ITEMID: 001-23763
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: ERMANNOVÁ v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Ludmila Ermannová, is a Czech national, who was born in 1950 and lives in Dymokury.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 4 June 1996 the applicant brought an action for damages against Ms H. for payment of CZE 30,000 for baby clothes and two baby seats which the applicant had allegedly brought at her request from Germany in April 1995.
On 26 May 1997 the Hradec Králové District Court (okresní soud) requested the Dymokury Municipal Office (obecní úřad) to submit an official statement on the applicant’s reputation in the municipality, referring to section 128 of the Code of Civil Procedure.
On 28 May 1997 the mayor of the municipality submitted a statement which read as follows:
[Translation]
“The reputation of Ludmila Ermannová, living in Dymokury, Na Ohrádkách 62, is very bad in the municipality. Ms Ermannová systematically looks for and initiates conflicts with inhabitants. This is proved by a number of minor offences concerning the cohabitation with other inhabitants, which were dealt with by the municipal office. One can easily doubt most of the information given by Mr Ermannová.”
[Original]
“Pověst Ludmily Ermannové, bytem Dymokury, Na Ohrádkách 62, je v obci velmi špatná. Paní Ermannová systematicky vyhledává a je iniciátorem konfliktů s obyvateli obce. Toho dokladem je množství přestupků na úseku občanského soužití, které byly na místním úřadě řešeny. Také o pravdivosti většiny informací paní Ermannovou poskytovaných lze s úspěchem pochybovat.”
On 16 July 1997, in her final submissions to the District Court, the applicant denied the truthfulness of the information provided by the mayor in his statement.
By judgment of 25 July 1997 the District Court, having heard the parties, Ms H.’s parents, the applicant’s daughter and son and two other witnesses, Mr and Ms P., and having assessed certain documentary evidence, dismissed the applicant’s action. It found that the applicant had not shown that she had a contractual relationship with Ms H. which would have obliged her to meet a specific financial obligation. The court found therefore that there was no need to re-hear Mr P. and Ms P. or to watch a video recording of Ms H.’s children sitting in the baby seats and wearing the clothes in question.
The District Court made no reference in its judgment to the statement issued by the Municipal Office.
On 24 September 1998 the Hradec Králové Regional Court (krajský soud), upon the applicant’s appeal, quashed the judgment of the District Court and remitted the case with a binding opinion that the applicant, in order to be successful in the proceedings, had to prove that there was an agreement between her and Ms H., in the sense that the applicant would sell children’s clothes and baby seats for an agreed price, and that Ms H. had asked her father to order the goods. To that effect, the Regional Court instructed the District Court to re-hear the applicant, Ms H’s father and another witness.
By judgment of 27 July 1999 the District Court, having taken additional evidence in accordance with the Regional Court’s instruction, dismissed the applicant’s action for damages. It held, inter alia, that:
On 19 January 2000 the Regional Court upheld this judgment endorsing the reasoning of the lower court in the main.
On 29 July 1997 the applicant sued the municipality before the Prague Regional Court (krajský soud), seeking the protection of her personal rights within the meaning of section 11 et seq. of the Civil Code. She claimed that the information contained in the mayor’s statement did not correspond to the reality, that it was of a defamatory nature and that it interfered with her dignity and civil reputation. She further claimed that the municipality should be ordered to present a written apology and an undertaking to refrain, in future, from committing similar interferences.
The Regional Court requested the District Court to submit the court file concerning the applicant’s action for damages, from which it appeared that the Municipal Office had submitted its statement upon the District Court’s request, with a view to obtaining an official opinion on the reputation and credibility of both parties to the proceedings.
It further requested the Poděbrady Town Office (městský úřad) to submit the case files relating to minor offences involving the applicant’s family which had been dealt with by the Municipal Office. It established from the documents before it that the applicant and her children had had a number of disputes with their neighbours, a local family and three other persons, and that the administrative proceedings had been, for the most part, discontinued.
The Regional Court also had before it a case file with a claim brought by Ms H.’s father against the applicant, in which he alleged that the latter had verbally abused him. These proceedings had also been discontinued.
On 2 December 1998 the Regional Court, after having heard the parties and examined the aforesaid documentary evidence, dismissed the applicant’s action. In its view, the municipality had not unjustifiably interfered with the applicant’s right to the protection of her personal rights, as it had fulfilled the obligation imposed on it by the District Court pursuant to Article 128 of the Code of Civil Procedure. The court further noted that the municipality had not misused its power when issuing the statement, the content of which was in substance truthful, and which the applicant could challenge in the course of the proceedings for damages.
On 6 January 1999 the applicant appealed, arguing that the Regional Court had not assessed the evidence correctly and that, consequently, had wrongly dealt with the factual and legal issues of the case.
On 8 April 1999 the Prague High Court (vrchní soud), admitting in evidence a decision of the Town Office of 27 August 1997 and the text of note no. 6 published in a local newsletter in March 1999, found the applicant’s appeal unsubstantiated. It held, inter alia, that it had not been proved that the municipality did not believe that the information about the applicant’s reputation contained in its statement was incorrect or that it had intended to damage the applicant.
On 15 November 1999 the Supreme Court (Nejvyšší soud) rejected the applicant’s appeal on points of law (dovolání) in which the applicant challenged, inter alia, the lower courts’ finding that the content of the mayor’s statement had not been published, and claimed that the local newsletter had reported that the District Court had requested the Municipal Office to submit an appraisal of her, and that local deputies had suggested that the appraisal be based on a previous one to which new relevant facts should be added.
On 21 June 1999 the applicant filed a constitutional appeal (ústavní stížnost) alleging, inter alia, a violation of Article 10 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) and Articles 6 and 8 of the Convention, in that the statement of the municipality containing its opinion about her reputation and credibility had been used in the court proceedings held in public and published in the local newsletter.
On 24 February 2000 the Constitutional Court (Ústavní soud) rejected the applicant’s constitutional appeal as manifestly ill-founded. Although it expressed certain doubts as to the suitability of requesting third persons to issue statements on the reputation and credibility of an individual pursuant to Article 128 of the Code of Civil Procedure, the Constitutional Court considered, in particular, that the municipality had acted on the District Court’s request under this provision and, having regard to the actual situation in the municipality and relations between inhabitants, it had done it the way which was hardly violating the principle of social proportionality. It was indisputable that between 1997 and 1998 the applicant and members of her family had been involved in eighteen proceedings relating to minor offences. The fact that these proceedings had eventually been discontinued was, in the court’s view, irrelevant. It further noted that the statement issued by the mayor, and subsequently approved by the municipal board of representatives (zastupitelstvo obce), reflected the prevailing opinion of the local inhabitants.
1. The Code of Civil Procedure
Under section 128 of the Code of Civil Procedure, when answering a court’s questions, everyone is obliged to communicate to the court facts which are important for the proceedings and the judicial decision. A natural person may refuse to communicate facts to the court on the same grounds as a witness under section 126(1).
2. The Civil Code
The right to protection of a person’s dignity, honour, reputation and good name is guaranteed by section 11 et seq. of the Civil Code.
Under section 11 of the Civil Code, a natural person has the right to the protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and his or her personal characteristics.
Pursuant to section 13(1), a natural person has the right to request that an unjustified interference with his or her personality should be stopped, that the consequences of such interference be eliminated, and that appropriate satisfaction be granted.
The existence of an unjustified interference, objectively capable of affecting a person’s rights under section 11 et seq. of the Civil Code, is a prerequisite for a successful claim for the protection of the plaintiff’s personality.
3. The Charter of Fundamental Rights and Freedoms
Everyone is entitled to
- the protection of his or her human dignity, personal integrity, good reputation, and his or her name;
- protection against an unauthorized interference with his or her personal and family life; and
- protection against the unauthorized gathering, publication or other misuse of his or her personal data.


ITEMID: 001-90440
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF AUPEK v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1966 and lives in Ercsi.
5. On 19 August 1998 the applicant, a truck driver, was involved in a multiple road accident. Subsequently he was interrogated as a suspect for having negligently caused the death of six people and the serious injury of five others, three of whom became permanently disabled.
6. After several hearings at which numerous witnesses testified and the opinions of several experts were obtained, on 9 April 2002 the Miskolc District Court acquitted the applicant.
7. On 6 November 2002 the Borsod-Abaúj-Zemplén County Regional Court quashed this judgment as unfounded.
8. In the resumed proceedings, the District Court held four hearings. On 6 May 2004 it found the applicant guilty as charged. It held that, apart from the responsibility of another driver who had died in the multiple collisions, the accident had essentially been caused by the applicant’s failure to maintain the brakes of his truck and his grossly negligent driving. The applicant’s offence was punishable with two to eight years’ imprisonment. The District Court took account of the protraction of the proceedings as an important mitigating factor and sentenced him to three and a half years’ imprisonment and a four-year prohibition on driving.
