ITEMID: 001-61334
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: GRANDCHAMBER
DATE: 2003
DOCNAME: CASE OF SLIVENKO v. LATVIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 14+8;No violation of Art. 5-1;Not necessary to examine Art. 5-4;Non-pecuniary damage - financial award
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 14. The facts of the case, as submitted by the parties, may be summarised as follows.
15. The first applicant is Mrs Tatjana Slivenko, born in 1959. The second applicant is her daughter, Ms Karina Slivenko, born in 1981.
16. The applicants are of Russian origin. The first applicant was born in Estonia into the family of a military officer of the Union of Soviet Socialist Republics (USSR). At the age of one month she moved to Latvia together with her parents. Her husband, Nikolay Slivenko, born in 1952, was transferred to Latvia in 1977 to serve as a Soviet military officer. He met the first applicant in Latvia and married her there in 1980. In 1981 the first applicant gave birth to their daughter, the second applicant. The first applicant's father retired from the army in 1986.
17. Latvia regained independence from the USSR in 1991. On 28 January 1992 the Russian Federation assumed jurisdiction over the former Soviet armed forces, including those stationed in the territory of Latvia.
18. On 4 March 1993 the applicants and the first applicant's parents were entered in the register of Latvian residents (“the register”) as “ex-USSR citizens” (see paragraphs 50-56 below). At that time, none of them were citizens of any particular State. In her request to be entered in the register, the first applicant had not indicated that her husband was a Russian military officer.
19. The respondent Government state that, in requesting her entry in the register, the first applicant submitted false information about the occupation of Nikolay Slivenko, stating that he worked at a factory. The respondent Government have submitted a copy of an annex to the first applicant's application for residence in Latvia, including the statement that her husband worked at a factory.
20. The applicants and the third party submit that the document is falsified, and that it does not exist. They also refer to the fact that, during the subsequent proceedings concerning the legality of their stay in Latvia (see paragraphs 34-39 below), the immigration authorities did not refer to any such false information, and the Latvian courts did not establish that the applicants had at any point submitted the information mentioned by the respondent Government.
21. Nikolay Slivenko, who had become a Russian citizen on an unspecified date in the early 1990s, continued his service in the Russian army until his discharge in 1994 on the ground of the abolition of his post. The parties disagree as to the actual date of his discharge: the applicants state that he was discharged on 2 March 1994. They rely on the fact that an order for his discharge was signed and became effective on 2 March 1994. The Russian Government support this conclusion. The respondent Government argue that the first applicant's husband was discharged on 5 June 1994 as it was only on that date that he formally completed his leave; his leave allowance and retirement benefits had been calculated with reference to that date.
22. The treaty between Latvia and Russia on the withdrawal of the Russian troops (“the treaty”) was signed in Moscow on 30 April 1994 and became effective on that date (see paragraphs 64-67 below).
23. According to the respondent Government, even before the signature and entry into force of the treaty, various Latvian and Russian authorities cooperated in establishing the names of the Russian military personnel liable to be removed from Latvia. In this context, on 31 March 1994, the Russian military authorities submitted to the Latvian authorities a list of the Russian military officers in Latvia, including the first applicant's husband, with an accompanying request to prolong his and his family's temporary residence in Latvia. This, the respondent Government contend, made it clear that their stay in Latvia was temporary, and that they would be required to leave.
24. According to the applicants and the Russian Government, the list of 31 March 1994 did not entail any obligation on Nikolay Slivenko to leave Latvia as it was a document solely requesting the prolongation of his temporary stay in Latvia, submitted before the actual signature and entry into force of the treaty.
25. On 7 October 1994 Nikolay Slivenko applied to the Latvian Citizenship and Migration Authority (“the CMA”) for a temporary residence permit in Latvia by reason, inter alia, of his marriage to the first applicant, a permanent resident of Latvia. This was refused on the ground that, as a Russian military officer, he was required to leave Latvia as a result of the withdrawal of the Russian troops in accordance with the treaty.
26. On 29 November 1994 the CMA annulled the applicants' entry in the register on the ground of Nikolay Slivenko's military status. The applicants state that they were not informed about the decision, and that they found out about it only in 1996, in the context of the court proceedings brought by the first applicant's husband (see paragraph 29 below).
27. The respondent Government have also produced a list dated 10 December 1994, which according to them had been submitted to the Latvian authorities by the Russian armed forces. In the list Nikolay Slivenko was included in the category of military personnel who had retired after 28 January 1992. The applicants and the third party contest the authenticity of the list.
28. The respondent Government have further produced a list dated 16 October 1995, which according to them had been sent to the Latvian Ministry of Foreign Affairs by the Russian consulate in Riga. According to the respondent Government, Nikolay Slivenko's name appeared on the list among those Russian military pensioners who had been discharged from the Russian armed forces after 28 January 1992. It was also noted in the list that on 3 August 1994 Nikolay Slivenko had been given housing in the city of Kursk in Russia, and that he had left Latvia on 31 December 1994. The applicants and the third party contest the authenticity of the list.
29. In point of fact, however, the first applicant's husband had stayed in Latvia. He brought a court action against the CMA, claiming that their refusal to issue him with a temporary residence permit was void. On 2 January 1996 the Riga City Vidzeme District Court found in his favour. The CMA appealed against the judgment.
30. On 19 June 1996 the Riga Regional Court allowed the CMA's appeal, finding, inter alia, that Nikolay Slivenko had been a Russian military officer until 5 June 1994 and that the treaty of 30 April 1994 required all Russian officers in service on 28 January 1992 to leave Latvia together with their families. The Regional Court referred, inter alia, to the list of 16 October 1995, which confirmed that he had been provided with accommodation in Kursk, and that he had left Latvia in 1994. He did not bring a cassation appeal against the appellate judgment.
31. On 20 August 1996 the immigration authorities issued a deportation order in respect of the applicants. The order was served on them on 22 August 1996.
32. On that date the local authorities decided to evict the applicants from their flat, which they rented from the Latvian Ministry of Defence. Russian military officers and their families as well as other residents of Latvia lived in the block where the flat was located. The eviction order was not enforced.
33. On an unspecified date in 1996 Nikolay Slivenko moved to Russia, while the applicants remained in Latvia.
34. The first applicant brought a court action in her own name and on behalf of her daughter, claiming that they were in fact permanent residents of Latvia and that they could not be removed from the country.
35. On 19 February 1997 the Riga City Vidzeme District Court found in favour of the applicants. The court held, inter alia, that the first applicant had come to Latvia as a relative of her father, not her husband. As her father had retired in 1986, he could thereafter no longer be regarded as a military officer, and his close relatives, including the applicants, could be entered in the register as permanent residents of Latvia. The court quashed the deportation order in respect of the applicants and authorised their re-entry in the register.
36. The CMA appealed against the judgment of 19 February 1997. On 30 October 1997 the Riga Regional Court dismissed the appeal, finding that the first-instance court had decided the case properly. Upon a cassation appeal by the CMA, on 7 January 1998 the Supreme Court quashed the decisions of the lower courts and remitted the case to the appellate court for a fresh examination. The Supreme Court referred to the fact that the applicants had been provided with a flat in Kursk, and that they were subject to the provisions of the treaty of 30 April 1994.
37. On 6 May 1998 the Riga Regional Court allowed the CMA's appeal, finding that Nikolay Slivenko had been a serving Russian military officer until 5 June 1994. Referring to the fact that he had been given housing in Kursk in 1994 following his retirement from the Russian military, the court decided that he had been required to leave Latvia with his family in accordance with the treaty. The court found that the decision of the immigration authorities to annul the applicants' entry in the register had been lawful.
38. On 12 June 1998 the first applicant was informed by the immigration authorities that the deportation order of 20 August 1996 had become effective upon the delivery of the appellate court's judgment of 6 May 1998.
39. On 29 July 1998, on a cassation appeal by the applicants, the Supreme Court confirmed the decision of 6 May 1998. The Supreme Court stated that Nikolay Slivenko had been discharged from the Russian armed forces on 5 June 1994. The Supreme Court noted that the applicants had been allocated the flat in Kursk in the context of the material assistance provided by the United States of America for the withdrawal of Russian troops. Relying on the fact that Nikolay Slivenko had been discharged from the military after 28 January 1992, the Supreme Court concluded that the applicants, as part of his family, had also been required to leave Latvia in accordance with the treaty.
40. On 14 September 1998 the first applicant requested the CMA to defer execution of the deportation order. That was refused on 22 September 1998.
41. On 7 October 1998 the first applicant lodged with the immigration authorities an appeal against the deportation order, requesting a residence permit and her re-entry in the register. She stated, inter alia, that Latvia was her and her daughter's motherland as they had lived there all their lives and had no other citizenship, and that she was required to take care of her disabled parents who were permanently resident in Latvia.
