Datasets:

glnmario

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ECHR

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dev

001-4817

ENG

ITA

ADMISSIBILITY

ERIKSON v. ITALY

Inadmissible

Elisabeth Palm

The applicant is a British national, born in 1945 and living in Rome. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant's mother, born in 1906, used to live in Antella, near Florence, assisted on a daily basis at her domicile by R.O. On an unspecified date near the end of September 1989 the applicant's mother telephoned to the public care doctor, Mr. G.T., requesting his assistance because her lower abdomen was painful and swelling. The doctor, allegedly without visiting her, wrote a medical prescription recommending x-rays of the applicant's abdomen; he left the prescription with the local pharmacy, where R.O. went to fetch it on behalf of the applicant’s mother. On 28 September 1989 the applicant's mother went to the local public hospital Santa Maria dell'Annunziata to have x-rays of her abdomen; she was accompanied by R.O. She was made to drink barium before undergoing the examination; X-rays were taken of her stomach. She collapsed during the examination; however, despite her serious health condition, she was subsequently discharged from hospital and sent back home in a wheel-chair. The x-ray plates bear the stamp of the Radiology Department but were not signed by the radiologist who carried out the examination, nor was his name indicated. The next morning, on 29 September 1989, the applicant's mother was seized by extremely severe pain. She was taken by ambulance to the above hospital at 13h10, where she died at 14h00 of an intestinal occlusion. The applicant learned about his mother's death on that same day. In February 1992 the applicant happened to discuss the circumstances of his mother's death in detail with a doctor friend of his, who requested to examine the x-ray plates taken of the applicant's mother on 28 September 1989. The applicant obtained from the hospital copy of his mother's medical file including the x-ray plates and subsequently submitted them to the doctor, who on 25 September 1992 drafted a medical report according to which the x-ray plates clearly showed that the applicant's mother had an intestinal occlusion. Such report also stated that a dose of barium on top of an intestinal occlusion is likely to be very dangerous. The applicant obtained a second medical report from another doctor, dated 31 October 1992 and supporting the findings of the first. A third medical report was drafted by a third specialist on 11 January 1993. On 23 January 1993 the applicant filed a criminal complaint with the Magistrate's Court of Florence, claiming that Mr. G.T., the public care doctor who had recommended an x-ray examination of the applicant's mother without examining her beforehand, was to be held responsible for her death and seeking that the identity of any other person responsible for his mother's death be established and that they all be prosecuted for manslaughter. Investigations were opened against G.T. and other unidentified persons under file no. 4800/93. On 7 June 1993 the Florence Public Prosecutor interrogated G.T. in the presence of his counsel. He claimed that he had visited the applicant's mother before recommending x-rays of her abdomen and that he had left the prescription with her. He said he had suspected a tumour but not an intestinal occlusion. He further stated that, after being informed of the applicant's mother's death, he had learned that she had collapsed during the x-ray examination but had not been kept in hospital, which he had found unreasonable on the part of the hospital. He stated that he did not know the identity of the radiologist who had carried out the examination. On 27 June 1994 the Florence Public Prosecutor heard R.O. as a witness; she described the circumstances of the applicant's mother's death and claimed that the applicant's mother had not been visited by the doctor G.T. on the day at issue and that she herself had gone to the pharmacy to fetch the prescription for the X-rays. F.P., a doctor who was on duty at the hospital on 29 September 1989, was also heard as a witness on an unspecified date. On 10 October 1994 the Public Prosecutor requested that the investigations be discontinued on the ground that the elements gathered in the course of the investigations were insufficient and inappropriate to support an accusation in court ("gli elementi raccolti non sono sufficienti ed idonei a sostenere l'accusa in giudizio"). On 3 February 1995 the applicant filed an objection to the request to discontinue the investigations (opposizione alla richiesta di archiviazione). He underlined that the Public Prosecutor had not sought to establish the identity of the radiologist who had carried out the x-ray examination of his mother and requested that L.T., the director of the Radiology Department of the hospital, be heard in order to ascertain which radiologists had been on duty on 28 September 1989. He further pointed out significative inconsistencies in the testimony of G.T. By a decision of 7 April 1995 the Florence Judge for the Preliminary Investigation ruled that the investigation be discontinued on the ground that, in the light of the investigations carried out, the elements of the alleged negligence of G.T. and of the unidentified radiologist were insufficient to support an accusation in court. On 3 July 1995 the applicant requested the Florence Judge for the Preliminary Investigation to reopen the investigations. This request was granted on 6 October 1995 in respect of the unidentified radiologist. On 6 November 1995 the Florence Public Prosecutor requested the police to take evidence from all employees of the Radiology Department of the hospital who had been present on 28 September 1989, with a view to identifying the author of the medical report which was drawn up after the x-rays had been taken, and establishing which typing machine had been used. Four of the hospital employees - T.B., F.N., R.C., M.M. - were heard by the police on 27 November 1995. They explained inter alia that in the hospital there was one computer which was used as a typing machine and an ordinary typing machine. Urgent medical reports were written by hand by the doctors immediately after the examination, whereas non-urgent ones were dictated by doctors and only subsequently typed by an employee, M.T.. Doctors would sometimes type their reports themselves, in particular the Director of the Department. The witnesses were shown the medical report on the condition of the applicant's mother, drafted on 28 September 1989, and found it unusual; they declared that that kind of x-ray examination was always carried out by a doctor assisted by a technician. They noticed that the report lacked the indication of the name of the doctor and stated that it should not have been stamped with the name of the Department. Some of them thought that it had been typed on the ordinary typing machine and not on the computer. M.T., the employee who used to type non-urgent medical reports, was interrogated by the police on 28 November 1995. She explained that the ordinary typing machine was kept in the doctors' room. She further explained that she used to type the medical reports on behalf of the doctors, who would sign them at the end of the day; the reports would not be stamped with the Department's name. She was shown the report drafted on 28 September 1989 and declared that she had not typed it and that she thought it had not been typed by any of the administrative personnel because it did not bear the name of the responsible doctor. On 1 February 1996 M.C., a radiologist, was examined by the police. He confirmed that non-urgent reports would be dictated by the responsible doctors and typed by the administrative personnel whereas urgent reports would be immediately drafted by hand by the responsible doctors; only the Director of the Department used to type his reports himself. He was shown the report drafted on 28 September 1989 and confirmed that such kind of examination would be carried out by a doctor assisted by a technician, but could not remember whether he had carried it out himself although he thought he had not, as the report did not have the same characteristics as his usual ones. He noticed that the report did not bear the indication of the name of the responsible doctor and was not signed, and that it had been stamped with the name of the Department, which was unusual. He further said that if he had been aware of a situation similar to that described in the medical report at issue, he would have tried to contact the patient's family or family doctor to point out the gravity of the situation. On 15 January 1996 L.T., the Director of the Radiology Department, was interrogated by the police. He stated that he had been informed of the case of the applicant's mother only in 1992, when the applicant had requested certain information from him which he could not provide. He explained that in September 1989 radiologists and technicians were organised in shifts; the shift tables used to be thrown away after the end of the relevant week, as they were used only for the purpose of internal organisation. He examined the report of 28 September 1989 and noticed the absence of the responsible doctor's name and signature; he stated that doctors did not type medical reports themselves, but wrote them by hand in urgent cases. On 12 March 1996 the Public Prosecutor requested that the investigations be discontinued on the ground that the elements gathered in the course of the "extremely accurate" investigations carried out by the police had not led to the precise but only to the "probable" identification of the radiologist who had carried out the examination of the applicant's mother without realising her serious medical condition. The Public Prosecutor considered, however, that the gathered elements, although credible, were insufficient to support an accusation in court which could only be based on logical deductions not supported by precise documentary evidence. On the other hand, the Public Prosecutor considered that the testimonies did not entirely support the deductions of the police. On 9 April 1996 the applicant filed an objection to the request to discontinue the investigations. He requested in the first place that further investigations be carried out in respect of G.T. He further underlined certain inconsistencies in the testimony of L.T. He requested that investigations be carried out about who was in possession of the stamp which had been put on the report at issue, given that it was obviously unusual to stamp medical reports with the name of the Department and about the characteristics of the reports drafted by L.T. He finally requested that further investigations be carried out with a view to establishing whether the report had been drafted by a technician instead of a doctor. By a decision dated 17 October 1996, the Florence Judge for the Preliminary Investigations ruled that the investigations against unknown persons for the manslaughter of the applicant's mother be discontinued. The judge pointed out in the first place that, by decision of 6 October 1995, the investigations had been reopened only in respect of unknown persons and not also in respect of G.T.. The judge further held that the elements gathered in the course of the investigations were insufficient to support an accusation in court and that the further investigations requested by the applicant would not have helped establish the truth. The applicant appealed to the Court of Cassation against this decision. By a decision dated 24 December 1996, the Court of Cassation rejected the request on the ground that it was not within its competence to review a matter pertaining to the competent Public Prosecutor's margin of appreciation.

dev

001-89307

ENG

LTU

CHAMBER

CASE OF BALSYTĖ-LIDEIKIENĖ v. LITHUANIA

Violation of Art. 6-1;No violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;John Hedigan;Josep Casadevall

