ITEMID: 001-87428
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SATIK v. TURKEY (No. 2)
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele
TEXT: 6. The applicant was born in 1966 and lives in Ankara.
7. On an unspecified date, the National Intelligence Service (Milli İstihbarat Teşkilatı, hereinafter MIT) began to record the telephone conversations of S.K., a Greek attaché working at the Consulate of Greece in Izmir and allegedly a member of the Greek Intelligence Service (EIP). The authorities noticed suspicious telephone conversations between S.K. and the applicant and initiated an investigation concerning the applicant.
8. On 18 February 1998 a military prosecutor and MIT officers searched the applicant’s shop in Istanbul. According to the preliminary investigation report, several photographs of military bases, two maps (one of which was marked as “top secret”) and telephone and credit cards were found in the shop. V.A.Ö. was present when MIT officers carried out a search in the applicant’s shop and told them that the photos of the military bases did not belong to him but to the applicant. The latter was then taken into custody on suspicion of transmitting official and confidential information to Greek intelligence service members. He was brought before a doctor, N.A., who noted that he was in good health. During his custody period, the applicant was allegedly subjected to illtreatment by the MIT officers.
9. On 20 February 1998 the applicant was brought before the 3rd Army Corps Command Military Court. Before this court, he maintained that he had met someone who worked at the Consulate of Greece in Istanbul and that he had sold this person books and silver accessories. He received money from this person for what he had sold. The applicant further contended that this person asked him to provide military information about Turkey. The applicant denied the allegation that he had given confidential information to this person. He stated that the maps and the photographs found in his shop did not belong to him.
10. On the same day, the court ordered the applicant’s detention on remand. He was then examined by N.A. who once again noted that there was no trace of ill-treatment on the applicant’s body. The applicant was then remanded in the Davutpaşa Military Prison. He filed an objection to the detention order.
11. On 23 February 1998, following his objection to the findings contained in the previous medical reports, the applicant underwent a third medical examination in prison. According to the prison doctor’s report, the applicant had ecchymoses on both arms, which were possibly three to four days old.
12. On 5 March 1998 the applicant filed a further objection to the detention order. On the same day the Navy Command Military Court dismissed his objection.
13. On 19 March 1998 the General Staff Military Prosecutor filed a bill of indictment with the General Staff Military Court, charging the applicant under Article 56 § 1 (D) of the Military Criminal Code and Articles 133 § 1, 31, 33 and 36 of the Criminal Code, with disloyalty to national defence by way of espionage.
14. The applicant maintained before the General Staff Military Court that he had been coerced by MIT officers into signing a statement while in custody. He claimed that he had sold the shop to V.A.Ö. and that the photographs and maps did not belong to him. He requested that V.A.Ö. be heard by the court. He further contended that the search in the shop was illegal and that he had not been informed of the charges against him by the officials who had conducted the search. The applicant reiterated that he had sold books and silver accessories to a Greek official, L.K. and that this person had requested him to provide confidential information. He also contended that he had contacted L.K. and another Greek official, S.K., whom he knew as “Yorgo”, in order to maintain his business and that the information that he had given was false. The applicant’s representative stressed that the applicant’s statements had been taken under torture by MIT officers. She referred in this connection to the medical report dated 23 February 1998 prepared by the Davutpaşa military prison doctor who noted the presence of three to four day-old ecchymoses on the applicant’s arms. The applicant’s representative also argued that the telephone conversations of the applicant, which were the sole evidence against him, had been obtained unlawfully by the MIT officers since there was no decision of a judge permitting them to tap his conversations on a public telephone. She therefore claimed that, in the absence of sufficient evidence, the applicant was innocent of the alleged crime.
15. During the proceedings, the General Staff Military Court issued a summons requiring V.A.Ö. to give evidence. However, this person could not be found.
16. On an unspecified date, a fingerprint expert conducted an analysis on the photographs and maps from the applicant’s shop. He observed that none of the fingerprints found belonged to the applicant.
17. On 15 June 1999 the General Staff Military Court convicted the applicant as charged. The court considered that the information that the applicant had given could not be considered to be confidential. However, it held that, although the applicant had provided non-confidential or imaginary information in order to maintain his business contacts with the Greek officials, he had committed the offence of disloyalty to national defence by accepting their proposal to provide information. The court sentenced the applicant to twelve years and six months’ imprisonment, which was the minimum penalty prescribed by Article 56 § 1 (D) of the Military Criminal Code and Articles 133 § 1, 31, 33 and 36 of the Criminal Code. While the court dismissed the applicant’s defence submissions, it did not address directly his allegations that his statements to the MIT officers had been obtained under torture and that his telephone conversations were unlawfully tapped by the MIT officers.
18. On 2 August 1999 the applicant appealed. He claimed that he was innocent of the crime since he had given false information to the Greek Intelligence Service and that he had never intended to betray his country. Relying on Article 6 of the Convention, the applicant further argued that the first instance court had convicted him on the basis of unlawfully obtained evidence, in particular the unlawful tapping and recording of his telephone conversations by the MIT. He also complained that the court had not secured the attendance of V.A.Ö as a witness. Referring to the medical report dated 23 February 1998 indicating ecchymoses on his arms, the applicant noted that the security forces had resorted to habitual methods to secure his conviction.
19. On 17 November 1999 the Military Court of Cassation upheld the judgment of 15 June 1999. It approved the reasoning of the first instance court’s judgment and noted that the latter had already accepted that the maps and photos had not belonged to the applicant and that it had not relied on the statements given by V.A.Ö. in the course of the preliminary investigation since he had not attended the trial. Accordingly, there was no deficiency or unlawfulness in the investigation leading to the applicant’s conviction. The court therefore rejected the applicant’s appeal.
20. On 24 January 2000 the Military Court of Cassation’s decision was served on the applicant.
21. A full description of the domestic law at the relevant time may be found in Batı and Others v. Turkey, nos. 33097/06 and 57834/00, §§ 95-99, ECHR 2004-IV; and Ergin v. Turkey (no. 6), no. 47533/99, §§ 15-18, 4 May 2006.
22. Section 11 of the Constitution of Military Courts Act then in force read as follows:
“Trial of civilians by military courts:
... the offences referred to in Articles ... and 56 of the Military Penal Code [come within the jurisdiction of the military courts].”