42. In the late evening of 28 October 1998 the police entered the applicants' flat. They were arrested at 10.30 p.m. on the same date. On 29 October 1998, at 12.30 a.m., a police officer issued an arrest warrant in respect of the applicants on the basis of section 48-5 of the Aliens Act. The warrant stated that the applicants had no valid documents justifying their stay in Latvia, and that the applicants' entry in the register of Latvian residents had been annulled by the Supreme Court's final judgment of 29 July 1998. It was also mentioned in the warrant that the applicants “did not leave Latvia following the judgment, and there were reasonable grounds to suspect that they were staying in Latvia illegally”. The warrant was signed by the applicants. On the basis of the warrant the applicants were immediately detained in a centre for illegal immigrants.
43. Also on 29 October 1998 the Director of the CMA sent a letter to the immigration police, stating that the applicants' arrest had been “premature” in view of the fact that the first applicant had lodged an appeal on 7 October 1998. No reference to domestic law was made in the letter. The Director of the CMA ordered the immigration police to release the applicants. They were released at an unspecified time on 29 October 1998.
44. On 3 February 1999 the applicants received a letter from the Director of the CMA dated 29 October 1998, informing them that they were required to leave Latvia immediately. They were also informed that, if they complied voluntarily with the deportation order, they could thereafter be issued with a visa enabling them to stay in the country for ninety days per annum.
45. On 16 March 1999 the flat of the first applicant's parents was searched by the police in the presence of the second applicant. On the same date, at 9 a.m., a police officer issued a warrant for the second applicant's arrest on the basis of section 48-5 of the Aliens Act. The warrant stated that the second applicant had no valid document justifying her stay in Latvia, and that there were reasonable grounds to suspect that she was staying in Latvia illegally. The order was signed by the second applicant. She was immediately arrested and thereafter detained for thirty hours in a centre for illegal immigrants. She was released on 17 March 1999.
46. On 11 July 1999 the applicants moved to Russia to join Nikolay Slivenko. By that time the second applicant had completed her secondary education in Latvia. On an unspecified date in 2001 the applicants adopted Russian citizenship as former nationals of the USSR. The applicants now live in Kursk, in accommodation which was provided by the Russian defence authorities. After the applicants left Latvia, their flat in Riga was taken back by the Latvian authorities. Meanwhile, the first applicant's parents continued living in Latvia on the basis of their status as “ex-USSR citizens”.
47. According to the applicants, the first applicant's parents are seriously ill, but the applicants have not been able to go to Latvia to visit them. The deportation order of 20 August 1996 prohibited the applicants from entering Latvia for five years. That prohibition expired on 20 August 2001. Towards the end of 2001 the applicants obtained visas permitting their stay in Latvia for no more than ninety days per annum.
48. In view of the fact that Nikolay Slivenko had left Latvia voluntarily, the prohibition on entering Latvia was not extended to him. He was allowed to visit Latvia several times in the period between 1996 and 2001.
49. Latvian laws use the term “citizenship” (pilsonība) to denote the nationality of a person. In the official English translations of the domestic statutes, the term “nationality” is sometimes used in brackets alongside the term “citizenship”. An official English translation of the Aliens Act (Part I) provides, for example, that “an 'alien' [is] a person having the citizenship (nationality) of another State; [a] 'stateless person' [is] a person having no citizenship (nationality)”.
50. Latvian legislation on nationality and immigration identifies several categories of persons, each with its own status defined in a specific Act:
(a) Latvian citizens (Latvijas Republikas pilsoņi), whose legal status is governed by the Citizenship Act of 22 July 1994 (Pilsonības likums);
(b) “permanently resident non-citizens” (nepilsoņi) – that is, citizens of the former USSR who lost their Soviet citizenship following the dissolution of the USSR but have not subsequently obtained any other nationality – who are governed by the Status of Former USSR Citizens Act of 12 April 1995 (Likums “Par to bijušo PSRS pilsoņu statusu, kuriem nav Latvijas vai citas valsts pilsonības”); this group of persons may also be referred to as “ex-USSR citizens”;
(c) asylum-seekers and refugees, whose status is governed by the Asylum Act of 7 March 2002 (Patvēruma likums);
(d) “stateless persons” (bezvalstnieki) within the meaning of the Stateless Persons Act of 18 February 1999 (Likums “Par bezvalstnieka statusu Latvijas Republikā”), read in conjunction with the Aliens Act and, since 1 May 2003, with the Immigration Act which replaced it;
(e) “aliens” in the broad sense of the term (ārzemnieki), including foreign nationals (ārvalstnieki) and stateless persons (bezvalstnieki) falling solely within the ambit of the Aliens and Stateless Persons (Entry and Residence) Act of 9 June 1992 (Likums “Par ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos Latvijas Republikā” – “the Aliens Act”) (before 1 May 2003), and the Immigration Act (after that date).
51. The Citizenship Act is based on two principles: the principle of jus sanguinis and the doctrine of State succession in matters of international and constitutional law. Accordingly, with certain exceptions, only those persons who had Latvian citizenship on 17 June 1940 (the date on which Latvia came under Soviet domination) and their descendants are recognised ipso jure as Latvian citizens (section 2(1)). The fact of having been born within Latvian territory or having been resident there for a long period does not in itself confer Latvian citizenship; accordingly, citizens of the former USSR who arrived in Latvia during the Soviet era (1944-91) and their descendants were not automatically granted Latvian citizenship after Latvia had regained its independence.
52. Furthermore, the Citizenship Act provides for the possibility of becoming a Latvian citizen by means of naturalisation, in accordance with the conditions and procedure laid down in Chapter II of the Act. Persons seeking naturalisation as Latvian citizens must have been lawfully resident in Latvia for at least the past five years, have a legal source of income, pass an examination testing proficiency in Latvian, be familiar with the Latvian Constitution and national anthem, have a basic knowledge of Latvian history, swear an oath of allegiance and, where appropriate, renounce their existing citizenship (section 12). Section 11(1) lists the grounds on which naturalisation may be refused; for example the provision prohibits the naturalisation of persons who
“... after 17 June 1940 chose the Republic of Latvia as their place of residence immediately after being discharged from the USSR (Russian) armed forces, and who did not have their permanent residence in Latvia on the date of their conscription or enlistment ...”.
53. In the version in force before 25 September 1998, section 1 of the Status of Former USSR Citizens Act provided:
“(1) This Act shall apply to citizens of the former USSR who are resident in Latvia ..., were resident within Latvian territory before 1 July 1992 and are registered as being resident there, regardless of the status of their housing, provided that they are not citizens of Latvia or of any other State, and also to their children below the age of majority, if the latter are not citizens of Latvia or of any other State.”
In the version in force since 25 September 1998, section 1 of the Status of Former USSR Citizens Act provides:
“(1) The persons governed by this Act – 'non-citizens' – shall be those citizens of the former USSR, and their children, who are resident in Latvia ... and who satisfy all the following criteria:
1. on 1 July 1992 they were registered as being resident within the territory of Latvia, regardless of the status of their housing; or their last registered place of residence by 1 July 1992 was in the Republic of Latvia; or a court has established that before the above-mentioned date they had been resident within the territory of Latvia for not less than ten years;
2. they do not have Latvian citizenship; and
3. they are not and have not been citizens of any other State.
(2) The legal status of persons who arrived in the Republic of Latvia after 1 July 1992 shall be determined by the Aliens and Stateless Persons Acts.
(3) The present Act shall not apply to:
1. military specialists engaged in the operation and dismantling of Russian Federation military [radar equipment] installed in the territory of Latvia, and civilians sent to Latvia for that purpose;
2. persons who were discharged from the armed forces after 28 January 1992, if on the date of their enlistment they were not permanently resident in the territory of Latvia and if they are not close relatives of Latvian citizens;
3. spouses of the persons [mentioned above] and members of their families (children and other dependants) living with them, where, irrespective of the date of their arrival, they arrived in Latvia in connection with the service of a member of the Russian Federation (USSR) armed forces;
4. persons who have received compensation for establishing their permanent residence abroad, regardless of whether the compensation was paid by a Latvian central or local authority or by an international or foreign authority or foundation; or
5. persons who on 1 July 1992 were officially registered as being resident for an indefinite period within a member country of the Commonwealth of Independent States.”
Section 2( )2 of the Act prohibits the deportation of “non-citizens”, “save where deportation takes place in accordance with the law and another State has agreed to receive the deportee”. Furthermore, section 5 (which became section 8 on 7 April 2000) provides:
“(1) Section 2 ... of this Act shall also [apply to] stateless persons and their descendants who are not and have never been citizens of any State and who, before 1 July 1992, were resident within the territory of Latvia and were registered as being permanently resident there ...
