ITEMID: 001-82548
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GOYGOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2;Violation of Art. 3;Violation of Art. 13+2
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1966. Before 1999 she was a resident of Grozny, Chechnya, which she left for Ingushetia. She left Russia on an unspecified date and currently lives in Belgium.
7. The submissions of the parties with regard to the facts concerning the circumstances of the applicant's relatives' deaths and the ensuing investigation are set out in Part A below. A description of the documents submitted to the Court is contained in Part B.
8. The applicant submitted that prior to 1999 she and her family had lived in the Novaya Katayama settlement in the Staropromyslovskiy district of Grozny.
9. In October 1999 hostilities resumed in Chechnya between the Russian forces and the Chechen fighters. Grozny and its suburbs came under heavy bombardment. The Staropromyslovskiy district, situated in the northern and central parts of the town, was bombarded from the air and by artillery. The applicant submits that most residents of the district left for safer areas. Following heavy fighting, from December 1999 the Russian forces started to regain control over the city from the north, and by the end of January 2000 the central parts of the city were finally taken.
10. In January 2000 the applicant and her four children were staying in Ingushetia, while her brother Said-Magomed (usually referred to as Magomed) Goygov (aged 31) and her mother Maryam Goygova (aged 59) remained in Grozny.
11. On 19 January 2000 the applicant went to Grozny to find out about her relatives. She was not allowed to pass through the military checkpoint at the entrance to the city and spent the night in a neighbouring settlement. On the following morning, on 20 January 2000, the applicant again arrived at the checkpoint.
12. There the applicant met a local resident, identified by her as A., who told her that at the crossroads of Neftyanaya Street and the 4th Neftyanoy Lane there was the body of an old lady in a handcart. He told her that on 19 January 2000 the old lady had been wounded by shrapnel and that three men had tried to take her out of Grozny. They had walked up to the 8th Lane, where there was a group of soldiers and three armoured personnel carriers (APCs), one of which had been damaged. The soldiers had stopped them, beaten the men and led them away. They had shot the woman in the cart, and then A. had seen shots being fired, so he presumed that the men had also been shot. From his story the applicant deduced that the woman was her mother and that her brother, Magomed Goygov, could have been among the three men.
13. At the roadblock on the border of the Staropromyslovskiy district the applicant talked to the military and asked them to let her pass. She identified them as belonging to the 205th detachment of the 58th army. One of them whom she believed was in charge, named Oleg, refused to let her go further. When the applicant stated that she was looking for her mother, he replied that they had taken revenge for their dead comrades whose mothers had also wanted to see them alive. Later the applicant submitted that Oleg's hands had been covered with a bandage and that another local resident, a woman named Lena, had told her that she had heard him complaining that he had injured his hands “beating those bastards”.
14. A. helped the applicant to get through the military roadblock and accompanied her to the crossroads, where they found the cart containing the body of the applicant's mother. She had a shrapnel wound in the abdomen and a gunshot wound in the head. The applicant could not stay very long in Grozny, so she took her mother's body to A.'s house and left. She did not find any traces of her brother.
15. The next day the applicant returned with her family to Grozny in a hired minivan. They were not allowed to pass through the roadblock with the vehicle and walked to the Staropromyslovskiy district. There they collected Maryam Goygova's body in the cart and walked back out of Grozny. They then put the body into the minivan and took it to Nazran, where they buried it. At that time the applicant did not apply to any authorities or a doctor, nor did she take any photographs of her mother's body before the burial.
16. The applicant's sisters went to the Chernokozovo and Mozdok detention centres in search of their brother, Magomed Goygov.
17. On 25 January 2000 the applicant again went to Grozny in search of her brother. She travelled together with relatives of other missing persons from the district, Magomed Khashiyev and his sister Movlatkhan Bokova. At the Khashiyevs' house at 107 Neftyanaya Street they found the bodies of Magomed Khashiyev's sister, Lidiya Taymeskhanova, and her son, Anzor Taymeskhanov, as well as the body of their neighbour, Anzor Akayev. All had gunshot wounds and some had broken bones. Magomed Khashiyev and Roza Akayeva applied to the Court in relation to the killing of their relatives (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005).
18. During her trip on 25 January 2000 the applicant did not find her brother. The Khashiyevs were also looking for Lidiya Taymeskhanova's other son, Rizvan Taymeskhanov, and Magomed Khashiyev's brother, Khamid Khashiyev.
19. On 10 February 2000 Magomed Khashiyev and his sister, with the assistance of A., discovered three bodies in a garage about 100 metres away from the crossroads where the applicant's mother had been found. They identified two of the bodies as Rizvan Taymeskhanov and Khamid Khashiyev; the third body belonged to Magomed Goygov, the applicant's brother. The bodies had numerous gunshot wounds. Magomed Khashiyev took photographs of the three bodies in the garage and fetched a car to take them to Ingushetia the same day.
20. The applicant was not present in Grozny on 10 February 2000, but she referred to the statements of A. and Movlatkhan Bokova in relation to the discovery of the bodies.