9. On appeal, on 13 October 2004 the Regional Court upheld the applicant’s conviction but reduced his sentence to two and a half years’ imprisonment and a three-year prohibition on driving.
10. As a consequence of a successful intervening constitutional complaint concerning a procedural rule applied in the applicant’s case, on 4 July 2005 the Attorney General’s Office introduced a motion for a review by the Supreme Court.
11. On 3 October 2005 the Supreme Court’s review bench quashed the Regional Court’s judgment and remitted the case to it.
12. In the resumed second-instance proceedings, a motion for bias lodged by the applicant was dismissed the Debrecen Court of Appeal. The hearings scheduled for 28 June and 20 September 2006 had to be postponed for non-attendance by the applicant’s representative. After another hearing on 8 November, on 27 November 2006 the Regional Court acquitted the applicant.
13. On 21 June 2007 the Court of Appeal upheld this judgment. This decision was served on 19 September 2007.
VIOLATED_ARTICLES: 6


ITEMID: 001-72629
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF SEJDOVIC v. ITALY
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Giovanni Bonello;Jean-Paul Costa;Khanlar Hajiyev;Lech Garlicki;Loukis Loucaides;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens;Vladimiro Zagrebelsky;Volodymyr Butkevych
TEXT: 10. The applicant was born in 1972 and lives in Hamburg (Germany).
11. On 8 September 1992 Mr S. was fatally injured by a shot fired at a travellers' encampment (campo nomadi) in Rome. The initial statements taken by the police from witnesses indicated that the applicant had been responsible for the killing.
12. On 15 October 1992 the Rome investigating judge made an order for the applicant's detention pending trial. However, the order could not be enforced as the applicant had become untraceable. As a result, the Italian authorities considered that he had deliberately sought to evade justice and on 14 November 1992 declared him to be a “fugitive” (latitante). The applicant was identified as Cloce (or Kroce) Sejdovic (or Sajdovic), probably born in Titograd on 5 August 1972, the son of Jusuf Sejdovic (or Sajdovic) and the brother of Zaim (ou Zain) Sejdovic (or Sajdovic).
13. As the Italian authorities had not managed to contact the applicant to invite him to choose his own defence counsel, they assigned him a lawyer, who was informed that his client and four other persons had been committed for trial on a specified date in the Rome Assize Court.
14. The lawyer took part in the trial, but the applicant was absent.
15. In a judgment of 2 July 1996, the text of which was deposited with the registry on 30 September 1996, the Rome Assize Court convicted the applicant of murder and illegally carrying a weapon and sentenced him to twenty-one years and eight months' imprisonment. One of the applicant's fellow defendants was sentenced to fifteen years and eight months' imprisonment for the same offences, while the other three were acquitted.
16. The applicant's lawyer was informed that the Assize Court's judgment had been deposited with the registry. He did not appeal. The applicant's conviction accordingly became final on 22 January 1997.
17. On 22 September 1999 the applicant was arrested in Hamburg by the German police under an arrest warrant issued by the Rome public prosecutor's office. On 30 September 1999 the Italian Minister of Justice requested the applicant's extradition. He added that, once he had been extradited to Italy, the applicant would be entitled to apply under Article 175 of the Code of Criminal Procedure for leave to appeal out of time against the Rome Assize Court's judgment.
18. At the request of the German authorities, the Rome public prosecutor's office stated that it did not appear from the evidence that the applicant had been officially notified of the charges against him. The public prosecutor's office was unable to say whether the applicant had contacted the lawyer assigned to represent him. In any event, the lawyer had attended the trial and had played an active role in conducting his client's defence, having called a large number of witnesses. Furthermore, the Rome Assize Court had clearly established that the applicant, who had been identified by numerous witnesses as Mr S.'s killer, was guilty. In the opinion of the public prosecutor's office, the applicant had absconded immediately after Mr S.'s death precisely to avoid being arrested and tried. Lastly, the public prosecutor's office stated: “A person who is to be extradited may seek leave to appeal against the judgment. However, for a court to agree to re-examine the case it has to be proved that the accused was wrongly deemed to be a 'fugitive'. To sum up, a new trial, even in the form of an appeal (during which new evidence may be submitted), is not granted automatically.”
19. On 6 December 1999 the German authorities refused the Italian government's extradition request on the ground that the requesting country's domestic legislation did not guarantee with sufficient certainty that the applicant would have the opportunity of having his trial reopened.
20. In the meantime, the applicant had been released on 22 November 1999. He has never lodged an objection to execution (incidente d'esecuzione) or an application for leave to appeal out of time (see “Relevant domestic law and practice” below) in Italy.
21. The validity of a conviction may be contested by means of an objection to execution under Article 670 § 1 of the Code of Criminal Procedure (“the CCP”), the relevant parts of which provide:
“Where the judge supervising enforcement establishes that a judgment is invalid or has not become enforceable, he shall, [after] assessing on the merits [nel merito] whether the safeguards in place for a convicted person deemed to be untraceable have been observed, ... suspend its enforcement, ordering, where necessary, that the person be released and that defects in the service of process be remedied. In such cases the time allowed for appealing shall begin to run again.”
22. Article 175 §§ 2 and 3 of the CCP provides for the possibility of applying for leave to appeal out of time. The relevant parts of that provision were worded as follows at the time of the applicant's arrest:
“In the event of conviction in absentia ..., the defendant may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no effective knowledge [effettiva conoscenza] [of it] ... [and] on condition that no appeal has been lodged by his lawyer and there has been no negligence on his part or, in the case of a conviction in absentia having been served ... on his lawyer ..., that he did not deliberately refuse to take cognisance of the procedural steps.
A request for the reopening of the time allowed for appeal must be lodged within ten days of the date ... on which the defendant learned [of the judgment], failing which it shall be declared inadmissible.”
23. When called upon to interpret this provision, the Court of Cassation has held that the rejection of an application for leave to appeal out of time cannot be justified by mere negligence or lack of interest on the defendant's part but that, on the contrary, there must have been “intentional conduct designed to avoid taking cognisance of the procedural steps” (see the First Section's judgment of 6 March 2000 (no. 1671) in Collini, and also the Court of Cassation's judgment no. 5808/1999). More specifically, where a judgment has been served on the accused in person, the accused must prove that he or she was unaware of it and that there has been no negligence on his or her part; however, where the judgment has been served on an absent defendant's lawyer, it is for the court to establish whether the defendant deliberately avoided taking cognisance of the relevant steps (see the Second Section's judgment of 29 January 2003 (no. 18107) in Bylyshi, where the Court of Cassation set aside an order in which the Genoa Court of Appeal had held that negligence could only be due to the wish not to receive any information, thereby treating negligent conduct as intentional without giving any arguments in support of that position).
24. In its judgment of 25 November 2004 (no. 48738) in Soldati, the Court of Cassation (First Section) observed that leave to appeal out of time could be granted on two conditions: if the accused had not had any knowledge of the proceedings and if he or she had not deliberately avoided taking cognisance of the procedural steps. It was for the convicted person to prove that the first condition was satisfied, whereas the burden of proof in respect of the second lay with the “representative of the prosecution or with the court”. Accordingly, a lack of evidence as regards the second condition could only work to the defendant's advantage. The Court of Cassation accordingly held that, before declaring defendants to be “fugitives”, the authorities should not only search for themthey had intentionally avoided complying with a measure ordered by the court, such as a measure entailing deprivation of liberty (see the First Section's judgment of 23 February 2005 (no. 6987) in Flordelis and Pagnanelli).
25. On 22 April 2005 Parliament approved Law no. 60/2005, by which Legislative Decree no. 17 of 21 February 2005 became statute. Law no. 60/2005 was published in Official Gazette (Gazzetta ufficiale) no. 94 of 23 April 2005. It came into force the following day.
26. Law no. 60/2005 amended Article 175 of the CCP. The new version of paragraph 2 reads as follows:
“In the event of conviction in absentia ... the time allowed for appeal against the judgment shall be reopened, on an application by the defendant, unless he had effective knowledge [effettiva conoscenza] of the proceedings [against him] or of the judgment [provvedimento] and has deliberately refused to appear or to appeal against the judgment. The judicial authorities shall carry out all necessary checks to that end.”