(2) Section 2 of this Act shall also apply to nationals of other States and their descendants who were resident within the territory of Latvia before 1 July 1992 and were registered as being permanently resident there ..., provided that they do not have Latvian citizenship ...”
Lastly, section 49 provides that international agreements on immigration “concluded by the Republic of Latvia and approved by Parliament” take precedence over national legislation.
54. The relevant provisions of the Aliens Act were worded as follows:
Section 11
“Any foreigner or stateless person shall be entitled to stay in the Republic of Latvia for more than three months [version in force from 25 May 1999: 'more than ninety days in the course of one half of a calendar year'], provided that he or she has obtained a residence permit in accordance with the provisions of this Act. ...”
Section 23
“The following may obtain a permanent residence permit:
...
(2) the spouse of a Latvian citizen, of a 'permanently resident non-citizen' of Latvia or of an alien or stateless person who has [himself or herself] been granted a permanent residence permit, in accordance [with section] ... 26 of this Act, and the spouse's minor or dependent children ...”
55. When the Aliens Act came into force, it did not contain any provision excluding serving members of the Russian armed forces who had been discharged after 28 January 1992. Regulation no. 297 of 6 August 1996, confirmed by the Act of 18 December 1996, amended section 23 as follows:
“Permanent residence permits may be obtained by aliens who, on 1 July 1992, were officially registered as being resident for an indefinite period within the Republic of Latvia if, at the time of applying for a permanent residence permit, they are officially registered as being resident within the Republic of Latvia and are entered in the register of residents.
Citizens of the former USSR who acquired the citizenship of another State before 1 September 1996 must apply for a permanent residence permit by 31 March 1997. Citizens of the former USSR who acquired the citizenship of another State after 1 September 1996 must apply within six months of the date on which they acquired the citizenship of that State.
This section shall not apply to:
1. military specialists engaged in the operation and dismantling of Russian military [radar equipment] installed in the territory of Latvia, and civilians sent to Latvia for that purpose;
2. persons who were discharged from active military service after 28 January 1992 if on the date of their enlistment they were not permanently resident in the territory of Latvia and if they are not close relatives of Latvian citizens; or
3. spouses of the persons [mentioned above] and members of their families (children and other dependants) living with them, where, irrespective of the date of their arrival, they arrived in Latvia in connection with the service of a member of the Russian Federation (USSR) armed forces.”
56. Persons who are lawfully resident in Latvia are entered in the register of residents and given a personal identification number (personas kods). The functioning of the register, which is kept by the interior authorities, is laid down in the Register of Residents Act of 27 August 1998 (Iedzīvotāju reģistra likums), which replaced the previous Act of 11 December 1991 (Likums “Par iedzīvotāju reģistru”).
57. According to the information provided by the respondent Government, about 900 persons – close relatives of Russian military officers required to leave Latvia under the treaty – were able to legalise their stay in Latvia because those persons were either Latvian citizens or close relatives of Latvian citizens, and had not arrived in Latvia in connection with service in the Soviet armed forces.
58. Section 35 of the Aliens Act lists the circumstances in which a residence permit, even a temporary one, will not be issued. Section 36 of the Aliens Act lists the grounds on which a residence permit may be withdrawn. The fact of having been a serving member of the Russian armed forces after 28 January 1992 does not appear in either of these lists.
Point 1 of section 36 provides that a residence permit should be withdrawn where its holder “has knowingly submitted false information to the Department”. Point 3 provides for the same consequences if the holder of a residence permit “arouses reasonable suspicion on the part of the competent authorities that he or she presents a threat to public order and safety or national security”. Point 6 concerns persons who have “entered the service of a foreign State, whether in the armed forces or otherwise, except in cases provided for by international agreements”. Lastly, point 14 concerns persons who have “received compensation for establishing their permanent residence abroad, regardless of whether the compensation was paid by a Latvian central or local authority or by an international or foreign authority or foundation”.
59. Section 38 of the Act provides that the head of the Department of the Interior or of one of its regional offices should issue a deportation order where an alien or stateless person resides within the territory of Latvia without being in possession of a valid visa or residence permit or in any other circumstances listed in Article 36.
60. Sections 39 and 40 provide:
“Where a deportation order is issued in respect of a person with dependent relatives in Latvia, the latter must leave with him or her. The deportation order shall not apply to members of his or her family who are Latvian citizens or non-citizens.”
“A person shall leave the territory of Latvia within seven days after the deportation order has been served on him or her, provided that no appeal is lodged against the order in the manner prescribed in this section.
Persons in respect of whom a deportation order is issued may appeal against it within seven days to the head of the Department, who shall extend the residence permit pending consideration of the appeal.
An appeal against the decision of the head of the Department shall lie to the court within whose territorial jurisdiction the Department's headquarters are situated, within seven days after the decision has been served.”
61. Under section 48, where a person has not complied with a deportation order, he or she may be forcefully removed from Latvia by the police. Under section 48-4, the police have the right to arrest a person in order to execute a deportation order.
Under section 48-5, the police have the right to arrest a person where no decision to deport him or her has been taken, if:
(1) the person has illegally entered the State;
(2) the person has knowingly provided false information to the competent authorities in order to receive a visa or residence permit;
(3) the authorities have a well-founded suspicion that the person will hide, or that he or she has no permanent place of residence; or
(4) the authorities have a well-founded suspicion that the person poses a threat to public order or national security.
In such cases the police have the right to detain a person for not more than seventy-two hours, or, where a prosecutor has been notified, for not more than ten days. The police must immediately inform the immigration authorities about the arrest, with a view to their issuing an order for the deportation of the person by the use of force. The person concerned can appeal against that deportation order in accordance with the provisions of section 40 of the Act.
By section 48-6, a person in respect of whom such a deportation order has been issued may be detained until the execution of the order, and a prosecutor must be notified of the order.
Section 48-7 provides that an arrested person must be immediately informed of the reasons for his arrest, and of his right to have legal assistance.
By section 48-10, the police have the right to arrest aliens and stateless persons who reside in Latvia without a valid visa or residence permit. Such persons must be brought to the immigration authorities or to a police remand centre within three hours.
62. Chapter 24-A of the Code of Civil Procedure guarantees the right to appeal to a court against administrative acts breaching personal rights.
Article 239-2 § 1 states that a complaint against an action (decision) of a State authority may be submitted to a court, after a hierarchical complaint in this connection has been determined by the competent administrative authority.
Under Article 239-3 § 1 of the Code, a complaint to a court may be submitted within one month from the date of the notification of the dismissal of the hierarchical complaint, or within one month from the date of the contested act, provided that the person concerned has not received a decision.
Article 239-5 provides that the court must examine the complaint within ten days, having questioned the parties and other persons, if necessary.
Pursuant to Article 239-7, if the court considers that the act concerned violates an individual's personal rights, the court should adopt a judgment obliging the authority to remedy the violation.
63. Under the Soviet legislation, a citizen was issued with a “registration” (propiska) at a particular address, by way of a special seal in his passport attesting to his place of permanent residence for the purposes of domestic law. Following the restoration of Latvian independence in 1991, the “registration” system remained effective under the Latvian legislation.
64. The treaty between Latvia and Russia on the conditions and schedule for the complete withdrawal of Russian Federation military troops from the territory of the Republic of Latvia and their status pending withdrawal (“the treaty”) was signed in Moscow on 30 April 1994, published in Latvijas Vēstnesis (Official Gazette) on 10 December 1994, and came into force on 27 February 1995.
In the preamble of the treaty the parties stated, inter alia, that by signing the treaty they wished to “eradicate the negative consequences of their common history”.
65. The other relevant provisions of the treaty read as follows:
“The Russian Federation's military troops shall leave the territory of the Republic of Latvia by 31 August 1994.
The withdrawal of Russian Federation military troops shall concern all members of the armed forces of the Russian Federation, members of their families and their movable property.
The closure of military bases in the territory of the Republic of Latvia and the discharge of military personnel after 28 January 1992 shall not be regarded as the withdrawal of military troops.
...”
“The Russian Federation shall inform the Republic of Latvia about its military personnel and their families in the territory of Latvia. It shall provide regular information, at least every three months, about the withdrawal of, and quantitative changes in, each of the above-mentioned groups. ...”
“The Republic of Latvia shall guarantee the rights and freedoms of Russian Federation military troops affected by the withdrawal, and also of their families, in accordance with the legislation of the Republic of Latvia and the principles of international law.”
“This treaty ... shall be applied on a provisional basis from the date of signature and shall come into force on the date of exchange of the instruments of ratification. ...”