21. The applicant also referred to the Human Rights Watch report “Civilian Killings in the Staropromyslovskiy District of Grozny”, which included statements by two other witnesses, identified as B. and C., who had lived in the Staropromyslovskiy district at the relevant time. They testified that on 20 January 2000 at about 4 p.m. a tall Russian soldier had walked into their house and told them that he had killed a wounded woman in a handcart, and that he would kill them as well. He had also told them that the three men who had accompanied the woman had been transferred to a detachment of the police special forces (OMON). The soldier had then left, without causing any harm to B. and C.
22. The applicant appended to her complaint a sketch map of the district with indications of places where the bodies of her relatives had been discovered and colour photographs of her brother's body taken by Magomed Khashiyev at the time of the discovery of the three bodies on 10 February 2000, and during the autopsy at Nazran Hospital.
23. On 10 February 2000 the body of the applicant's brother was examined by an officer of the Nazran Department of the Interior. The examination took place in Nazran Town Hospital in the presence of two male relatives. The report listed numerous bullet wounds (at least a dozen) to the head, body and limbs. The right ear had been cut off.
24. On 11 February 2000 Magomed Goygov was buried in Ingushetia.
25. The applicant submitted that at that time her relatives had requested the prosecutor's office to conduct an investigation into the killing of her brother. At the same time they had informed the law-enforcement bodies of the killing of the applicant's mother. The applicant also submitted that relatives of other persons killed in Grozny in January 2000 had applied to the authorities with similar requests. The applicant referred to NGO reports and letters and media reports, which should have alerted the Russian authorities to act quickly and diligently in a case concerning a mass killing.
26. In particular, the applicant referred to a Human Rights Watch report of February 2000 entitled “Civilian Killings in the Staropromyslovskiy District of Grozny”, which accused the Russian forces of deliberately murdering at least 38 civilians between late December and mid-January. Human Rights Watch had interviewed survivors, eyewitnesses and relatives of the dead. The report contained information about the killing of Maryam Goygova on 19 or 20 January. It also listed Magomed Goygov as having “disappeared” after being detained by soldiers.
27. On 15 May 2000 the Nazran civil registration office issued death certificates for Maryam Azizovna Goygova, born in 1940, and for Said-Magomed Kirimovich Goygov, born in 1968. The deaths had occurred on 19 January 2000 in Grozny.
28. It appears that the applicant had very little contact with the law-enforcement authorities in relation to her relatives' killing. She contested the effectiveness of the investigation with reference to the documents obtained by the relatives of other victims of the events in Grozny and their representatives.
29. The applicant produced a copy of a letter of 16 January 2001 from the Chechnya Prosecutor in relation to the murders in the Staropromyslovskiy district. The letter stated that on 3 May 2000 criminal investigation no. 12038 had been opened by the Grozny Town Prosecutor's Office under Article 105, paragraph 2, of the Criminal Code (murder of two or more persons with aggravating circumstances). The investigation had been opened following the publication of an article entitled “Freedom or Death” in the Novaya Gazeta newspaper on 27 April 2000. The investigation had established that in February 2000, after the entry of the Russian forces into the district, the bodies of ten local inhabitants had been discovered. The list of names contained, among others, “M.M. Kerimov, S.K. Goygov, M. Goygova and A. Goygov”. Forensic examinations carried out on the bodies of S. Goygov, Kh. Khashiyeva and R. Taymeskhanov had established the causes of death. The letter stated that no witnesses had been identified to support the assumption that these people had been killed by servicemen. On 3 July 2000 the criminal case had been adjourned, then reopened on 30 August 2000. It had again been adjourned on 30 September 2000 owing to the failure to identify the culprits. Attempts to identify the culprits, possibly including soldiers of the federal forces, were to continue.
30. The applicant submitted that the prosecutor's letter of 16 January 2001 gave an incorrect list of names of those killed. She stated that her brother's full name was Said-Magomed Kirimovich Goygov, while he had usually been referred to as “Magomed”. The applicant noted that her brother (S.K. Goygov) and her mother (M. Goygova) had been listed in the letter, whereas the names of M.M. Kerimov and A. Goygov were not familiar to her, even though these were supposed to have been her relatives or neighbours. She concluded that the letter mistakenly referred to her brother two or three times, confusing his name and patronymic. She also stated that by January 2001 the number of confirmed victims of the killings should have been much higher than ten. The applicant considered these mistakes to be characteristic of the level of the investigation and its attitude to the victims.
31. She also referred to the information obtained by the Court after communicating the complaints of Magomed Khashiyev and Roza Akayeva in the case of Khashiyev and Akayeva (cited above). According to the applicant, the information submitted by the Russian Government in their memorandum about the progress of the investigation was inconsistent and proved that the investigation into the crimes allegedly committed by the Russian forces was ineffective.
32. On 18 April 2003 the SRJI, on the applicant's behalf, requested the Grozny Town Prosecutor's Office to inform it about the progress of the investigation in case no. 12038 and to forward it a copy of the decision granting the applicant victim status in the proceedings.
33. In May 2003 the Grozny Town Prosecutor's Office informed the SRJI that the applicant had to appear in person for questioning and that she should submit documents confirming her family ties with the deceased, Maryam Goygova and Said-Magomed Goygov. The prosecutor refused to divulge information about the investigation to the SRJI, referring to Article 161 of the Code on Criminal Procedure.