27. Law no. 60/2005 also added a paragraph 2 bis to Article 175 of the CCP, worded as follows:
“An application referred to in paragraph 2 above must be lodged within thirty days of the date on which the defendant had effective knowledge of the judgment, failing which it shall be declared inadmissible. In the event of extradition from another country, the time allowed for making such an application shall run from the point at which the defendant is handed over [to the Italian authorities] ...”
28. In Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, the Committee of Ministers of the Council of Europe encouraged the Contracting Parties “to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where: (i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and (ii) the judgment of the Court leads to the conclusion that (a) the impugned domestic decision is on the merits contrary to the Convention, or (b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.”
VIOLATED_ARTICLES: 6


ITEMID: 001-97385
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GÖKHAN YILDIRIM v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1976 and lives in Kayseri.
5. In February 2001 the Kayseri Law and Order Department received intelligence about the address of a person involved in fraud. They suspected that the applicant, who resided at this address with his parents, might be this person.
6. On 22 February 2001, when police officers arrived at the building where the applicant lived, he tried to escape and broke into his neighbours' flat, taking them hostage. According to the police reports, the applicant had a knife and resisted the police officers. The police entered the flat with the help of the fire brigade and arrested the applicant by using force. An unregistered gun and a number of bullets were found on the premises.
7. At 10.15 a.m. the same day, the applicant was taken to the Barbaros Health Clinic, where a medical report was issued. According to this report there was no sign of ill-treatment on the applicant's body.
8. The applicant was subsequently taken to the police station. He was allegedly beaten while in police custody.
9. At 8.15 p.m. the same day, after the police had apparently written an official report, not signed by the applicant, to the effect that he was harming himself, the latter was taken to the Kayseri State Hospital, where he was examined by a doctor once again. According to the doctor's report, the applicant was anxious, exhibited signs of restlessness and appeared weak, and there was a 0.5 cm x 2 cm patch of redness and a graze on his forehead, which had possibly been caused by a blow with a blunt object.
10. On 23 February 2001 the applicant was handed over to the military officials, as he was found to be a deserter.
11. At 2.30 p.m. that day the applicant was examined at the Barbaros Health Clinic, where the doctor noted that there were no new signs of illtreatment on the applicant's body.
12. On the same day the applicant was brought before the public prosecutor where, in the presence of his legal representative, he stated that he had been beaten by seven or eight police officers both in the police car and at the police station. He further maintained that he had blood in his urine and that the police officer who put him in the detention unit had witnessed this.
13. Afterwards the applicant was brought before a judge at the Kayseri Magistrates' Court, where he repeated that he had run away because he was a military deserter; that he had pointed his knife at police officers because they had pointed their guns at him, and that he had not kidnapped his neighbours but had merely been their guest for a short time.
14. On the same day the prosecutor transferred the applicant to the Kayseri Forensic Medical Institute for a medical examination which took place at around 5.45 p.m. The doctor noted that the applicant had a 5 x 3 cm ecchymosed skin lesion on his forehead and scratches on both wrists. The doctor also noted that the applicant complained of being dizzy and of having been laid down and stepped upon.
15. The applicant was detained in a military detention centre between 23 February 2001, at 8.30 p.m., and 28 February 2001, 1.30 p.m. It appears that during this time he was medically examined three times, on 23 February, 27 February and 28 February 2001, and the doctors noted no health problems. The only medical finding during this time was the presence of a mildly scabbed laceration of 0.5. x 2 cm on the applicant's forehead.
16. On 28 February 2001, at 7.45 p.m., the applicant was received at the Sivas Military Hospital where the doctor who examined the applicant noted that his forehead and the area underneath his eyelids were swollen, that he had a red patch of 10x15 cm on his back and that his wrists were swollen.
17. Between 28 February 2001 and 2 March 2001, the applicant was treated at the Urology department of a Military Hospital where he was diagnosed with “microscopic haematuria, renal trauma”.
18. On 17 June 2002 the applicant was found not to be fit to do military service on the ground that he had a chronic antisocial personality.
19. On 26 March 2001 the applicant's father filed a criminal complaint against the police officers at the police station, where he claimed that the police were coercing him and his son to take responsibility for the gun found at the building during the arrest and that they were torturing and beating his son to that end. In this connection, the applicant's father alleged that he had heard his son's screams while he was at the police station and had seen his poor state during his visit.
20. On 20 March 2001 the Kayseri public prosecutor decided not to prosecute on the ground that there were no signs of ill-treatment on the applicant's body according to the medical reports issued on 22 and 23 February. On 31 May 2001 the Boğazlıyan Assize Court dismissed the applicant's objection and upheld the prosecutor's decision.
21. On 2 July 2001 the applicant further applied to the Ministry of Justice and requested that the decision of the Boğazlıyan Assize Court be quashed by a written order (yazılı emir).
22. On an unspecified date, the Minister of Justice issued a mandatory order as a result of which the Court of Cassation quashed the decision of the Boğazlıyan Assize Court.
23. On various dates between 22 January 2002 and 12 February 2002, the prosecutor heard evidence from six police officers on duty at the police station. They all denied that the applicant had been ill-treated. They further maintained that the applicant had been taken for a medical examination because, inter alia, he was hitting his head against the iron bars of the cell. One police officer stated that they had been nice to the applicant because his father was a retired police officer.
24. On 5 February 2002 the prosecutor heard evidence from the applicant's parents.
25. The applicant's father, who was a retired policeman, maintained, inter alia, that, when he and his wife went to the police station the police chief had told him that it would be bad for the applicant if he did not accept ownership of the gun. Afterwards two police officers, who were also present during his arrest, had brought in the applicant. The latter had a bruise on his forehead and could barely walk. The applicant had told his father to save him because he was being beaten. At that moment some other police officers had arrived and they had taken him away while at the same time beating him. He had heard his son's screams.
26. The applicant's mother submitted, inter alia, that a police officer had brought in her son, who had been in a terrible state and had bruises on his forehead. She claimed that her son had told her that they were ill-treating him. They had pleaded with the police officers not to ill-treat their son. The applicant had then been taken away by a police officer who had started to hit him. The applicant had started screaming and they had then been thrown out. The person who had hit his son was a police officer named Bekir but there were a lot of police officers entering the detention unit. In the verbatim records it was noted that the applicant's mother, after having read her testimony with her husband in the corridor, had gone back into the prosecutor's room and submitted that there had been two police officers, having stated by mistake that there had only been one.
27. On 18 February 2002 the Kayseri public prosecutor filed an indictment with the Kayseri Assize Court against six police officers from the Kayseri Security Directorate, accusing them of torturing the applicant in order to extract a confession of guilt under Article 243 § 1 of the Criminal Code.
28. On 4 March 2002 the criminal proceedings against the accused police officers commenced before the Kayseri Assize Court. The applicant joined the proceedings as a third-party.
29. In an additional indictment dated 8 January 2003 the Kayseri public prosecutor charged two other police officers from the Kayseri Security Directorate with torturing the applicant in order to extract a confession of guilt under Article 243 § 1 of the Criminal Code. In the hearing held on 6 March 2003 the trial court joined these other cases to the proceedings.
30. During the proceedings the trial court heard evidence from the accused police officers, the applicant, the applicants' parents, the two neighbours whose house the applicant had broken into, the detention supervisor, two detainees, the soldier who had arrived at the police station to transfer him to the army, the doctor who had examined him at Kayseri State Hospital on 22 February 2001 and the doctor who had examined him at the Kayseri Forensic Medicine Institute on 23 February 2001.
31. The applicant maintained, inter alia, that all but one of the accused were those police officers who had beaten him up. In this connection, he alleged that he had been punched until he fell to the floor, blindfolded, hit by an object resembling a truncheon on various parts of his body, pulled across the floor by his hands and feet, strangled by one police officer and stepped on and kicked.
32. The applicant's father alleged that two of the accused had beaten up his son before his eyes and that his son, who had looked worn out, had told him that he had been beaten.
33. The applicant's mother stated that, when she and her husband had gone to visit the applicant at the police station, they had heard him screaming “why are you beating me up?”. She claimed that, at that moment, a tall police officer, who was not one of the accused, had brought the applicant to them and had told him to accept ownership of the gun, but when he refused they started to take him back to the cell while at the same time hitting him. She said that the accused police officers were at the detention cells and that there were others, but she did not know who they were.
34. The accused police officers repeated, inter alia, that the applicant had had to be handcuffed because he was violent, that he was hitting himself in the detention cell, and that he had started crying out that he was being beaten as soon as he saw his parents.
35. The Doctor M.Y., who had examined the applicant on the day of the incident, maintained, inter alia, that the applicant's head injury could have been caused either by a blow on the head with a sharp object or by his having hit his head, and that medically it was impossible to distinguish between them. He further maintained that the applicant had not complained to him of pain in his kidneys.