66. The conditions for the implementation by Latvia of the above-mentioned treaty are laid down in Regulation no. 118 of 22 April 1995, the relevant parts of the second paragraph of which provide:
“The Ministry of the Interior:
...
2.2. shall issue residence permits, after checking the list of military personnel ... to discharged members of the Russian armed forces who were resident within the territory of Latvia on 28 January 1992 and have been registered by the Nationality and Immigration Department ...
2.3. shall issue deportation orders in respect of members of the armed forces who are unlawfully resident in the Republic of Latvia, and shall supervise the execution of such orders; ...”
67. An agreement between Russia and Latvia, also signed on 30 April 1994, concerns the social protection of retired members of the Russian Federation armed forces and their families residing within the territory of the Republic of Latvia. Article 2 of the agreement, which applies principally to persons discharged from the Soviet armed forces before Latvia regained its independence, provides:
“The persons to whom this agreement applies shall enjoy their fundamental rights within the territory of the Republic of Latvia, in accordance with the standards of international law, the provisions of this agreement and Latvian legislation.
The persons to whom this agreement applies ... and who were permanently resident within the territory of the Republic of Latvia before 28 January 1992, including those in respect of whom the relevant formalities have not been carried out and who are on the lists verified by both parties and appended to this agreement, shall retain the right to reside without hindrance in the territory of Latvia, if they so desire. By agreement between the Parties, any persons who were permanently resident within the territory of Latvia before 28 January 1992 and, for various reasons, have not been included on the lists referred to above may be added to them. ...”
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-111416
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF POGHOSYAN AND BAGHDASARYAN v. ARMENIA
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 of Protocol No. 7 - Compensation for wrongful conviction (Article 3 of Protocol No. 7 - Compensation;Miscarriage of justice;Conviction);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
TEXT: 5. The applicants were born in 1976 and 1932 respectively and live in Saratovka, Armenia.
6. The second applicant is the mother of the first applicant.
7. On 8 October 1998 the first applicant was taken to a police station on suspicion of having committed rape and murder. A record of the applicant’s arrest was drawn up, stating murder as the reason for his arrest and was signed by him. At the police station the first applicant was subjected to ill-treatment by a number of police officers and later, when questioned by the investigator, confessed to the crime.
8. On 11 October 1998 the first applicant was placed in pre-trial detention and on 21 October 1998 he was formally accused of rape and murder.
9. On 29 March 1999 the Lori Regional Court found the first applicant guilty as charged and sentenced him to fifteen years’ imprisonment, basing the conviction on, inter alia, his confession. This judgment was upheld by the Criminal and Military Court of Appeal and the Court of Cassation on 20 May and 16 June 1999 respectively. It appears that throughout the proceedings the first applicant unsuccessfully claimed that his confession had been obtained under duress.
10. The Convention and Protocol No. 7 thereto came into force in respect of Armenia on 26 April and 1 July 2002 respectively.
11. On 24 November 2003 the General Prosecutor’s Office filed an application to have the first applicant’s case reopened on grounds of newly discovered circumstances establishing his innocence. In particular, the real perpetrator of the offences imputed to the first applicant had been found, following the commission of a similar offence. Furthermore, the first applicant’s conviction had been based on fabricated evidence obtained in violation of the law.
12. On 2 April 2004 the Court of Cassation decided to grant the application and to quash the first applicant’s conviction, remitting the criminal case for a fresh investigation. In doing so, the Court of Cassation found it established that new circumstances had been discovered following the first applicant’s conviction which had been unknown to the courts at the material time. These circumstances provided grounds for believing that violations of statutory criminal procedure had taken place during the examination of the first applicant’s criminal case which might have had an impact on the objective, thorough and full examination of the case.
13. On 17 April 2004 criminal proceedings were instituted against the investigator and a number of police officers who had dealt with the initial investigation. They were accused of exceeding their powers by forcing the first applicant to testify.
14. On the same date the first applicant was released from prison upon a written undertaking not to leave his place of residence, after serving about five years and six months of his sentence.
15. On 29 April 2004 the criminal proceedings against the first applicant were terminated under Article 35 § 1(2) of the Code of Criminal Procedure for lack of corpus delicti.
16. On the same date the General Prosecutor’s Office sent a letter to the first applicant informing him of that decision and of the fact that he was henceforth considered an “acquitted person” and had the right to claim compensation under civil law. The letter added that the General Prosecutor’s Office asked for his forgiveness for the miscarriage of justice.
17. On 6 May 2004 the first applicant was recognised as a victim. The relevant decision stated that he had suffered psychological, physical and material damage as a result of the unlawful actions of the police officers and the investigating authority.
18. On 15 June 2005 the Lori Regional Court found two of the police officers guilty as charged, sentencing them to three years’ imprisonment and prohibiting them from holding certain posts for a period of two years, but applying an amnesty which dispensed them from serving their prison sentences. The Regional Court found, inter alia, that on 8 October 1998 the first applicant and his brother had been taken to a police station, where the police officers had ill-treated the first applicant in order to extract a confession. When the first applicant had refused to confess, one of the police officers had kicked and punched him and then unlawfully detained him at the police station. Later that day, two of the police officers had continued beating the first applicant. One of them had slapped his ears with both hands, as a result of which his left eardrum exploded. They had then brought a bottle in and tried to sit the first applicant on it. Simultaneously, another police officer had been beating the first applicant’s brother in a nearby office and the first applicant had heard his brother’s cries. Realising that he had no other way of avoiding the ill-treatment, the first applicant had confessed to the murder. The next day, before taking the first applicant to the scene of the crime for an inspection, one of the police officers had punched him several times as a warning. Thereafter, on 14, 16 and 19 October 1998 the first applicant had been taken from his detention cell to the police station, where the police officers had continued ill-treating him in order to make him confess to having raped the victim before murdering her, which the first applicant was forced to do, because he was unable to endure the ill-treatment.
19. No appeal was lodged against that judgment.
20. On 17 September 2004 the first applicant lodged a civil claim with the courts, seeking compensation for pecuniary damage in the amount of 34,050,000 Armenian drams (AMD) for the ill-treatment, unlawful detention and unfair conviction he had suffered. He relied on Articles 3, 5 and 6 of the Convention.
21. On an unspecified date Mrs Baghdasaryan (“the second applicant”) joined the civil proceedings as a co-claimant, seeking approximately half the pecuniary damages claimed by the first applicant.
22. On an unspecified date the first applicant lodged an additional claim, seeking compensation for non-pecuniary damage in the amount of AMD 60,000,000. He submitted, inter alia, that, although he had so far claimed compensation only for pecuniary damage, he had in fact suffered greater non-pecuniary damage. The Convention case-law required that compensation for non-pecuniary damage be awarded in such cases.
23. On 28 April 2005 the Kentron and Nork-Marash District Court of Yerevan dismissed the claim for non-pecuniary damage on the ground that that type of damage was not envisaged under Article 17 of the Civil Code. The District Court awarded the claim for pecuniary damage in part, finding, inter alia, that, pursuant to Article 66 of the Code of Criminal Procedure, the first applicant – as an acquitted person – was entitled to claim pecuniary compensation for unlawful arrest, detention, indictment and conviction, and awarding him AMD 6,250,000 for lost income for the period between 11 October 1998 and 17 April 2004. The second applicant was awarded AMD 1,500,000 for travel expenses, postage for parcels, and legal costs.
24. On 12 May 2005 the first applicant lodged an appeal.
25. On 31 August 2005 the Civil Court of Appeal dismissed the first applicant’s appeal and upheld the judgment of the District Court.
26. On 16 September 2005 the applicants lodged an appeal on points of law.
27. On 18 November 2005 the Court of Cassation dismissed the applicants’ appeal.
28. The relevant provisions of the Civil Code provide as follows.
“1. Anyone whose rights have been violated may claim full compensation for the damage suffered, unless the law or a contract envisages a lower amount of compensation.
2. Damages are the expenses borne or to be borne by the person whose rights have been violated in connection with restoring the violated rights, loss of property or damage thereto (material damage), including loss of earnings which the person would have gained in normal conditions of civil life, had his rights not been violated (lost income). ...”
“1. Damage caused as a result of unlawful conviction, [unlawful] criminal prosecution, [unlawful] imposition of a preventive measure in the form of detention or a written undertaking not to leave, and [unlawful] imposition of an administrative penalty shall be compensated in full, in a procedure prescribed by law, by the Republic of Armenia, regardless of the fault of the officials of the inquiry officer, the investigating authority, the prosecutor’s office or the courts. ...”
29. The relevant provisions of the Code of Criminal Procedure provide as follows.
“1. Neither criminal proceedings [Քրեական գործի վարույթ] nor a criminal prosecution [քրեական հետապնդում] shall be instituted, and any criminal proceedings already instituted shall be terminated, if:
...