34. On 9 July 2003 the SRJI informed the Grozny Town Prosecutor's Office of the applicant's address in Belgium. It asked the prosecutors to forward a request to their Belgian counterparts so that the applicant could be questioned at her new place of residence and granted victim status in the proceedings. This letter was sent again on 17 November 2004, because no reply had come from the Grozny Town Prosecutor's Office.
35. On 16 August 2004 the investigation questioned Marina D., the applicant's sister. On the same day she was granted victim status.
36. The applicant submitted that neither she nor her relatives had been properly informed about the progress of the investigation or about its adjournment and reopening.
37. The applicant referred to Council of Europe documents deploring the lack of progress of investigations into crimes allegedly committed by Russian forces against civilians in Chechnya.
38. Referring to information from the Prosecutor General's Office, the Government submitted that the investigation in criminal case no. 12038 had established that in January and February 2000 a detachment of the federal forces had conducted a counterterrorist operation in the Staropromyslovskiy district of Grozny. Within the same period several inhabitants of the district had been killed by unknown persons using firearms. The Government informed the Court that on 25 July 2000 the applicant had been questioned as a witness and had given statements about the discovery of her mother's and brother's bodies. Later the applicant had avoided any contact with the law-enforcement bodies. On 17 March 2003 the applicant had been granted victim status in the proceedings, but she had not been notified of this. On 31 March 2005 the Prosecutor General's Office had sent a request to its counterpart in Belgium to find the applicant. In July 2005 the Belgian authorities had responded that they were working to locate the applicant's whereabouts.
39. The Government further informed the Court that that at some stage the applicant's sisters Radima G. and Marina D. had been questioned as witnesses and granted victim status in the proceedings. Radima G. had refused to allow the bodies of her mother and brother to be exhumed for forensic examination.
40. After the case had been declared admissible, following a request by the Court, the Government submitted certain documents from the criminal investigation file in case no. 12038, mostly decisions by the prosecutors to adjourn and reopen the proceedings. They are summarised below in Part B. It follows from their submissions that the investigation had been adjourned and reopened, and was still ongoing. It had failed to locate and question the applicant or to identify the culprits.
41. In the context of the proceedings in Khashiyev and Akayeva (cited above, §§ 46-68), the Government submitted a copy of the investigation file in criminal case no. 12038, opened on 3 May 2000 by the Grozny Town Prosecutor's Office into the “mass murder by the '205th brigade' of civilians in the Novaya Katayama settlement in Grozny on 19 January 2000”. The investigation was opened under Article 105 (a), (d), (e) and (j) of the Criminal Code following the publication of an article entitled “Freedom or Death” in the Novaya Gazeta newspaper on 27 April 2000.
42. Some of the documents related to the discovery on 10 February 2000 of three bodies in a garage near Neftyanaya Street. One body was identified as Magomed Goygov, the applicant's brother. Below is a brief summary of the documents from that file which are relevant to the present case. In addition, in November 2006 the Government submitted about 160 pages of documents from the file, mainly prosecutors' orders relating to the adjournment and reopening of the proceedings and notifications to the victims issued after December 2003.
43. At some time in 2000 the applicant and her sister Marina D. produced statements, addressed to the Nazran Town Prosecutor, about the discovery of the bodies of Maryam Goygova and Magomed Goygov.
44. The applicant stated that on 19 January 2000 she had travelled to Grozny to find out about her mother and brother. There she had met a man from the neighbourhood named Viskhan, who told her that the body of an old woman was lying in a cart at a crossroads nearby. He told her that she had been killed by soldiers from the 205th infantry brigade from Budennovsk, and referred to two soldiers who had told him the same thing – one named Oleg, the other Dima. Together with Viskhan the applicant went to the place indicated by him and found her mother's body in a cart. They took it to Viskhan's home and the applicant returned to Ingushetia. Viskhan had also told her that three men who had accompanied Maryam Goygova had been taken away by the soldiers and probably shot. He identified them as Magomed Goygov and his two neighbours, Khamid Khashiyev and Rizvan Taymeskhanov. On the following day, 21 January 2000, the applicant returned to Grozny with her sister to collect their mother's body. When returning to Ingushetia, they took along a wounded woman, Elena Goncharuk (see Goncharuk v. Russia, no. 58643/00), who had been shot by soldiers on 19 January 2000. They took her to the Sunzhenskiy Hospital in Ingushetia. The applicant further recalled that, after the burial of her mother in Nazran, she had returned to Grozny on 24 January 2000 together with Magomed Khashiyev and Movlatkhan Bokova. Together with Viskhan they searched the area surrounding the place where he had last seen the soldiers and the three missing men, but found nothing. On 10 February 2000 the Khashiyevs again went to Grozny and found the three bodies about 50 metres from the place where they had searched on 24 January 2000. They took pictures of the bodies and brought them to Ingushetia. Her brother was buried in Nazran on 11 February 2000.
45. The applicant's sister Marina D. confirmed her statements. She added that on 21 January 2000 they had hired a minivan in Ingushetia to go to Grozny, but were not allowed to enter the city with the vehicle. They had had to walk to the Staropromyslovskiy district and back with the cart. She also stated that on 24 January 2000 the Ministry for Emergency Situations (Emercom) of Ingushetia had given them a lorry to travel to Grozny, but the vehicle had again not been allowed to enter the city. She stated that both times on the road they had on numerous occasions been stopped and checked by the military, who had treated them rudely. After 24 January 2000 the family had searched for Magomed Goygov in detention centres.