36. The doctor, H.D., who had examined the applicant at the Kayseri Forensic Medicine Institute, maintained that he had noted down all the physical signs he had found on the applicant's body and that, although the applicant had stated that he had been stepped upon, he could not find any lesions on his back.
37. Mr E.S., the army official who had picked the applicant up from the police station, testified, inter alia, that he had seen that the applicant had only a 3 x 3 cm patch of redness on his forehead and bruises on his wrists due to the handcuffs.
38. Mr O.A., a suspect who was also at the police station that day, stated that he had been put in the same detention unit as the applicant and that the latter was constantly swearing and hitting his head against the walls and kicking the bars, saying that he was going to complain about the police and get them into trouble. He stated that he had not witnessed the applicant being beaten.
39. Mr K.G., another suspect who was at the police station that day, maintained that he had been in the same detention unit as the applicant until the morning and that he had not witnessed him being beaten. In this connection, Mr K.G. stated that the applicant had been somewhat aggressive, hitting the door and saying that he was going to see his family.
40. Mr D.Y., the detention supervisor, claimed, inter alia, that at one point he had heard some noises coming from the detention unit and, when he arrived, he saw that the applicant was hitting his head against the bars and was bleeding. He submitted that he had immediately informed the police officers on duty, who took him to the hospital.
41. In the course of the proceedings, the applicant disputed unfavourable testimony against him. In particular, he claimed that he had not been properly examined at the Kayseri Forensic Medicine Institute and that, although he had stated that he had blood in his urine, he was not transferred to a hospital.
42. During the proceedings the trial court requested expert opinions from the Forensic Medicine Institute. On 21 May 2003 and 15 August 2003 the Second Section of Expertise (Ihtisas Kurulu) gave two opinions. The applicant was also examined by the Fourth Section of Expertise. However, the trial court considered that these opinions were insufficient and requested the Plenary Assembly of the Forensic Medicine Institute to submit an opinion.
43. On 29 January 2004 the Plenary Assembly of the Forensic Medicine Institute gathered to examine the applicant's case. The Plenary Assembly examined the factual context as alleged by the parties and the following medical evidence regarding the applicant: (a) the medical reports dated 22 and 23 February 2001 issued at the Barbaros Health Clinic; (b) the medical report dated 22 February 2001 issued at Kayseri State Hospital; (c) the medical report dated 23 February 2001 from the Kayseri Forensic Medicine Institute; (d) the medical report dated 23 February 2001 issued by a military doctor prior to his entry into military detention; (e) the medical report dated 27 February 2001 issued by the Kayseri Military Hospital; (f) the medical report dated 28 February 2001 issued by a military doctor prior to his discharge from military detention; (g) the applicant's complete medical file from the Sivas Military Hospital; (h) various scan results concerning the applicant's cranium and neck dated 2, 3 and 24 April 2001; (i) the medical report issued by the Kayseri Forensic Medicine Institute on 11 March 2002; and (j) the opinions of the Second Section of Expertise dated 21 May 2003 and 15 August 2003.
44. The plenary assembly opined, inter alia, that the physical findings noted in the medical reports, dated 22 February 2001 at 8.15 p.m. and 23 February 2001 at 2.45 p.m., had originated on 22 February 2001 between 10.15 a.m. and 8.15 p.m. and that the wound on the forehead could have been the result of a blow with a blunt object or could have been caused by a person hitting his head against the bars of the cell and that it was not possible to distinguish between them medically. They further considered that the findings noted in the medical reports of 27 February 2001 and 28 February 2001, concerning the applicant's head and wrist injuries, were the type of wounds seen in the recovery phase. Finally, the Assembly held that the findings of the Sivas Military Hospital regarding the applicant's skin lesion and the haematuria found in his urine demonstrated that he had sustained a trauma and that this trauma could have been the result of a direct contact with a hard and blunt object, but it would not be possible medically to establish the exact time of this trauma.
45. On 30 March 2004 the trial court, relying on the evidence in the case file, acquitted the police officers of the offences with which they had been charged. It held that the findings indicated in the medical reports were consistent with the accused officers' contention, backed up by witnesses, that the applicant had banged his head and hands against the bars of his cell. In this connection, the court dismissed the applicant's parents' testimony as unreliable due to their kinship with the applicant and to the fact that it was not likely that police officers would commit a serious crime like torture in front of first-degree relatives. Moreover, as to the other symptoms recorded in the medical report of 28 February 2001, the court noted, firstly, that the applicant had been medically examined on 23 February 2001 and that no such findings were recorded. Secondly, it noted that the haematuria had been found in the applicant's urine five days after he had been transferred to the army. Finally, it took into account that it was not possible to pinpoint the date when the applicant had suffered the trauma which led to haematuria. It therefore considered that this trauma could have occurred after the end of the applicant's detention. Taking into account the principle “in dubio pro reo”, the court considered that the evidence in the case file did not suffice to convict the accused police officers of torture.
46. On 7 May 2004 the applicant appealed.
47. On 5 June 2006 the Court of Cassation upheld the judgment of the Kayseri Assize Court.
48. In the meantime the applicant unsuccessfully sought the prosecution of one police officer, Mr B.Ö., and one military officer, Mr E.S., for forgery of official documents, and the prosecution of Mr O.A. for perjury.
49. On 23 December 2002 the Kayseri Criminal Court found the applicant guilty of resisting police officers with a knife and breaking into his neighbours' flat. It sentenced him to seven months and seventeen days' imprisonment. In the course of this trial the applicants' neighbours maintained that, since the applicant's actions had been strange and he looked as if he had lost control of himself, fearing for their life, they had not attempted to open the door to the police. The applicant maintained, inter alia, that he had escaped from the police because he was an army deserter. This judgment was upheld by the Court of Cassation on 21 March 2005.
50. On 4 April 2007 the Kayseri Criminal Court found the applicant guilty of possessing a gun without a licence and sentenced him to one year's imprisonment and to a fine.
51. The applicant submitted an MR scan dated 13 May 2009 in support of his claim that he still suffered from injuries resulting from his ill-treatment. According to this scan, the applicant had annular bulging at C3/4/5/6, flattening of the cord and slight uncovertebral degeneration.
VIOLATED_ARTICLES: 3


ITEMID: 001-57834
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF MODINOS v. CYPRUS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: G. Pikis;John Freeland
TEXT: 7. The applicant is a homosexual who is currently involved in a sexual relationship with another male adult. He is the President of the "Liberation Movement of Homosexuals in Cyprus". He states that he suffers great strain, apprehension and fear of prosecution by reason of the legal provisions which criminalise certain homosexual acts.
8. Sections 171, 172 and 173 of the Criminal Code of Cyprus, which predates the Constitution, provide as follows:
"171. Any person who -
(a) has carnal knowledge of any person against the order of nature; or (b) permits a male person to have carnal knowledge of him against the order of nature, is guilty of a felony and is liable to imprisonment for five years.
172. Any person who with violence commits either of the offences specified in the last preceding Section is guilty of a felony and liable to imprisonment for fourteen years.
173. Any person who attempts to commit either of the offences specified in Section 171 is guilty of a felony and is liable to imprisonment for three years, and if the attempt is accompanied with violence he is liable to imprisonment for seven years."
9. Various Ministers of Justice had indicated in statements to newspapers dated 11 May 1986, 16 June 1988 and 29 July 1990, that they were not in favour of introducing legislation to amend the law relating to homosexuality. In a statement to a newspaper on 25 October 1992 the Minister of the Interior stated, inter alia, that although the law was not being enforced he did not support its abolition.
10. The relevant provisions of the Constitution of the Republic of Cyprus, which came into force on 16 August 1960, read as follows:
"1. Every person has the right to respect for his private and family life.
2. There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person."
"1. ...
2. ...
3. Treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have, as from their publication in the Official Gazette of the Republic, superior force to any municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto."
"1. This Constitution shall be the supreme law of the Republic.
2. No law or decision of the House of Representatives or of any of the Communal Chambers and no act or decision of any organ, authority or person in the Republic exercising executive power or any administrative function shall in any way be repugnant to, or inconsistent with, any of the provisions of this Constitution."
"1. Subject to the provisions of this Constitution and to the following provisions of this Article, all laws in force on the date of the coming into operation of this Constitution shall, until amended, whether by way of variation, addition or repeal, by any law or communal law, as the case may be, made under this Constitution, continue in force on or after that date, and shall, as from that date be construed and applied with such modification as may be necessary to bring them into conformity with this Constitution.