23. According to Article 138 of the Constitution of Military Courts Act, hearings to be held by military courts shall be open to public. However, the military court may decide to close a part or whole of the hearing to the public if public morality or security so requires. Article 139 further provides that the military court may also decide to remove the public when it holds a hearing to consider a request to close the hearings to the public.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-109140
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GĄSIOR v. POLAND
IMPORTANCE: 3
CONCLUSION: No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 5. The applicant was born in 1931 and lives in Kraków.
6. The applicant’s son-in-law, J.D., owns a construction company. In 2002 he built a villa for Z.W., a prominent politician, former prosecutor and deputy in the Polish parliament.
7. On 4 April 2003, the applicant wrote a letter to E.J. – the chief editor of a television programme (“Sprawa dla reportera”). She stressed in particular:
“For 6 months Z.W. has owed 240,000 Polish zlotys to a small construction company. On 15 November [2002] he moved into a villa built by this company and until today, 4 April 2003, he has not paid a cent. No one can help us. The deputies from the “Law and Justice” Party (Prawo i sprawiedliwość) do not reply to our letters, they are silent because how could they touch the great W. They believe in his lies and fibs, no one is persuaded that he owes 240,000 Polish zlotys (PLN) to poor, hard working people (...).
My son-in-law had contacts with different investors, but this is the first time in his life that he met such a greedy and mendacious person. He never expected such dishonesty from a public person – a deputy from the Law and Justice Party. This is why he [Z.W.] managed to trick him out of such a significant sum.”
8. In a second letter, dated 2 June 2004, addressed to the President of the board of the Polish Television, the applicant expressed the view that the media forgot about small enterprises that went bankrupt as they could not afford to pay the costs of civil proceedings. She further stated that:
“Z.W. managed to deceive and ruin three [...] Polish companies and to successfully intimidate their owners and employees.”
9. Z.W. was informed about both letters by Polish Television journalists, who asked him for his comments.
10. On 8 July 2004 Z.W. lodged a private bill of indictment against the applicant. He charged the applicant with defamation. In particular, Z.W. submitted that in the letters sent to Polish Television on 4 April and 2 June 2004 the applicant had wrongly alleged that he had not paid J.D.’s company. The applicant had also referred to his using words indicating dishonesty, deceitfulness and fraudulent actions on his part.
11. The applicant was tried by the Kraków District Court. On 31 August 2006 she was convicted of defamation under Article 212 § 1 of the Criminal Code. The criminal proceedings against her were conditionally discontinued and she was ordered to pay PLN 1,000 to Z.W. She was also ordered to publish a written apology. In addition, the applicant was ordered to reimburse PLN 300 to Z.W. for the costs of the proceedings.
12. The trial court held that the content of the letter and in particular the expressions used, such as “liar”, “greedy and mendacious person”, “dishonest” could have resulted in Z.W. losing the public trust necessary for his political career. The background of this case was a civil dispute between Z.W and J.D. over the villa that the latter had built. The court noted that both parties had their arguments, more or less justified, but it was not the court’s role to adjudicate on this conflict, since its final outcome was already before a civil court. The court further referred to expert evidence (several opinions) obtained in the criminal and civil proceedings from which it appeared that indeed part of Z.W.’s allegations against J.D. as regards the quality of the construction works was substantiated. More importantly, the villa was not a faultless construction as claimed by the applicant and her family.
13. The court further held that it was impossible to accept that the words used by the applicant were true. They gave the applicant’s private opinion about Z.W., which had no objective justification in the facts of the case. In addition, the court noted that the applicant could not have been mistaken about the genuineness of her statements as she was well aware of the civil dispute between J.D. and Z.W. The court also observed that the evidence before it had not confirmed in any way that three companies had been ruined.
14. In the court’s opinion the applicant’s letters formed an unjustified personal attack on Z.W. The applicant consciously circulated untrue facts concerning an alleged non-compliance with a financial obligation between Z.W. and J.D. The allegations concerned the private life of Z.W. and therefore could not be protected in the same way as statements concerning his political activities.
15. The applicant appealed against her conviction. On 24 January 2007 the Kraków Regional Court partly upheld the first-instance judgment. However it ordered the applicant only to publish an apology and reimburse Z.W.’s costs. The court referred to the reasons given by the District Court. It considered that the applicant’s allegations were not true and the applicant had been aware of this. Furthermore, she had not acted in the public interest but had presented her personal negative and unsubstantiated opinion of Z.W.
16. On 21 April 2004 J.D. lodged with the Kraków Regional Court a claim against Z.W. and his wife seeking payment of 40,492 Polish zlotys for the works carried out by his company.
17. On 22 June 2004 the Kraków Regional Court in a summary procedure (postepowanie uproszczone) ordered Z.W. and his wife to pay J.D. the requested sum together with interest.
18. On the defendants’ appeal the case was transferred to the ordinary procedure.
19. On 10 June 2008 the Kraków Regional Court gave judgment and dismissed J.D.’s claim. The court held that the plaintiff’s claims were unsubstantiated since, as proved by expert opinions, the construction works carried out by his company had been faulty. In addition Z.W. had had to spend about PLN 100,000 in order to repair the building. The court concluded that Z.W could have requested to have this amount offset against J.D.’s claim.
20. On 28 November 2008 the Kraków Court of Appeal upheld the firstinstance judgment and dismissed J.D.’s claim.
21. Article 212 of the Criminal Code provides in so far as relevant:
“§ 1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics as may lower this person, group or entity in public opinion or undermine public confidence in their capacity necessary for a given position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year.
§ 2. If the perpetrator commits the act described in paragraph 1 through the mass media he shall be liable to a fine, a restriction of liberty or imprisonment not exceeding two years.”
Article 213 provides as follows:
“§ 1. The offence specified in Article 212 § 1 is not committed, if the allegation made in public is true.
§ 2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 §§ 1 or 2; if the allegation regards private or family life evidence of truthfulness shall be admitted only when it serves to prevent a danger to someone’s life or to prevent the demoralisation of a minor.”
22. On 30 October 2006 the Constitutional Court, ruling on a legal question referred to it by the Gdansk District Court, declared Article 212 §§ 1 and 2 of the Polish Criminal Code compatible with Articles 14 and 54 § 1 of the Constitution read in conjunction with Article 31 § 3. The court found that in some circumstances the protection of rights and freedoms like dignity, good name and privacy might prevail over the protection of freedom of expression. The Court further found that there was no basis to assume that protection of personal rights through the civil law alone would be equally effective as criminal law. Protection of personal rights by means of the criminal law did not by itself infringe the relevant provisions of the Constitution.