46. In their testimonies dated 5 May 2000 Magomed Khashiyev and his sister Movlatkhan Bokova gave details concerning the discovery of their relatives' bodies. Both stated that on 25 January 2000 they had travelled to Grozny with the applicant and met Viskhan, who had told them that their relatives had been taken away by federal soldiers. They also testified about their return to Grozny on 10 February 2000, when they had followed Viskhan's directions and found three bodies, all frozen to the ground and with severe wounds to the head. Magomed Khashiyev had taken photographs of the bodies at the scene and fetched a car. On the same day they had delivered the bodies to Ingushetia, where they were buried the following day, on 11 February 2000.
47. Magomed Khashiyev's daughter, Raykhat Khashiyeva, accompanied her father and aunt on their trip to Grozny on 10 February 2000. In her statement of 10 May 2000 she confirmed their accounts regarding the discovery of the bodies of Khamid Khashiyev, Rizvan Taymeskhanov and Magomed Goygov.
48. An examination of the bodies of Khamid Khashiyev, Rizvan Taymeskhanov and Magomed Goygov was conducted by an investigator from the Malgobek Town Prosecutor's Office in the municipal morgue on 10 February 2000. The bodies were frozen. In respect of Magomed Goygov the expert noted numerous (at least a dozen) gunshot wounds to the head, body and limbs. The right ear had been cut off. The report stated that the relatives had refused to submit the body for a complete forensic examination. One bullet extracted from the body was handed to the relatives.
49. On 19 November 2000 the headquarters of the United Group Alignment in the Northern Caucasus (UGA) of the Ministry of Defence (based in Khankala) replied to the prosecutor's request and submitted a list of the military units, identified by five-digit numbers only, which had been deployed in Grozny between 5 January and 25 February 2000.
50. On 4 March 2001 an investigator from the Chechnya Prosecutor's Office sent a request to the military prosecutor of military unit no. 20102 (Khankala), asking him to identify the exact locations of the military units at the relevant time, to identify the commanding officers and to retrieve notes referring to operations in the Staropromyslovskiy district. The file seen by the Court contains no reply to that request.
51. At different stages of the proceedings in criminal case no. 12038 several orders were produced by the Chechnya Prosecutor's Office listing the steps to be taken by the investigators, such as identifying and questioning all the victims and witnesses, and carrying out forensic and ballistics reports. The order of 14 August 2001 listed ten persons whose bodies had been discovered in Novaya Katayama, including the applicant's two relatives. On 16 January 2003 the same prosecutor's office ordered the investigators to establish possible places where other civilians were buried, to identify further witnesses and victims and to identify the military units that could have been responsible for the crimes.
52. In September 2006 the Government submitted additional documents relating to the progress of the proceedings after December 2003. Some of the orders criticised the manner in which the investigation had been conducted. From 2003 to 2006 the prosecutors on several occasions issued a list of tasks to be carried out by the investigation team, including identifying the military units deployed in the Staropromyslovskiy district of Grozny on the relevant dates, identifying the burial places of civilians in the Novaya Katayama settlement, carrying out exhumation orders, identifying witnesses and the victims of the crimes, and obtaining the findings of the expert reports that had been ordered. It is unclear if any of these steps were taken.
53. The investigation file was transferred four times between the Grozny Town Prosecutor's Office and the Chechnya Prosecutor's Office. Between May 2000 and August 2006 the investigation was adjourned and reopened 23 times. The victims were informed of the decisions to adjourn and to reopen the investigation. From August 2004 this information was also forwarded to the applicant's two sisters.
54. In 2000 and 2003 Magomed Khashiyev, whose brother and nephew were killed together with the applicant's brother, applied to the domestic courts. First, he obtained a decision certifying the death of his relatives for administrative purposes; then he obtained civil compensation for their deaths. Below are the relevant details of these proceedings, as submitted by the parties in Khashiyev and Akayeva (cited above).
55. On 5 April 2000 Magomed Khashiyev submitted an application to the Malgobek Town Court in Ingushetia, seeking to have certified the deaths of his brother Khamid Khashiyev, his sister Lidiya Khashiyeva and his two nephews, Rizvan Taymeskhanov and Anzor Taymeskhanov. Mr Khashiyev submitted that his relatives had remained in Grozny during the winter of 1999 to 2000, while he and the rest of the family had gone to Ingushetia to escape the hostilities. On 17 January 2000 the soldiers of the “205th battalion” of the federal army entered the Staropromyslovskiy district and “committed outrages”. On 19 January 2000 they entered his sister's household and killed his relatives in a brutal fashion, causing numerous firearm and stab wounds. Mr Khashiyev learnt the details of the killings when he attended the funeral of Maryam Goygova. His relatives were buried in Ingushetia. A criminal investigation had been opened and was ongoing. Notification of the deaths was required in order to obtain death certificates from the civil registration office.
56. On 7 April 2000 the Malgobek Town Court in Ingushetia certified the deaths of Khamid Khashiyev, Lidiya Khashiyeva, Rizvan Taymeskhanov and Anzor Taymeskhanov, which had occurred in Grozny, Chechnya, on 19 January 2000. The court based its decision on statements by the applicant and two witnesses. The court noted in the decision that a criminal case had been opened and that an investigation was in progress (there is no evidence that a criminal case had been opened at that time).