7. The applicant, Mrs Danutė Balsytė-Lideikienė, is a Lithuanian national, who was born in 1947. At present she lives in Lithuania. 8. The applicant is the founder and owner of a publishing company “Metskaitliai”. Since 1995 the company has published “Lithuanian calendar” (Lietuvio kalendorius), a yearly calendar with notes by the applicant and other contributors describing various historic dates from the perspective of its authors. The calendar could be purchased in bookstores. It was distributed in Lithuania and among Lithuanian immigrants living abroad. 9. On 4 January 2000 a Member of the Lithuanian Parliament (Seimas) distributed a public announcement, stating that the texts published in “Lithuanian calendar 2000” insulted persons of Polish, Russian and Jewish origin. The relevant parts of “Lithuanian calendar” read as follows: [First page of the calendar]: “Lietuva – the land of the Lithuanians, as each footprint here bears traces of our Nation's blood” 15 February: “In 1998, on the eve of the 80th anniversary of the restoration of the independence of Lithuania, a Pole insidiously killed nine Lithuanians living in Širvintų district's Draučių village – all the inhabitants of the village were shot. (...) The Nation was informed about the tragedy after thirty six hours – during this time Lithuanian [high society] were celebrating and enjoying themselves, hugged the Polish president, put flowers [on the monuments] to Pilsudski's army, drank and danced their ghastly dance on the freshly spilled blood of Lithuanians whose whole village had been murdered.” 17 March: “The new Lithuanian government (...) puts on trial the Lithuanian nation for the extermination of the Jews (...) but is not interested in the genocide of the Lithuanians and dances Jewish foxtrots to the music of the Wiesenthals and Zurroffs.” 26 April: “In 1944 in the vicinity of Rodūnia the Polish Krajova Army killed 12 Lithuanians for the sole reason that they were Lithuanians.” 15 June: “The soviet occupying power, with the help of the communist collaborators, among whom, in particular, were many Jews, for half a century ferociously carried out the genocide and colonisation of the Lithuanian nation.” 23 June: “In 1944 in Dubingiai and its surrounding area the Polish Krajova Army brutally killed more than a hundred Lithuanians (...) among whom were women, little children, even babies and old people. This was the way the Poles, in war conditions, carried out ethnic cleansing. In the whole territory of Lithuania [the members of the Krajova Army] killed about 1 000, and in the ethnic Lithuanian lands about 3 000 more innocent people, for the sole reason that they were Lithuanians. The Dubingiai events should be regarded as the genocide of the Lithuanian nation. But the Lithuanian authorities [who associate themselves with the Poles] ignore obvious facts and do not even attempt to evaluate these war crimes.” 15 July: “Through the blood of our ancestors to the worldwide community of the Jews” 18 July: “In 1999 the monument to the victims of the Polish Krajova Army was put up and consecrated in Dubingiai. (...) In 1944 in the environs of Dubingiai the Polish Krajova Army plundered and killed innocent people solely because they were Lithuanians. The killings of 8 March and 23 June 1944 are horrible [acts of] ethnic cleansing and cruel war crimes that cannot be solved by simply constructing a monument to the victims. There is no statutory time-limit on prosecution of war crimes, the war criminals should be identified and tried. (...)” 31 August: “occupying Russian army”, “Russian occupants” 10 September: “The March of the Beggars. In 1997 (...) about fifty Lithuanian beggars demonstrated in front of the Parliament. They were joined by a few thousand Vilnius residents. The purpose of this act was to attract the Parliament's and the Government's attention to poverty (...) in Lithuania. Unfortunately, the public gathering of the beggars did not receive any attention from the heads of the Lithuanian State. At the same time a banquet for the Jews took place in Vilnius. The banquet cost Lithuania a million litas. A feast during the plague. (...) The Jews were managing the Parliament; from the tribune of the Parliament the Jews were insulting and scolding the Lithuanian nation, asking for Lithuanian blood and Lithuanian property. The majority of the ruling Conservative party (...) greeted the swearing Jews with standing ovations.” 24 November: “The Lithuanian nation will only survive by being a nationalist nation – no other way exists!” 5 December: “In 1991 the Supreme Council (Parliament) of the Republic of Lithuania (...) adopted the “zero” citizenship law, proposed by V. Landsbergis. The law illegally gave citizenship to occupants and colonists and the Lithuanians became worthless.” 22 December: “The politicians adopted legislation demonstrating their anti-Lithuanian attitude. This way, the conservative neo-Bolsheviks took their revenge on the Lithuanian nation, executing the will of the Jewish extremists. ” 24 December: “21 Lithuanians were brutally killed during the Christmas of 1944. Half a century passed and on Christmas Eve the Pharisees (...) who took power started new executions against the Lithuanians and the Lithuanian nation, carrying out pro-Jewish politics.” 10. The back cover of “Lithuanian calendar 2000” contained a map of the Republic of Lithuania. The neighbouring territories of the Republic of Poland, the Russian Federation and the Republic of Belarus were marked as “ethnic Lithuanian lands under temporary occupation”. 11. On 10 January 2000 a Seimas committee requested the Office of the Prosecutor General to investigate whether the publication was compatible with the Lithuanian Constitution and other legal acts. 12. On 12 January 2000 the Prime Minister wrote a letter to the State Security Department, requesting it to examine whether “the contents of 'Lithuanian calendar 2000' contained the elements of violations of ethnic and racial equality”. 13. On the same date the Lithuanian Foreign Ministry also received a note from the Russian Embassy, expressing its dissatisfaction with the publication's map describing certain territories of the Russian Federation as “ethnic Lithuanian lands under temporary occupation”. 14. On 13 January 2000 a similar note was received from the Embassy of Belarus. 15. On 14 January 2000 the State Security Department requested Vilnius University to submit an experts' opinion as to whether “Lithuanian calendar 2000” promoted ethnic, racial or religious hostility. In this regard the security intelligence authorities requested the experts to examine whether “Lithuanian calendar 2000” contained anti-Semitic, anti-Polish, anti-Russian expressions, or assertions of the superiority of Lithuanians vis-à-vis other ethnic groups. 16. On 20 January 2000 two experts, history and political science professors at Vilnius University, found that “Lithuanian calendar 2000” could be characterised as promoting the radical ideology of nationalism, which rejected the idea of the integration of civil society, incited ethnocentrism, contained xenophobic and offensive statements, in particular with regard to the Jewish and Polish populations, and promoted territorial claims and national superiority vis-à-vis other ethnic groups. The experts nonetheless noted that the calendar did not directly incite violence against the Jewish population, nor did it advocate implementing discriminatory policy against this ethnic group. 17. At the end of January 2000 the security intelligence authorities seized a number of copies of “Lithuanian calendar 2000” in various bookstores in Lithuania. The distribution of the publication was stopped. 18. By a letter of 31 January 2000 the Prosecutor General informed the Prime Minister that, following the examination of the content of “Lithuanian calendar 2000”, no elements of a criminal offence (instigation of ethnic or racial hatred) had been found in the applicant's releasing of the publication. However, the Prosecutor General held that in this respect the applicant should have been punished by way of the administrative procedure under Article 21412 of the Code on Administrative Law Offences (Production, storage and distribution of information materials promoting ethnic, racial or religious hatred). He stated that the security intelligence authorities had applied to an administrative court for a penalty to be imposed on the applicant under the domestic provision. The Prosecutor General also informed the Prime Minister that the distribution of the calendar had been suspended pending the determination of the case by a court. 19. On 14 February 2000 the officers of the State Security Department held that the applicant should be punished by the administrative procedure provided by Article 21412 of the Code on Administrative Law Offences. 20. On 28 June 2000 the Vilnius City Second District Court found that the applicant had produced 3,000 copies of “Lithuanian calendar 2000”, 588 of which had been sold. By reference mostly to the experts' conclusion of 20 January 2000, the court held that the applicant thereby intended to distribute material promoting ethnic hatred in breach of Article 21412 of the Code of Administrative Law Offences. The Court imposed an administrative fine in the amount of 1,000 Lithuanian litai (LTL) on the applicant and ordered confiscation of all copies of “Lithuanian calendar 2000” seized in the bookstores. 21. The court examined the case in the absence of the applicant or her lawyer. It was noted however that she had been duly informed of the date and place of the hearing, but that she had not submitted a request to postpone the examination or an explanation of the reasons for her absence. Therefore the court had concluded that the case could be examined without the applicant being present. 22. The applicant appealed, claiming in particular a violation of Article 10 of the Convention. She also argued that she had been tried in absentia. 23. On 16 August 2000 the Vilnius Regional Court quashed the first-instance judgment on the ground that the applicant had been in hospital from 27 June to 3 July 2000 and could not take part in the first-instance hearing. The case was remitted for a fresh examination at first instance. 24. On 28 September 2000 a judge of the Vilnius City Second District Court ordered another expert examination to be carried out. The court requested Vilnius University to form a group of experts representing various fields of social science in order to produce a conclusion on whether “Lithuanian calendar 2000” promoted ethnic, racial or religious hatred, whether it contained anti-Semitic, anti-Polish, anti-Russian expressions, or assertions of the superiority of Lithuanians vis-à-vis other ethnic groups. 25. In reply to the court's decision, four separate expert opinions were produced, reflecting the point of view of Vilnius University professors specialising in the following fields: history, psychology, political science and library science. 26. On 12 March 2001 the applicant submitted a written request, received by the Vilnius City Second District Court the following day, by which she asked the court to postpone the hearing as the experts had not appeared at the hearing for the third time in a row. The applicant also asked the court to determine the reasons behind the experts' absence and to sanction them. The court did not grant the applicant's requests. 27. On 13 March 2001 the Vilnius City Second District Court found that by publishing and distributing “Lithuanian calendar 2000” the applicant had breached Article 21412 of the Code on Administrative Offences. The court imposed an administrative penalty in the form of a warning on her, while the unsold copies of the calendar and the means to produce it were confiscated. 28. By reference to the conclusions of the experts in the field of political science the court stated that a one-sided portrayal of relations among nations obstructed the consolidation of civil society and promoted ethnic hatred. The court also noted that “Lithuanian calendar 2000” had caused negative reactions from part of society as well as from the diplomatic representations of some neighbouring States, including Poland, Belarus and Russia, who had expressed their concerns about the map denoting some of the territories of those countries as “ethnic Lithuanian lands under temporary occupation”. Relying on the conclusion of the bibliographic expert report the Vilnius City Second District Court noted that the publication did not meet the prescribed standards because, among other things, the calendar contained no indication of the sources and literature that had been used, and the name of the author of each statement in the calendar was not provided. The court concluded that the applicant had prepared, published and distributed the calendar and was therefore responsible for its content. 29. By reference to the conclusions of the experts in the fields of history and psychology the court held that the applicant's actions had not been deliberate, but reckless. The court relied on the psychological experts' report that “Lithuanian calendar 2000” represented the personal character, values and emotions of the applicant. The court noted the conclusion of the experts in psychology that the publication did not contain expressions of hatred against the Polish population, the superiority of the Lithuanians over other nationals was not emphasised, and the negative statements about the Jewish population were not to be seen as anti-Semitic. However the Vilnius City Second District Court concluded that the psychology experts' conclusion did not refute the other evidence collected and the remaining evidence confirmed that there had been a violation of administrative law. 30. The court emphasised that the breach of the administrative law committed by the applicant was not serious, and that it had not caused significant harm to society's interests. The court also noted the applicant's disability and absence of previous convictions. 31. In view of those circumstances and given the negligent nature of the offence, the court decided to impose an administrative warning under Article 301 of the Code on Administrative Law Offences, which was a milder administrative penalty than the fine of between LTL 1,000 and LTL 10,000 prescribed by Article 21412. 32. The case was examined in the presence of the applicant and a representative of the security intelligence authorities. The applicant left the hearing in the course thereof. At the hearing she was not represented by a lawyer. 33. The applicant appealed, claiming in particular that Article 10 of the Convention had been violated. She also complained that the first-instance court had not called the experts to the hearing, thereby violating her defence rights. 34. On 4 May 2001 the Supreme Administrative Court reviewed the case under written procedure. The applicant relied on the conclusion of the psychological experts' report, arguing that “Lithuanian calendar 2000” did not promote hatred against the Poles, Jews or Russians, nor did it claim the superiority of the Lithuanians over other nations. According to the appellate court, these were the conclusions of experts in one field only, whereas the rest of the evidence, namely the political science and bibliographical experts' reports, attested that the comments in the calendar were based on the ideology of extreme nationalism, which rejected the idea of civil society's integration and endorsed xenophobia, national hatred and territorial claims. 35. The court disagreed with the applicant's argument that her defence rights had been violated because the first-instance court had failed to call the experts to have them challenged at the hearing. The Supreme Administrative Court stated: “The [applicant's] argument that the [first-instance] court violated procedural legal norms because the experts were not present at the court hearing, is not valid. The first- instance court, relying on its inner belief, evaluated the experts' conclusions both as to their reasonableness and as to their comprehensiveness. Article 277 § 1 of the Code on Administrative Law Offences provides for a possibility to summon the experts if there is a need to explain the conclusions the latter had presented. The fact, that this possibility had not been used, cannot be regarded as a violation of procedural legal norms.” Relying on the above arguments, the Supreme Administrative Court dismissed the appeal. 36. On an unspecified date the applicant left Lithuania. She applied for political asylum in Switzerland. Later the applicant returned to Lithuania. She lives in Vilnius. 37. The Constitution of the Republic of Lithuania, as relevant in this case, provides as follows: “Everyone shall have the right to hold opinions and freely express them. No one may be prevented from seeking, receiving and imparting information and ideas. Freedom of expression, freedom to receive and impart information may not be restricted in any way other than by law and when it is necessary for the protection of health, dignity, private life, and morals, or for the defence of the constitutional order. Freedom of expression and freedom to impart information shall be incompatible with criminal actions - incitement of national, racial, religious, or social hatred, violence or discrimination, slander or disinformation.” 38. The Code on Administrative Law Offences (“the Code”) punishes with administrative penalties various minor offences which are not provided for in the domestic substantive criminal law. Article 1 of the Code provides that all citizens must ensure respect for legal rules and the rights of other citizens. Article 9 of the Code defines an administrative offence as a wrongful act which causes danger to public order, citizens' rights or the established order of administration. Article 20 of the Code provides that administrative punishment is a form of establishing responsibility that has the aim of punishing offenders, educating them to observe the law and preventing them reoffending. An administrative warning is a penalty under Article 301 and it can be used to replace a harsher penalty the Code prescribes for a particular offence; the administrative warning is also intended to serve as a preventive measure, in the same way as a suspended sentence in criminal law. Article 21412 of the Code punishes the production, storage and distribution of information material promoting national, racial or religious hatred by a fine of between LTL 1,000 and LTL 10,000 with the confiscation of the material, with or without confiscation of its main means of production. Article 256 provides that an expert's conclusion can be considered as evidence. Pursuant to Article 277, an expert can be appointed when special knowledge is required for solving the case. Under Article 272 of the Code, a person who is liable for an administrative sanction has the right to familiarise himself with the material of the case and to submit explanations and evidence, as well as to lodge requests. Article 314 of the Code stipulates that if a fine has been imposed on a person and the latter does not possess the means to pay it, a court can substitute the fine with administrative arrest of up to 30 days. 39. Article 53 of the Law on Administrative Proceedings (LAP), as in force at the material time, provided that, among other procedural rights, the parties were entitled to question other participants in the process, including witnesses and experts, to take part in the examination of evidence and to present explanations. Under Article 130 of the LAP, parties had the right to bring an appeal against a decision of a first-instance court. The appeal should indicate, among other things, evidence to support its grounds. Article 144 of the LAP stipulated that appeal proceedings against a decision or ruling in cases relating to administrative law offences were conducted in writing. Upon the decision of the chamber of judges, an oral hearing of a specific case could be held. 40. Article 20 § 2 of the International Covenant on Civil and Political Rights, in force in the Republic of Lithuania since 20 February 1992, provides: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”. 41. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the Republic of Lithuania on 9 January 1999, provides, insofar as relevant, as follows: “1. In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on ... national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” “1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means ... of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: ... (d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization ...” “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” “States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin ...” 42. According to Article 6 § 2 of the Framework Convention for the Protection of National Minorities, signed within the framework of the Council of Europe and in force in the Republic of Lithuania since 1 July 2000: “The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.” 43. The European Commission against Racism and Intolerance General Policy, in its Recommendation no. 1: Combating racism, xenophobia, anti-Semitism and intolerance, recommends that the Governments of the member States, insofar as relevant, “ensure that national criminal, civil and administrative law expressly and specifically counter racism, xenophobia, anti-Semitism and intolerance”. 44. Appendix to Recommendation no. R (97) 20 of the Committee of Ministers to Member States on “Hate speech”, drafted within the framework of the Council of Europe, provides, insofar as relevant, as follows: “The principles set out hereafter apply to hate speech, in particular hate speech disseminated through the media. For the purposes of the application of these principles, the term “hate speech” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.” “The governments of the member states should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others.” “The governments of the member states should ensure that ... interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria. Moreover ... any limitation of or interference with freedom of expression must be subject to independent judicial control. This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others.” “National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein.” “National law and practice should allow the competent prosecution authorities to give special attention, as far as their discretion permits, to cases involving hate speech. In this regard, these authorities should, in particular, give careful consideration to the suspect's right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom. The competent courts should, when imposing criminal sanctions on persons convicted of hate speech offences, ensure strict respect for the principle of proportionality.”

dev

001-80213

ENG

FIN

CHAMBER

CASE OF W v. FINLAND

Violation of Art. 6-1+6-3-d;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