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-111989
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: KABUROV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: The applicant, Mr Spas Spasov Kaburov, is a Bulgarian national who was born in 1996 and lives in Pazardzhik. He is represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardzhik. The respondent Government are represented by Ms M. Dimova, of the Ministry of Justice.
1. The applicant is the son of Mr Kaburov, who died on 14 June 2000. The facts of the case, as submitted by the parties, may be summarised as follows.
2. According to the applicant, in the evening of 4 November 1997 his father, Mr Kaburov, was stopped by a police officer in front of his house. The officer wanted to seize Mr Kaburov’s car on suspicion that it had been stolen.
3. Mr Kaburov refused to surrender the car, as the police officer did not present any seizure order or other relevant document. He got into the car and drove away, with the police chasing him.
4. Shortly thereafter more police cars joined the chase. The policemen signalled Mr Kaburov to stop but he failed to do so. They fired shots at his car, shooting its tyres flat. Mr Kaburov got out of the car. Allegedly, after the police officers had caught him, they beat him, punching and kicking him, as a result of which he lost consciousness.
5. According to the Government, in the evening of 4 November 1997 a police officer, acting with the consent of the district prosecutor, went to Mr Kaburov’s home to seize his car on suspicion that it had been imported and registered with false documents. He informed Mr Kaburov that the car was being seized and requested the registration documents and the keys of the car. Mr Kaburov refused to comply with the instructions, threatened the police officer and drove away in the car. The police officer called for help and started chasing Mr Kaburov. Three patrol cars joined the chase. The policemen shot the tyres of Mr Kaburov’s car flat and stopped it. Then Mr Kaburov resisted the policemen and they had to use physical force and other means of restraint in order to arrest him, thereby causing him minor bodily harm. His car was seized.
6. After the incident the policemen called an ambulance and Mr Kaburov was taken to the hospital in Pazardzhik, where he was examined by a doctor and the wounds on his head were stitched. He discharged himself from the hospital the following morning.
7. On 5 November 1997 Mr Kaburov was examined by a forensic doctor, who found wounds on his forehead and nose, abrasions on his face and thighs and many bruises on his back. The doctor found that these injuries could have been inflicted at the time and in the way Mr Kaburov alleged and that the allegations that he had lost consciousness had to be proved by witnesses.
8. On 6 November 1997 Mr Kaburov went to the hospital in Plovdiv, where he stayed for four days, as it was established that he had broken ribs.
9. On 4 and 5 November 1997 the police took written statements from the policemen who had been involved in the chase. The policemen, Mr B., Mr G., Mr S.P., Mr T. and Mr V., stated that after Mr Kaburov’s tyres had been shot flat, he had got out of the car and had stumbled and fallen. He got up and cursed and threatened them. According to Mr B., his resistance lasted about a minute, after which he was handcuffed and put in the patrol car.
10. The road traffic policemen Mr S.B. and Mr D. stated that they had been called after Mr Kaburov’s arrest and requested to test him for alcohol. However, when they arrived, Mr Kaburov’s condition did not permit the use of a breath alcohol test, and therefore a physician took a blood sample from him.
11. On 14 November 1997 Mr Kaburov lodged a criminal complaint with the military prosecutor. He enclosed written statements from three individuals, Mr M., Mr H.P. and Mr S.T., who had allegedly observed his arrest from a nearby café. According to their statements, after Mr Kaburov’s tyres had been shot flat, he had got out of the car and was standing next to it. Two policemen had started beating him and kicking him. He had lost consciousness. Then the policemen had handcuffed him and put him into the police car.
12. On 11 May 1998 the Plovidiv regional military prosecutor refused to open criminal proceedings. He reasoned that Mr Kaburov’s car had been registered with false documents and that during the police check he had refused to comply with the policemen’s orders and had tried to escape in his car. Therefore the policemen had shot at its tyres and subsequently had used physical force against him. He further stated that it had not been proved that the policemen had abused their power.
13. On an appeal, on 17 June 1998 the military appeals prosecutor quashed the refusal and remitted the case for further inquiry. He instructed the regional military prosecutor to question the policemen and Mr Kaburov’s wife.
14. In a letter to the military appeals prosecutor of 3 August 1998 Mr Kaburov insisted that the inquiry should not be carried out by the policemen’s superiors, because they had an interest in the outcome of the case. He again requested that eyewitnesses Mr M., Mr H.P. and Mr S.T. be questioned and enclosed written statements from two other individuals who had allegedly seen policemen shooting at Mr Kaburov’s car during the chase.
15. On 5 August 1998 the military appeals prosecutor forwarded Mr Kaburov’s letter to the regional military prosecutor. There is no information as to whether the latter responded to his requests.
16. In October 1998 the regional military prosecutor questioned Mr Kaburov’s wife and three policemen and took written statements from several other policemen. On 27 October 1999 he again refused to open criminal proceedings, reasoning, without elaborating further, that he could not reach an unequivocal conclusion that the policemen had used excessive force against Mr Kaburov.
17. In a letter to the regional military prosecutor’s office in March 2000 Mr Kaburov requested that the prosecutor working on his case be replaced. It appears that his request was dismissed.
18. On 28 April 2000 the regional military prosecutor opened an investigation into Mr Kaburov’s allegations of ill-treatment.
19. Between April and June 2000 the regional military prosecutor and the military investigator questioned at least thirteen witnesses.
20. The policeman Mr B. confirmed his earlier statement that Mr Kaburov had stumbled and fallen down while getting out of his car (see paragraph 9 above). He further stated that after Mr Kaburov had stood up, he had insulted and threatened the policemen. Then one of the officers had knocked him over and Mr B. had managed to handcuff him and put him into the car. Mr B. also stated that the purpose of calling an ambulance was to carry out an alcohol test on Mr Kaburov.
21. The policeman Mr G. stated that after Mr Kaburov’s car had been stopped, Mr Kaburov had attacked him and had shouted threats at him, after which they had grappled and fallen to the ground. Then another policeman had managed to handcuff Mr Kaburov. Other policemen had arrived and Mr Kaburov had been put into the police car.
22. Eyewitnesses Mr M. and Mr S.T. stated that one policeman had grabbed Mr Kaburov and another had hit him with his pistol. Then other policemen had kicked him. The witnesses stated that they would not be able to recognise the policemen.