(2) the act lacks corpus delicti;
...”
“1. A person shall be considered to be acquitted if a criminal prosecution or criminal proceedings against him have been terminated on ... the grounds envisaged by[, inter alia, Article 35 § 1 (2) of] this Code or if he has been acquitted by a court judgment.
...
3. An acquitted person shall be ... entitled to claim full compensation for pecuniary damage caused as a result of his unlawful arrest, detention, indictment and conviction, taking into account possible loss of profits. ...”
30. The relevant sections of the Explanatory Report read as follows.
“22. This Article provides that compensation shall be paid to a victim of a miscarriage of justice, on certain conditions.
First, the person concerned has to have been convicted of a criminal offence by a final decision and to have suffered punishment as a result of such conviction. According to the definition contained in the Explanatory Report of the European Convention on the International Validity of Criminal Judgments, a decision is final ‘if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them’. It follows therefore that a judgment by default is not considered as final as long as the domestic law allows the proceedings to be taken up again. Likewise, this Article does not apply in cases where the charge is dismissed or the accused person is acquitted either by the court of first instance or, on appeal, by a higher tribunal. If, however, in one of the States in which such a possibility is provided for, the person has been granted leave to appeal after the normal time of appealing has expired, and his conviction is then reversed on appeal, then subject to the other conditions of the Article, in particular the conditions described in paragraph 24 below, the Article may apply.
23. Secondly, the Article applies only where the person’s conviction has been reversed or he has been pardoned, in either case on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice – that is, some serious failure in the judicial process involving grave prejudice to the convicted person. Therefore, there is no requirement under the Article to pay compensation if the conviction has been reversed or a pardon has been granted on some other ground. Nor does the Article seek to lay down any rules as to the nature of the procedure to be applied to establish a miscarriage of justice. This is a matter for the domestic law or practice of the State concerned. The words ‘or he has been pardoned’ have been included because under some systems of law pardon, rather than legal proceedings leading to the reversal of a conviction, may in certain cases be the appropriate remedy after there has been a final decision.
24. Finally, there is no right to compensation under this provision if it can be shown that the non-disclosure of the unknown fact in time was wholly or partly attributable to the person convicted.
25. In all cases in which these preconditions are satisfied, compensation is payable ‘according to the law or the practice of the State concerned’. This does not mean that no compensation is payable if the law or practice makes no provision for such compensation. It means that the law or practice of the State should provide for the payment of compensation in all cases to which the Article applies. The intention is that States would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgment that the person concerned was clearly innocent. The Article is not intended to give a right of compensation where all the preconditions are not satisfied, for example, where an appellate court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge.”
VIOLATED_ARTICLES: 13
P7
VIOLATED_PARAGRAPHS: P7-3


ITEMID: 001-75727
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF LEHTONEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1957 and lives in Muurla.
5. The applicant was employed by a bank, working in the relevant years 1989-90 in the bank’s new campaign to grant loans and to invest in property abroad.
6. The applicant’s suspected offending in respect of credit decisions made without adequate guarantee arrangements, which led to the bank’s winding-up in the beginning of the 1990s, was reported to the police on 23 June 1992. The criminal investigation was begun by the police on 7 July 1992. A total of fourteen reports of offences had been made. The corresponding investigations lasted from 7 July 1992 to 9 December 1994 and from 9 April 1996 ending on 9 May 1996. On 7 August 1992 the police carried out a search at the applicant’s home and seized his assets, at which point he became aware that he was suspected of serious fraud in connection with his activities at the bank.
7. The hearing of the case, which involved 33 defendants, began in the Salo District Court (käräjäoikeus, tingsrätten) on 7 March 1995. It included several adjournments and lasted approximately five years in total. The case was heard during a total of 68 days. The judgment was rendered on 24 March 2000 and it ran to almost 900 pages. The applicant was convicted of four counts of aggravated fraud and sentenced to a suspended term of one year and ten months’ imprisonment and a fine.
8. On 4 March 2002 the Turku Court of Appeal (hovioikeus, hovrätten) gave judgment. It added a fifth count of serious fraud and increased the applicant’s sentence to four years and six months of unconditional imprisonment and a loss of military rank. The court decided to examine the case directly including the part which had been declared inadmissible by the District Court (charge 12), i.e. without returning the case to the District Court, referring to Article 6 of the Convention and the right to a trial within a reasonable time guaranteed therein. Furthermore, it stated in its reasons (p. 138) that it was taking the length of the proceedings into account as a factor lessening the sentence for all defendants in the case.
9. On 30 October 2002 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
10. The applicant submitted an extraordinary appeal against the decisions of the Supreme Court and the Court of Appeal, but it was rejected by the Supreme Court on 17 February 2003.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68816
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: BRINKS v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Mark Villiger
TEXT: The applicant, Mr Jan Herman Brinks, is a Netherlands national who was born in 1957 and lives in Groningen.
Between 1987 and 1990 the applicant lived in the German Democratic Republic (“the GDR”), where he carried out academic research for a dissertation. During his stay in the GDR, he also worked as a freelance journalist for Dutch daily and weekly papers. Like most aliens from capitalist countries living in the GDR, the applicant was kept under surveillance by the GDR intelligence authorities.
After his return to the Netherlands in 1990, the applicant suspected that he had attracted the attention of the then Netherlands National Security Service (Binnenlandse Veiligheidsdienst – “the BVD”) as he had the impression that his telephone conversations were being intercepted. After obtaining a magna cum laude doctorate degree in 1991, the applicant was unable to find suitable employment in the Netherlands.
According to the applicant, this situation was linked to the often critical positions he had adopted in his academic and journalistic work, which, he claimed, had considerably irritated his fellow historians and politicians in the Netherlands. He submitted that Netherlands academics had repeatedly insinuated that he was a “fellow traveller” of communism. The applicant suspected that his publications and stays in the GDR and the mistrust displayed by his peers were having a negative effect on his career prospects in the Netherlands. He therefore decided to move abroad, and worked as a researcher and journalist in Germany, the United States of America and the United Kingdom in that order. The applicant returned to the Netherlands in 1998.
On 11 January 2000 the applicant requested the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijkrelaties – “the Minister”), to inform him as to what data were contained in possible files held on him by the BVD.
In his decision of 31 October 2000, with further additions in a subsequent decision of 13 February 2001, the Minister stated – referring to Article 10 § 1 (b) of the Transparency of Public Administration Act (Wet Openbaarheid van Bestuur – “the WOB”) and the relevant case-law under this provision of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), and Article 14 of the Intelligence and Security Services Act (Wet op de Inlichtingen- en Veiligheidsdiensten) – that no information would be provided on whether or not the BVD held current data about the applicant, since such a move could give an insight into BVD sources, working methods and current level of knowledge. The Minister had, therefore, treated the applicant’s request as a request for access to outdated information possibly held on him by the BVD. Apart from outdated material from a “sister organisation abroad”, no outdated information about the applicant had been found. After the “sister organisation” had granted permission for disclosure, the applicant was granted access to the outdated information in so far as the contents would not lead to disclosure of BVD sources or working methods, or of personal data relating to third parties.
The outdated information disclosed to the applicant consisted of (parts of) six documents, including (parts of) two letters in German concerning the applicant and a copy of a letter the applicant had written on 7 September 1977 to the Public Prosecutor’s Office at the West Berlin Regional Court. In the letter, the applicant criticised in virulent terms recent searches carried out by the German investigating authorities of the homes of persons referred to by the applicant as “enemies of the Constitution and other enemies” (Verfassungsfeinden und sonstigen Feinden). The applicant ended the letter with the phrase “Death to the ‘German rule-of-law State’” (Tod an den “deutschen Rechtsstaat”).
Dissatisfied with the limited information disclosed, the applicant filed an objection (bezwaar), which was dismissed by the Minister on 17 August 2001. The applicant lodged an appeal against that decision with the Groningen Regional Court (arrondissementsrechtbank), arguing, inter alia, that, as the BVD information about him had apparently been gathered during an investigation conducted in the late seventies in a Cold War context, the information could no longer be considered “current” but should instead be classified as “outdated”.
The applicant’s appeal was dismissed on all points but one by the Groningen Regional Court in a judgment of 17 January 2003. With the applicant’s permission, as required by Article 8:29 § 5 of the General Administrative Law Act (Algemene Wet Bestuursrecht – “the AWB”), the Regional Court had been given access to undisclosed BVD information, without that information being disclosed to the applicant. The Regional Court held that one particular document that had not been disclosed – it being unclear whether or not it did in fact concern the applicant although it did have a link with him – should not have been withheld from the applicant under Article 16 § 1 of the 1987 Act, as it had not been established that the document contained personal data relating to a third party. The Regional Court quashed the Minister’s decision in respect of the document, finding that no adequate reasons had been given. It did, however, add that – except on that one point – it saw no reason to find the Minister’s decision incorrect.