Nicolas Bratza

6. On 7 August 2000 a mother contacted the police on account of a suspicion that her children, a girl born in 1991 and a boy born in 1993, had been sexually abused by a neighbour, the applicant. On 10 August and 2 September 2000 the siblings were interviewed by a police officer experienced in investigating sexual abuse of children. The applicant was also suspected of having abused two other girls, both friends of the siblings and born in 1991. The girls were interviewed by the police on 11 August and 18 August respectively and again on 3 September 2000. All the interviews were recorded on videotape. 7. At the time of the first interviews, i.e. on the morning of 10 August 2000, the applicant had not been informed of the suspicions against him and no defence counsel had yet been appointed for him. Neither the applicant nor his counsel was present during the later interviews. The siblings and one of the other girls underwent a psychological examination in the Family Advice Centre with a view to assessing whether their testimonies during the pre-trial investigation were reliable. 8. Meanwhile, on the afternoon of 10 August 2000 the applicant was questioned by the police. Before the questioning he was notified of the suspicions against him and it appears that he did not exercise his right to have his counsel present. The applicant was in detention from that day until 7 September 2000 when travel restrictions were imposed on him. He was accompanied by counsel when questioned again on 17, 18, 19 and 23 August and 6 September 2000. He was questioned alone on 12 January 2001. 9. Prior to the close of the pre-trial investigation, in his closing statement the applicant requested, on 7 December 2000, having watched the above-mentioned video recordings, that the siblings be questioned again and that his questions be put to them about how and where they had learnt about the sexual things they had mentioned to him and, in particular, if they had been subjected to sexual acts at a place other than the applicant's home. His request was however refused on 21 January 2001. According to the Government, this was because their mother had refused to allow any further questioning of the children, now aged 7 and 9. 10. The applicant was charged before the District Court (käräjäoikeus, tingsrätten) with having sexually abused the four children during the summer of 2000. He denied the charges. He however admitted having tapped two of the girls on their buttocks. 11. In February 2001 the District Court held an oral hearing during which the applicant, the parents of the siblings and the mothers of the other two girls gave evidence. The children were not heard in person. The videotaped interviews with the children were shown during the hearing. The court also heard evidence from a psychologist on the reliability of the statements of the siblings and of one of the other girls. The applicant did not request that the children give evidence at the hearing. 12. The mother of the siblings testified that they had told her about the improper touching in the same manner as they had done on the videotape. When the touching had become known, on 1 August 2000, her son had reacted intensely by crying and slamming doors. He had also suffered from sleeping problems and her daughter had suffered from headaches. Neither of these ailments had occurred before. According to two written opinions of the Family Advice Centre, the siblings' accounts of the events were considered credible given their detailed and precise nature. There was nothing to suggest that they were the siblings' own inventions. The mothers of the two other girls testified that they had told them about the improper touching in the same manner as they had done on the videotape. 13. In its judgment of 28 February 2001 the District Court observed that the evidence was mainly of an indirect nature and that the sole direct evidence was the testimony of a psychologist, who had testified as to the children's credibility. 14. The court noted that the applicant had argued that the main evidence in the case was flawed due to the fact that he had not been afforded an opportunity to put questions to the children and that the authorities had put leading questions to them. He had also argued that there were shortcomings insofar as the psychological examinations carried out by the Family Advice Centre were concerned. The court however found no such flaws as would significantly have reduced the evidentiary value of the examinations. 15. The court then stated that the case turned on an assessment of the credibility of the children's statements. While it was true that the pre-trial statements' probative value was weakened by the fact that the applicant had not been able to put questions to the children, these statements were nonetheless reliable as the children had provided details about the events and as their young age gave no reason to believe that they would have sought to lie about the events. Although some leading questions may have been put to the children, there was nothing to suggest that they would have sought to please the interviewer and adapted their replies accordingly. This being so, the court found that questioning the children in court would not have added anything significant to the case. Having regard to their best interests, the questioning of children of such a young age before a court could not be considered justifiable. The court found that the testimonies of the psychologist and the parents supported the credibility of the children's accounts. 16. It convicted the applicant of having sexually abused the four children and sentenced him to two years and three months' imprisonment. 17. The applicant appealed, alleging inter alia a breach of Article 6 § 3 (d) of the Convention in that he had not been afforded an opportunity to put questions to the children. 18. The Court of Appeal (hovioikeus, hovrätten) held an oral hearing and was presented with the same evidence as had been before the District Court. The parties agreed that it was in the best interests of the children that they should not be heard before the court. The applicant however rejected the admission of the children's pre-trial statements as evidence since he had not been afforded an opportunity to put questions to them. 19. In its judgment of 6 November 2001 the Court of Appeal noted that the children had been interviewed twice during the pre-trial investigation and all but one of the girls had been examined in the Family Advice Centre using tests and interviews. As the questioning of the children, now aged 8 to 10, before the court would probably have caused them suffering, it was possible to use in evidence their pre-trial statements, although the applicant's minimum rights under, inter alia, Article 6 § 3 (d) of the Convention would thereby be violated. In evaluating the weight to be attached to the children's statements, the court found that it had to take into account the discrepancies pointed out by the applicant and the fact that the police had not put to the children the questions proposed by him in his pre-trial closing statement. 20. In its assessment of the evidence the appellate court reached the same conclusions as the lower court and upheld the conviction. It however reduced the sentence to one year and eight months' imprisonment, which it considered fair, having regard to the fact that the applicant had not forced the children into doing anything, the relevant sentencing practice and the fact that the applicant had no previous convictions. 21. The applicant requested leave to appeal, maintaining, inter alia, that there had been a breach of Article 6 § 3 (d) of the Convention. He did not submit any request for the children to be heard. 22. On 28 February 2002 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. 23. The Decree on Criminal Investigations and Coercive Measures (asetus esitutkinnasta ja pakkokeinoista, förordning om förundersökning och tvångsmedel; Act no. 575/1988) provides that when questioned during a pre-trial investigation the child must be treated with due respect having regard to his or her age and level of development. Where possible, the interview should be carried out by a police officer acquainted with that task. If need be, a doctor or an expert must be consulted before the interview (section 11). 24. The Criminal Investigations Act (esitutkintalaki, förundersökningslagen; Act no. 449/1987) provides that questioning and other investigation measures requested by a party must be carried out, if that party shows that there is a possibility that these measures could have an effect on the case, provided that the expenses so incurred are not disproportionate to the nature of the case (section 12). The competence to decide on investigation measures requested by a party lies with the head of investigation during the pre-trial investigation and with the public prosecutor after the case has been transferred to him or her (section 15(3), Act no. 692/1997). A pre-trial investigation has to be carried out in such a manner that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience. Nor must the rights of those concerned be infringed more than is necessary for the achievement of the purpose of the investigation (section 8). 25. The investigator may permit a party and his counsel to be present during the questioning of another party or witness, provided this does not hinder the investigation of the offence (section 32(1), Act no. 692/1997). A party and his or her counsel may, with the permission of the investigator, put questions to the person being questioned in order to clear up the case. The investigator may decide that the questions are to be put through him or her. Also, the prosecutor may put questions to the person being questioned. A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times also (section 34, Act no. 692/1997). 26. Before the closing of the criminal investigation, the parties must be afforded the opportunity to present to the criminal investigation authority their statement on the material gathered during the investigation, if this is conducive to hastening or facilitating the hearing of the case in court. The statement is to be appended to the investigation record (section 42). 27. The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) lays down the applicable rules on receiving testimony. 28. A statement in a pre-trial investigation record or another document may as a rule not be admitted as evidence in court. The court may exceptionally admit such a statement as evidence, if the witness in question cannot be questioned before the court (chapter 17, Article 11; Act no. 690/1997). A witness must give testimony orally before the court and must not refer to a written testimony. Oral evidence given during a pre-trial investigation may be read out when the witness in question is heard by the court only if he or she retracts in court an earlier statement or states that he or she is unable or unwilling to testify before the court (chapter 17, Article 32; Act no. 571/1948). 29. If a person called as a witness is less than 15 years of age, is mentally ill or mentally retarded, or his or her mental capacities have otherwise been impaired, the court shall, taking into consideration the circumstances, assess whether or not he or she may be heard as a witness (Chapter 17, Article 21). Although the hearing of evidence from children falls within the court's discretion, there has been a long-standing practice not to hear evidence in court from children under the age of ten. 30. At the time of the proceedings in question, there were no legal provisions concerning the use as evidence of a video recording of a statement given by a child during the pre-trial investigation. There was however a practice to admit such recordings as evidence. 31. The Code of Judicial Procedure was amended with effect from 1 October 2003 to the effect that the testimony of a person under 15 years of age, or a mentally disturbed person, recorded on audio or videotape during a pre-trial investigation may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony (chapter 17, Article 11(2); Act no. 360/2003). According to the explanatory report to the relevant Government Bill (no. 190/2002), this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to inter alia a child and on the importance of respecting the rights of the defence. 32. Chapter 17, Article 21 (as amended by Act no. 360/2003) of the Code of Judicial Procedure reads with effect from 1 October 2003 as follows: “(1) A person who has not attained the age of fifteen or whose mental capacities have been impaired, may be heard as a witness or for the purpose of obtaining evidence if the court finds it appropriate and: (i) if the hearing in person is of significant relevance for the establishment of the facts of the case; and (ii) the hearing is not likely to cause such suffering or other harm to the person to be heard as could be detrimental to the person concerned or his or her development. (2) Where necessary, the court shall designate a support person for the person to be heard, pursuant to the provisions of chapter 2 of the Criminal Procedure Code (Act no. 689/1997). (3) The person to be heard shall be questioned by the court, unless the court finds particular reason to entrust the questioning to the parties in accordance with the provisions of section 33. The parties shall be provided with an opportunity to put questions to the person to be heard through the intermediary of the court or, if the court finds it appropriate, directly to the person concerned. Where necessary, the hearing may take place on premises other than the court room.” 33. In 2003, the Criminal Investigations Act was supplemented with a new section 39a (Act no. 645/2003) that entered into force on 1 January 2004 and reads as follows: “The questioning of a victim or a witness must be recorded on videotape, or by using other comparable audio-visual means of recording, if there is an intention to use the statement given in the interview as evidence in court proceedings, and where it is not possible to hear the victim or the witness in person, due to his or her young age or mental disturbance, without causing likely harm to him or her. The special requirements set by the level of maturity of the questioned person for the methods used, for the number of participating persons, and for other conditions, must be taken into account in the questioning. The person in charge of the criminal investigation may decide that authorities other than the investigators may, under the supervision of the investigator, put the questions to the person being interviewed. The suspect must be provided with an opportunity to put questions to the questioned person. On the request of the suspect, he or she may also put the questions through a legal counsel or other representative. However, the investigator may order that the questions be put through his or her intermediary.”

dev

001-61958

ENG

DEU

CHAMBER

CASE OF CEVIZOVIC v. GERMANY

Preliminary objection rejected (estoppel);Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

Ireneu Cabral Barreto

9. The applicant, Zvonko Čevizović, is a Croatian national born in 1966. When lodging his application, he was detained in Oldenburg, Germany. He is presently living in Rogaška Slatina, Slovenia. 10. On 17 June 1996 the applicant was arrested in Wilhelmshaven. On 18 June 1996 the Wilhelmshaven District Court issued a warrant of arrest against the applicant on the ground that he was strongly suspected of having committed, with others, robbery connected with attempted murder. 11. On 4 November 1996 the Oldenburg Public Prosecutor’s Office charged the applicant with attempted murder, aggravated robbery, grievous physical injury and unauthorised carrying of weapons. 12. On 18 February 1997 the Oldenburg Regional Court admitted the indictment without modifications and decided to open the trial against the applicant and two other accused. The trial started on 14 March 1997 and took place on fifty-six days with an average duration of ninety minutes. On 22 May 1998 a lay assessor fell ill. As the additional lay assessor who was supposed to replace her had also fallen sick earlier on, the trial had to begin anew. 13. On 28 May 1998 the Oldenburg Regional Court upheld the arrest warrant against the applicant. It found that irrespective of the delay occasioned by the assessors’ illness, the applicant’s continued detention was proportionate given the serious nature of the crimes he was accused of. 14. On 2 June 1998 the trial reopened with two additional lay assessors. 15. On 22 June 1998 the Oldenburg Court of Appeal rejected the applicant’s appeal against the Oldenburg Regional Court’s decision to uphold the arrest warrant. 16. On 25 March 1999 the Oldenburg Regional Court dismissed the applicant’s renewed request to suspend the warrant of arrest of 18 June 1996 on the ground that the applicant remained under strong suspicion of having committed the crimes that he was accused of. On 7 May 1999 the Oldenburg Regional Court, upon the applicant’s appeal, reconsidered and confirmed its decision of 25 March 1999. It held that the delay in the trial had been caused by exceptional circumstances such as the difficulty in taking evidence, which required further investigations during the trial, and the illness of a lay assessor as well as the temporary illness of the presiding judge. The strong suspicion that the applicant had committed the serious crimes he was accused of had not been invalidated during the trial. As the applicant’s partner and son lived in Slovenia, the applicant was also likely to abscond if released. 17. On 1 June 1999 the Oldenburg Court of Appeal confirmed the decision of the lower court, stating that although the applicant had at that point already been in custody for nearly three years, this did not justify his release. 18. On 9 July 1999 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. 19. On 14 June 2000 the Oldenburg Regional Court dismissed the applicant’s new request to suspend the warrant of arrest of 18 June 1996 on the ground that the allegedly new evidence submitted by the applicant did not justify such a suspension. It found that if released, the applicant was very likely to abscond, given the circumstances of his arrest and the sentence which he risked incurring if found guilty as charged. The Regional Court noted that the applicant was residing illegally in Germany and that an expulsion order had been issued against him. The length of the applicant’s detention on remand did not compare to the risk mentioned above. The Regional Court included a detailed account of the trial, explaining the continued conduct of the proceedings, which disclosed that on several occasions witnesses could not be questioned by the court because they either did not come to the hearing or made use of their right not to testify. Furthermore, the applicant and his co-accused had, often later than necessary, filed numerous motions for evidence to be taken. It observed that at the present time, it was not possible to disjoin the applicant’s case from those of the other accused, as they were accused of committing the offences jointly. 20. On 21 June 2000, following the applicant’s appeal, the Oldenburg Regional Court confirmed its original decision. It pointed out that the prolonged investigations by way of letters rogatory in Macedonia and the summoning of witnesses from abroad, which were necessitated by the belated alibi produced by one of the applicant’s co-accused, did not warrant the applicant’s release. 21. On 27 June 2000 the Oldenburg Court of Appeal confirmed this decision. 22. On 10 August 2000 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. 23. On 26 September 2000 the Oldenburg Regional Court dismissed the applicant’s further request to suspend the arrest warrant on the grounds that contrary to his allegations, the suspicion persisted that he had committed the crimes he was accused of and was still likely to abscond if released, especially considering the high prison sentence he risked incurring if found guilty according to the indictment. 24. On 20 March 2001 the Oldenburg Regional Court pronounced its judgment after having held an average of less than four hearings per month with an average duration of less than two and a half hours each. It convicted the applicant of attempted murder, aggravated robbery and grievous physical injury as well as of unauthorised carrying of weapons and sentenced him to ten years and six months’ imprisonment. In fixing the length of the applicant’s sentence, the Regional Court took into consideration the inordinate length of his detention and of the criminal proceedings, in particular the delay occasioned by the sickness of the lay assessor and the ensuing suspension of proceedings. 25. On 21 March 2001, the applicant appealed against the Regional Court’s judgment. In the negotiations that followed between the applicant’s legal counsel and the Prosecutor’s Office, the latter eventually consented to the applicant’s expulsion to his country of origin in lieu of serving his prison sentence in Germany. In exchange for this, and due to the increasing length of his detention on remand, which would have continued during the appeal proceedings, the applicant agreed to withdraw his appeal. 26. On 4 April 2001, the applicant withdrew his appeal. On 5 April 2001 the Oldenburg Regional Court made an order for costs following the applicant’s withdrawal of the appeal. On 28 May 2001, the Prosecutor’s Office suspended the further execution of the applicant’s prison sentence and agreed to his expulsion to Croatia. A new arrest warrant was issued to the effect that, upon returning to Germany before the year 2026, the applicant would be arrested and imprisoned instantly in order to complete his prison sentence. On 25 July 2001, the applicant was expelled to Croatia.