23. On 14 June 2000 Mr Kaburov was killed. His widow and another individual were convicted of the murder.
24. In August 2000 the eyewitnesses Mr M. and Mr S.T. were questioned again. They confirmed their previous testimony.
25. On 28 August 2000 the military investigator suggested that the criminal proceedings be discontinued. He reasoned that it had not been established which officer had hit Mr Kaburov, and again concluded that it had not been unequivocally proved that the policemen had used excessive force against him. He further stated that after Mr Kaburov’s death it was no longer possible to hold a confrontation between him and the police officers.
26. On 18 September 2000 the regional military prosecutor terminated the criminal proceedings, giving similar reasoning.
27. On 10 October 2000 the military appeals prosecutor quashed the decision of 18 September 2000 and remitted the case with instructions for a thorough investigation.
28. On 27 November 2000 the regional military prosecutor remitted the case to the investigator.
29. On 5 March 2001 eyewitness Mr S.T. was questioned again. He stated that he had previously been addicted to drugs but had undergone successful treatment. He further stated that on 4 November 1997 Mr Kaburov had not resisted the policemen. He also stated that he was not sure if any of the policemen had hit Mr Kaburov.
30. On 26 January 2001 the investigator organised an identity parade at which eyewitnesses Mr M. and Mr H.P. could not identify any of the individuals presented as the policemen who had beaten Mr Kaburov.
31. On 5 February 2001 the military investigator suggested that the proceedings be terminated, finding that there was no indication of any unlawful conduct on the part of the policemen during Mr Kaburov’s arrest.
32. On 2 April 2001 the regional military prosecutor terminated the proceedings. He stated that Mr Kaburov had resisted the policemen and that therefore the use of physical force against him had been justified.
33. On 11 April 2001 the military appeals prosecutor upheld the decree of 2 April 2001 with similar reasoning.
34. In a final decision of 27 April 2001 the Military Court of Appeal upheld the decree of 11 April 2001. It reasoned that Mr Kaburov had resisted the policemen, which had prompted them to use “physical force and other means of restraint” against him, thereby inflicting wounds and bruises on his face, back and both thighs.
35. On 5 January 1998 the Pazardzhik district prosecutor opened an investigation in respect of Mr Kaburov, on suspicion that during the incident of 4 November 1997 he had insulted a police officer and threatened him with murder, and had refused to comply with the orders of police officers. During the investigation she questioned the individuals who had participated in the events of 4 November 1997. Following Mr Kaburov’s death, she terminated the proceedings on 23 August 2000. In a final decision of 5 October 2000 the Pazardzhik Regional Court upheld the termination.
36. During the incident of 4 November 1997 Mr Kaburov’s car was seized in connection with the alleged document fraud. It is not clear whether any proceedings were instituted against him. Eventually, on 4 October 1998 the car was returned to him, as the prosecution authorities found that its seizure was no longer necessary for the purposes of the investigation. Apparently, it turned out that the car had not been stolen.
37. On 25 January 2000 Mr Kaburov brought an action against the Pazardzhik District Police Directorate and the prosecution authorities under the State and Municipalities Responsibility for Damage Act. The applicant presented his version of the events of 4 November 1997 and submitted medical certificates in support of his allegations that he had been beaten by police officers. He sought 9,000 Bulgarian levs (BGN) (approximately 4,500 euros (EUR)) in damages, stemming from the suffering, anguish and anxiety that he had undergone because of the shooting and the beating. He also claimed that the seizure of the car had been unlawful as the seizure procedure had been breached, and claimed initially BGN 3,000, later increased to BGN 3,300 (approximately EUR 1,150) in pecuniary damages, stemming from the impossibility to use his car for the period of its seizure between 4 November 1997 and 4 October 1998.
38. In the course of the proceedings, on 14 June 2000 Mr Kaburov died. The applicant, then aged four and represented by his mother, intervened in the proceedings as his son.
39. In a judgment of 28 May 2005 the Pazardzhik District Court dismissed the claim. Relying on the documents gathered in the course of the criminal investigation against the police officers (see paragraphs 9-34 above) and against Mr Kaburov (see paragraph 35 above), on medical expert opinions and on witness statements, the District Court established that in the evening of 4 November 1997 a police officer had visited Mr Kaburov’s home to seize his car in connection with a police inquiry. Mr Kaburov had refused to surrender the car, had threatened to kill the police officer and had driven away. The police officer and three patrol cars had started chasing Mr Kaburov. The policemen had shot the tyres of Mr Kaburov’s car flat and had stopped it. The District Court further established:
“Kaburov’s arrest followed, [he] resisted the policemen and [they] had to use physical force and other means of restraint, whereby minor bodily harm was caused to Kaburov...”
40. The District Court noted that Mr Kaburov had wounds on the head, skin abrasions and bruises on the face, back and both thighs as well as a closed thoracic trauma. However, it found that it had not been proved that Mr Kaburov had experienced any pain or suffering as a result of those injuries. It also noted that the policemen had fired shots at his car because he had tried to escape, and concluded that the force used during his arrest had been necessary within the boundaries allowed by the relevant legislation. It further noted that the plaintiff had not proved that Mr Kaburov had been frightened by the shots.
41. The District Court held that the seizure of the car had been lawful. It also found that no damages were due, as the applicant had claimed compensation for lost rental income but had failed to prove that he would have rented out the car.
42. On appeal, the judgment was upheld in a final judgment of the Pazardzhik Regional Court of 6 January 2006.
43. The applicable provisions of the Criminal Code and the State and Municipalities Responsibility for Damage Act (“the SMRDA”) concerning ill-treatment by the police are set out in the Court’s judgment in the case of Shishkovi v. Bulgaria, no. 17322/04, §§ 22-23, 25 March 2010.
Pursuant to section 6 of the SMRDA, if the alleged victim dies, their right to compensation for pecuniary damage is inherited. However, the right to compensation for non-pecuniary damage is inherited only if such an action has been brought by the alleged victim before his or her death. In the latter case the heirs may intervene in the pending proceedings in the alleged victim’s stead.


ITEMID: 001-89066
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SERGEY KUZNETSOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 11 read in the light of Art. 10;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1957 and lives in Yekaterinburg.