On 27 February 2003 the applicant lodged an appeal with the Administrative Jurisdiction Division of the Council of State.
On 5 March 2003 the Minister took a further decision granting the applicant access to the document referred to in the Regional Court’s ruling of 17 January 2003 and confirming the remainder of his initial decision. The applicant lodged an appeal against the new decision of 5 March 2003.
On 14 January 2004 the Administrative Jurisdiction Division – which, with the applicant’s permission, had also been given access to undisclosed BVD information without that information being disclosed to the applicant – dismissed the applicant’s appeal against the Regional Court judgment of 17 January 2003, upheld that judgment and dismissed the applicant’s appeal against the Minister’s decision of 5 March 2003. That decision, in its relevant parts, reads:
“2.2. Under Article 3 § 1 of the WOB, anyone can address a request to a public body ... for information set out in documents concerning a public administrative matter. Pursuant to [Article 3 § 3 of the WOB] a request for information will be granted, subject to the provisions of Articles 10 and 11 [of the WOB]. Pursuant to Article 10 § 1 (b) of the WOB, no information shall be provided which could undermine the security of the State.
2.3. In the [impugned] decision the Minister informed the appellant that, after a thorough search of the archives, some outdated information had been found which was disclosed – in paraphrased form – to the applicant, and that no other outdated information on him had been found. In so far as the appellant’s request concerned current information, the Minister gave a reasoned explanation for not disclosing information that could give an insight into the current level of BVD knowledge, leaving open whether or not current information about the appellant was being held.
2.4. The Regional Court has concluded that, ...[apart from one document]..., it saw no reason to find the decision [of 17 March 2001] incorrect.
2.5. The appellant disagrees with this conclusion of the Regional Court. According to the appellant, the BVD holds much more outdated information about him than it pretends. In this connection the appellant refers to the remark in the letter of 17 March 1978 – one of the classified documents disclosed to the appellant – that an investigation of the applicant was still running. As the Minister qualified the letter of 17 March 1978 as “outdated”, the investigation mentioned in it should also be regarded as outdated, in his view, with the result that the documents relating to the investigation should be disclosed to him. The appellant fails to see why [access to] this information, which was gathered in the context of the Cold War, should be refused on the ground that it could give an insight into current sources and working methods of the BVD. The appellant cannot agree with the Regional Court’s reasoning on this point.
2.6. This argument fails. Having followed the procedure set out in Article 8:29 of the AWB, the Administrative Jurisdiction Division is, like the Regional Court, of the opinion that, apart from the [one document] disclosed to the appellant in the meantime, there is no reason to find that the [impugned] decision is incorrect. There is no evidence that outdated information concerning an investigation of the appellant has remained undisclosed. The question whether the BVD, now the General Intelligence and Security Service [Algemene Inlichtingen- en Veiligheidsdienst – “the AIVD”], holds information on the appellant which, in view of the tasks performed by the service, remains of a current nature, does not have to be answered. In this connection, the Regional Court has correctly referred to the settled case-law of the Administrative Jurisdiction Division, as it emerges from, inter alia, the rulings of 14 December 1998 concerning no. H01.97.1354, (Netherlands Administrative Law Reports (Administratiefrechtelijke Beslissingen) AB 1999, 93) and 1 July 1999 concerning no. H01.98.1287, (Administrative Case-law Reports (Jurisprudentie Bestuursrecht) JB 1999/198), which held that the Minister could refrain from disclosing information that could give an insight into the current level of knowledge held by the BVD, now the AIVD, on the basis that disclosure of such information could undermine the functioning of the service and hence the security of the State.
2.7. It follows from the above that the appeal is unfounded. The impugned decision must be upheld. The appeal directed against the decision of 5 March 2003 is equally unfounded.”
No further appeal lay against this ruling.
Until 1987 the Netherlands intelligence and security services were governed by the Royal Decree of 5 August 1972 regulating the duties, organisation, working methods and cooperation of the intelligence and security services (Koninklijk Besluit van 5 augustus 1972, Stb. 437, houdende regeling van de taak, de organisatie, de werkwijze en de samenwerking van de inlichtingen- en veiligheidsdiensten).
In its report of 3 December 1991 under former Article 31 of the Convention in the case of R.V. and Others v. the Netherlands (nos. 14084/88, 14085/88, 14086/88, 14087/88, 14088/88, 14109/88, 14173/88, 14195/88, 14196/88 and 14197/88) the European Commission of Human Rights found that the provisions of the Royal Decree of 5 August 1972 were incompatible with the requirements of Article 8 of the Convention, in that they lacked precision and adequate safeguards.
The Royal Decree of 5 August 1972 was subsequently replaced by the 1987 Intelligence and Security Services Act (Wet op de inlichtingen- en veiligheidsdiensten – “the 1987 Act”), which entered into force on 1 February 1988. It provided for two branches of the intelligence and security services, namely the National Security Service (“the BVD”) and the Military Intelligence Service (Militaire Inlichtingendienst – “the MID”).
Under Article 8 § 2 (a) of the 1987 Act, the BVD was entrusted, inter alia, with the task of collecting information about organisations or persons who, by virtue of the aims they pursued or their activities, gave rise to serious suspicions that they constituted a danger to the continued existence of the democratic legal order or to the security or other vital interests of the State. It was also given responsibility for carrying out security screening of public officials (Article 8 § 2 (b) of the 1987 Act) and promoting measures aimed at securing information which needed to be kept secret in the interests of the State and information concerning those parts of the public service and industry which, in the view of the minister responsible, were of vital importance to society (Article 8 § 2 (c) of the 1987 Act).
Article 14 of the 1987 Act provided:
“The coordinator and the heads of the [intelligence or security] services are to ensure:
(a) the secrecy of information to be treated as classified and of the sources of that information.
(b) the safety of persons with whose cooperation the information is being gathered.”
Article 16 of the 1987 Act read, in its relevant part:
“1. Personal data shall be gathered, recorded and provided to third parties by a[n] [intelligence or security] service only in so far as this is strictly necessary for the performance of its tasks as defined in this Act.
2. ...
3. The Minister concerned shall, in agreement with the Minister of Justice, determine rules concerning the management of the collections of personal data that are being held by the [security] service concerned.
4. The rules referred to in the previous paragraph shall at least contain regulations concerning:
(a) the purpose of the collections;
(b) the secrecy of the data recorded therein;
(c) the monitoring of the accuracy of those data;
(d) the length of time for which data may be stored;
(e) other grounds for the removal of data from the collections;
(f) the destruction of removed data.
5. ...”
The Minister of the Interior, in agreement with the Minister of Justice, issued the BVD Privacy Regulation (Privacyregeling BVD), which contained further rules within the meaning of Article 16 of the 1987 Act. This Regulation entered into force on 5 July 1988. According to Article 10 § 1 of the Privacy Regulation, persons about whom data had been recorded did not have a right of access to their personal data, nor did they have the right to learn whether or not personal data had in fact been recorded about them.
In two rulings given on 16 June 1994 (one of which was published – see AB 1995, 238), the Administrative Jurisdiction Division found that the provisions of the 1987 Act fell short of the requirements of Articles 8 and 13 of the Convention. It found that the provisions of the 1987 Act did not comply with the requirement of foreseeability under the Convention with regard to the categories of persons about whom information could be collected, the circumstances in which information could be collected and the means that could be used for obtaining information. It further considered that a person who had been refused access to information should be given reasons for such refusal instead of a general statement referring to national security. It also found that the two existing control mechanisms could not be regarded as effective in that the National Ombudsman did not have the power to give any binding decisions and the Standing Committee on Intelligence and Security Services of the Lower House (Vaste Kamercommissie voor de inlichtingen- en veiligheidsdiensten uit de Tweede Kamer) did not have a statutory basis.
Consequently, the Minister of the Interior could no longer determine requests for access to information under the BVD Privacy Regulation, but had to apply the criteria of the Transparency of Public Administration Act (“the WOB”) in dealing with such requests. This meant that each request for access to information had to be examined on an individual basis and that reasons had be given in the event of a refusal.
Article 3 §§ 1 and 3 of the WOB reads:
“1. Anyone can submit a request for information contained in documents about a public administration matter to a public administration body or to an institution, service or company working under the responsibility of a public administration body.
3. A request for information shall be granted subject to the provisions of Articles 10 and 11 [of the WOB].”
Article 7 of the WOB provides:
“1. The public administration body shall provide the information in respect of the documents that contain the requested information by
(a) providing a copy thereof or providing the contents word for word in another form,
(b) allowing access to the contents,
(c) providing an excerpt or a summary of the contents, or
(d) providing information therefrom.