2. ...
3. ...
4. Any court in the Republic applying the provisions of any such law which continues in force under paragraph 1 of this Article, shall apply it in relation to any such period, with such modification as may be necessary to bring it into accord with the provisions of the Constitution including the Transitional Provisions thereof.
5. In this Article -
‘law’ includes any public instrument made before the date of the coming into operation of this Constitution by virtue of such law;
‘modification’ includes amendment, adaptation and repeal."
11. In the case of Costa v. The Republic (2 Cyprus Law Reports, pp. 120-133 [1982]) the accused - a 19 year-old soldier - was convicted of the offence of permitting another male person to have carnal knowledge of him contrary to section 171(b) of the Criminal Code. The offence was committed in a tent within the sight of another soldier using the same tent. The accused had contended that section 171(b) was contrary to Article 15 of the Constitution and/or Article 8 (art. 8) of the European Convention on Human Rights. In its judgment of 8 June 1982 the Supreme Court noted that, since the offence was not committed in private and since the accused was a soldier who was 19 years of age at the time, the constitutional and legal issues raised by the case fell outside the ambit of the construction given to Article 8 (art. 8) by the European Court of Human Rights in its Dudgeon v. the United Kingdom judgment of 22 October 1981 (Series A no. 45). The Supreme Court, nevertheless, added that it could not follow the majority view of the Court in the Dudgeon case and adopted the dissenting opinion of Judge Zekia. The court stated as follows:
"By adopting the dissenting opinion of Judge Zekia this Court should not be taken as departing from its declared attitude that, for the interpretation of provisions of the Convention, domestic tribunals should turn to the interpretation given by the international organs entrusted with the supervision of its application, namely, the European Court and the European Commission of Human Rights ...
In ascertaining the nature and scope of morals and the degree of the necessity commensurate to their protection, the jurisprudence of the European Court and the European Commission of Human Rights has already held that the conception of morals changes from time to time and from place to place, and that there is no uniform European conception of morals; that, furthermore, it has been held that state authorities of each country are in a better position than an international judge to give an opinion as to the prevailing standards of morals in their country; in view of these principles this Court has decided not to follow the majority view in the Dudgeon case, but to adopt the dissenting opinion of Judge Zekia, because it is convinced that it is entitled to apply the Convention and interpret the corresponding provisions of the Constitution in the light of its assessment of the present social and moral standards in this country; therefore, in the light of the aforesaid principles and viewing the Cypriot realities, this Court is not prepared to come to the conclusion that Section 171(b) of our Criminal Code, as it stands, violates either the Convention or the Constitution, and that it is unnecessary for the protection of morals in our country."
12. There had been prosecutions and convictions in Cyprus for homosexual conduct in private between consenting adults up until the 1981 judgment of the European Court in the Dudgeon case (loc. cit.). When this case was pending before the European Court the Attorney-General requested the police not to continue with a prosecution under section 171 because of apparent conflict between that provision and Article 8 (art. 8) of the Convention. Since that date the Attorney-General’s office has not allowed or instituted any prosecution which conflicts with either Article 8 (art. 8) of the Convention or Article 15 of the Constitution, in so far as they relate to homosexual behaviour in private between consenting adults.
Under Article 113 of the Constitution of Cyprus the Attorney-General is vested with competence to institute and discontinue criminal proceedings in the public interest. Although he could not prevent a private prosecution from being brought he can intervene to discontinue it.
VIOLATED_ARTICLES: 8


ITEMID: 001-105764
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF LIU v. RUSSIA (No. 2)
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicants are a family comprising the husband and wife (the first and second applicants) and their two children (the third and fourth applicants). They were born in 1968, 1973, 1996 and 1999 respectively and live in the town of Sovetskaya Gavan in the Khabarovsk Region.
6. In 1994 the first applicant arrived in Russia with a valid visa and married the second applicant. In November 1996, after his visa had expired, the first applicant was deported to China.
7. In 2001 the first applicant obtained a work visa valid until 1 August 2002 and resumed his residence in Russia. The visa was later extended until 1 August 2003.
8. On 24 July 2003 the first applicant applied for a residence permit.
9. On 22 July 2004 the police department of the Khabarovsk Region rejected his application by reference to section 7 § 1 (1) of the Foreign Nationals Act (see paragraph 47 below). No further reasons were provided.
10. The first and the second applicants challenged the refusal before a court. They complained, in particular, that the police department of the Khabarovsk Region had not given any reasons for the refusal. The first applicant had never been charged with any criminal offence or engaged in any subversive activities. The applicants also claimed that the refusal had interfered with their right to respect for their family life and had caused them non-pecuniary damage.
11. On 4 November 2004 the Tsentralniy District Court of Khabarovsk found that the decision of 22 July 2004 had been lawful and rejected the applicants’ claim in respect of non-pecuniary damage. It found that the police department of the Khabarovsk Region had received information from the Federal Security Service that the first applicant posed a national security risk. That information was a State secret and could not be made public.
12. On 18 January 2005 the Khabarovsk Regional Court upheld the judgment of 4 November 2004 on appeal. It reiterated that, according to the information from the Federal Security Service, the first applicant posed a national security risk. That information was a State secret and was not subject to judicial scrutiny.
13. On 3 February 2005 the police department of the Khabarovsk Region prepared a decision that the first applicant’s presence on Russian territory was undesirable and submitted it to the head of the Federal Migration Service for approval. The draft decision indicated that the first applicant had been unlawfully resident on Russian territory and had been repeatedly fined under Article 18.8 of the Administrative Offences Code (see paragraph 50 below) for his failure to leave Russia after the expiry of the authorised residence period. On 22 March 2005 the head of the Federal Migration Service confirmed the decision and it became enforceable.
14. On 22 August 2005 the police department of the Khabarovsk Region asked the Federal Migration Service to order the first applicant’s deportation. On 12 November 2005 the head of the Federal Migration Service ordered the first applicant’s deportation by reference to section 25.10 of the Entry Procedure Act (see paragraph 51 below). No further reasons were provided. The applicants were not informed of the decision until 12 December 2005.
15. On 25 November 2005 the first and second applicants lodged an application with the Court under Article 34 of the Convention. They complained, in particular, that the refusal to grant a residence permit to the first applicant and the subsequent decision to deport him to China had entailed a violation of the right to respect for their family life.
16. In its judgment of 6 December 2007 the Court found a violation of Article 8 of the Convention (see Liu v. Russia, no. 42086/05, 6 December 2007). It found that the applicants’ relationship amounted to family life and that the refusal to grant the first applicant a residence permit and his deportation order constituted interference with the applicants’ right to respect for their family life. That interference had a basis in domestic law, namely section 7 § 1 (1) of the Foreign Nationals Act and section 25.10 of the Entry Procedure Act.
17. However, the Court noted that the domestic courts were not in a position to assess effectively whether the decision to reject the first applicant’s application for a residence permit was justified, because it was based on classified information. The failure to disclose the relevant information to the courts deprived them of the power to assess whether the conclusion that the first applicant constituted a danger to national security had a reasonable basis in fact. It followed that the judicial scrutiny was limited in scope and did not provide sufficient safeguards against arbitrary exercise of the wide discretion conferred by domestic law on the Ministry of Internal Affairs and the Federal Security Service in cases involving national security.
18. As to the deportation order against the first applicant, the Court observed that it had been issued by the Federal Migration Service on the initiative of a local police department. Both agencies were part of the executive and took such decisions without hearing the foreign national concerned. It was not clear whether there was a possibility of appealing against those decisions to a court or other independent authority offering guarantees of an adversarial procedure and competent to review the reasons for the decisions and relevant evidence.
19. The Court concluded that the interference with the applicants’ family life was based on legal provisions that did not give an adequate degree of protection against arbitrary interference and therefore did not meet the Convention’s “quality of law” requirements. Accordingly, in the event of the deportation order against the first applicant being enforced, there would be a violation of Article 8.
20. On 2 June 2008 the judgment became final.
21. On 4 August 2008 the Federal Migration Service annulled the decision of 22 March 2005 stating that the first applicant’s presence on Russian territory was undesirable, and the decision of 12 November 2005 ordering his deportation.
22. By letter of 21 August 2008, the head of the local department of the Federal Migration Service notified the first applicant of the decision of 4 August 2008. She further reminded the first applicant that he was unlawfully residing on Russian territory. To make his residence lawful, he had to leave for China, obtain a Russian entry visa and then apply for a residence permit. If he failed to leave, he would be fined and administratively removed to China under Article 18.8 of the Administrative Offences Code.