57. At the end of 2002 Magomed Khashiyev applied to a district court in Ingushetia seeking compensation for pecuniary and non-pecuniary damage from the Ministry of Finance. He stated that his four relatives had been killed in Grozny in January 2000 by the military. He had found their bodies and had transported them with great difficulty to Ingushetia, where they had been buried. A criminal investigation was opened, but had failed to establish the servicemen responsible for the killings. A witness, Nikolay G., testified to the court that he lived in the Staropromyslovskiy district, not far from the Khashiyevs' home. In January 2000, about a month after the federal troops had established firm control over the district, he had seen the servicemen leading Khamid Khashiyev and two of his nephews towards the garages. They were walking in front of an APC; armed soldiers were sitting on its hull. Soon afterwards he heard automatic rifle shots from the garages. When he attempted to go there, soldiers threatened him. He also submitted that he had been threatened by someone from the prosecutor's office, who had told him to “keep his mouth shut”. Other witnesses testified about the circumstances in which the bodies had been discovered in Grozny, transported to Ingushetia and buried, and about the state of the bodies prior to burial.
58. On 26 February 2003 the Nazran District Court in Ingushetia granted the claim in part and awarded Mr Khashiyev compensation for pecuniary and non-pecuniary damage in the amount of 675,000 roubles.
59. The court noted that it was common knowledge that the Staropromyslovskiy district had been under the firm control of the Russian federal forces by the material time, and that this did not need to be proved. At that time only federal soldiers were able to travel about the town in an APC and to conduct identity checks. That Lidiya Khashiyeva and Anzor Taymeskhanov had been killed during an identity check was corroborated by the fact that their bodies were found in the courtyard of their house with identity documents in their hands. The court further noted that the exact military unit responsible for the killings had not been established by the investigation, which at that time was adjourned. However, all military units were State bodies and therefore compensation for pecuniary damage should be paid by the State.
60. The decision was upheld at final instance by the Ingushetia Supreme Court on 4 April 2003 and executed in 2004.
61. In the context of the proceedings in the Khashiyev and Akayeva case (cited above) the applicants submitted a statement by Christopher Mark Milroy, registered medical practitioner, Professor of Forensic Pathology at the University of Sheffield and Consultant Pathologist to the British Home Office. The statement was prepared on the basis of the witness statements and of colour photographs taken by Magomed Khashiyev at the time when the bodies of Khamid Khashiyev, Rizvan Taymeskhanov and Magomed Goygov had been found.
62. The expert concluded: “... the photographs show injuries in keeping with bullets fired from a high velocity rifle. ... High velocity rifles can cause significantly destructive injuries. Those unused to looking at injuries caused by these weapons may mistake the cause of injuries produced by these weapons.” He further listed a number of procedural steps normally taken in the examination of the body of a person who has died in suspicious circumstances. In the expert's opinion, these should include an X-ray of the body to identify and recover the projectiles and detailed examination and photographing of the external injuries, “as the pattern of injuries may indicate whether the victims were shot at close range or they had been tortured” (see Khashiyev and Akayeva, cited above, §§ 70-71).
63. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic. From 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).
64. Article 161 of the new CCP establishes the rule of impermissibility of disclosing data from the preliminary investigation. Under paragraph 3 of the Article, information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. Divulging information about the private life of participants in criminal proceedings without their permission is prohibited.
VIOLATED_ARTICLES: 13
2
3


ITEMID: 001-57452
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1988
DOCNAME: CASE OF B. v. THE UNITED KINGDOM (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 1. The case was referred to the Court on 28 January 1986 by the European Commission of Human Rights ("the Commission"). It originated in an application (no. 9840/82) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission in 1982 by a British citizen.
2. On 23 October 1986, the Chamber constituted to examine the case relinquished jurisdiction in favour of the plenary Court (Rule 50 of the Rules of Court). By judgment of 8 July 1987 ("the principal judgment"), the plenary Court held, inter alia, that the applicant had been the victim of breaches of Articles 8 and 6 § 1 (art. 8, art. 6-1) of the Convention by reason of the procedures followed and the insufficiency of the remedies available in connection with decisions relating to her child in the care of a local authority (Series A no. 121-B, paragraphs 59-83 of the reasons and points 1 and 3 of the operative provisions, pp. 71-80 and 81).
The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, reference should be made to paragraphs 8-54 of the principal judgment (ibid., pp. 63-70).
3. At the Court’s hearing on 25-26 November 1986, the Government of the United Kingdom ("the Government") reserved their position on the applicant’s claim for just satisfaction, which claim had not then been quantified.
In the principal judgment, the Court therefore reserved the whole of this question; it invited (a) the applicant to submit, within the next two months, full written particulars of her claim; and (b) the Government to submit, within two months of receipt of those particulars, their written comments thereon and, in particular, to notify the Court of any agreement reached between them and the applicant (paragraphs 86-87 of the reasons and point 5 of the operative provisions, pp. 81-82).
4. In accordance with the foregoing invitation and the President’s directions, there were filed at the registry:
- on 1 October 1987, memorial of the applicant;
- on 21 December 1987 and 12 February 1988, memorials of the Government;
- on 21 January 1988, observations of the Delegate of the Commission.