2. In the choice between the various forms of information referred to in the first paragraph, the public administration body shall take into account the petitioner’s preference and need to ensure smooth operation of its activities.”
Article 10 § 1 (b) of the WOB states:
“No information shall be made available under this Act in so far as this: ...
(b) might undermine the security of the State;”
Proceedings under the WOB are governed by the provisions of the General Administrative Law Act (“the AWB”). Article 8:29 of the AWB provides:
“1. Parties who are obliged to submit information or documents may, when there are substantial reasons for so doing, refuse to provide information or submit documents, or inform the court that it alone may take cognisance of the information or documents.
2. Substantive reasons shall in any event not apply to a public administration body in so far as the obligation exists, pursuant to the Transparency of Public Administration Act, to grant requests for information contained in documents.
3. The court shall decide whether the refusal or limitation on taking cognisance referred to in the first paragraph is justified.
4. Should the court decide that such refusal is justified, the obligation shall not apply.
5. Where the court decides that the restriction on taking cognisance is justified, it may, with the permission of the other party, give a ruling on the basis of, among other factors, the information or documents concerned. If permission [by the other party] is withheld, the case shall be referred to another bench.”
In the light of the rulings given on 16 June 1994 by the Administrative Jurisdiction Division, the Netherlands Government decided to undertake a comprehensive review of the statutory rules governing the Netherlands intelligence and security services. This resulted in the enactment of the Intelligence and Security Services Act 2002 which entered into force on 29 May 2002, replacing the 1987 Act. The 2002 Act provides for two intelligence and security agencies, the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst – “the AIVD”) and the Military Intelligence and Security Service (Militaire Inlichtingen- en Veiligheidsdienst – “the MIVD”). The AIVD’s tasks are set out in Article 6 § 2, and those of the MIVD in Article 7 § 2 of the 2002 Act. The Act also contains detailed provisions on the categories of persons about whom information may be collected, the circumstances in which information may be collected, the means that may be used for obtaining information and the manner in which information may be recorded.
The 2002 Act further provides for an independent Supervisory Board (Commissie van Toezicht), entrusted with the task of monitoring the lawfulness of the activities of the intelligence and security agencies. Pursuant to Article 73 of the 2002 Act, the Ministers concerned, the heads of the agencies, the official entrusted with the task of coordinating the policies and activities of the AIVD and the MIVD, and all other officials involved in activities under the 2002 Act, are obliged to provide the Supervisory Board with any information and cooperation which the Board considers necessary to the performance of its tasks. The 2002 Act also provides for the possibility for individuals to request access to information held on them or their deceased spouse, partner, child or parent. Article 57 of the 2002 Act provides that the Regional Court of The Hague has jurisdiction to hear appeals against decisions refusing access to such information.


ITEMID: 001-119026
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: MELEAGROU AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicants, born in 1954, 1928, 1957 and 1953, are Cypriot citizens resident in Nicosia or London. They are represented by the AIRE Centre in London.
3. The applicants, a mother, and three adult siblings, Cypriot citizens, living in London, claimed to be the owners of 18 separate plots of land, one of which contained the family’s second home, all of which were in the occupied area of the “TRNC” (“the Turkish Republic of Northern Cyprus”).
4. On 7 November 2006 the applicants filed claims with the Immovable Property Commission (“IPC”) claiming restitution of this property and damages for loss of use and non-pecuniary damage. On October 2007, there was a directions hearing before the IPC, which required the production of further documents. A preliminary hearing took place on 19 November 2007 at which the “TRNC” representative made an offer of settlement. The IPC adjourned the case pending the applicants’ response to the offer of settlement. A number of preliminary hearings were listed and adjourned during 2008, during which the applicants claimed further attempts were made to obtain their agreement to a settlement. The applicants lodged a written request on 4 August 2008 for a hearing of their claims.
5. The IPC held hearings on the claims on 3 November 2008, 19 January 2009 and 5 May 2009. On 14 October 2009, the IPC issued its decisions. Of the 18 properties in issue, it found that the applicants were not the registered owners of 14 properties, which were held by a registered company of which the applicants were shareholders still in existence. Of the other properties, restitution was ordered in respect of part of one plot (583/2); as no particulars had been given of loss of use, no award was made for pecuniary loss and as the land had been uninhabited no award for non-pecuniary loss was made. Restitution was refused in respect of the other plots as the property was either occupied by a refugee family or by the military. The claims for non-pecuniary compensation and loss of use were rejected as these could not be made under the law where restitution was refused and where no claim had been lodged for exchange of land or for pecuniary compensation for the land.
6. The applicants lodged appeals to the High Administrative Court on 30 December 2010 and 4 January 2010. The appeals were listed for hearing on 14 January 2011. By three decisions dated 27 June 2011, the court upheld the decisions of the IPC, noting that the applicants had been represented by a lawyer at the hearing and that there had been interpretation into English at the hearing. It found that the IPC had not erred in its application of the law, citing the provisions concerned.
7. The relevant law and practice are set out in Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, ECHR 2010.


ITEMID: 001-84948
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BEIER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Wolfgang Beier, is a German national who was born in 1956 and lives in Straubing.
The applicant was convicted of murder and has been serving a life sentence in Straubing Maximum Security Prison since 8 February 2002. The highest level of security applies at the prison, as it houses solely inmates serving long-term or life-imprisonment sentences or those in subsequent preventive detention. Radios are permitted in the prison facility in question.
On 27 October 2003 the applicant applied for permission to have a CD player and audio CDs and a play station and its necessary accessories.
On 3 November 2003 the Straubing Prison Authority rejected his application in accordance with section 70 § 2 of the Prison Act, arguing that granting it would have jeopardised security and order in the prison.
The applicant applied for judicial review.
The Prison Authority submitted to the court that, given the maximum-security regime of the prison and the significant number of inmates who had been involved with drugs, every object that was handed over to an inmate had to be thoroughly checked for hidden drugs or facilities that could enable a breakout. The electronic facilities which the applicant applied for had multiple cavities and owing to their high complexity could have been modified to carry illegal or impermissible information. Moreover, every audio CD would have had to be checked for possible hidden electronic data. Therefore, maintaining security and order in the prison would have necessitated time-consuming checks by specially qualified prison staff. Having regard to the possibility of multiple similar requests, allowing prisoners to have the devices in question would have necessitated substantial additional work and would possibly have required a raise in the number of staff. Therefore, the necessary security measures to be taken would have been disproportionate to the applicant’s interests at stake.
The applicant submitted that the possession of a CD player and a play station would not have posed a real threat to security. To this end he referred at large to the decisions of the Celle Court of Appeal of 25 January 1994 and the Dresden Court of Appeal of 16 September 1999, which found that a play station did not pose a relevant threat to prison order. The applicant also referred to the Federal Constitutional Court’s decision of 9 November 2001. He relied, in particular, on the principle of equality. None of these decisions directly concerned the applicant (see relevant domestic law and practice below).
On 8 January 2003 the Regensburg Regional Court upheld the Prison Authority’s decision, endorsing the arguments given by it and noting that the case-law cited by the applicant did not provide for a decision in his favour.
On 11 February 2004 the Nuremberg Court of Appeal rejected the applicant’s appeal on points of law (Rechtsbeschwerde) as inadmissible. It found that neither the development of law nor the necessity of uniform case-law demanded the examination of its merits. The decisions of the Straubing Prison Authority and the Regensburg Regional Court were based on sufficient grounds, namely, the special circumstances of the prison concerned, and thereby complied with the law.
On 29 April 2004 the Federal Constitutional Court (2 BvR 505/04) refused to examine his constitutional complaint without further reasons.
Section 70 §§ 1 and 2 of the law on the execution of prison sentences and measures of rehabilitation and prevention involving deprivation of liberty – the Prison Act – provides:
“(1) Every inmate is allowed to possess books or other objects to a reasonable extent for educational or leisure purposes.
(2) This does not apply if the possession, the surrender or the use of the object would [...]
2. jeopardise [...] the security or order of the prison facility.”
The Celle Court of Appeal in its decision of 25 January 1994 (1 Ws 324/93) and the Dresden Court of Appeal in its decision of 16 September 1999 (2 Ws 637/98) found that a play station did not pose a relevant threat to security and order of the prison and was therefore permitted according to section 70 § 1 of the Prison Act. These decisions did not deal with the security level of the prison facilities in question.
The Federal Constitutional Court decided on 9 November 2001 (2 BvR 609/01) that the refusal to allow a prison inmate to have a play station did not infringe any of that person’s constitutional rights. The Prison Authority’s decision was, in particular, not contrary to the principle of equality. Referring to the above decisions of the Celle and Dresden Courts of Appeal it found that every request concerning electronic devices in prison had to be decided on its own merits according to the circumstances of the particular case and the conditions of the prison facility concerned.