23. On 23 September 2008 the first and the second applicants applied to the Tsentralniy District Court of Khabarovsk for a reconsideration of the judgment of 4 November 2004, as upheld on 18 January 2005, referring to the Court’s judgment of 6 December 2007.
24. On 2 December 2008 the Tsentralniy District Court of Khabarovsk allowed their request, quashed the judgment of 4 November 2004 and ordered a reconsideration of the case.
25. On 15 December 2008 the first and the second applicants submitted an amended statement of claim, asking that the first applicant be issued with a residence permit and that compensation in respect of non-pecuniary damage be paid to each of the applicants. The statement of claim mentioned that the first and the second applicants were acting on their own behalf and on behalf of their minor children, the third and the fourth applicants.
26. On 6 February 2009 the Tsentralniy District Court of Khabarovsk relinquished jurisdiction in favour of the Khabarovsk Regional Court. The judge noted that one of the main criticisms of the European Court expressed in the judgment of 6 December 2007 was the failure by the District Court to review documents containing classified information. This factor had prevented an effective assessment of whether the finding that the first applicant constituted a danger to national security had a reasonable basis in the facts and, consequently, of whether the decision to reject his application for a residence permit was justified. The judge concluded that the case should be referred to the Regional Court which, unlike the District Court, had competence to review documents containing State secrets.
27. During the hearing the Khabarovsk Regional Court examined the classified documents from the Federal Security Service containing information about the security risks allegedly posed by the first applicant. The first and second applicants were informed of the contents of those documents after they had undertaken not to disclose that information. They asked the court to call the police informants who had accused the first applicant of subversive activities to the witness stand and have them questioned. Their request was however refused.
28. On 17 March 2009 the Khabarovsk Regional Court found that the refusal of a residence permit to the first applicant had been lawful. It referred, in particular, to section 7 § 1 (1) of the Foreign Nationals Act and held as follows:
“... if the security services discover that certain actions [of a foreign national] create a threat for the security of the Russian Federation or for the citizens of the Russian Federation, they are bound [by law] to inform the local department of the Federal Migration Service of [the existence of such threat]. [The law] does not require that the security services reveal the substance of the threat.
The procedure for the preparation and approval of the materials in respect of a specified foreign national to whom a Russian three-year residence permit is to be refused is established by [unpublished] Instruction no. 0300, “On organisation of the activities of the Federal Security Service in respect of the examination of materials concerning residence permits for foreign nationals”, of 4 December 2003.
During the hearing the court examined the requirements contained in the Instruction and the ‘classified’ documents which had formed the basis for the refusal, by the security services, of permission to grant a three-year residence permit to Chinese national Liu Jingcai. It finds that the Khabarovsk Regional Department of the Federal Security Service complied with the requirements contained in the Instruction.
The court has established that the security service revealed circumstances and discovered factors representing a danger for the vital interests of individuals, society and the State. The security service made the finding that there were circumstances warranting the refusal of a Russian three-year residence permit to Liu Jingcai on the basis of information obtained in the course of its intelligence activities conducted in accordance with the procedure established by the laws of the Russian Federation, when discharging its [the security service’s] duties and within its competence.
The court takes into account that issues relating to national security are special, in particular because the factors that represent a threat to national security are assessed by the competent authorities on the basis of information received from various sources, including sources not subject to judicial scrutiny.
Moreover, section 7 § 1 (1) of [the Foreign Nationals Act] does not specify which actions may be qualified as representing a threat for the security of Russia or its citizens. This means that the competent security services have discretion in classifying various actions of a foreign national as a threat [to national security].
Thus, there are no reasons to hold that the refusal by the Khabarovsk Regional Department of the Federal Security Service of permission to grant a three-year residence permit to Liu Jingcai was unlawful.
After the receipt of news of the refusal of permission by the security service, the application of Liu Jingcai for a three-year residence permit was rejected by the police department of the Khabarovsk region, by decision no. 401 of 22 July 2004, on the basis of section 7 § 1 (1) of [the Foreign Nationals Act].
The court concludes from the above that the mentioned decision of the police department of the Khabarovsk Region was lawful and justified...”
29. The court then cited Article 8 of the Convention and certain paragraphs of the Court’s judgment of 6 December 2007 reiterating the general principles under Article 8. It continued as follows:
“Given that the instant case does not concern an expulsion order against Liu Jingcai and that during the court hearing statutory circumstances warranting a restriction of the right of Chinese national Liu Jingcai to obtain a Russian three-year residence permit have been established, the court does not see any grounds to satisfy the plaintiffs’ request for an injunction to examine Liu Jingcai’s application for a three-year residence permit and grant such residence permit on the basis of the UN Convention on the Rights of the Child.”
30. Finally, referring to section 8 of the Foreign Nationals Act (see paragraph 49 below), the Regional Court found that the first applicant was not entitled to receive a five-year residence permit either. A five-year residence permit could be issued only to a person who had lived in Russia for at least a year on the basis of a three-year residence permit. As the first applicant had never had a three-year residence permit, he was not eligible for a five-year residence permit.
31. The Regional Court dismissed the applicants’ claims in full.
32. The first and second applicants appealed to the Supreme Court of the Russian Federation. They complained, in particular, that they had not been given access to the classified materials but merely informed about their contents in general terms. They had therefore been denied an opportunity to contest the accusations levelled at the first applicant. They referred to the cases of Edwards and Lewis v. the United Kingdom ([GC], nos. 39647/98 and 40461/98, ECHR 2004X), and A. and Others v. the United Kingdom ([GC], no. 3455/05, ECHR 2009), claiming that the refusal to disclose the relevant evidence had violated their right to a fair trial. They also argued that by refusing to provide the first applicant with a residence permit the authorities had showed disrespect for their family life.
33. A representative of the local department of the Federal Migration Service commented on the applicants’ appeal submissions. He submitted, in particular, that the decision to refuse a residence permit to the first applicant had been lawful and had been taken in accordance with the procedure established by law, in particular Instruction no. 0300. That instruction and the classified materials from the security services had been examined by the Regional Court in the applicants’ presence and had been attached to the case file. Accordingly, the applicants had had full access to those materials.
34. On 20 May 2009 the Supreme Court upheld the judgment of 17 March 2009 on appeal, finding that it had been lawful, well-reasoned and justified. The Regional Court had examined the classified materials in the applicants’ presence. The Supreme Court was therefore convinced that the security services’ assertion that the first applicant was a danger to national security had a basis in the facts. In those circumstances the public interest had absolute priority over any private interests that might be involved. There was no reason to depart from the findings made by the Regional Court, as those findings had been compatible with the domestic and international law. The applicants had been given access to all relevant evidence and materials and no other procedural defects had been established. Accordingly, their right to a fair trial had not been violated.
35. On 2 June 2009 several policemen went to the second applicant’s place of work in search of the first applicant. They took the first applicant to the nearby police station. An officer from the local department of the Federal Migration Service drew up a report on the commission of an offence under Article 18.8 of the Administrative Offences Code and ordered that the first applicant pay a fine of 2,000 Russian roubles (RUB). The first applicant was then released.
36. The applicants challenged the decision of 2 June 2009 before the Sovetskaya Gavan Town Court.
37. On 7 July 2009 the Sovetskaya Gavan Town Court reversed the decision of 2 June 2009. It observed that the statutory limitation period for continuous administrative offences was one year starting to run from the day the offence was discovered. In the first applicant’s case the continuous offence of living in Russia without a valid residence permit had been first discovered in December 2004. Accordingly, the administrative offence proceedings were time-barred. The parties did not appeal and the decision became final.
38. On 28 August 2009 the prosecutor’s office asked the Khabarovsk Regional Court to quash the decision of 7 July 2009 as incorrect.
39. On 5 October 2009 the Khabarovsk Regional Court found that the Town Court had incorrectly interpreted and applied the legal provisions concerning limitation periods and that the administrative offence proceedings against the first applicant were not time-barred. However, the Administrative Offences Code did not provide for a procedure for quashing or reconsidering a court decision that had become final. It therefore rejected the prosecutor’s office’s application.
40. On 22 October 2009 several policemen went to the second applicant’s place of work and arrested the first applicant. He was taken to the police station, where an officer from the local department of the Federal Migration Service drew up a report on the commission of an offence under Article 18.8 of the Administrative Offences Code. The report was transmitted to a judge.
41. On the same day the Sovetskaya Gavan Town Court held that the first applicant had infringed the residence regulations by living in Russia without a valid residence permit. It further held as follows:
“The offender’s arguments that some members of his family (his wife and children) are living in the Russian Federation have been discussed. It has been found that these circumstances cannot prevent an administrative removal, as in the judgments mentioned above [the judgments of 17 March and 20 May 2009] the same circumstances were considered insufficient for granting Liu Jingcai a residence permit...”