These documents revealed that no agreement had been concluded between the Government and the applicant.
5. Having consulted the Agent of the Government, the Delegate of the Commission and the representative of the applicant, the Court decided, on 24 March 1988, that there was no need to hold a hearing.


ITEMID: 001-61833
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF LESKER ACAR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award
TEXT: 9. The applicant was born in 1966 and lives in Silopi.
10. On 28 April 1992 the applicant was taken into police custody on suspicion of having been involved in the terrorist activities of the PKK (Workers' Party of Kurdistan), proscribed as a terrorist organisation under Turkish law.
11. On 25 May 1992 the applicant was brought before the Diyarbakır Public Prosecutor. He denied the allegations against him. On the same day, a judge at the Şırnak Magistrates' Court (sulh ceza mahkemesi) ordered the applicant's detention on remand.
12. On 1 September 1992 the public prosecutor filed an indictment charging the applicant with treason under Article 125 of the Criminal Code.
13. On 12 October 1994 the public prosecutor filed a new indictment, charging the applicant under the same provision of the Criminal Code with involvement in other terrorist activities.
14. On 28 May 1995, upon the request of the public prosecutor, the applicant's case was joined to another case which was being considered in a different chamber of the Diyarbakır State Security Court.
15. On 3 July 1998 the Diyarbakır State Security Court convicted the applicant under Article 125 of the Criminal Code of treason and sentenced him to life imprisonment.
16. The applicant's sentence was automatically referred to the Court of Cassation for appeal. The applicant's request for a hearing on his appeal was granted. On 27 October 1999 the Court of Cassation upheld the judgment of the Diyarbakır State Security Court.
17. The Court refers to the overview of the domestic law derived from previous submissions in other cases, in particular Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23713
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: HAIDER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Mr Anton Haider, is an Austrian national, who lives in Hörbranz (Austria). He is represented before the Court by Mr W. L. Weh, a lawyer practising in Bregenz (Austria).
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1971 the applicant bought a plot of land, designated in the area zoning plan as agricultural land, in Möggers, Vorarlberg. He had the intention to build a hotel on that land.
In 1975 the Möggers Municipality adopted an area zoning plan (Flächenwidmungsplan) in which the applicant’s land was designated as building plot (Bauland).
On 10 January 1992 the applicant filed a request for a building permit for a hotel with 65 beds and a restaurant.
On 17 March 1992 the mayor of Möggers held a hearing. A land use planning expert commented on the project by stating that the applicant’s plot of land was situated in a completely unspoilt area between two built-up areas of Möggers and that in his view a project of this size was not desirable.
On 21 October 1992 the Möggers Municipality issued a building prohibition for the area in which the applicant’s land was situated.
On 29 October 1992 the mayor held another hearing.
On 1 April 1993 the District Authority dismissed the applicant’s request for a building permit on the ground that the project would have been contrary to the objectives of the building prohibition, that the water supply and sewage disposal were not ensured for the land and that the project, if realised, would alter the characteristics of the village and the landscape (Orts- und Landschaftsbild). Moreover, it found that each of these reasons was sufficient in itself to dismiss the applicant’s request.
On 15 April 1993 the applicant filed an appeal. He complained that the District Authority’s reasoning was insufficient and inconclusive.
On 20 July 1993 the Vorarlberg Regional Government dismissed the applicant’s appeal. It based this decision merely on the finding that his request was contrary to the building prohibition.
The applicant filed a complaint with the Constitutional Court as well as with the Administrative Court, claiming that the building prohibition was unlawful.
On 14 June 1994 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success.
On 17 November 1994 the Administrative Court dismissed the complaint. It found that the building prohibition was lawful and that, therefore, the dismissal of the applicant’s application for a planning permission was equally lawful.
Subsequently, the Möggers Municipality opened proceedings for the modification of the area zoning plan.
On 11 July 1996 the Municipal Council issued a new area zoning plan under which the applicant’s land was designated as undeveloped land (Freiland) on which the owner was not allowed to construct buildings.
On 18 February 1997 the applicant filed a new application for a planning permission for his project in order to challenge the modification of the area zoning plan.
On 16 April 1997 the District Authority dismissed the applicant’s application on the ground that it conflicted with the area zoning plan.
On 3 June 1997 the Regional Government dismissed the applicant’s appeal of 5 May 1997 and confirmed the decision.
On 28 July 1997 the applicant lodged a complaint with the Constitutional Court. He submitted that the modification of the area zoning plan had been unlawful and that the planning permission, therefore, should have been granted. He also complained that his right to property had been violated.
On 7 June 1999 the Constitutional Court refused to deal with the complaint for lack of prospects of success. Consequently, the Constitutional Court referred the case to the Administrative Court.
On 15 September 1999 the applicant supplemented his complaint pending before the Administrative Court. He submitted that the modification of the area zoning plan was unlawful. He requested a hearing and to carry out an inspection of the location.
On 23 February 2001 the Administrative Court dismissed the complaint. It considered that it was unnecessary to institute proceedings with the Constitutional Court to examine the area zoning plan, as that court had already refused to deal with the case for lack of prospects of success. It found that there was no doubt that the modification of the area zoning plan was lawful. It dismissed the requests for a hearing and an inspection of the location, as the case merely concerned questions of law. This decision was served on 19 March 2001.
