Ms Marchenko, lay assessors, found the applicant guilty of aggravated fraud and sentenced her to seven years’ imprisonment.
33. The applicant and her co-defendants appealed. They claimed that the Regional Court had been composed in breach of provisions of the new Code of Criminal Procedure in that the lay assessors should not have participated in the trial after 1 January 2004.
34. On 25 November 2004 the Supreme Court of the Russian Federation upheld the applicant’s conviction. As regards the complaint related to the lay assessors, the Supreme Court held as follows:
“The allegations of the defendants ... concerning the unlawful composition of the [trial] court... that due to the entrance into force of the Russian Code of Criminal Procedure such category of cases should have been decided by a single judge, are unfounded.
The case was scheduled for consideration by a judge and two lay assessors.
The consideration of the case on the merits began at the first hearing of 14 August 2001 by the court composed of the presiding judge and two lay assessors, chosen by way of casting lots, i.e. in accordance with the provisions of the law on criminal procedure in force at the material time.
Thus, the Supreme Court does not see any violation of the law in that the examination of the case had been finished by the same court which had started its examination because according to § 1 of Article 242 of the Code of Criminal Procedure a case should be examined by the same court and because the law on criminal procedure does not have retroactive effect.”
35. From the day of the arrest until her release on 21 April 2003 the applicant was detained in facility no. IZ-55/1 in Omsk.
36. According to certificates issued on 29 May 2006 by the director of the facility and produced by the Government, between 12 March 1999 and 22 November 2001 the applicant was detained in seven different cells measuring from 16.2 to 41.7 square metres. She was usually kept together with no more than seven inmates. The design capacity of the cells had not been exceeded. The Government submitted that at all times the applicant had had at least 4 square metres of personal space. They supported their assertion with the facility director’s certificate issued on 29 May 2006 which showed the number of detainees on 12 and 15 March and 18 and 21 December 1999, 22 October and 1 November 2000, and 12 and 18 February, 26 March and 22 November 2001. In another certificate issued on 29 May 2006 the director of facility no. IZ-55/1 stated that “while detained in those [seven] cells [the applicant] had had an individual bunk and bedding”. The Government did not provide any information on the number of detainees in cells where the applicant had been detained after 22 November 2001.
37. The applicant did not dispute the cell measurements. She alleged, however, that she had been afforded less than 2 square metres of floor surface as the cells had been severely overcrowded. Given the lack of beds, inmates had slept in shifts.
38. The Government, relying on the information provided by the director of the facility, submitted that all cells were equipped with a lavatory pan, a tap, a sink and a ventilation shaft. The lavatory pan was separated from the living area by a one-and-a-half-metre-high partition. The smaller cells had one window and the larger cells had two windows which measured 150 by 120 centimetres in width. The windows had a casement. Inmates could request warders to open the casement to let fresh air in. However, until an unspecified date in 2001 the windows had been covered with metal shutters blocking access to natural light and air. The cells were equipped with lamps which functioned day and night. Inmates were allowed to take a shower once a week for fifteen minutes. The cells were disinfected once a month. A central-heating system was installed in the building. The Government further stated that the applicant was given food three times a day “in accordance with the established norms”. Medical personnel at the facility checked the quality of the food three times a day and made entries in registration logs. The applicant had a one-hour walk daily.
39. According to the Government, detainees, including the applicant, were provided with medical assistance. They had regular medical check-ups, including X-ray examinations, blood tests, and so on. On her admission to the detention facility the applicant was examined by a doctor who noted that the applicant was healthy. On 8 February 2002 a prison doctor diagnosed the applicant with acute respiratory disease and prescribed treatment. On 22 November 2002 the applicant was diagnosed with bronchopneumonia. She was transferred to the facility hospital, where she was treated until 23 December 2002. On two other occasions, from 20 January to 14 February 2003 and from 25 March to 22 April 2003, the applicant was admitted to the prison hospital with the diagnosis of bronchopneumonia. The Government gave a detailed description of the treatment administered to the applicant, including the type of medicine, dose and frequency. They also furnished a copy of the applicant’s medical record and medical certificates.