42. The Town Court ordered the first applicant’s administrative removal and detention pending removal. It also ordered that he pay a fine of RUB 2,000. The first applicant was placed in a detention centre in Khabarovsk.
43. On 25 November 2009 the Khabarovsk Regional Court upheld the decision of 22 October 2009 on appeal.
44. On 27 November 2009 the first applicant was expelled to China.
45. Until 2002 temporary resident foreign nationals were not required to apply for a residence permit. Their presence in Russia was lawful as long as their visa remained valid. On 25 July 2002 Law no. 115-FZ on Legal Status of Foreign Nationals in the Russian Federation (“the Foreign Nationals Act”) was passed. It introduced the requirement of residence permits for foreign nationals.
46. A foreign national married to a Russian national living on Russian territory is entitled to a three-year residence permit (section 6 §§ 1 and 3 (4)).
47. A three-year residence permit (“разрешение на временное проживание”) may be refused only in exhaustively defined cases, particularly if the foreign national advocates a violent change to the constitutional foundations of the Russian Federation or otherwise creates a threat to the security of the Russian Federation or its citizens (section 7 § 1 (1)). Nor may a three-year residence permit be issued during the five-year period following a person’s administrative removal or deportation from Russia (section 7 § 1 (3)).
48. The local department of the Federal Migration Service (before 2006, the local police department) examines an application for a three-year residence permit within six months. It collects information from the security services, the bailiffs’ offices, tax authorities, social security services, health authorities and other interested bodies. Those bodies must, within two months, submit information about any circumstances within their knowledge which might warrant refusal of a residence permit. After receipt of such information the local department of the Federal Migration Service or the local police department decides whether to grant or reject the application for a three-year residence permit (section 6 §§ 4 and 5).
49. During the validity of the three-year residence permit a foreign national may apply for a renewable five-year residence permit (“вид на жительство”). Such application is possible only after the foreign national has lived in Russia for at least a year on the basis of a three-year residence permit (section 8 §§ 1-3).
50. Article 18.8 of the Administrative Offences Code of the Russian Federation provides that a foreign national who infringes the residence regulations of the Russian Federation, including by living on the territory of the Russian Federation without a valid residence permit or by non-compliance with the established procedure for residence registration, will be liable to punishment by an administrative fine of RUB 2,000 to 5,000 and possible administrative removal from the Russian Federation. Under Article 28.3 § 2 (1) a report on the offence described in Article 18.8 is drawn up by a police officer. Article 28.8 requires the report to be transmitted within one day to a judge or to an officer competent to examine administrative matters. Article 23.1 § 3 provides that the determination of any administrative charge that may result in removal from the Russian Federation shall be made by a judge of a court of general jurisdiction. Article 30.1 § 1 guarantees the right to appeal against a decision on an administrative offence to a court or to a higher court.
51. A competent authority, such as the Ministry of Foreign Affairs or the Federal Security Service, may issue a decision that a foreign national’s presence on Russian territory is undesirable. Such a decision may be issued if a foreign national is unlawfully residing on Russian territory or if his or her residence is lawful but creates a real threat to the defensive capacity or security of the State, to public order or health, etc. If such a decision has been taken, the foreign national has to leave Russia or will otherwise be deported. That decision also forms the legal basis for subsequent refusal of re-entry into Russia (section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation, no. 114-FZ of 15 August 1996, as amended on 10 January 2003, “the Entry Procedure Act”).
52. A foreign national who has been deported or administratively removed from Russia may not re-enter it during the five-year period following such deportation or administrative removal (section 27 § 2 of the Entry Procedure Act).
53. The Civil Procedure Code provides that only those persons who have reached the age of eighteen may participate in civil proceedings. Minors participate in civil proceedings through their parents or guardians (Articles 37 § 1and 52 § 1).
VIOLATED_ARTICLES: 8


ITEMID: 001-72783
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: Z. and T. v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicants, Z. born in Pakistan in 1973 and T. born in Pakistan in 1965 are Pakistani citizens currently resident in Hull. They are represented before the Court by Mr D. Foster, a solicitor practising in Guildford.
The applicant sisters are Christians. Their parents, Mr and Mrs M., were active in the Christian community in Bahawalpur and Mr M. was a Methodist minister for 38 years. In 1990, the second applicant, T. married her cousin, also a christian and son of a minister in 1990. She went to live in Peshawar and from 1999 worked as a teacher in the Presentation Convent School in Peshawar. The first applicant, Z. had married a fellow Christian in 1997 and moved to live in Sukkur.
On 28 October 2001, after the attacks in the United States on 11 September 2001, there was an attack on the Methodist church in Bahawalpur. Machine guns were fired into the church and many worshippers were killed and injured. One of the policeman on duty at the church was killed. Mrs M. was among the severely injured. Mr and Mrs M, and their son Dr H. fled to the United Kingdom to obtain medical treatment for Mrs M. Their son I. was already in the United Kingdom. All were granted asylum. The applicants’ sister A. was also granted asylum on 3 September 2004.
On 28 April 2004, the first applicant travelled to the United Kingdom with her children on a visitors visa to see her mother who continued to be unwell.
On 17 May 2004, Mrs M. died.
On 27 May 2004 the second applicant came to the United Kingdom with her family to attend the funeral.
On 29 April 2004, a day after her arrival, the first applicant applied for asylum, along with her husband and daughter, invoking Articles 2, 3, 5, 6, 8, 9, 10, 11, 12 and 14 of the Convention. She stated that there had been a bomb threat on their church in Sukkur during 2002 when the police had deactivated an explosive device, while in October 2003 her husband and his brother had been attacked by extremists. In the latter incident, although there was shooting, no-one was hurt and the assailants absconded with her husband’s motorbike. She and her husband had also received threatening telephone calls.
By letter dated 25 June 2004, the Secretary of State gave reasons for refusal, considering that the applicant had never been physically attacked or ill-treated on the basis of her beliefs and had not been present during the bomb threat at the church where the police had successfully intervened. He noted that Christians were a recognised minority group under the Constitution of Pakistan, that the Government were taking measures to curb acts of sectarian violence and that they were willing and able to take action to protect Christian churches and communities.
By decision of 18 February 2005, the Adjudicator refused her appeal, finding that the authorities offered protection to churches, inter alia convicting six men for an attack on a Christian church. He also noted that the applicant had not herself been personally or directly threatened with violence and that she had lived some distance from Bahawalpur, having no direct connection with the incident there. He noted that the assault on her husband in 2003 had been reported as robbery without any mention of religious motivation for the attack. He found no problem arising under Article 9 as there was no bar on Christianity as shown by the fact that her father had been a minister for 38 years. He concluded that she had not shown that she was risk.
On 26 March 2005, the Immigration Appeal Tribunal (IAT), refused the first applicant permission to appeal noting a recent precedent from the House of Lords in Ullah (R (Ullah) v. a Special Adjudicator [2004] INLR 381) and finding in line with that authority that the situation of Christians in Pakistan who, for example, had their own representatives in Parliament was not so flagrantly bad as to allow exceptionally a case to proceed under Article 9 where there were no grounds under Article 3.
On 13 August 2004, the second applicant applied for asylum, together with her children and husband. She invoked Articles 2, 3, 8, 9 and 14 of the Convention, claiming that she feared that if she returned to Pakistan she would be subjected to attack by Muslim extremists because she was a Christian. She referred to having received nuisance telephone calls during the night after the incident on the Bahawalpur Church.
By letter dated 6 October 2004, the Secretary of State refused asylum, noting inter alia that Christians were a recognised minority group under the Constitution of Pakistan, that the Government were taking measures to curb acts of sectarian violence and that they were willing and able to take action to protect Christian churches and communities. He also did not consider that the applicant was at risk because of the incident at Bahawalpur as she lived in Peshawar and since the incident had suffered nothing more serious than nuisance telephone calls. He found no ground for a breach of Article 9 as she had not shown any risk of a flagrant denial of her rights.
By decision of 18 January 2005, the Adjudicator refused the applicant’s appeal, noting that the applicant had not applied for asylum at the time of the 2001 attack but had remained in Pakistan for another three years. While she claimed to have received unpleasant telephone calls, she had been able to deal with them by switching off the phone. He found no indication that there would be insufficient protection offered to her by the authorities who had placed guards on the churches and on the school where she worked.
On 1 March 2005, the IAT refused permission for an appeal, noting that the second applicant had not raised her Article 9 complaint before the Adjudicator even though she was represented by specialist advocates and finding no error in the Adjudicator’s decision.