dev

001-113111

ENG

AUT

ADMISSIBILITY

SAHIN v. AUSTRIA

Inadmissible

Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

1. The applicant, Ms Zybeyde Sahin, is an Austrian national who was born in 1974 and lives in Innsbruck. She is represented before the Court by Mr L. Szabo, a lawyer practising in Innsbruck. The Austrian Government (“the Government”) are represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant and her husband had two children: a daughter D, born in 1997, and a son S, born in 1999. Following allegations against the applicant’s husband of violence against the children and sexual abuse of D, the Innsbruck Youth Welfare Office (Jugendwohlfahrtsträger) removed both children from their home and placed them in a children’s home as a provisional measure on 20 December 2005, having found the children to be in imminent danger as required by Article 215 § 1 of the Civil Code. 4. In compliance with the time-limit set out in Article 215 § 1 of the Civil Code, the Youth Welfare Office thereafter, on 27 December 2005, applied to the Innsbruck District Court (Bezirksgericht Innsbruck) seeking to be awarded custody of the children for the purposes of their care and education and to have their placement in a children’s home approved. 5. The applicant and her husband denied the allegations of domestic violence or sexual abuse and requested the court to dismiss the authority’s application for custody. 6. The District Court promptly heard the applicant and her husband, the children’s teachers, other witnesses and commissioned an expert opinion. Following its investigation, on 24 February 2006 the Innsbruck District Court dismissed the Youth Welfare Office’s custody application, but ordered the parents to attend weekly psychotherapy sessions offered by a specialised association and to allow the children to receive psychological counselling if recommended by the association. 7. The children were returned to their parents on 3 March 2006. 8. The Youth Welfare Office appealed against the District Court’s decision, but on 5 May 2006 the Innsbruck Regional Court (Landesgericht Innsbruck) dismissed the appeal. 9. In addition to the above civil proceedings, the applicant applied on 29 January 2006 to the Tyrol Independent Administrative Panel (Unabhängiger Verwaltungssenat Tirol) and contested the measures taken by the Youth Welfare Office. She requested it to rule that the Youth Welfare Office had violated her rights by removing the children on 20 December 2005, complaining that the children had been taken away without the applicant having first given evidence, and arguing that until the court had issued a decision their placement in a children’s home had been without any legal basis. She also argued that the provisional removal of the children from their home on the basis of suspicions of domestic violence had been disproportionate. 10. On 29 March 2006 the Independent Administrative Panel rejected the application. It found that the measures were based on the provisions of the Civil Code and not on the administrative law. Thus, only the civil courts were competent to decide on the lawfulness of the measure. 11. The applicant lodged a complaint with the Constitutional Court against that decision under Article 144 of the Federal Constitution. 12. On 20 June 2007 the Constitutional Court dismissed the complaint confirming its case-law whereby a provisional measure implemented by the Youth Welfare Office pursuant to Article 215 § 1 of the Civil Code was a measure under civil law. Accordingly, the administrative authorities had no jurisdiction to decide on the applicant’s application. 13. The Constitutional Court’s judgment was served on the applicant’s counsel on 12 July 2007. 14. Under Article 215 § 1 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), the competent Youth Welfare Office must apply for court orders regarding custody measures which are necessary in order to ensure a child’s well-being. Where a child is in imminent danger, the Youth Welfare Office must also make the necessary provisional arrangements concerning care and custody until the competent court has given a decision. Such provisional arrangements have to be notified to the competent District Court immediately, at the latest within eight days. 15. Article 138 of the Federal Constitution (Bundesverfassungsgesetz) provides that the Constitutional Court decides on conflicts of jurisdiction between the courts and the administrative authorities. Under Article 144 of the Federal Constitution, an application can be lodged with the Constitutional Court alleging a violation of a constitutional right as the result of a decision of the administrative authorities, including the Independent Administrative Panels. 16. Pursuant to section 1 of the Official Liability Act (Amtshaftungsgesetz), the Federation, the Länder, districts, municipalities, other bodies of public law and the institutions of social insurance (hereinafter named “legal entities”; Rechtsträger) are liable pursuant to the relevant civil law for any damages caused deliberately or negligently by unlawful acts carried out by their officials in the execution and enforcement of the law. Sections 8 and 9 of the Official Liability Act provide that, as a first step, an injured party shall demand a written statement of the legal entity, against which a claim of damages is to be raised, indicating whether the legal entity at issue accepts or rejects the claim for damages. Such a statement shall be rendered within three months. After expiration of the delay of three months and in the event the legal entity does not accept the claim (in full), the injured party can lodge an action for damages with the competent Regional Civil Court.

dev

001-88790

ENG

RUS

CHAMBER

CASE OF ITSLAYEV v. RUSSIA

Remainder inadmissible;No violation of Art. 6-1

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

5. The applicant was born in 1959. Formerly a resident of the village of Goyskoye of the Urus-Martan District in the Chechen Republic, he is currently living in the town of Nazran in Ingushetiya. He is a lawyer at the Memorial Human Rights Centre. 6. In April 1996 the applicant was appointed head of the administration of Goyskoye. In June 1996 the district administration stopped paying his salary because of lack of funds. 7. In August 1996 Chechen rebel fighters took power in Grozny, the capital of the Chechen Republic. 8. In December 1999 the Russian federal government regained control over the Urus-Martan District. In spring 2000 the district administration was re-established and the applicant applied for payment of his salary. He states that the administration promised to pay his salary as soon as the money arrived from the federal budget. 9. In December 2000 the Urus-Martan Town Court (“the Town Court”) started functioning, but it was located in Gudermes, the administrative centre of the Gudermes District of Chechnya, about 80 km from Goyskoye. The applicant submitted that he could not go to Gudermes to lodge his claim because of the poor overall security situation and a curfew imposed by the military. Moreover, he had no money for travel and accommodation there. 10. On 25 June 2001 the applicant again applied to the district administration for payment of his salary. On 15 July 2001 he received a reply from the head of the administration dated 4 July 2001 in which the latter informed him that the salary would be paid as soon as funds were available. 11. Sometime after July 2001 the Town Court moved from Gudermes to Urus-Martan. 12. On 9 October 2001 the applicant brought a court action with the Town Court against the district administration for payment of salary arrears over the period between June 1996 and April 1997. 13. On the same date he lodged a formal request for reinstatement of time-limits for lodging his claim. It read as follows: “Courts started functioning in the Chechen Republic in December 2000. Therefore, I could lodge a claim against the administration of the Urus-Martan District for salary arrears due for my work as head of administration of Goyskoye in 1996 only from that moment. However, in the beginning the court was located in Gudermes and it was difficult to go there because of numerous checkpoints, curfew and lack of money for travel. Furthermore, on numerous occasions I have applied to the administration of the Urus-Martan District with requests to pay me the salary arrears, considering that my claims were lawful. On 4 July 2001 I received a letter signed by the head of the administration of the Urus-Martan District, from which it emerged that the payment of salary arrears had again been postponed. Until the last moment I hoped that the salary arrears would be paid to me voluntarily, as it was an obligation of any state authority. For the above reasons I missed the time-limits for lodging a claim against the administration of Urus-Martan for salary arrears. Taking into consideration the above statements and in accordance with Article 105 of the Code of Civil Procedure of RSFSR I request [the Town Court] to restore the procedural time-limit for lodging a claim for salary arrears.” 14. On 16 October 2001 the Town Court held a hearing in the applicant’s case. According to the record of the hearing, the applicant gave the following explanation as regards his failure to comply with the timelimits: “I applied to a court only on 9 October 2001 as I did not know that law established the time-limits for applying to a court. I request the court to reinstate the time-limits for applying to a court and to recover salary arrears ...” The defendant accepted the applicant’s salary claims only for the period between June and August 1996 and submitted that the applicant would receive the arrears as soon as funds were available. On the same date the Town Court adopted a judgment in the case, which in its relevant part provided as follows: “... [Mr Itslayev] applied to the court only on 9 October 2001 because he did not know that law established the time-limits for applying to a court and he requests the court to reinstate the time-limit for applying to the court and to recover salary arrears ... The defendant’s representative submitted that ... the Administration of the UrusMartan District agreed to pay the applicant salary arrears for the period between June and August 1996 as soon as the funds were available. Having regard to the parties’ submissions and having read the materials of the case, the court comes to the following conclusion: ... According to Article 211 of the Labour Code of the Russian Federation an application concerning the settlement of a labour dispute is to be lodged with a district court within three months of the date when an employee knew or should have known about the violation of his right. In violation of this statutory provision, the applicant did not apply to a court between December 2000, when the courts started functioning in Chechnya, and 9 October 2001. The court considers that the applicant’s arguments that he had missed the time-limits because the head of administration of the UrusMartan District had promised to pay him salary and that he was not aware of time-limits are unsubstantiated. Therefore the court comes to a conclusion that the applicant missed the time-limit without any valid reason and that there are no grounds to restore it.” 15. The applicant alleged that the presiding judge had relied on an order from “higher” authorities not to accept claims similar to that of the applicant’s for examination on the merits and that he had to seek advice from judge B. of the Supreme Court of the Chechen Republic (“the Supreme Court”). The applicant also indicated that the presiding judge had been appointed for a period of one year and therefore he could not be considered independent. 16. The applicant provided the Court with a copy of the decision delivered by the Town Court on 17 October 2001 in a case of a certain M., who had claimed from the district administration salary arrears due to his wife. He submitted that his wife had been killed in April 2001 and that he was in a very difficult financial situation because he had borrowed money to bury her. The Town Court restored the time-limit for lodging his claim and examined it on the merits. It held as follows: “... the court finds that the plaintiff missed the time-limit for a valid reason, because no courts were functioning in Chechnya between August 1996 and December 2000, and between January and July 2001 the court was based in Gudermes and he could not have applied there for lack of funds ...” 17. On 6 November 2001 the applicant lodged an appeal with the Supreme Court against the judgment of 16 October 2001. In so far as he contested the application of time-limits in his case, the applicant made two arguments. In the first place he submitted that he had applied for the reinstatement of time-limits because the Town Court requested him to do so. However, Article 211 of the Labour Code could not be applied in his case, as the antiterrorist operation was still going on in the Chechen Republic. On 15 July 2001 he had received a letter from the head of the district administration by which he was informed that his salary arrears would be paid as soon as funds were available. Therefore his right had been infringed at the end of July. The three-month time-limit had started to run from the end of July and he had applied to the court in due time. Secondly, assuming that he had missed the time-limit, the Town Court could and should in accordance with Article 105 of the Code of Civil Procedure accept that he had missed the time-limit for valid reasons which were as follows: “(a) I was appointed head of a rural administration in April 1996 and worked in this position in very difficult conditions, sometimes at risk to my life. (b) I think that it is a matter of honour for the Russian state to pay at least salary arrears to heads of administrations of communities which were appointed in that period and who had worked with federal authorities. (c) On numerous occasions I have applied orally to the Administration of UrusMartan. And when I was told that there were no funds, that I would have to wait and that I would be paid, I continued to wait, believing the authorities and understanding the situation which existed in the Republic. (d) The Town Court should not have punished me, as it did, and taken the side of those who in that period killed and continue to kill people who work for the state. As a matter of fact, the Urus-Martan Town Court have now punished me for my work for the state in 1996. (e) There existed no legal conditions in the Chechen Republic to apply Article 211 of the Labour Code in labour disputes involving state authorities because of the circumstances which existed in previous years.” The applicant requested the appeal court to take into account the above circumstances, to quash the judgment of 16 October 2001 and deliver a new decision in his case. 18. On 26 February 2002 the Supreme Court, comprising judges B. and A. and presided over by Judge S., upheld the judgment of 16 October 2001. It held as follows: “... Having regard to the materials of the case and to the submissions by the plaintiff, the Civil Chamber finds that the judgment is lawful and reasoned. According to Article 211 of the Labour Code of the Russian Federation an application concerning the settlement of a labour dispute is to be lodged with a court within three months of the date when an employee knew or should have known about the violation of his right. However, since December 2000 the plaintiff has not made such an application to a court. The [Town] court has thoroughly examined the submitted evidence and reasonably found that the reasons advances by the plaintiff for missing the time-limit were not valid and refused to restore the time-limit.” The applicant was present at the hearing. He alleged that Judge B., to whom, the Town Court judge had allegedly referred, was a member of the court. Furthermore, according to the applicant, his appeal was not examined in a public hearing, but took place in one of the rooms in the Supreme Court building. 19. Article 211 of the Russian Labour Code of 1971 (in force at the material time) provided in its relevant part that an application concerning the settlement of a labour dispute had to be lodged with a district court within three months of the date when an employee knew or should have known about the violation of his right. In instances where the periods established in that Article lapsed for justifiable reasons, they could be reinstated by a court. 20. Article 105 of the Russian Civil Procedure Code of 1964 (in force at the material time) provided in its relevant parts that in cases where individuals missed the statutory time-limits for reasons which the court considered valid, the time-limits could be restored by a court. An application for reinstatement of time-limits had to be lodged with a court with jurisdiction to take a procedural decision on the matter, and had to be examined in a hearing. A claim in respect of which the time-limits had expired had to be lodged together with the application for reinstatement of the time-limits. 21. Ruling of the plenary session of the Supreme Court of the Russian Federation of 22 December 1992 No. 16 (applied until 17 March 2004) “On Some Issues related to the Application by Courts of the Russian Federation of Legislation when resolving Labour Disputes” provided in relevant parts of paragraph 8 that a judge could not refuse to accept a claim for consideration on the ground of expiration of time-limits, as Article 211 of the Labour Code did not provide for such a possibility. Where a court considered that the time-limits had not been respected for valid reasons, it had to restore them. In cases where a court, after having thoroughly examined the materials of the case, established that the time-limits had not been complied with for a non-valid reason, it had to dismiss the claim.