5. On 18 March 2003 the applicant and two other persons (Mr Sh. and Ms M.) sent a notice to the head of Yekaterinburg town administration of their intention to stage a picket in front of the Sverdlovsk Regional Court. The picket was to take place between 25 and 28 March 2003 between 9 and 11 a.m. The declared purpose of the picket was “to attract public attention to violations of the human right of access to a court”.
6. On 19 March 2003 the head of the Committee for Public Relations and Mass Media of the Yekaterinburg town administration acknowledged receipt of the notice. He noted that, should the picket cause any inconvenience, such as blocking access to the court-house or impairing its normal functioning, the administration would have to intervene.
7. On 20 March 2003 the head of the Yekaterinburg public security police ordered that the police should maintain public order and traffic safety during the picket.
8. On 25 March 2003 the applicant and others held the picket. They distributed press clippings and leaflets about Mr Ovcharuk, the President of the Sverdlovsk Regional Court, who had allegedly been involved in corruption scandals, and collected signatures for his dismissal.
9. On 27 March 2003 Mr Dementyev, the first deputy president of the Sverdlovsk Regional Court, sent the following letter to the head of the Verkh-Issetskiy police department of Yekaterinburg:
“With the consent of the Yekaterinburg town administration, a group of citizens comprising Mr Sh., Mr Kuznetsov and Ms M., held a picket in front of the building of the Sverdlovsk Regional Court...
The picket notice indicated that the purpose of the picket was ‘to attract public attention to violations of the human right of access to a court’.
As the subsequent events demonstrated, the picket organisers misled the officials of the Yekaterinburg town administration as to the real purposes of their action.
Instead of drawing public attention to the problems of judicial protection and violations of human rights, as it was indicated in the picket notice – if they believed that such problems existed – which would be hard to contradict because the said problems exist in reality, for three days the picket participants distributed printed leaflets and materials of a slanderous and insulting nature which targeted the president of the Sverdlovsk Regional Court personally.
The information contained in the extract from the Novaya Gazeta newspaper was more than two years old. It had been checked by the Supreme Qualification Panel of Judges and the Prosecutor General’s Office and found to be slanderous, of which the picket participants, in particular Mr Sh. and Mr Kuznetsov, were perfectly aware.
The above stated begs the conclusion that the picket organisers deliberately and maliciously changed the nature of the action and in that way misled the public whom, according to the picket notice, they merely intended to acquaint with the state of judicial protection of human rights.
They have committed thereby an administrative offence by violating section 4 of the decree of the Presidium of the USSR Supreme Council of 28 July 1988, as amended by the Presidential decree of 25 May 1992, and, pursuant to section 8 of that decree, they are administratively liable under Article 20.2 § 1 of the Code of Administrative Offences...
Accordingly, I ask you to institute administrative proceedings against Mr Sh., Mr Kuznetsov and Ms M. in accordance with Article 28.3 § 2 (1) of the said Code, prepare a report on an administrative offence and decide on the issue of their legal responsibility for that breach of law. You are requested to inform me of the decision taken.”
10. On 17 April 2003 an official of the Verkh-Issetskiy police department of Yekaterinburg compiled a report on administrative offences committed by the applicant under Article 20.2 §§ 1 and 2 of the Code on Administrative Offences. According to the report, the applicant had given notice of the picket too late, he had distributed leaflets of a slanderous and insulting nature against the president of the regional court and he had also obstructed the passage of citizens into the court-house. Court bailiffs Mr R. and Mr M. were listed as eyewitnesses.
11. On 21 April 2003 the head of the Verkh-Issetskiy police department forwarded the report and supplementary materials to the Verkh-Issetskiy District Court of Yekaterinburg. The matter was assigned to the justice of the peace of the 3rd Court Circuit of the Verkh-Issetskiy district of Yekaterinburg.
12. On 15 May 2003 the applicant challenged the judicial formation and requested that the matter be examined in a neighbouring region. He claimed that objective examination of the matter in Yekaterinburg was impossible because it had been initiated at the instigation of the high-ranking officials of the regional court. The justice dismissed his challenge, holding that under the Code on Administrative Offence there were no legal grounds to change the venue.
13. On 19 May 2003 the justice issued a ruling on an administrative offence (постановление по делу об административном правонарушении) in which she found the applicant guilty on three counts.
14. Firstly, the justice held that the applicant had breached the established procedure for organising a picket. He had sent the picket notice eight days before the picket date, whereas both the 1988 USSR Supreme Council’s decree and the local Yekaterinburg regulation on public assemblies established a ten-day notification period.
15. Secondly, the justice found the applicant to have breached public order during the picket. She relied on the following evidence:
“The applicant’s guilt... is confirmed by the report on an administrative offence dated 17 April 2003; the statements by the witnesses Mr M. and Mr R. who testified in court that they worked as court bailiffs in the Sverdlovsk Regional Court. At about 9.10 a.m. on 25 March 2003 they had gone onto the porch of the Sverdlovsk Regional Court and seen some people with banners – among them Mr Kuznetsov holding the banner ‘Ovcharuk – resign’ – who were standing on the porch right in front of the entrance on the top floor, blocking the passage and distributing leaflets. When they had asked them to show their identity documents and go down the stairs, they had refused but they had gone down after a police officer had approached them. Judges coming to work had told them that the picket participants had blocked access to the court. [List of evidence showing the applicant’s guilt continues:] the report by the court bailiff Mr R. of 25 March 2003; the report by the police officer from the Verkh-Issetskiy police station Mr G. which indicated that between 25 and 28 March 2003 he had been responsible for public order during the picket in front of the Sverdlovsk Regional Court. The picket had been organised by Mr Kuznetsov, Mr Sh. and Ms M., who at 9 a.m. on the day of the picket were standing on the staircase at the entrance to the Sverdlovsk Regional Court and thus obstructing access to the building. Following his intervention and that by the court bailiffs, they had gone down to the pavement in front of the court-house and had not subsequently interfered with the normal functioning of the Regional Court...
The judge does not accept the arguments by Mr Kuznetsov’s representative to the effect that Mr Kuznetsov did not block access to the Sverdlovsk Regional Court, because these arguments contradict the evidence that has already been examined in court and because they cannot be confirmed by the witnesses [for the defence] who were present at the picket from 9.30 a.m., because by that time the picket participants had already descended the staircase on orders of the police officer and were no longer blocking access...
The photographs [produced by the defence and] examined in court cannot prove that Mr Kuznetsov did not block access to the court-house, because they depict solely the moment when they were taken rather than the entire time during which the picket had been held; moreover, the court does not know when the photographs were taken.”