40. The applicant disagreed with the Government’s description and submitted that the sanitary conditions had been unsatisfactory. The cells were infested with insects but the administration did not provide any insecticide. The windows were covered with metal blinds which blocked access to natural light and air. Inmates had to wash and dry their laundry indoors, creating excessive humidity in the cells. Inmates were also allowed to smoke in the cells. The lavatory pan was separated from the living area by a partition affording no privacy to inmates. The food was of poor quality and in scarce supply. The applicant further argued that she had not been adequately treated in the prison hospital. She insisted that she had contracted a serious respiratory disease and had stayed in the prison hospital for a long time because the conditions of her detention had been unsatisfactory and because it had been extremely cold in winter in the cells. The applicant complained to various domestic officials, including the trial judge, about the conditions of her detention. No response followed.
41. For a summary of relevant domestic law concerning detention on remand see Shukhardin v. Russia (no. 65734/01, §§ 36-56, 28 June 2007).
42. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
43. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows:
“b. temporary holding facilities for criminal suspects (IVS)
26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS establishments visited in 2001 varied considerably.
...
45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
...
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony’s administration”.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-104806
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: VAINIO v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: The applicant, Ms Marjatta Ellen Vainio, is a Finnish national who was born in 1933 and lives in Espoo. She was represented before the Court by Mr Jukka Rahikkala, a lawyer practising in Helsinki.
The applicant’s aunt did not have any direct heirs and on 29 June 2003 she made a will in the applicant’s favour. The witnesses had signed the will on 2 July 2003. The aunt died on 18 October 2005. On 6 April and 6 June 2006 respectively, two of her heirs contested the will, requesting that the will be annulled or declared invalid. They claimed that the will had not been drafted in proper form as the testator and the witnesses had not signed the will concurrently. Moreover, the testator had no longer been capable of making a will as she had been 98 years old and suffered from dementia at the time of the drafting of the will.
On 20 October 2006 the District Court (käräjäoikeus, tingsrätten) rejected the action unanimously. It found that the will had been done in proper form. Moreover, on the basis of a medical certificate attesting the testator’s state of mental health, it also found that the testator had been capable of making the will. The will was thus valid.
On an unspecified date the two heirs appealed to the Court of Appeal (hovioikeus, hovrätten), reiterating the grounds already presented before the District Court.
On 7 November 2007 the Court of Appeal, after a 2 – 1 vote, declared the will invalid. It found that the will had been done in proper form but, at the time of the drafting of the will, the testator had no longer been able to understand the consequences of her actions. The will was thus invalid. According to the dissenting judge, the fact that the testator may have had a diminished ability to understand economic issues in general was not relevant as she had clearly indicated her intention to draft a will in favour of the applicant.
On 2 June 2008 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal.
On 30 January 2009 the applicant obtained a new medical certificate about the testator’s mental abilities from another medical doctor. On an unspecified date she lodged an application for the reopening of the case (tuomion purku, återbrytande) with the Supreme Court.
On 22 June 2009 the Supreme Court refused her request. It found that the applicant had not shown on a balance of probabilities that she could not have presented that document already during the ordinary proceedings and that she had not shown any valid reason for not having obtained this evidence already during the ordinary proceedings. The case could thus not be reopened.
According to Chapter 31, section 7, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken, Act no. 4/1734, as amended by Act no. 109/1960):
“A final judgment in a civil case may be reversed:
(1) if a member or official of the court or a representative or counsel of a party has, in connection with the case, been guilty of criminal conduct that may be assumed to have influenced the result of the case;
(2) if a document that has been used as evidence was false or its contents did not accord with the truth and the person who presented the document was aware of the same, or if a party heard under affirmation or a witness or expert witness has deliberately given a false statement and it may be assumed that the document or the statement has influenced the result;
(3) if reference is made to a circumstance or piece of evidence that has not been presented earlier, and its presentation would probably have led to a different result; or
(4) if the judgment is manifestly based on a misapplication of the law.
A judgment shall not be reversed on the grounds referred to in subsection (3), unless the party can establish a probability that he or she could not have referred to the fact or piece of evidence in the court that passed the judgment or on appeal, or that he or she has had another justified reason not to do so.”
A request for the reversal of a judgment in a civil case shall be made within one year of the date on which the requester became aware of the circumstance upon which the request is based. A request for the reversal of a final judgment shall be filed with the Supreme Court.