dev

001-4832

ENG

NLD

ADMISSIBILITY

BAKKER v. THE NETHERLANDS

Inadmissible

Elisabeth Palm

The applicant is a Dutch national, born in 1948, and resident in Enkhuizen. He is represented before the Court by Ms Y.E.J. Geradts, a lawyer practising in Amsterdam. a. Particular circumstances of the present case The applicant had, until mid 1991, a shop in Amsterdam where he sold telecommunication equipment. In 1989 and 1990, he traded in illegal cordless telephones, i.e. cordless telephones which were not allowed to be used in the Netherlands and other Member States of the European Union given the frequencies used by these telephones. The telephones were sold by a Belgian Company M.D.B. to a Dutch company C.C. The latter company’s director, B.B., made invoices in respect of these telephones to a fictitious person at a fictitious address in the Netherlands Antilles. In fact the telephones were not shipped to the Antilles but were directly delivered by M.D.B. to the applicant, who subsequently sold them. After a certain time, the telephones were no longer sold via C.C., but through the C.T.C. company of which B.B. was also director. On 28 August 1990, the Fiscal Intelligence and Investigation Department (Fiscale Inlichtingen en Opsporingsdienst; "FIOD") conducted a search at the C.C. company and, on the same day, went to the applicant’s shop for an inspection of the shop’s business administration. The applicant was absent that day and could not be reached. With the consent of the shop’s bookkeeper, the FIOD took away documentation concerning part of the shop’s business administration for verification purposes. On 12 June 1991, pursuant to Article 81 of the General Act on State Taxes (Algemene Wet inzake Rijksbelastingen) which authorises seizure of items for the purpose of investigation of fiscal criminal offences, the FIOD seized the entire business records of the applicant’s shop for the years 1987, 1988, 1989 and 1990. On 16 September 1991, on his own initiative, the applicant went to the FIOD in order to give a statement about his involvement in the cordless telephone trade. On the same day, he was taken into custody (inverzekeringstelling) and was subsequently held for questioning for the next three days. He was released on 19 September 1991. In the course of this investigation the applicant was questioned for the last time on 28 January 1992. On 10 January 1994 the prosecution authorities issued a summons, ordering the applicant to appear on 2 February 1994 before the Regional Court (Arrondissementsrechtbank) of Alkmaar on the charges of, inter alia, forgery, committed either alone or in association with others in respect of three invoices for telephones or, alternatively, to have been an accessory to the commission of forgery in respect of these invoices. Further charges of forgery were brought against the applicant in relation to the importation by the C.C. company for B.B. of a boat the latter had bought in Spain and the exportation of a boat by B.B. to Spain. Insofar as relevant, the charges contained in the summons read as follows: <Translation> "that he, the suspect, at various points in time in or about the period between 1 January 1989 and 10 May 1990 in the Municipality of Hoorn, in any case in the Netherlands, together and in association with others or one other, at least alone, has falsely made or has falsified one or more invoices, (each) being a document destined to serve as proof of a fact, with the aim to use this/these invoice(s) or to have this/these invoice(s) used by others as real and authentic, whereas such use could give rise to a disadvantage, the cited false making or falsifying of this/these invoice(s) consisting in that he, the suspect, together and in association with his fellow perpetrators, at least alone, falsely and/or contrary to the truth 1. has made or had made an invoice numbered 890120, dated 04-08-89 and addressed to Tony Bosch in Aruba, concerning (the delivery of) 1020 telephones (file Case 1, see 1/D/143), and/or 2. has made or had made an invoice numbered 890215, dated 30-11-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1098 telephones (file Case 1, see 1/D/146), and/or 3. has made or had made an invoice numbered 890235, dated 22-12-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1500 telephones (file Case 1, see 1/D/135); Alternatively, in case the above under 1. would not or could not lead to a conviction: Trading company C.C. B.V., at various points in time in or about the period between 1 January 1989 and 10 May 1990 in Hoorn, in any case in the Netherlands, together and in association with others or one other, at least alone, has falsely made or has falsified one or more invoices, (each) being a document destined to serve as proof of a fact, with the aim to use this/these invoice(s) or to have this/these invoice(s) used by others as real and authentic, whereas such use could give rise (each time) to a disadvantage, the cited false making or falsifying of this/these invoice(s) consisting in that above cited company together and in association with its fellow perpetrators, at least alone, falsely and/or contrary to the truth 1. has made or had made an invoice numbered 890120, dated 04-08-89 and addressed to Tony Bosch in Aruba, concerning (the delivery of) 1020 telephones (file Case 1, see 1/D/143), and/or 2. has made or had made an invoice numbered 890215, dated 30-11-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1098 telephones (file Case 1, see 1/D/146), and/or 3. has made or had made an invoice numbered 890235, dated 22-12-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1500 telephones (file Case 1, see 1/D/135), to which and/or the commission of which offences he, the suspect, in or about the period between the month January 1989 and the month May 1990, in the Municipality of Hoorn, in any case in the Netherlands, has intentionally provided the opportunity, means and/or information and/or has intentionally provided assistance by dictating, or providing, the information contained in the above cited invoice(s) to the cited company, or to one or more of its staff members; ... ." By judgment of 13 April 1994, following adversarial proceedings, the Regional Court convicted the applicant of repeatedly having been an accessory to the commission of forgery and sentenced him to twelve months’ imprisonment, suspended pending a probation period of two years, and payment of a fine of NLG. 200,000 from which fine NLG. 50 was to be deducted for each day the applicant had spent in pre-trial detention. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam. In its judgment of 15 March 1996, following adversarial proceedings, the Court of Appeal quashed the judgment of 13 April 1994, convicted the applicant of repeatedly having been an accessory to the commission of forgery and sentenced him to six months’ imprisonment, with deduction of the time spent in pre-trial detention, suspended pending a probation period of two years, and payment of a fine of NLG. 50,000. The Court of Appeal rejected the applicant’s argument that the summons should be declared null and void in that the charges brought against him, as stated in the summons, were phrased in terms so vague that was not clear what exactly the prosecution considered the applicant had in fact done in relation to the facts at issue. The Court of Appeal held that the summons was in conformity with the relevant requirements under Article 261 of the Code of Criminal Procedure (Wetboek van Strafvordering) and that, given the text and structure of the charges, there could be no misunderstanding that it concerned the commission of forgery in different factual forms. It further found that the summons were sufficiently clear for the applicant to understand what was held against him and against what he should defend himself. Moreover, during the applicant’s trial, it had not appeared that there existed any misunderstanding on the part of the applicant as to what was held against him. As to the applicant’s argument that the prosecution should be declared inadmissible for failure to respect the reasonable time requirement under Article 6 § 1 of the Convention, the Court of Appeal held that the proceedings at issue had started on 16 September 1991 when the applicant was arrested and detained on remand. It agreed that the applicant’s case had not been dealt with within a reasonable time within the meaning of Article 6 § 1 of the convention. After having weighed the applicant’s interest in obtaining a determination of his case within a reasonable time against the interest of the prosecution, the court decided that it would accept the applicant’s prosecution but that it would take this finding into consideration in the determination of the applicant’s sentence. In the determination of the applicant’s sentence, the Court of Appeal considered that the applicant’s actions had deprived the community of an estimated amount of NLG. 900,000 in taxes, this in a large part to the applicant’s personal benefit, and that a prison sentence of six months and payment of a fine of NLG. 150,000 would be an appropriate sentence. However, on the basis of the finding that the proceedings against the applicant had exceeded a reasonable time, the Court of Appeal decided to mitigate the prison sentence by rendering it conditional and to mitigate the fine by reducing it to NLG. 50.000. The applicant’s subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 15 April 1997. The applicant’s complaints about the rejection by the Court of Appeal of his arguments in relation to the manner in which the charges against him had been phrased and the length of the proceedings were rejected by the Supreme Court under Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) as not prompting a determination of legal issues in the interests of legal unity and legal development. b. Relevant domestic law Article 261 of the Code of Criminal Procedure, insofar as relevant, reads as follows: <Translation> “1. On penalty of nullity, the summons shall contain a description of the fact [with which the defendant is] charged, including the approximate time and location where it has allegedly been committed. 2. The summons shall further set out the circumstances under which the fact has allegedly been committed. 3. ... “. Article 225 of the Netherlands Criminal Code, as in force at the relevant time, provides as follows <Translation> “1. Any person who counterfeits or falsifies a document from which any right or obligation may arise or which may result in any discharge of a debt, or which is to be used as evidence of any fact, such with the aim of using it or enabling others to use it as if it were genuine and unfalsified, shall, if any damage could arise from such use, be guilty of forgery and liable to a term of imprisonment not exceeding six years and a fifthcategory fine or either one of these penalties. 2. Any person who intentionally uses such a forged or falsified document as if it were genuine and unfalsified, shall, if any damage could arise from such use, be liable to the same penalty.”

dev

001-105318

ENG

EST

ADMISSIBILITY

METSAVEER v. ESTONIA

Inadmissible

Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant, Mr Ülari Metsaveer, is an Estonian national who was born in 1973 and lives in Vantaa, Finland. He was represented before the Court by Ms B. Mõttus, a lawyer practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was tried by a criminal court, apparently having been charged with theft. On 1 February 2003, before the judgment in the criminal case had been delivered, a newspaper, Pärnu Postimees, published an article entitled ‘Gang of Thieves on Trial’ (Vargajõuk kohtu all). According to the applicant the article gave the impression that the accused were guilty although they had not yet been convicted. The applicant brought a civil suit against Pärnu Postimees AS, the public limited company that published the newspaper. He claimed 300,000 kroons (EEK) (approximately 19,170 euros (EUR)). On 30 September 2005 the Pärnu County Court dismissed his claim. An appeal was dismissed by the Tallinn Court of Appeal by a judgment of 25 November 2005. The applicant received the judgment on 3 December 2005. An appeal to the Supreme Court could be filed within thirty days of the receipt of the judgment, that is, by 2 January 2006 at the latest. On 13 December 2005 the Court of Appeal received a request from the applicant for an extension of the time-limit for appeal, together with a request for legal aid. On 21 December 2005 the Court of Appeal granted the applicant legal aid for lodging an appeal with the Supreme Court. The Court of Appeal’s decision was sent to the applicant and to the Estonian Bar Association (Eesti Advokatuur) so that the latter could appoint a lawyer for him. The applicant’s address was given in the decision. It was explained in the decision that it was not possible to extend the time-limit for filing the appeal but it was possible to request the restoration of the time-limit after its expiry if good reason existed for the failure to comply with it. By a letter of 27 December 2005 the Board of the Bar Association (Advokatuuri juhatus) sent the Court of Appeal’s decision to the law office of the advocate who had been appointed, R., who received the letter on 30 December 2005. The applicant was not informed that the advocate had been appointed for him. R. neither contacted the applicant nor filed an appeal with the Supreme Court. According to different documents in the case file, the applicant became aware of the name and contact details of the appointed lawyer, R., either at the end of January 2006 when he telephoned the Court of Appeal, or on 9 February 2006 when he telephoned the Bar Association. On 9 February 2006 the applicant also telephoned R. According to the applicant, R. said that the time-limit for an appeal to the Supreme Court had already passed and she was no longer dealing with the case. The applicant himself should have sought to contact her. She had no time to meet the applicant on 9 or 10 February 2006. According to R. she had been unable to take any steps to lodge an appeal against the Court of Appeal’s judgment without having met the applicant. She proposed a meeting for 13 February 2006 but this was not suitable for the applicant, who said that he had to leave for Finland to start a new job on that date. On 9 February 2006 the applicant made a complaint to the Court of Honour (aukohus) of the Bar Association against R. R. was contacted by the Bar Association on the same date and was advised to file a request with the Supreme Court for the restoration of the time-limit for appeal. She filed the request, sent a copy to the applicant and requested the latter to contact her and pay the security for appeal. On 12 February 2006 the applicant requested that the Court of Honour suspend the proceedings as R. had filed a request for restoration of the time-limit with the Supreme Court. On 1 March 2006 the Supreme Court sent a letter to R. noting that according to Article 68 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik) the appeal itself had to be lodged together with the request for restoration of the time-limit. Moreover, security had to be paid. On that basis the Supreme Court returned the application to R. The applicant was not informed thereof. It appears that in April 2006 the applicant, having telephoned the offices of different courts, learned of the Supreme Court’s letter and the fact that the case file had been sent back to the first-instance court as no appeal had been lodged and no security had been paid. On 19 April 2006 the applicant asked the Court of Honour to resume the examination of his complaint against R. He also requested that a new lawyer be appointed for him. The Court of Honour examined the matter on 8 June 2006. It considered that a decision to grant legal aid had to be communicated to the applicant as well as to the lawyer who had been appointed. However, such an obligation could not be placed on the lawyer; nor was a lawyer responsible for paying the security for appeal. The Court of Honour found that R. had not committed a disciplinary offence and decided not to initiate proceedings in respect of her. It informed the applicant that it was not within its powers to appoint a new lawyer for him and that he could still turn to R. for legal assistance. It also informed the Board of the Bar Association of the circumstances relating to the informing of an applicant about the appointment of a legal-aid lawyer. According to the applicant he attempted to contact R. by telephone and by letter; this having proved unsuccessful, on 26 September 2006 he requested the Supreme Court to appoint another lawyer and to extend the time-limit for lodging an appeal. On 27 September 2006 the Supreme Court refused the applicant’s requests. It noted that a request for legal aid had already been granted by the Tallinn Court of Appeal on 21 December 2005, that a lawyer to provide him with legal assistance had already been appointed and that there were no grounds for replacing that lawyer as provided for in subsections 2 and 3 of section 20 of the State Legal Aid Act. The Supreme Court further noted that the applicant’s lawyer had requested that the time-limit for lodging an appeal be restored but her application had been dismissed and returned to her because she had failed to lodge the corresponding appeal and to pay the security. Finally, the Supreme Court pointed out that the appeal had not been attached to the applicant’s application and that he had also failed to comply with the requirement under Article 218 § 3 of the Code of Civil Procedure according to which submissions to the Supreme Court could only be made through a lawyer. Accordingly, it returned the application to the applicant. Section 18(2) of the State Legal Aid Act (Riigi õigusabi seadus), as in force at the material time, stipulated that if a legal-aid lawyer was not appointed on the basis of a mutual agreement between him or herself and the claimant the court had to appoint a lawyer who consented thereto, or a lawyer named by the Bar Association, as the provider of State legal assistance. It was not specified how the claimant was to be informed thereof. Section 19 of the State Legal Aid Act provided that a lawyer was not allowed to refuse to provide State legal assistance to a person or terminate the provision of legal services to a person before the final adjudication of the matter unless there was a conflict of interests (section 44(4) of the Bar Association Act (Advokatuuriseadus)) or if the client’s claims were unlawful or contrary to the lawyer’s professional ethics, or the lawyer became aware that a criminal offence was being planned (sections 44(5) and 45(5) of the Bar Association Act). According to section 20 of the State Legal Aid Act the legal-aid lawyer could be replaced by another lawyer upon the latter’s consent and the mutual agreement of the original lawyer and the beneficiary of legal aid (subsection 1). If, arising from law, a lawyer was unable to continue to provide legal services to a beneficiary of State legal aid, he or she had to submit to a court an application for the appointment of a new legal-aid lawyer (subsection 2). Upon the exclusion of such a lawyer from the Bar Association or his or her disbarment, or upon the suspension of the professional activities or the death of the lawyer, a court had to appoint a new lawyer (subsection 3). Where a lawyer was replaced, the new lawyer had to continue providing legal services to the recipient from the point where the former lawyer had finished (subsection 4). Article 341 § 2 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik), as in force until 31 December 2005, provided that an appeal against a judgment of an appeal court could be filed within thirty days of the judgment being made public, or within thirty days of receipt of a copy of the judgment if the judgment was given in written proceedings. On 1 January 2006 a new Code of Civil Procedure (2006 Code) entered into force. Article 670 § 1 of the 2006 Code provided that an appeal in cassation was to be submitted within thirty days of the date on which the judgment was served on the appellant in cassation. Article 218 § 3 of the 2006 Code provided that a party to litigation could perform procedural acts and submit requests and applications to the Supreme Court only through a lawyer (advokaat). Article 68 § 2 of the 2006 Code provided that when a request was made for the restoration of a time-limit, the procedural act for which the restoration was requested had to be performed at the same time. Article 67 § 2 of the 2006 Code provided that a request for restoration of a time-limit could be filed within fourteen days of the date on which the impediment which had hindered the participant to the proceedings in the performance of the procedural act ceased to exist, but not later than six months after the expiry of the time-limit.