In Austrian administrative law one distinguishes decrees (Verordnung) and (individual) decisions (Bescheid). Decisions of administrative authorities are addressed to individuals and can be challenged by way of appeal (Berufung) under Section 67 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz). Final administrative decisions may be challenged by way of complaints with the Constitutional Court under Article 144 of the Constitution and complaints with the Administrative Court under Article 130 of the Constitution.
In contrast, decrees are addressed to the general public. The lawfulness of decrees can only be reviewed by the Constitutional Court. If it is possible to institute administrative proceedings in which the allegedly unlawful decree applies, the question of its lawfulness can be brought before the Constitutional Court by a constitutional complaint under Article 144 of the Federal Constitution, or by a request made by the Administrative Court, an Independent Administrative Panel or an ordinary court under Article 139 of the Constitution. In exceptional circumstances a person who is affected by a decree may seize the Constitutional Court with an independent request for review of the lawfulness of a decree, namely, if the decree has direct consequences on the situation of the person without it being necessary that an administrative decision be taken.
The Constitutional Court examines whether there has been any infringement of an applicant’s right under the Constitution and whether any decree unauthorised by statute law or any unconstitutional statute or international treaty unlawful under Austrian law has been applied (Article 144 of the Federal Constitution).
In Vorarlberg land planning use is governed by the Vorarlberg Land Planning Act (Raumplanungsgesetz). Area zoning plans and any amendments thereto are regarded as decrees. The proceedings in which they are issued are not ordinary administrative proceedings and the persons affected are not parties to them.
The competent local authorities (Gemeinden) must take into consideration principles of sustainable land planning use as well as planning proceedings of neighbouring local authorities and other public law corporations (Sections 2 and 3 of the Land Planning Act).
If the area zoning plan is the basis for the granting or withholding of building permits, the persons affected are expected to assert their rights in administrative proceedings concerning the building permit, in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation.
According to Section 39 § 1 of the Administrative Court Act, that court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit. Section 39 § 2 (6), which was added to the Act in 1982, provides however that, notwithstanding a party’s application, the Administrative Court may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings, that an oral hearing is not likely to contribute to the clarification of the case.
Article 144 § 2 of the Federal Constitution reads as follows:
"The Constitutional Court may ... decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The Court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."


ITEMID: 001-95327
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PAULIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 8
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1953 and lives in Požega.
5. The applicant was employed as a civilian by the Yugoslav People's Army (YPA). On 18 June 1991 the Požega Garrison Command issued a conclusion noting the applicant's application to be granted a flat and classifying it in “group one” on the basis of his employment with the YPA from 19 October 1988. On 17 July 1991 the Government adopted the Decree on the Prohibition of All Real Estate Transactions in Croatia (Uredba o zabrani raspolaganja nekretninama na teritoriju Republike Hrvatske – published in Official Gazette no. 36/1991 of 24 July 1991) which banned all transactions in respect of immovable property situated in Croatia and belonging to the former Yugoslavia's federal institutions or legal entities having their seat in one of its former federal units. This decree entered into force on 24 July 1991.
6. On 20 August 1991 the above-mentioned Garrison Command adopted a decision to grant the applicant, as their civilian employee, together with his wife and son, the right to occupy and purchase a flat in Požega owned by the YPA. The applicant and his family moved into the flat in September 1991. Pursuant to the Government's decree of 2 October 1991, all possessions of the former YPA came into the ownership of the Republic of Croatia. The applicant left the YPA and made himself available for the Croatian Army.
7. On 3 June 1991 Parliament enacted the Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo), which regulated the sale of publicly-owned flats previously let under protected tenancies, giving the right to holders of such tenancies of publicly-owned flats to purchase them from the provider of the flat under favourable conditions. On the basis of that Act, in 1997 the applicant requested the Ministry of Defence as the owner of the flat to enter into a contract for the sale of the flat with him as the buyer. Since the owner declined his request, the applicant brought a civil action in the Požega Municipal Court (Općinski sud u Požegi) seeking a judgment in lieu of the contract of sale.
8. On 17 October 1997 the State brought a civil action against the applicant in the same Municipal Court, seeking his eviction. The State submitted that it was the owner of the flat and that the applicant, as a result of the decree of July 1991, had never obtained a specially protected tenancy in respect of the flat, so the State had the right to repossess it. The two proceedings were joined.
9. In a judgment of 25 October 2000 the Municipal Court accepted the State's action and dismissed the applicant's counterclaim. It also ordered that the applicant be evicted. The relevant part of the judgment reads as follows:
“... the decision relied on by the defendant [the applicant] is null and void pursuant to the Decree on the Prohibition of All Real Estate Transactions. No other decision has been adopted concerning the defendant's [rights] in respect of the flat in question. Under the Housing Act a specially protected tenancy could have been acquired on the basis of a final decision on allocation of a flat for occupation or any other valid legal entitlement (section 3 of the Housing Act, Official Gazette no. 51/85). Save for his occupation of the flat in question, the defendant does not possess a final decision that he had acquired a specially protected tenancy or any other valid legal entitlement to that effect ...”