ITEMID: 001-120062
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF KOSTECKI v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Examination of witnesses)
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: “...the witness in question is abroad, his statements [made during the investigation] have been read out and attempts to establish his current address are immaterial for the outcome of the proceedings.”
“With regard to the first charge, i.e. trafficking in drugs, it is first of all the testimonies of persons who were directly involved in the [alleged] criminal activities and who described them in detail, which persuade the court of R. Kostecki’s guilt. It concerns primarily [testimonies] of Ł.K., brothers D.B. and Ł.B. as well as K.M. These witnesses (...) in the course of the proceedings on a few occasions explained in detail their past, indicating persons with whom they had traded in drugs. They indicated not only the names or nicknames of the persons who had sold them drugs, but also indicated their buyers. They also indicated the quantity of drugs sold and their price. What is most important, they described in unison the role of R. Kostecki in the enterprise.
It transpires from the testimonies of D.B. and Ł.B. that the defendant [the applicant] proposed to cooperate with them in distributing drugs. They were to sell drugs supplied by Rafał Kostecki and then to pay him back. (...)
Ł.K. described cooperation with the defendant in a similar manner. (...)
K.M. also made statements incriminating the applicant. (...) It is true that in the course of the [separate] trial in a case before the Białystok Regional Court III K 144/04 K.M. attempted to change his statements and argued that Rafał Kostecki had nothing to do with drugs; however, it was difficult to consider these statements convincing in the light of the earlier coherent and detailed depositions.”
“The assessment of the credibility of those testimonies is certainly not affected by the fact that Ł.K. and K.M. could not have been heard directly before the court. These witnesses do not live at their places of residence and the court had good reason to disclose the testimonies of these witnesses in accordance with Article 391 § 1 of the Code of Criminal Procedure.”
Ł.K. However, since Ł.K. was abroad at the material time (a request to hear this witness by means of international judicial assistance was dismissed by the decision of 15 September 2006) the court had the right to read out his statements made in the investigation stage of the proceedings.
...
The first-instance court correctly dismissed the request to hear other witnesses proposed by the defendant, including those indicated in his pleading of 12 October 2006 (...). The circumstances on which they were to testify would have been irrelevant for the determination of the case, in particular in the light of other items of evidence...
The first-instance court did not infringe the principle of directness [pursuant to which all evidence should normally be produced at a public hearing] and the applicant’s right to defence. (...)
In any event, M.K., as well as the above-mentioned Ł.K., were abroad. While, K.M. [also] referred to in the defendant’s appeal was beyond the reach of the police. (...)
There can be no agreement with the appellants who allege that the first-instance court determined the quantity (and the value) of drugs in an arbitrary manner. On the contrary – as it transpires from the written reasoning of the impugned judgment – the court’s findings in this respect result from detailed (in so far as this is possible in this type of cases) [analysis of] witnesses’ testimonies given – understandably, in particular in the circumstances of the present case – at the initial stage of the criminal proceedings, and in particular the testimonies of D.B. and Ł.B. (...)
Significantly, as it transpires from the reasoning of the impugned judgment, the first-instance court took into account the minimum quantity and value [of drugs]. Therefore, it did not infringe Article 5 § 2 of the Code of Criminal Procedure (the in dubio pro reo principle).”
“As regards the complaints of an alleged violation of criminal procedure as a result of the trial court’s refusal to hear thirteen witnesses and its reading out of the statements given by Ł.K. before the prosecutor, these are in fact directed against the trial court’s judgment and it is obvious that, in a cassation appeal, only the judgment of the second-instance court may be challenged. The above complaints have already been raised in appeals and have been properly dismissed as ill-founded by the appellate court.”
“The time-limit is respected if, before its expiry, a letter was handed over (...) in case of a person deprived of his or her liberty, to the administration of the respective detention facility.”
42. Article 391 of the Code provides as follows:
“1. If a witness has without good reason refused to testify, or has given testimony different from the previous one, or has stated that he does not remember certain details, or if he is abroad, or a summons cannot be served on him, or if he has not appeared as a result of obstacles that could not be removed or if the president of the court has declined to summon him by virtue of Article 333 § 2 [namely, because upon lodging the bill of indictment the prosecution asked that the records of his testimony be read out at trial], and also when a witness has died, the records of his previous statements may be read out, [regardless of whether they] were made during the investigation or before the court in the case in question or in another case or in any other procedure provided for by the law.
2. In the circumstances referred to in paragraph 1, and also in the case specified in Article 182 § 3, the records of evidence that a witness has given when heard as an accused may also be read out.”
43. Section 56(1) of the Drug Addiction (Combating) Act 2005 (Ottawa z 29 lipca 2005 r. o przeciwdziałaniu narkomanii) provides as follows:
“Whoever markets intoxicating or psychoactive substances or poppy straw or participates in the selling thereof shall be subject to a fine and imprisonment for a term of between six months and eight years.”
44. Section 56(3) of the above-mentioned Act provides as follows:
“If the subject of the offence referred to in subsection 1 is a significant quantity of intoxicating or psychoactive substances or poppy straw, the perpetrator shall be subject to a fine and imprisonment for up to ten years.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-5598
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: OGUZ AND OGUZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: The applicants are Turkish nationals, who were born in 1954 and 1971 respectively and they both live in the province of Siirt (Turkey). They are represented before the Court by Mr Philip Leach, a lawyer practising in London.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant, who had been detained several times between 1983 and 1990, became a member of the Siirt Branch of the Human Rights Association in 1990. Following his election as chairman of the Siirt Branch in August 1992, the applicant received several threats from the Siirt Security Department as a result of his activities.
On 26 February 1993 the first applicant was taken into police custody by policemen from the Anti-Terrorism Branch of the Siirt Security Directorate, in relation with an investigation conducted by the Siirt Public Prosecutor. Subsequently, he was placed in detention on remand and criminal proceedings were initiated against him. On 25 June 1993 the applicant was released on bail and on 1 December 1993 he was acquitted of the charges against him.
On 17 January 1994 the security officers from the Siirt Security Department came to the first applicant’s house and conducted a search of his house. At the time of the events, the applicant’s wife, his sister, and his eight children were present at home. During the search, the police officers found a black plastic bag, which contained a defensive-type hand grenade, a full Kalashnikov cartridge and some Kalashnikov bullets. The applicant states that this bag was brought and left by the police officers themselves. Following the search, the police officers took the applicant, his sister Sinem and his daughter Halime into custody. A few hours later, the applicant’s wife and his second daughter were also taken into police custody and the applicant’s other children aged between two to thirteen years were left on their own at home without the supervision of an adult. Following their interrogation, on 19 January 1994 the first applicant and his family members who were also detained with him, were taken to the Siirt Forensic Medicine Institute to be examined by a medical expert. According to the report of the Siirt Forensic Institute’s medical expert, dated 19 January 1994, there were no signs of injury on their bodies. Thereafter, on the same day, the applicant and his relatives were taken to the Siirt Magistrate’s Court in Criminal Matters. The court ordered the applicant to be placed in detention on remand, whereas it released the rest of the detainees.
The Siirt Public Prosecutor declared lack of jurisdiction and transferred the case-file to the Diyarbakır State Security Court. The Diyarbakır State Security Court Public Prosecutor initiated criminal proceedings against the first applicant and charged him with aiding and abetting the PKK under Section 169 of the Turkish Criminal Code and for illegal possession of explosives and firearms under Section 264 of the Turkish Criminal Code. On 9 November 1994 the court acquitted the applicant of aiding and abetting the PKK. It further decided to send the case to the Siirt Assize Court for a further examination of the allegation about illegal possession of explosives and firearms. On 4 April 1995 the Siirt Assize Court found the applicant guilty of illegal possession of explosives and firearms. Consequently it sentenced the applicant to 25 days’ imprisonment and a fine. It further suspended the execution of these sentences.
B. Relevant domestic law
Criminal law and procedure:
The Turkish Criminal Code makes it a criminal offence to subject someone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment, inflicted by civil servants).
In general, in respect of criminal offences, complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the local public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision not to institute criminal proceedings.
Civil action for damages:
Section 1 of Law No. 466 on the payment of compensation to persons arrested or detained provides:
"Compensation shall be paid by the State in respect of all damage sustained by persons
(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;
(2) who have not been immediately informed of the reasons for their arrest or detention;
(3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;
(4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;
(5) whose close family have not been immediately informed of their arrest or detention;
(6) who, after being released or detained in accordance with the law, are not subsequently committed for trial..., or are acquitted or discharged after standing trial;
or
(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only."