dev

001-85467

ENG

TUR

CHAMBER

CASE OF GÜMÜŞOĞLU v. TURKEY

Violation of Article 1 of Protocol No. 1 - Protection of property

Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

4. The applicants were born in 1955, 1935 and 1950 respectively and live in Hatay. 5. On various dates, the applicants bought plots of land (nos. 1233, 1230 and 1162 respectively) near the coast in Hatay. They each built a house there. 6. In 1995 the Treasury filed an action before the Samandağ Court of First Instance, requesting the annulment of the applicants’ title deeds to the land on the ground that they were located within the coastline. 7. On 16 December 1999 (nos. 40/02 and 41/02) and 9 December 1999 (42/02), the Samandağ Court of First Instance, relying, particularly, on expert reports, upheld the request of the Treasury and annulled the title deeds of the applicants to the plots of land. In its decisions, the court held that, pursuant to domestic law, coasts could not be subject to private ownership and that, therefore, the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the site. 8. On various dates the applicants appealed. In their petitions they submitted, inter alia, that the right to property - a human rights norm - was protected under the constitution and the domestic law, and that the domestic courts had deprived them of their property rights without proper examination and without a payment of compensation. On 3 October 2000 their appeals were dismissed by the Court of Cassation. 9. On various dates the applicants requested the Court of Cassation to rectify its decision. The Court of Cassation dismissed the applicants’ requests on 2 May 2001 (nos. 40/02 and 42/02) and 19 April 2001 (no. 41/02). These decisions were served on the applicants on 6 June 2001 (nos. 40/02 and 42/02) and 23 May 2001 (no. 41/02). 10. The relevant domestic law and practice in force at the material time are outlined in the Doğrusöz and Aslan v. Turkey judgment (no. 1262/02, § 16, 30 May 2006).

dev

001-104907

ENG

DEU

CHAMBER

CASE OF MORK v. GERMANY

Remainder inadmissible;No violation of Art. 5-1

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre

5. The applicant was born in 1955 and is currently detained in Aachen Prison. 6. Between 1978 and 1981 the applicant was convicted, among other offences, of numerous counts of joint burglary committed in companies and shops and was imprisoned from March 1980 until February 1985. 7. In 1986 the Dortmund Regional Court convicted the applicant of trafficking in drugs (hashish and cocaine) and sentenced him to eight years’ imprisonment. The applicant was in pre-trial detention and served his sentence from August 1985 until June 1993. 8. In December 1996 the applicant was arrested and placed in pre-trial detention on suspicion of drug trafficking; he has remained in prison since then. 9. In a judgment dated 9 February 1998 the Aachen Regional Court convicted the applicant of unauthorised importing of drugs and of drug trafficking committed in 1996 and involving some 280 kilos of hashish. It sentenced him to eight years and six months’ imprisonment. It decided not to order the applicant’s preventive detention under Article 66 of the Criminal Code (see paragraphs 22-23 below) as it was not convinced that the applicant was dangerous to the public owing to a disposition to commit serious offences. In this assessment, the court took into consideration that the applicant had not attempted to avert his punishment by lodging numerous procedural motions and had agreed to the forfeiture of money stemming from drug trafficking. The applicant claimed that he had struck a deal with the Regional Court on the latter’s proposal that the court would impose a sentence of less than ten years and would not order his preventive detention if he ceased to contest the court’s finding of fact. The Government submitted that there was no indication in the case-file that such an agreement had been made. 10. In a judgment dated 7 April 1999 the Federal Court of Justice dismissed an appeal by the applicant on points of law. It allowed an appeal by the prosecution regarding the Regional Court’s decision not to order the applicant’s preventive detention and quashed the judgment in this respect as the Regional Court had not given valid reasons for considering the applicant not to be dangerous to the public. 11. In a judgment dated 14 November 2001 a different chamber of the Aachen Regional Court ordered the applicant’s (first) indefinite preventive detention pursuant to Article 66 § 1 of the Criminal Code. Having consulted a psychiatric expert and having regard to the applicant’s personality and his previous convictions, the court considered that the applicant had a disposition to commit serious offences, was likely to commit further serious drug offences and was thus dangerous to the public. 12. In a decision dated 31 May 2002 the Federal Court of Justice dismissed as ill-founded an appeal by the applicant on points of law, in which the latter had complained that provisions of substantive law had not been complied with (allgemeine Sachrüge). 13. On 24 June 2002 the applicant, without being represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court against the two judgments of the Regional Court and the judgment and the decision of the Federal Court of Justice. He complained, in particular, that preventive detention was incompatible with his right to liberty under Article 5 § 1 of the Convention, which did not cover such a preventive measure. It further violated the prohibition of retrospective punishment under the Basic Law and Article 7 of the Convention because it was incompatible with the principle of legal certainty and because his preventive detention had been ordered without a maximum duration of ten years, which had been the maximum penalty at the time he committed his offences. Furthermore, his right to a fair trial had been breached in that the domestic courts had not subsequently respected the deal struck with the Regional Court that he would not further contest the court’s finding of facts in exchange for the court not ordering his preventive detention. 14. On 11 March 2004 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1046/02). The Federal Constitutional Court found that in so far as the applicant complained about the judgment of the Regional Court of 9 February 1998 and that of the Federal Court of Justice of 7 April 1999, he had lodged his constitutional complaint out of time. In so far as the applicant complained that the Regional Court’s order for his preventive detention in its judgment of 14 November 2001 lacked a valid legal basis and was arbitrary, his complaint was inadmissible for non-exhaustion of domestic remedies. The court found that the applicant had failed to submit his statement of the grounds of his appeal on points of law nor had he claimed before it that he had complained about the unconstitutionality of the amended provisions on preventive detention and about their application by the Regional Court to him before the Federal Court of Justice, at least by complaining that provisions of substantive law had not been complied with. 15. On 13 July 2007 the Bochum Regional Court, acting as the court dealing with the execution of sentences, having heard the applicant in person, ordered the applicant’s placement in preventive detention as of 25 July 2007 (Article 67c § 1 of the Criminal Code; see paragraph 24 below), that is, as from the day on which the applicant would have served his full prison sentence. The court fully agreed with the findings of a psychiatric and psychotherapeutic expert it had consulted on the applicant’s dangerousness. In his report dated 7 May 2007 the expert, having examined the applicant, had considered that, if released, the applicant was very likely to commit further serious offences similar to those he had previously committed. He was still dangerous to the public as he had to date failed to reflect sufficiently on his numerous offences. Even assuming that the security measures taken against him by the prison authorities had not been justified, this did not alter the fact that there had not been a consistent treatment limiting the risk that he would reoffend after his release. 16. On 6 September 2007 the Hamm Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. 17. On 24 January 2008 the Hamm Court of Appeal rejected an objection (Gegenvorstellung) by the applicant. 18. On 17 October 2007 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the Regional Court’s decision of 13 July 2007 and the Court of Appeal’s decision of 6 September 2007. By submissions dated 3 March 2008 he extended his complaint to the Hamm Court of Appeal’s decision of 24 January 2008. He claimed, in particular, that the order to place him in preventive detention disproportionately interfered with his right to liberty. He argued that the expert report on which the courts dealing with the execution of sentences had relied had not been drawn up in due form, that the courts had failed to give convincing reasons, in view of his mostly less serious previous convictions, why he was likely to commit further serious offences if released and that he had been refused relaxations in the conditions of his detention without convincing reasons. 19. On 14 July 2008 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2356/07). It found, in particular, that the decisions of the courts dealing with the execution of sentences to order the applicant’s placement in preventive detention had not violated the applicant’s right to liberty. The Federal Constitutional Court found that the Regional Court’s assessment that the applicant had repeatedly committed serious offences was not arbitrary as the latter had been sentenced to one term of eight years’ imprisonment and another of eight years and six months. The expert report, which was of recent date, was sufficiently substantiated. In so far as the applicant had been refused relaxations in the conditions of his detention, the Constitutional Court noted that the courts dealing with the execution of sentences had not based their decision to order preventive detention globally on the fact that the applicant had failed to prove that he was no longer dangerous in the course of such relaxations. If the prison authorities refused to grant the applicant relaxations in the conditions of his detention in the future, the applicant had to raise this issue with the competent lower courts first. In view of the courts’ assessment that the applicant was likely to commit further serious offences if released, their finding that the interest in public safety prevailed over the applicant’s right to liberty had been proportionate. 20. On 12 August 2009 the Aachen Regional Court, acting as the court dealing with the execution of sentences, refused to suspend the execution of the preventive detention order against the applicant on probation. That decision was confirmed on appeal. 21. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions referred to in the present case provide as follows: 22. The sentencing court may, at the time of the offender’s conviction, order his preventive detention, a socalled measure of correction and prevention, under certain circumstances in addition to his prison sentence, a penalty, if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code). 23. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time). 24. Article 67c § 1 of the Criminal Code provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b(1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it suspends on probation the execution of the preventive detention order; supervision of the person’s conduct commences with suspension. 25. Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first placement in preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3). 26. Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provided that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the conduct of the offender. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a § 3 of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis. 27. Under the well-established case-law of the Federal Constitutional Court, a complainant is obliged to submit to that court, within the onemonth time-limit running from the notification of the impugned court decision, either a copy of the impugned decisions and of all documents necessary for their understanding or at least to set out their content in a manner allowing for a control of their constitutionality (see, inter alia, the decisions of the Federal Constitutional Court of 16 December 1992, file no. 1 BvR 167/87, Collection of the decisions of the Federal Constitutional Court (BVerfGE), vol. 88 (1993), pp. 40 ss., 45; of 10 October 1995, file nos. 1 BvR 1476, 1980/91 and 102, 221/92, Collection of the decisions of the Federal Constitutional Court, vol. 93 (1996), pp. 266 ss., 288; confirmed, for instance, by a decision of 18 March 2009, file no. 2 BvR 1350/08). No distinction was made in these decisions between complainants who were and those who were not represented by counsel. 28. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period (compare the provisions in paragraphs 25-26 above) and about the retrospective order of the complainants’ preventive detention respectively (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). The Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty. 29. The Federal Constitutional Court further held that all provisions of the Criminal Code on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention because those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003. 30. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the most. In relation to detainees whose preventive detention had been prolonged or ordered retrospectively, the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law. If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released. 31. In its judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law (völkerrechtsfreundliche Auslegung). In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above).

dev

001-61059

ENG

UKR

CHAMBER

CASE OF POLTORATSKIY v. UKRAINE

No violation of Art. 3 with regard to alleged ill-treatment;Violation of Art. 3 with regard to lack of effective investigation;Violation of Art. 3 with regard to conditions of detention;Violation of Art. 8;Violation of Art. 9;Non-pecuniary damage - financial award;Costs and expenses partial award