10. On appeal, on 19 September 2001 the Požega County Court (Županijski sud u Požegi) upheld the first-instance judgment. The relevant part of the appellate judgment reads as follows:
“By the decree of 3 October 1991 the Republic of Croatia became the owner of all real estate, movables, property rights and monetary resources situated on its territory and formerly under control of the YPA. The decree which came into force on 24 July 1991 banned all transactions in respect of the real estate situated in Croatia (including its sale, exchange, transfer of the right of use, etc.) which was in possession or owned or under control of the federal organs or institutions. Therefore, the conclusions of the first-instance court that after that decree had come into force, the YPA, which was the owner of the flat, had no right to dispose of it and that the decision of 20 August 1991 which served as a basis for the defendant's occupation of the flat, was null and void, are correct.
Since the defendant has no legal entitlement to occupy the flat, the decision of the first-instance court ordering his eviction ... is correct.”
11. With a view to securing the applicant's eviction the State instituted enforcement proceedings before the Požega Municipal Court on 17 October 2002. The eviction order was issued on 23 October 2002. On 24 October 2001 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske). On 19 November 2002 the applicant sought that the eviction be adjourned, pending the resolution of his appeal on points of law before the Supreme Court. He also submitted medical documentation concerning his son, born in 1989, showing that he suffers from a malign brain tumour and chronic hepatitis B. In view of the applicant's pending appeal on points of law and the condition of the applicant's son, the eviction was adjourned in a decision of 9 January 2003. On 14 January 2004 the Supreme Court dismissed the applicant's appeal on points of law.
12. The applicant lodged a constitutional complaint on 21 April 2004. He complained, inter alia, that his constitutional right to the protection of his personal and family life had been violated in that the lower courts' decision had ordered and upheld his eviction. He argued that these decisions had been contrary to the law and that he had a specially protected tenancy in respect of the flat in question and thus the right to occupy it.
13. The Požega Municipal Court scheduled the eviction of the applicant and his family for 13 April 2005. The applicant asked for an adjournment. On 8 April 2005 the State Attorney's Office, which represented the Ministry of Defence in the proceedings, agreed to the applicant's request owing to his difficult family situation. They stressed, however, that it was only a temporary solution and invited the applicant to file a request for accommodation with the Požega Municipality. On 11 April 2005 the Požega Municipal Court again adjourned the applicant's eviction until the Constitutional Court's decision, on the ground that the applicant's constitutional complaint was pending and that the creditor, that is the State, had agreed with the adjournment owing to the applicant's difficult family situation.
14. A letter of the Požega Municipality of 14 April 2005 sent to the Ministry of Defence indicates that the Municipality had no flats at its disposal where the applicant and his family could be accommodated. In a letter of 26 April 2005 the applicant expressed his intention to purchase another flat.
15. The applicant's constitutional complaint was dismissed as being ill-founded by the Constitutional Court (Ustavni sud Republike Hrvatske) on 11 July 2005. The enforcement proceedings have not been resumed so far.
16. In a letter of 6 December 2006 the applicant informed the Ministry of Defence that he was finally about to resolve his housing situation.
17. Article 34 of the Constitution (Ustav Republike Hrvatske, Official Gazette nos. 41 and 55) reads as follows:
“The home is inviolable.
A search of a person's home or other premises shall be ordered by a court in the form of a reasoned written warrant based on law.
An occupier, or his or her representative, shall be entitled to be present during the search of a home or other premises. The presence of two witnesses shall be obligatory.
Under the conditions prescribed by law and where it is necessary to execute an arrest warrant or to apprehend a person who has committed a criminal offence or in order to remove serious danger for the life or health of people, or for property of greater value, the police may enter a person's home or other premises and carry out a search without a court's warrant or the occupier's consent and without any witnesses being present.
Where there is a probability that evidence may be found in the home of a person who has committed a criminal offence, a search shall be carried out only in presence of witnesses.”
18. Section 161, paragraph 1, of the Ownership Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no 91/1996) reads as follows:
“The owner has the right to seek repossession of his or her property from the person in whose possession it is.”
19. The Specially Protected Tenancies (Sale to Occupier) Act (Official Gazette nos. 27/1991, 33/1992, 43/1992, 69/1992 25/1993, 26/1993, 48/1993, 2/1994, 44/1994, 47/1994, 58/1995, 11/1996, 11/1997 and 68/1998, Zakon o prodaji stanova na kojima postoji stanarsko pravo) regulates the conditions for the sale of flats let under specially protected tenancies. In general, the Act entitles the holder of a specially protected tenancy of a publicly owned flat to purchase it under favourable conditions of sale.
The relevant provision of the Act provides as follows:
“Every holder of a specially protected tenancy (hereinafter 'the tenant') may submit a written application to purchase a flat to the ... owner ('the seller') ... and the seller shall be obliged to sell the flat.
...”
20. The relevant part of the Constitutional Court's decision no. U-III/408/2003 of 18 February 2004 reads as follows:
“As regards the alleged violation of the constitutional right guaranteed under Article 34 of the Constitution, it is to be said that that a violation of that right cannot occur in the enforcement proceedings, since Article 34 of the Constitution guarantees inviolability of home which concerns conduct of the police during entries and searches of home in execution of arrest warrants or in order to comprehend a perpetrator of a criminal offence or to remove serious risk for lives and health of persons or for valuable assets. Therefore, the provision in question is not applicable in the proceedings at issue.”
VIOLATED_ARTICLES: 8