16. Thirdly, the judge found that the picket had been conducted at variance with the aims listed in the notice:
“According to the notice dated 18 March 2003, the initiative group of citizens comprising Mr Sh., Mr Kuznetsov and Ms M. held a protest action against violations of citizens’ right to judicial protection. As [the applicant’s representative] explained in court, the picket aimed at attracting public attention to the problems of judicial protection, such as refusals to accept a claim or unfair judgments. The witness Mr M. stated that he had brought and distributed a newspaper describing certain instances in which citizens’ rights to judicial protection had been breached. At the same time, the picket participants distributed extracts from the Novaya Gazeta newspaper containing A. Politkovskaya’s article ‘Ovcharuk and his team’ which in its contents did not correspond to the aims of the picket. The distribution of those extracts was not contested by the applicant’s representative in court and also confirmed by witnesses.”
17. The judge declared the applicant guilty under Article 20.2 §§ 1 and 2 of the Code of Administrative Offences and fined him 1,000 Russian roubles (RUB, approximately 35 euros (EUR)).
18. On 11 July 2003 the Verkh-Issetskiy District Court of Yekaterinburg, on an appeal by the applicant, upheld the ruling of the justice of the peace, endorsing the reasons that she had given. That judgment was final as no further ordinary appeal lay against it.
19. The Constitution guarantees the right to freedom of peaceful assembly and the right to hold meetings, demonstrations, marches and pickets (Article 31).
20. The Decree of the Presidium of the USSR Supreme Council no. 9306-XI of 28 July 1988 (in force at the material time pursuant to Presidential Decree no. 524 of 25 May 1992) provided that organisers of an assembly were to give written notice to the municipal authorities no later than ten days before the planned assembly (section 2). The authority was to give its response no later than five days before the assembly (section 3). Assemblies were to be conducted in accordance with the aims listed in the notice and with respect for Soviet laws and public order (section 4). Individuals who breached the established procedure for organising and holding assemblies incurred liability under the laws of the USSR and Soviet republics (section 8).
21. Article 20.2 § 1 of the Code on Administrative Offences provides that a breach of the established procedure for organising a demonstration, meeting, procession or picket shall be punishable by a fine of ten to twenty times the minimum monthly wage (that is, RUB 1,000 to 2,000 at the material time). Paragraph 2 of that Article stipulates that a breach of the established procedure for holding a demonstration, meeting or picket shall be punishable by a fine of ten to twenty times the minimum wage for organisers, or five to ten times the minimum wage for participants.
VIOLATED_ARTICLES: 10
11


ITEMID: 001-93892
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: ALSHEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Sergey Aleksandrovich Alshev, is a Russian national who was born in 1971 and lives in Zlatoust. He was represented before the Court by Ms O. Gorina, a lawyer practising in Chelyabinsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 June 2004 the applicant was arrested. On the same day he was charged with murder.
On 2 July 2004 he appeared before the Chebarkulskiy Town Court, where Judge G. ordered his detention pending trial.
On 10 August 2004 the Chelyabinsk Regional Court rejected the applicant’s appeal and upheld the decision of 2 July 2004.
In November 2004 the applicant learned that by Decree no. 775 of 26 June 2001, the President of the Russian Federation had appointed Judge G. to the Miassky Town Court. No further decree had been issued transferring him to the Chebarkulskiy Town Court. The applicant immediately lodged a complaint to the Chelyabinsk Regional Prosecutor’s Office challenging the lawfulness of the decision of 2 July 2004.
On 22 December 2004 the Prosecutor’s Office replied that the impugned decision had been fully lawful.
The Government provided the Court with a copy of a decree, issued on 5 August 2003 by the President of the Chebarkulskiy Town Court, according to which the duties of a temporarily absent judge of that court were to be performed by Judge G. with effect from 4 August 2003.
Article 47
“1. No one may be deprived of the right to have his or her case considered by the court and judge on which cognisance of the case is conferred by law.”
Article 128
“..2. Judges of ... the federal courts shall be appointed by the President of the Russian Federation according to the rules laid down by federal law...”
Section 27
“... In the event of the temporary absence of a judge of a district (town) court, his duties shall be performed by a judge of the nearest district (town) court by decision of the President of a higher court...”
In Decision no. 303-O-O of 19 April 2007, the Constitutional Court held as follows: “According to Article 47 of the Constitution of the Russian Federation (part 1), no one may be deprived of the right to have his or her case considered by the court and judge on which cognisance of the case is conferred by law...
The legislator, in exercising legal regulation in the judicial sphere in order to secure the right of citizens and associations to judicial protection within a reasonable time, has the power to determine the organisational and procedural arrangements for the district (town) courts, including the arrangements for replacing temporarily absent judges. The Law on organisation of the courts in the RSFSR provides that in the event of the temporary absence of a judge of a district (town) court, his duties shall be performed by a judge of the nearest district (town) court, the arrangements for his replacement being made by decision of the President of a higher court. Therefore, the impugned provision, being aimed at securing the smooth operation of justice in the event of the temporary absence of a judge, does not impair any constitutional right of the applicant in his specific case.
...The principles of independence and irremovability of judges guaranteed by the Constitution of the Russian Federation are not violated by Section 27 of the Federal Law on organisation of the courts in the RSFSR, as the fact that the duties of a temporarily absent judge of a district (town) court are performed by a judge of the nearest district (town) court does not amount to the transfer of a judge to another position or another court. A judge preserves his powers, office, position and grade for the whole period of his activity within a judicial body...”


ITEMID: 001-4596
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: ALIDJAH-ANYAME v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a Ghanaian national, born in Accra in 1955. He is currently living in London, England, and is subject to a deportation order. He is married to a Ghanaian national who is living and working in Brazzaville. The two children of the marriage, the younger of whom was born in the United Kingdom, are living with the applicant.
The applicant is represented in the proceedings before the Court by Bajwa and Co., a firm of advocates practising in London, England.
The applicant claims that he originally entered the United Kingdom on 5 December 1988 and was granted leave to remain for a limited period to pursue a course of studies in London. While in London he became a member of the Ghana Democratic Movement (“GDM”), an anti-government group. On 22 January 1990 he returned to Ghana to visit his parents and to deliver publications on behalf of the GDM.