Nicolas Bratza

9. On 12 December 1995 the Ivano-Frankivsk Regional Court (oблacний суд) convicted the applicant of the murder of four persons, sentenced him to death and ordered the confiscation of his personal property. 10. On 22 February 1996 the Supreme Court (Верхoвний суд) upheld the judgment of the first-instance court. The applicant was transferred by the authorities responsible for the isolation block of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior (Адміністрація слідчого ізолятору Управління міністерства внутрішніх справ) to one of the cells intended for persons awaiting execution of the death sentence. 11. A moratorium on executions was declared by the President of Ukraine on 11 March 1997. In judgment no. 11pп/99 of 29 December 1999, the Constitutional Court of Ukraine held that the provisions of the Criminal Code concerning the death penalty were contrary to the Ukrainian Constitution. As a result, death sentences were commuted to life imprisonment by Law no. 1483-III of 22 February 2000. 12. On 2 June 2000 the Ivano-Frankivsk Regional Court commuted the applicant’s death sentence to life imprisonment. 13. The facts of the case concerning the conditions of the applicant’s detention in Ivano-Frankivsk Prison and the events during his time there are disputed. 14. The facts as presented by the applicant are set out in paragraphs 17 to 23 below. The facts as presented by the Government are set out in paragraphs 24 to 30. 15. A description of the material submitted to the Commission and to the Court will be found in paragraphs 31 to 58 below. 16. The Commission, in order to establish the facts in the light of the dispute over the conditions of the applicant’s detention and the events which occurred in Ivano-Frankivsk Prison, conducted its own investigation pursuant to former Article 28 § 1 (a) of the Convention. To this end, the Commission examined a series of documents submitted by the applicant and the Government in support of their respective assertions and appointed three delegates to take evidence from witnesses at a hearing conducted at the Ministry of Justice in Kyiv on 23 and 26 November 1998, and in Ivano-Frankivsk on 24 and 25 November 1998. The Commission’s assessment of the evidence and its findings of fact are summarised in paragraphs 59 to 75 below. 17. On 12 December 1995 the Ivano-Frankivsk Regional Court convicted the applicant of the murder of four persons, sentenced him to death and ordered the confiscation of his personal property. After the first-instance judgment, he was placed in a separate cell. He was not allowed to write to his family, nor could he be visited by his lawyer. He applied several times for permission to meet his lawyer. 18. On 22 February 1996 the Supreme Court upheld the judgment of the first-instance court. On a decision of the authorities responsible for the isolation block of the Ministry of the Interior, the applicant was transferred to a cell intended for prisoners awaiting execution of the death sentence. On 30 March 1996 the applicant’s lawyer applied to see the applicant in order to give him the Supreme Court’s decision in the case. The prison governor did not grant him permission to do so. 19. Conditions of detention of persons sentenced to death were governed by the Pre-Trial Detention Act 1993 (“the Act”) and by an instruction of 20 April 1998 (“the Instruction”), whose content remained top secret. Under the terms of the Instruction, exercise in the open air, watching television, buying newspapers and receiving food parcels from relatives were prohibited. The Instruction therefore prevented the applicant from enjoying the rights guaranteed by the Act. 20. In a reply by the deputy head of the Ivano-Frankivsk Directorate of the Ministry of the Interior to a complaint by the applicant’s father concerning the conditions of the applicant’s detention, reference was made to the Instruction. Moreover, according to information received by the applicant’s father from the deputy governor of the prison, it appeared that the Act did not apply to him. Had the Act been applicable to the applicant, he would have been entitled under sections 9(1) and 13 to take daily exercise in the open air, to receive parcels twice a month and to watch television. However, this was strictly prohibited between 1995 and 1998. Up to September 1997 the applicant was also prohibited from sending and receiving letters. It was only then that the deputy governor of the prison orally informed the applicant’s mother that he could send and receive letters. Moreover, his father was refused permission to visit him on 29 May 1995 and 10 June and 31 July 1996 without any explanation from the prison authorities. From July 1996 onwards, instead of monthly visits which would last up to two hours, the applicant’s father had been allowed to visit the applicant only once every three months for not more than one hour. 21. As regards visits from a priest, the applicant’s father and members of the clergy repeatedly but unsuccessfully applied to the prison authorities and those responsible for the isolation block of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior for the applicant to be allowed to receive a visit from a priest. 22. The applicant finally stated that he had complained several times about the conditions in which he was being held. He had also unsuccessfully applied to the prison authorities for permission to lodge an application with the European Commission of Human Rights. 23. In a letter to the Commission of 6 March 1998, the applicant’s father stated that on 4 March 1998 he had seen his son, who had told him about a check-up carried out by a commission from the Ministry of the Interior in mid-February 1998. After the commission had left, the applicant had been transferred to a cell that was worse equipped and dirty. The window in the cell had been fully shuttered. The bucket for flushing the toilet had been taken away and the toilet could not therefore be cleaned properly, which had caused an unbearable smell. Moreover, the applicant had been given only 25 cl of hot water to prepare tea and milk. All his dishes had been removed. His Bible had been taken away. He had not been allowed to read periodicals and his notebook and calendar had been confiscated. 24. The Government stated that the legal status and conditions of detention of persons sentenced to death were governed by the Act and the Code of Criminal Procedure. Pursuant to section 8 of the Act, a person sentenced to death was kept in custody away from other prisoners. The cell to which the applicant had been transferred after his sentence had become final complied with the sanitary and hygiene rules laid down in section 11 of the Act: the cell measured 9 sq. m and had a bed, a table, a radio, sufficient natural and electric light, heating, running water and a toilet. 25. The applicant was provided with three meals a day, standard clothing and footwear as well as other articles of everyday use. Medical assistance, treatment, prophylactic and anti-epidemic measures were arranged and implemented in accordance with the legislation on health protection. 26. According to section 12 of the Act, prior to the sentence being carried out, prisoners sentenced to death were, as a rule, allowed visits from relatives and other persons not more than once a month, by written permission of the court within whose jurisdiction the case fell. The length of a visit was two hours maximum. After a case had been dealt with by an appellate court, visits by lawyers and legal assistants could be allowed by the head of the Central Directorate of the Ministry of the Interior, the head of the Regional Directorate of the Ministry of the Interior or his deputy responsible for the isolation block. According to section 12 of the Act, visits by defence counsel were allowed without any limits as to their number and length. 27. On 13 December 1995, after the first-instance judgment, the applicant’s parents and lawyer received permission to visit him. The parents visited the applicant on 15 December 1995 and in January 1996. The applicant’s lawyer visited him on 21 December 1995 and on 7 January 1996. During the period from 22 February 1996 to 29 December 1997, the parents applied to the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior for permission to visit the applicant on 24 February, 4 March, 5 April, 4 May, 2 July, 1 October, 18 November and 25 December 1996, and on 3 and 20 June and 19 September 1997. They were granted permission for visits on 24 February, 5 March, 5 April, 4 May, 2 July, 4 October and 4 December 1996, and on 4 March, 4 June, 4 September and 4 December 1997. 28. The applicant’s lawyer applied for permission to visit the applicant on 25 April, 11 November, and 18 and 19 December 1996. Permission was granted for a first visit on 7 May 1996 and on the other occasions as requested. 29. Persons sentenced to death were allowed to send an unlimited number of letters. During the period 1995-98 the applicant sent thirty-one letters: twenty-four letters related to his criminal case and seven letters were to his relatives. The applicant applied for the first time to the Regional Directorate of the Ministry of the Interior for permission to send letters to his relatives on 17 September 1997. Thereafter he sent letters to his parents on 19 and 26 November and 31 December 1997, and on 5, 16, 20 and 30 January, 3 February, 11 March, 6 April, 15 May, 17 June, 6 July, 10 August, 15 September, 22 October, 13 November and 11 December 1998. He received letters from his parents on 18 and 29 September, 19 October, 20 November and 24 December 1997, and on 16 and 26 January, 6, 10 and 23 February, 14 and 16 March, 17 April, 14 May, 1 and 8 June, 1 and 30 July, 20 August, 29 September, 10, 22 and 27 October, 4, 20, 26 and 30 November and 4, 17 and 21 December 1998. 30. The Government further submitted that the Prosecutor-General had conducted a thorough investigation into the applicant’s and his parents’ complaints concerning the application of illegal methods of investigation in the applicant’s case, namely torture and brutal and inhuman treatment. The allegations had not been proved and had been found unsubstantiated. In fact, complaints by the applicant, his parents, his representative and his defence counsel were received on 11 March, 8 April, 13, 14 and 29 May, 24 July, 11 September and 25 October 1996, and on 5 and 17 March, 19 May and 25 July 1997, and answered on 20 and 23 March, 23 and 24 April, 23 May, 27 June, 1 August, 30 September and 14 November 1996, and on 28 and 31 March and 20 May 1997. On 31 July 1997 the exchange of letters and the proceedings concerning the complaints filed by the applicant and his parents were terminated pursuant to section 12 of the Act. 31. In a letter of 26 May 1998 the prison governor replied to a complaint lodged by the applicant’s father on 10 May 1998 informing him that persons sentenced to death were allowed to send twelve letters a year. He also stated that the applicant was aware of his rights and obligations. 32. In a letter of 10 August 1998 the Ivano-Frankivsk regional prosecutor informed the applicant’s father that visits and correspondence of persons sentenced to death were governed by the Instruction and not by the Act to which the applicant’s father had referred in his complaint. 33. In a written complaint of 4 September 1998 addressed to the regional prosecutor the applicant’s parents stated, inter alia, that they had not seen the applicant for three months, that since 5 July 1998 they had not received any letters from him, that on 2 September 1998 they had become aware that the applicant had been beaten and humiliated, that Mr Ivashko, the deputy governor of the prison, had intervened during their visit on 2 September 1998 when the applicant had spoken about his conditions of detention, and that, for a period of one year and six months, the applicant had been denied the possibility of a visit from a priest, despite his requests. 34. In a letter of 10 September 1998 the regional prosecutor informed the applicant’s father that the applicant’s visits and correspondence were governed by the national legislation and that the prison administration had acted within the limits of this legislation. 35. On 10 September 1998 the Ivano-Frankivsk deputy regional prosecutor sent a report to the Prosecutor-General. The report concerned the findings of the investigation carried out following the complaint by the applicant’s father about allegedly unlawful acts by the prison authorities in respect of the applicant’s correspondence and visits. The report concluded that the investigation had not established any violation of the applicant’s rights by the prison authorities. 36. On 11 September 1998 the applicant’s father sent a complaint to Mr Shtanko, the head of the State Department for the Execution of Sentences, to which the latter replied on 12 October 1998. The allegations he raised were similar to those in his complaint to the regional prosecutor of 4 September 1998. Mr Shtanko replied that the applicant had been placed in solitary confinement because he had broken the rules. Furthermore, an investigation had not established that any physical force had been used against the applicant or that the prison authorities had humiliated him or restricted his rights, as was confirmed by the applicant himself. The applicant’s father was also informed that visits, including visits by a priest, could be allowed by the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior. 37. On 23 October 1998 the applicant’s parents submitted a request to the regional prosecutor, the Regional Directorate of the Ministry of the Interior and the prison governor that a commission of independent doctors be set up in order to examine the applicant’s state of health. They alleged that the inmates of the prison had been tortured, which resulted in a suicide attempt by one of them or an attempt on his life. On 3 November 1998 the applicant’s parents were informed by the prison governor that their request had been refused on the grounds that there had been no sign of torture or of the use of any other physical violence against the applicant and that his state of health was satisfactory. 38. On 23 and 24 October 1998 the applicant’s parents sent a letter to Mrs Leni Fischer, then President of the Parliamentary Assembly of the Council of Europe. They complained of torture inflicted on the applicant and one of his fellow inmates, Mr Kuznetsov, which had resulted in a suicide attempt by the latter, and alleged that they had been taken to hospital and that Mr Kuznetsov had been paralysed. The parents further complained that they had been prevented from seeing the applicant. 39. In a letter of 26 October 1998 the applicant’s parents informed the Commission that “in establishment BI 304/199 in Ivano-Frankivsk there [had] been an attempt to execute the unjustly condemned M. Kuznetsov and B. Poltoratskiy illegally, and [that] the Government [had] tried to conceal the fact”. 40. A handwritten medical report issued on 28 October 1998 was signed by the applicant. The report stated that the applicant did not show any signs of having been beaten and that his state of health was satisfactory. 41. In a handwritten statement of 28 October 1998 the applicant said that he had been treated properly by the prison authorities, that no physical violence had been employed, that all disciplinary measures imposed on him had been justified and that his parents’ complaints had not been substantiated. 42. The Regional Directorate for the Execution of Sentences of the Ministry of the Interior issued a report on 29 October 1998 in response to the applicant’s father’s complaint about alleged torture and his request for a commission of independent doctors to examine the applicant’s state of health. The report stated that on 28 October 1998 the applicant had been examined by the prison doctors who had found no signs of physical injury. It also stated that the applicant denied that he had been tortured. 43. In a letter of 30 October 1998 the deputy head of the Regional Directorate of the Ministry of the Interior informed the applicant’s mother that her complaint concerning torture to which the applicant had allegedly been subjected had been examined and found to be unsubstantiated. A medical examination of the applicant had not shown any signs of torture. Accordingly, there was no reason to set up a medical commission to investigate the allegations. 44. A letter of 2 November 1998 from the deputy regional prosecutor to the Prosecutor-General reported on the findings of the investigation carried out in connection with the applicant’s father’s complaint about restrictions on the applicant’s correspondence and visits, the interference by the prison authorities during the applicant’s parents’ visit on 2 September 1998 and the physical torture inflicted on the applicant. The letter said that, as regards the restriction on the applicant’s correspondence and visits, the father had wrongly relied on the Act, which did not apply to that category of prisoners, that the interference by a prison official had been justified, and that on 25 September 1998 the applicant had undergone a thorough medical examination which had not established any physical injuries. Finally, it explained that the applicant had been placed in solitary confinement on 26 August 1998 because he had broken the prison rules by refusing to let himself be examined by a prison warder upon his return from a daily walk outside the cell. 45. In a letter of 20 November 1998 the deputy regional prosecutor replied to the applicant’s mother’s complaint about the physical torture allegedly inflicted on the applicant and to her request for a medical examination of the applicant. He stated that on 28 October 1998 the applicant had undergone a medical examination which had established that the allegations were unsubstantiated. The medical report had been confirmed and signed by the applicant. 46. In a letter of 23 November 1998 the regional prosecutor informed the applicant’s father that his allegations about illegal acts on the part of the prison authorities had been found to be unsubstantiated. 47. In a letter of 30 November 1998 the deputy head of the Regional Directorate of the Ministry of the Interior informed the applicant’s representative, Mr Voskoboynikov, that he could not be granted permission to visit the applicant as the latter had already had a visit from his relatives that month. 48. In a letter of 8 December 1998 from the State Department for the Execution of Sentences the applicant’s father was informed that a thorough investigation had proved that his complaint about an illegal attempt to execute his son was unsubstantiated and that his son’s state of health was satisfactory. 49. On 22 December 1998 the applicant requested permission from the head of the Regional Directorate of the Ministry of the Interior to see a priest. His request was granted and he saw a priest on 26 December 1998. 50. In a letter of 15 February 1999 the prison governor informed the applicant’s father that his complaint of 22 January 1999 had been examined. He stated that persons sentenced to death were allowed to receive two parcels a year but no food parcels. 51. In a decision of 5 March 1999 the Senior Prosecutor rejected a criminal complaint by the applicant’s parents against the deputy regional prosecutor. He refused to institute criminal proceedings against the latter on the ground that there was no evidence of his having committed an offence. He stated, inter alia, that the Act did not apply to the conditions of detention of death-row prisoners. These were governed by the Instruction, which was covered by the rules on State secrecy. 52. According to the prison records, the applicant’s parents applied to visit the applicant on 19 September 1997, and on 4 March, 8 April, 19 June, 22 July, 2 November and 1 December 1998. Permission was given on 7 October 1997, and on 4 March, 22 April, 20 August, 17 November and 11 December 1998 for visits which took place on 4 December 1997 and 4 March, 12 June, 2 September and 26 November 1998 and on 4 January 1999. The request of 19 June 1998 was not granted. 