In the case of R. (on the application of Ullah) v. Special Adjudicator ([2004] INLR 381), the claimant entered the United Kingdom from Pakistan and applied for asylum, claiming to have a well-founded fear of persecution as a result of his religious beliefs. The Secretary of State dismissed his claim and held that he had not qualified for permission to remain in the country by reason of any Article of the Convention. The claimant’s appeal was dismissed, the Special Adjudicator finding that he did not have a well-founded fear of persecution and that, while Article 9 of the Convention could be engaged in such a situation, the Secretary of State had acted lawfully and proportionately and in pursuance of the legitimate aim of immigration control in refusing leave to remain.
The Court of Appeal dismissed the claimant’s further appeal, holding that where the Convention was invoked on the sole ground of the treatment to which an alien was likely to be subjected by the receiving State and that treatment was not sufficiently serious to engage Article 3, the court was not required to recognise that any other Article of the Convention was, or might be, engaged.
The House of Lords dismissed the claimant’s further appeal. However, differing from the Court of Appeal, the Lords held that where in relation to the removal of an individual from the United Kingdom the anticipated treatment did not meet the minimum requirements of Article 3, other Articles of the Convention might be engaged. While it was hard to conceive that a person could successfully resist expulsion in reliance on Article 9 without being entitled either to asylum on the ground of a well-founded fear of being persecuted for reasons of religious or personal opinion or to resist expulsion in reliance on Article 3, such a possibility could not be ruled out. It would be necessary for a claimant to establish at least a real risk of a flagrant violation of the very essence of the right before the other Articles could become engaged. The House of Lords found that, in the instant appeal, the claimant’s case had not come within the possible parameters of a flagrant, gross or fundamental breach of Article 9 such as to amount to a denial or nullification of the rights conferred by the Article.


ITEMID: 001-58368
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1999
DOCNAME: CASE OF BAGHLI v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (six month period);No violation of Art. 8
JUDGES: Nicolas Bratza
TEXT: 8. The applicant, an Algerian national, was born in 1964 in Algeria and lives at Tlemcen (Algeria).
9. He entered France in 1967 at the age of two. He has lived there ever since, as have all the members of his family. He has seven brothers and sisters, all French nationals. He did the whole of his schooling in France where he obtained a professional diploma (certificat d’aptitude professionnelle) as a fitter in 1982. Between 1982 and 1992 he did various jobs and attended a number of professional training courses. In 1987 he met a French national, Miss L., with whom he had a steady relationship.
10. Between January 1984 and December 1985 the applicant performed his military service in Algeria.
11. In July 1990 gendarmes from the Belley investigation squad were informed of the plight of an 11-year-old girl whose father had just died of Aids and whose mother, Mrs C., was also suffering from the same disease, taking drugs and keeping company with several addicts. After an investigation had been opened on a complaint against a person or persons unknown for drug-related offences, the gendarmerie discovered in the course of their inquiries in the autumn of 1990 a drug-trafficking syndicate in which more than twenty people were implicated to differing degrees. The applicant was arrested and charged in the course of that investigation. He was accused by a number of co-defendants of being a dealer in drugs. It was established in the inquiry that he had been cohabiting with Mrs C. since July. He had been supplying her with hashish and heroin and together they had engaged in illegal trade in heroin.
12. On 10 September 1991 the Belley Criminal Court convicted the applicant of drug trafficking, sentenced him to fifteen months’ imprisonment, twelve of which were suspended, and made an order excluding him from French territory for a period of ten years.
13. The applicant appealed. On 23 January 1992 the Lyons Court of Appeal increased the term of imprisonment to three years, two suspended, and upheld the exclusion order.
14. In its judgment, the Court the Appeal stated, inter alia:
“Mohamed Baghli, who became R.C.’s companion in the summer of 1990, acknowledges that he has taken hashish for many years and began taking heroin in June 1990.
He admits that between the end of June and the end of July he made two trips a week to Lyons to obtain drugs from one A., ... who supplied him with the drugs, in particular, one gram or half a gram doses of heroin for 1,600 French Francs (FRF) or FRF 800.
He shared the drugs with his companion ... but also sold a part ...
Ultimately the heroin-trafficking offence of which Baghli stands accused, which the investigating judge’s investigations fully establish, concerned about ten grams of heroin, some being for his own and his companion’s use and some being sold on to finance further purchases after being adulterated in a way that made it particularly hazardous for the buyers’ health ...”
15. The applicant lodged an appeal on points of law, which was dismissed by the Court of Cassation on 6 September 1993.
16. Mrs C. died in October 1992.
17. In December 1992 the applicant began a relationship with Miss I., a French national, whom he had known for several years.
18. After serving his sentence, the applicant was deported to Algeria on 14 May 1994, where he would appear still to be at the date of this judgment.
19. On 11 January 1994, while still in Villefranche-sur-Saône Prison, the applicant applied to the Lyons Court of Appeal for rescission of the exclusion order. He relied on Article 8 of the Convention.
20. In a judgment delivered on 30 June 1994, the Court of Appeal dismissed his application. The applicant lodged an appeal on points of law through his counsel against that decision relying, inter alia, on Article 8 of the Convention.
21. On 19 December 1995 the Court of Cassation dismissed the appeal, holding:
“... after noting that Mohamed Baghli had been convicted for his part in a heroin-trafficking syndicate, the Court of Appeal said that while it was true that his family lived in France and most of its members were French nationals, he had not lost all contact with Algeria, having often spent his holidays there and done military service there in 1984 and 1985. The mere fact that he was planning to set up home with a French woman was not decisive as, at the material time, he was living with another woman whom he had involved in his drug trafficking.
The Court of Appeal concluded from that that the exclusion order had not disproportionately interfered with the right to family life guaranteed by Article 8 of the Convention ...
It added that although Article 14 of that Convention prohibited any discrimination on grounds of national origin, paragraph 3 of Article 2 of Protocol No. 4, an additional protocol, allowed aliens to be denied access to the territory if the measure was necessary in the interests of national security or public safety, for the maintenance of ordre public, and for the prevention of crime; that paragraph applied in the instant case, which concerned trafficking in narcotics, particularly heroin ...”
22. That judgment was not served on the applicant. His representative says that he (the representative) received a copy of the judgment in September 1996.
23. Article L. 630-1, sub-paragraph 1, of the Public Health Code, as worded at the material time, provided:
“Without prejudice to the application of Articles 23 et seq. of Ordinance no. 452658 of 2 November 1945, the courts may make an order excluding an alien convicted of an offence under Articles L. 626, L. 627-2, L. 628, L. 628-4 or L. 630 from French territory for between two and five years. They may make an order permanently excluding an alien convicted of an offence under Article L. 627.
An exclusion order shall automatically entail deportation of the convicted person at the end of his sentence ...”
24. Former Article L. 627 of the Public Health Code provided:
“Anyone who shall have contravened the provisions of the public-administration regulations laid down in the preceding Article concerning toxic plants or substances classified under the regulations as narcotics shall be liable on conviction to between two and ten years’ imprisonment and a fine of between FRF 5,000 and FRF 50,000,000, or one only of those penalties. The sentence for offences of importing, producing, manufacturing or unlawfully exporting the said substances or plants shall be between ten and twenty years’ imprisonment ...
Penalties for attempts to commit any of the offences referred to in the preceding paragraph shall be the same as for the substantive offence. A like rule shall apply to criminal association or conspiracy to commit such offences ...
The following persons also shall be liable to imprisonment of between two and ten years and a fine of between FRF 5,000 and FRF 50,000,000, or to one only of those penalties:
(1) Anyone who shall have facilitated the use by another of the said substances or plants by procuring premises or by any other means, and whether or not for consideration ...
Where the person whose use of the said substances has been facilitated is a minor under 21 ... the term of imprisonment shall be between five and ten years ...”
25. Article 55-1 of the Criminal Code provides:
“... anyone who shall have incurred a disability ... as an automatic consequence of a criminal conviction or on whom such disability ... has been imposed by the convicting court in its judgment ... may request the court which convicted him ... to rescind the disability ..., in whole or in part, or to vary its duration.”
26. Mr Baghli applied to the Commission on 26 December 1996. He alleged that the exclusion order imposed on him violated his right to respect for his private and family life guaranteed by Article 8 of the Convention.
27. On 4 March 1998 the Commission declared the application (no. 34374/97) admissible. In its report of 9 September 1998 (former Article 31 of the Convention), it expressed the opinion (by eleven votes to three) that there had been a violation of Article 8.
NON_VIOLATED_ARTICLES: 8