The applicant arrived back in the United Kingdom on 27 February 1990 through normal channels on a flight from Lagos, Nigeria. A week later he learned that the Ghanaian authorities had traced the distribution of the GDM leaflets to him. The applicant was given leave to enter for two months to complete his studies.
On 24 April 1990 he was granted further leave to remain as a student until 23 September 1990. In a letter dated 3 September 1990 the Commonwealth Welfare and Immigration Advisory Centre (“CWIAC”) applied for political asylum on the applicant’s behalf claiming that he was being sought by the Ghanaian authorities in connection with the distribution of anti-government publications. The Immigration and Nationality Department wrote to the applicant on 27 March 1996 inviting him to attend for interview on 24 April 1996. A copy of the letter was sent to the CWIAC. The applicant failed to attend. He maintains that this was due to the fact that the letter informing him of the interview had been wrongly addressed.
The applicant submitted an asylum application on 22 May 1991 claiming that he had a well-founded fear of persecution if he were to be returned to Ghana. The Secretary of State considered the request on the basis of the applicant’s written representations. In a letter dated 29 October 1996 the Immigration and Nationality Department notified the applicant that the Secretary of State had refused his application. Among his reasons for refusing the request, the Secretary of State highlighted that the application was made less than three weeks before the date of expiry of his leave to remain as a student and over six months after he discovered that he was wanted by the Ghanaian authorities. In the Secretary of State’s opinion these factors undermined the credibility of his asylum claim. In addition, the Secretary of State considered that the claim as a whole was vague, lacking in detail, substance and credibility, and that his account of being sought by the Ghanaian authorities had been fabricated in order to bolster a bogus claim made with the sole intention of circumventing the immigration rules less than three weeks before his limited leave to remain in the United Kingdom was due to expire. Furthermore, the Secretary of State stated that the political and human rights situation in Ghana had changed radically since the applicant’s departure in 1990 and there was no reason under the United Nations’ Geneva Convention relating to the Status of Refugees 1951 why the applicant could not return safely to his country of nationality.
On 4 December 1996 the Special Adjudicator heard the applicant’s appeal against the decision of the Secretary of State. The applicant appeared in person. At the hearing the applicant testified that he had two young children, one of whom was born in the United Kingdom. He stated that his wife was a United Nations official posted in Brazzaville and that she had travelled to the United Kingdom every year to see him up until 1996. He told the Special Adjudicator that he had been detained and tortured in 1982 and 1986. In 1987 he went to the United Kingdom to study but was able to travel back to Ghana in 1988 and in 1989 since he did not risk persecution during that period. It was only when he distributed the GDM materials during his visit in 1990 that the risk of persecution became a reality again.
On 9 January 1997 the Special Adjudicator dismissed the appeal. In his decision the Special Adjudicator agreed with the Secretary of State’s opinion that the timing of the applicant’s request for asylum as well as his failure to attend the interview reflected adversely on his credibility. He found the applicant’s account of his arrest and torture in 1982 and in 1986 and his allegation of being sought by the authorities in connection with the distribution of GMD materials entirely unsubstantiated. He observed in addition that his movements back and forth between Ghana and the United Kingdom between 1987 and 1990 were not the actions of a man who has a well-founded fear of persecution. The Special Adjudicator concluded:
“... I do not find that the appellant is a credible witness and I find that he has fabricated the whole account.
It is quite clear that even if I accepted part of the appellant’s account there has been an amnesty in Ghana and that there has been a sea change in the politics in Ghana and there has been a gradual return to democracy.”
On 16 June 1997 the High Court refused the applicant’s application for leave to apply for judicial review of the Secretary of State’s decision. The applicant did not renew his application.


ITEMID: 001-85946
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LEWIS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Trevor Lewis, is a British national who was born in 1942 and lives in Cornwall. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 4 September 1997. They had no children from the marriage. On 18 September 2000, the applicant made a claim for widows’ benefits. Subsequently, he was informed that his claim had been disallowed as he was not a woman. On 21 October 2000 the applicant made a request for reconsideration. On 20 November 2000 the applicant was informed that the legislation had not changed and that he was not eligible for such benefits. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-78589
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF PAMUK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Preliminary objection dismissed (exhaustion) - Not necessary to examine Art. 8;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient
TEXT: 4. The applicant was born in 1943 and lives in Izmir.
5. In 1996 the General Directorate of National Roads and Highways expropriated land (plot no. 431/4) and a building which the applicant coowned. The applicant received an amount determined by a committee of experts at the time of the expropriation.
6. On 5 January 1996 the applicant filed an action for additional compensation with the Izmir Civil Court of First Instance. On 27 December 1999 the first-instance court awarded the applicant additional compensation plus interest at the statutory rate applicable at the date of the court's decision. This judgment was quashed by the Court of Cassation on 17 April 2000.
7. On 4 December 2000 the first-instance court awarded the applicant additional compensation of 3,275,732,664 Turkish liras (TRL) (approximately 5,470 euros (EUR)), plus interest at the statutory rate applicable at the date of the court's decision, running from 12 January 1996. On 12 March 2001 the Court of Cassation upheld this judgment.
8. On 29 August 2001 the administration paid the applicant TRL 12,352,710,000 (approximately EUR 10,042) covering the additional compensation, interest, costs and expenses.
9. The relevant domestic law and practice are outlined in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25).


ITEMID: 001-101989
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KOLESNIKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Eduard Nikolayevich Kolesnikov, is a Russian national who was born in 1947 and lives in Syzran, the Samara Region. The Russian Government (“the Government”) were represented by Mr G. Matuyshkin, the Representative of the Russian Federation before the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant sued local welfare authorities for an increase of the disability benefits due to him.
By judgment of 6 June 2003, as upheld on appeal on 21 July 2003, the Syzran Town Court of the Samara Region (the Town Court) ordered the authorities to pay the applicant a lump sum of 259,462 Russian roubles (RUB) and to increase the monthly and yearly disability payments in line with the relevant domestic legislation.
On 19 March 2004 the lump sum was paid to the applicant in full but he continued to receive monthly payments in the amount lower than awarded.
On 17 June 2004 the Presidium of the Samara Regional Court (the Presidium) quashed the judgment of 6 June 2003 on supervisory review and remitted the case for a new examination at the first instance court.
On 16 December 2004 the Town Court re-examined the case and granted the applicant’s claims. On 28 February 2005 the Samara Regional Court upheld these findings on appeal.
On 8 September 2005 the Presidium again quashed the judicial decisions of 16 December 2004 and 28 February 2005 by way of the supervisory review proceedings and ordered a fresh examination of the case.
By judgment of 8 December 2005, as upheld by the appeal decision of 27 February 2006, the Town Court allowed the applicant’s action in part.
The applicant applied for the supervisory review of the two latest judicial decisions.
On 16 December 2006 the Presidium granted his application, quashed the judgments of 8 December 2005 and 27 February 2006 in supervisory review proceedings and ordered that the case be examined afresh by the court of the first instance.
On 12 February 2007 the Town Court in the new round of court proceedings examined and granted the applicant’s claim. It ordered the local welfare authority to pay the applicant a lump sum of RUB 653,255 in arrears in respect of various disability benefits and recalculated and further increased the monthly and yearly payments due to him.
On 22 February 2007 the judgment entered into force. According to the Government, it was fully executed on 3 December 2007.


ITEMID: 001-90617
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF REKLOS AND DAVOURLIS v. GREECE
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Sverre Erik Jebens
TEXT: 6. The applicants are the parents of Anastasios Reklos, who was born on 31 March 1997 in a private clinic, I. Immediately after birth the baby was placed in a sterile unit under the constant supervision of the clinic’s staff. Only its doctors and nurses had access to this unit.
7. On 1 April 1997 two photographs of the new-born baby, taken face on, were presented to the second applicant. The photographs had been taken inside the sterile unit by a professional photographer located on the first floor of the clinic. The clinic informed its clients that photography services were available.
8. The applicants complained to the clinic’s management about the photographer’s intrusion into a unit to which only the clinic’s staff should have had access, adding that the new-born baby was likely to have been upset by the taking of photographs face on and, most importantly, that they had not given their prior consent.
9. Faced with the clinic’s indifference to their protests and refusal to hand over to them the negatives of the photographs, on 25 August 1997 the applicants brought an action for damages before the Athens Court of First Instance, under Articles 57, 59 and 932 of the Civil Code. Acting on behalf of their child, they claimed the sum of 4,000,000 drachmas (about 11,739 euros) in respect of non-pecuniary damage for the alleged infringement of their child’s personality rights.
10. On 24 June 1998 the Athens Court of First Instance dismissed their action as unfounded. It found as follows:
“ ... it has not been possible to establish, from the circumstances in which the offending photographs were taken, that the photographer’s conduct was unlawful. In any event, the personality rights of the new-born baby cannot have been affected because, just after birth, his psychological and emotional environment had not yet been formed and the recording of his face on a photograph cannot have had any negative consequences for his subsequent development.” (decision no. 3049/1998)
11. On 22 September 1998 the applicants appealed. On 14 September 1999 the Athens Court of Appeal upheld the judgment of the court below. It found in particular as follows:
“ ... according to the conclusions drawn from common practice, the personality, emotional environment and mental maturity of a new-born baby, only one day old, are not sufficiently developed for it to perceive an infringement of its personality rights, as has been alleged, or for its inner balance to be upset ...”. (decision no. 7758/1999).
12. On 28 August 2002 the applicants, represented by the first applicant, lodged an appeal with the Court of Cassation. In their notice of appeal they pointed out their child’s age at the material time and referred to all the considerations that had led the court below to dismiss their appeal. Their single ground of appeal on points of law concerned the Court of Appeal’s interpretation of Articles 57 and 932 of the Civil Code. In their view, that interpretation ran counter to Article 2 of the Greek Constitution and to Article 8 of the Convention. In particular, the applicants claimed that the criterion used by the domestic courts in determining whether the image and, a fortiori, the personality of an individual, could be protected, had been incompatible with the rights to “dignity” and to “the protection of private life”. In addition, the applicants argued that the criterion in question was also potentially dangerous, especially if it were to be applied to disabled children, as they might never reach the requisite level of “mental maturity” with the result that their image and, a fortiori, personality would not be protected.
13. On 8 July 2004 the Court of Cassation dismissed the appeal on points of law on the ground that it lacked precision. Relying on Articles 118 and 566 § 1 of the Code of Civil Procedure, the court found that the applicants “[had] not indicate[d] in their appeal the factual circumstances on which the Court of Appeal had based its decision dismissing their appeal” (judgment no. 990/2004).
14. Article 2 of the Greek Constitution provides as follows:
“1. Respect for and protection of the value of the human being constitute the primary duty of the State.
2. Greece, adhering to the generally recognised rules of international law, pursues the furtherance of peace and justice and the fostering of friendly relations between peoples and States.”
15. The relevant Articles of the Civil Code read as follows:
“Everyone shall have the capacity to enjoy rights and assume duties.”
“The person shall begin to exist at birth and cease to exist on death.”
“Anyone whose personality is the object of unlawful interference shall be entitled to demand that such interference cease and also not be repeated in the future ...
In addition, claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded.”
“In the cases provided for in the two preceding Articles, the court may, in the judgment it gives upon the application of the injured party, and regard being had to the nature of the interference, also order the liable party to make reparation for non-pecuniary damage. Such reparation may consist in the payment of a sum of money, publication of the court’
“Any person who, contrary to the law, causes damage to another person by his or her fault, shall make reparation for such damage”.
“Any person who intentionally causes damage to another person by acting contrary to moral standards shall make reparation for such damage”.
“Independently of any compensation due as a result of pecuniary damage caused by an unlawful act, the court may award reasonable monetary reparation, as it sees fit, for non-pecuniary damage. This provision shall enure in particular to the benefit of anyone who has sustained unlawful interference with health, honour or decency, or who has been deprived of liberty. In the event of death, the reparation may be awarded to the victim’s family by way of damages for pain and suffering”.
16. The relevant provisions of the Code of Civil Procedure provide as follows:
“Notices of appeal served between parties or filed in the court shall indicate: ....
(4) the subject-matter of the appeal, stated clearly, precisely and succinctly ...”
“Appeals on points of law shall contain the information required by Articles 118 to 120, cite the judgment appealed against, state the grounds of appeal, whether the appeal is against all or part of the impugned decision, and include a submission on the merits of the case.”
17. According to the case-law of the Court of Cassation, appeals on points of law must indicate the substantive rule that has been breached, must show how there has been a mistake of law, in other words where the breach can be found in the construction or application of the rule in question, and must also include a statement of the facts on which the Court of Appeal based its decision dismissing the appeal (Court of Cassation, nos. 372/2002 and 388/2002).
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1