53. According to the prison records, the applicant sent letters to his parents on 17 September, 19 and 26 November, and 31 December 1997, and on 5, 16, 20 and 30 January, 3 February, 11 March, 6 April, 15 May, 17 June, 6 July, 10 August, 15 September, 22 October, 13 November and 11 December 1998. He received letters from them and other persons on 18 and 29 September, 19 October, 20 November and 24 December 1997, and on 16 and 26 January (two letters), 6, 10, 17 and 23 February, 6, 14 and 16 March, 6, 17, 20, 27 and 29 April, 14 May, 1, 8 and 30 June, 1, 20 and 30 July, 20 August (two letters), 29 September, 10, 22 (two letters) and 27 October, 4, 13, 20, 26 and 30 November, 4, 17 and 21 December 1998. 54. In an undated document Mr Y.M. Pavlyuk, the deputy head of the isolation block, declared that during the period between 11 September 1997 and 18 December 1998, neither the applicant nor his parents had asked for permission for the applicant to see a priest. He further declared that during the said period no member of the clergy had asked for such permission. He signed the declaration. 55. According to the applicant’s medical card, the applicant was X-rayed and blood-tested on 23 April 1998. On 25 September, 1 and 28 October, 9, 19 and 27 November, 3, 10, 17 and 24 December 1998 the applicant was seen by a prison psychiatrist. 56. In a written request of 2 May 2000 to the head of the Ivano-Frankivsk Regional Department for the Execution of Sentences of the Ministry of the Interior, Mr Boyko, the applicant’s father, in his capacity as his legal representative, asked for a confidential meeting with the applicant in order to discuss issues concerning his application pending before the European Court of Human Rights. On 23 May 2000, following a further request lodged on 15 May 2000, he was granted permission for a normal visit on 5 June 2000. 57. On 16 May 2000 the applicant’s father complained to the Deputy Minister of the Interior that his request of 2 May 2000 for a confidential meeting had remained unanswered. 58. In a letter of 14 July 2000 the deputy head of the State Department for the Execution of Sentences, Mr V.A. Lyovochkin, replied that Mr Boyko had given the applicant’s father permission to visit the applicant on 5 June 2000 and that the visit had taken place as scheduled. He added that in accordance with Article 40 of the Correctional Labour Code, a lawyer could be given permission for a confidential meeting with his client on presentation of his licence and identity card. 59. Since the facts of the case were disputed, the Commission conducted an investigation, with the assistance of the parties, and took oral evidence from the following witnesses: the applicant; the applicant’s parents; Mr Bronislav S. Stichinskiy, Deputy Minister of Justice; Mr Drishchenko, Deputy Prosecutor-General; Mr Ivan V. Shtanko, Deputy Minister of the Interior; Mr Petro A. Yaremkiv, the governor of Ivano-Frankivsk Prison; Mr Bogdan V. Kachur, prison doctor; Mr Stanislav V. Prokhnitskiy, medical assistant; Mr Yuriy M. Pindus, assistant to the prison governor, who was on duty on 3 September 1998; Mr Fedir O. Savchuk, assistant to the prison governor, who was on duty during the night of 2 to 3 September 1998; Mr Igor P. Ivashko, the deputy governor of the prison; Mr Yaroslav M. Pavlyuk, the deputy head of the isolation block; Mr Valentin M. Nabiulin, the head of the Department for Supervision of Isolation Blocks and Prisons of the Directorate for the Execution of Sentences; Mr Oleksand V. Kmyta, the deputy head of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior; and Mr Anatoliy O. Boyko, the head of the Ivano-Frankivsk Regional Department for the Execution of Sentences of the Ministry of the Interior. The Commission’s findings may be summarised as follows. 60. The applicant gave evidence before the delegates that he had been beaten on 2 September 1998 after the visit from his parents on the same day. During that visit, he had said to his parents that he had been beaten and called a beast. The applicant’s parents stated before the delegates that they had been told by their son on 2 September 1998 that he had been beaten and humiliated. The Commission observed, however, that the applicant denied before the delegates that he had been beaten before 2 September 1998. It considered, therefore, that it had not been established that the applicant had been beaten before 2 September 1998. 61. As to the events on 2 September 1998, the applicant stated before the delegates that, after the visit from his parents on that date, he had been taken to the “cinema room” where four persons, including Mr Pavlyuk, the deputy head of the isolation block on duty, were waiting for him with clubs. He had been asked three times to tell everything, but had refused and had been struck on his legs, hips, back and chest. He had returned to his cell and had written until the morning on four sheets of paper which had been included in a file. 62. The applicant further stated that he had been beaten on 10, 14 and 22 September 1998. One day, during a technical search of his cell, he had been taken out and ordered to get undressed so that his clothes could be checked. When he was naked, he had been beaten. He had been ordered to lie down on the floor with his face to the ground and his hands behind his head. He mentioned the name of K.Y. Hrevnin to the delegates. 63. The Commission considered that the applicant’s account contained a number of details and elements which it would not have expected to find in a fabricated story. It noted, however, that there was no record of any occurrence connected to the ill-treatment described by the applicant. The Commission accepted that the applicant may have been afraid to complain or to write to anyone, as he said. However, it accepted this argument with difficulty, having regard to the fact that he had not been scared when he had told his parents on 2 September 1998 that he had been beaten. Moreover, the prison psychiatrist saw him on 25 September 1998 and had not recorded any problems regarding his state of health or any injuries. The Commission added that the medical report of 28 October 1998, which the applicant had signed, concluded that he did not show any signs of having been beaten and that his state of health was satisfactory. 64. The Commission further noted that the applicant had signed a written statement on 28 October 1998 to the effect that he had been treated properly by the prison authorities, that no physical violence had been used against him, that all disciplinary measures imposed on him had been justified and that his parents’ complaints had not been substantiated. It took into account the fact that, before the delegates, the applicant had denied the contents of his statement, and pointed out that the practice of the prison authorities to require an inmate to confirm in writing that he had been treated properly by prison officers gave rise to suspicion. 65. As to the applicant’s parents’ submission before the delegates that, after the alleged beatings and torture on 2 September 1998, he had been transferred to Chukopovskiy Psycho-Neurological Hospital early in the morning of 3 September 1998 and had been placed in the intensive care unit where he had been given a blood transfusion, the Commission observed that, although the applicant had maintained that he had been beaten after his parents’ visit on 2 September 1998, he had denied that he had been transferred to hospital. This was corroborated by the statements of the prison doctor, the medical assistant, the governor’s assistant on duty at the time and the deputy governor, all of whom had been heard by the delegates. In addition, there was no documentary evidence proving that the applicant had been taken to hospital on the aforesaid date. The Commission did not consider the parents’ evidence on this point convincing or reliable. 66. The Commission found that there was no medical or other material evidence establishing that the applicant had sustained injury as a result of ill-treatment by prison officers in Ivano-Frankivsk Prison, as he had alleged. It had regard to the fact that the applicant had denied that he had been beaten before 2 September 1998 and had been transferred to hospital after that date, and that the absence of any use of force by prison officers on 2, 10, 14 and 22 September 1998 had been supported by the oral statements of the witnesses heard by its delegates. The Commission therefore found it impossible to establish, beyond reasonable doubt, that the applicant had been subjected to ill-treatment in prison as he had alleged. 67. The applicant’s parents sent a complaint to the regional prosecutor on 4 September 1998, claiming, inter alia, that they had become aware that the applicant had been beaten and humiliated by prison officers. They made similar allegations to the head of the State Department for the Execution of Sentences on 11 September 1998. On 12 October 1998 the latter informed the applicant’s father that the investigation had not established that any physical force had been used against his son or that the prison authorities had humiliated him or restricted his rights. He also stated that this finding had been confirmed in writing by the applicant himself. 68. On 23 October 1998 the applicant’s parents requested the regional prosecutor, the Regional Directorate of the Ministry of the Interior and the prison governor to set up an independent medical commission in order to examine the applicant’s state of health. They alleged that the prison’s inmates had been tortured, resulting in a suicide attempt by one of them, Mr Kuznetsov, or in an attempt on his life. On 30 October 1998 the applicant’s mother was informed by the deputy head of the Regional Directorate of the Ministry of the Interior that her complaint concerning the alleged torture of the applicant had been examined and found to be unsubstantiated and a medical examination of the applicant had not revealed any signs of torture. There was, accordingly, no reason to set up a medical commission to investigate her allegations. On 3 November 1998 the prison governor informed the applicant’s parents that their request had been refused on the grounds that there was no sign of torture or the use of any other form of physical violence against the applicant and that his state of health was satisfactory. In a letter of 20 November 1998 to the applicant’s parents, the deputy regional prosecutor confirmed that on 28 October 1998 the applicant had undergone a medical examination which had established that the parents’ allegations were unsubstantiated. Moreover, on 2 November 1998 the deputy regional prosecutor sent a letter to the Prosecutor-General which reported on the results of the investigation carried out in connection with, inter alia, the allegations that the applicant had been physically tortured. The letter confirmed that on 25 September 1998 the applicant had undergone a thorough medical examination which had not revealed any physical injury. 69. The Commission noted that on 8 December 1998 the applicant’s father had received a letter from the State Department for the Execution of Sentences stating that a thorough investigation had proved that his complaint about an attempt to execute his son was unsubstantiated and that the latter’s state of health was satisfactory. The domestic investigation had then ended on 5 March 1999 with a decision by the Senior Prosecutor on the applicant’s parents’ criminal complaint against the regional prosecutor. The Senior Prosecutor had refused to institute criminal proceedings on the ground that no criminal offence had been established. 70. The Commission found that there were no contemporaneous records giving details of any investigation which the domestic authorities had carried out into the applicant’s parents’ allegations of the events in September 1998. It had not seen a single document proving that an investigation had been carried out by any domestic authorities other than those directly involved in the facts of which the applicant’s parents complained. Moreover, the medical report of 28 October 1998 had been drafted almost two months after the applicant’s alleged ill-treatment and the applicant had not been seen by the prison doctor or prison psychiatrist between 23 April and 25 September 1998. 71. The Commission found that the eight death-row inmates at Ivano-Frankivsk Prison, including the applicant, were being kept in single cells without the opportunity to communicate with other inmates. The applicant’s cell measured 2 x 5 x 3 m. There was an open toilet, a washbasin with a cold-water tap, two beds, a table and a little bench, both fixed to the floor, central heating and a window with bars. The applicant had some books, newspapers, a chess set, a stock of soap and toilet paper, some fruit and other food. During the delegates’ visit on 24 and 25 November 1998, the cell had been overheated, particularly in comparison with other rooms in the prison. The light was on twenty-four hours a day and the central radio was switched off at night. The inmates were frequently observed by prison warders through a spy hole in the door of the cell, which deprived them of any kind of privacy. The cell was freshly painted, from which the inference might be drawn that conditions had been worse prior to the delegates’ visit. The Commission accepted the applicant’s evidence that between 24 February and 24 March 1998 there had been no tap or washbasin in his cell, but only a small pipe on the wall near the toilet, that the water supply could only be turned on from the corridor, that the walls were covered with faeces and that the bucket for flushing the toilet had been taken away. The Commission found the applicant’s evidence – which was not contested by the Government – persuasive. 72. The Commission also accepted the applicant’s evidence that, until May 1998, the window in his cell had been shuttered and that he had not been allowed to take daily outdoor walks. 73. Concerning the applicant’s parents’ requests to visit him, the Commission found that, apart from the parents’ request of 19 June 1998, all had been granted. The parents had applied to visit their son on 19 September 1997 and on 4 March, 8 April, 22 July, 2 November and 1 December 1998. Permission had been given on 7 October 1997 and on 4 March, 22 April, 20 August, 17 November and 11 December 1998 for visits which had taken place on 4 December 1997 and 4 March, 12 June, 2 September and 26 November 1998 and 4 January 1999. The Commission noted that the parents’ requests to visit the applicant had mostly been granted for a date two or three months after the request had been made. Moreover, two warders had been present during the visits, who were authorised to interrupt the conversation if they considered that the parents or the applicant had said anything “untrue”. 74. Regarding the applicant’s correspondence, the Commission noted that the applicant had applied for the first time to the Regional Directorate of the Ministry of the Interior for permission to send a letter to his relatives on 17 September 1997. Thereafter he had sent letters to his parents on 19 and 26 November 1997, 31 December 1997, and on 5, 16, 20 and 30 January, 3 February, 11 March, 6 April, 15 May, 17 June, 6 July, 10 August, 15 September, 22 October, 13 November and 11 December 1998. He had received letters from his parents on 18 and 29 September, 19 October, 20 November and 24 December 1997, and on 16 and 26 January, 6, 10 and 23 February, 14 and 16 March, 17 April, 14 May, 1 and 8 June, 1 and 30 July, 20 August, 29 September, 10, 22 and 27 October, 4, 20, 26 and 30 November and 4, 17 and 21 December 1998. 75. The Commission could not establish with sufficient clarity whether the applicant or his parents had asked for permission for a priest to come to see the applicant. It nevertheless found that while the applicant had seen a priest on 26 December 1998 following his request of 22 December 1998, there had been no regular visits to inmates by any chaplain. 76. Under Article 8 §§ 2 and 3, the Constitution is directly applicable. There is a guaranteed right to bring an action in defence of the constitutional rights and freedoms of the individual and of the citizen directly on the basis of the Constitution. 77. Article 9 § 1 provides that international treaties, which are in force and agreed on as binding by the Verkhovna Rada (parliament) of Ukraine, are part of the national legislation. 78. Article 15 § 3 prohibits censorship. 79. Under Article 19 the legal order in Ukraine is based on the principle that no one may be forced to do what is not provided by law. State authorities and local self-government bodies and their officials are required to act exclusively in accordance with this principle, within the limits of their authority, and in the manner provided by the Constitution and the laws of Ukraine. 80. Article 22 provides that human and citizens’ rights and freedoms are guaranteed and may not be reduced by the adoption of new laws or the amendment of those that exist. 81. Under Article 29 §§ 2 and 4 no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with procedures established by law. Everyone arrested or detained must be informed without delay of the reasons for his arrest or detention, apprised of his rights and, from the moment of detention, must be given the opportunity to defend himself in person or to have the assistance of a lawyer. 82. Under Article 55 §§ 2 and 4, everyone is guaranteed the right to challenge the decisions, actions or omissions of State authorities, local self-government bodies and officials and officers of courts of law. After exhausting all domestic legal remedies everyone has the right to appeal for the protection of his rights and freedoms to the relevant international judicial institutions or to the relevant authorities of international organisations of which Ukraine is a member or participant. 83. Under Article 59 everyone has the right to legal assistance. Such assistance is provided free of charge in cases provided by law. Everyone is free to choose who is to defend his rights. In Ukraine, the Bar (адвокатура) ensures the right to a defence against charges and the provision of legal assistance before the courts and other State authorities. 84. Article 63 § 3 provides that a convicted person enjoys all human and citizens’ rights, subject only to restrictions provided by law and determined by a court ruling. 85. According to Article 64, human and citizens’ rights and freedoms guaranteed by the Constitution may not be restricted, except in cases provided by the Constitution. 86. Conditions on death row in the Ukrainian prison system were governed successively by the Instruction of 20 April 1998 on conditions of detention of persons sentenced to capital punishment (“the Instruction”) and by the Temporary Provisions of 25 June 1999 on the conditions of detention of persons sentenced to capital punishment in the isolation blocks (“the Temporary Provisions”). 87. The Instruction provided that after the sentence had become final persons sentenced to death were to be kept in isolation from other prisoners in specially designed cells. Save in exceptional cases, there were to be no more than two such prisoners in one cell. The cell area allocated to one prisoner in a single cell had to be not less than 4 sq. m and in a double cell not less than 3 sq. m. Prisoners were provided with an individual sleeping place and with bed linen. They had to wear a uniform reserved for especially dangerous reoffenders. Reference was also made to their legal status and obligations. The Instruction determined the frequency of visits from relatives and the number of letters they could send and receive: they were allowed one visit per month and could send one letter per month. There was no limitation on the correspondence they could receive. They could receive two small packets a year. They were allowed a daily one-hour walk in the fresh air. Outside their cells, they were handcuffed. They were not allowed to work. 88. Prisoners were also allowed to read books, magazines and newspapers borrowed from the prison library and/or bought through the prison distribution network; they could receive money transfers; they could keep personal objects and food in their cells, and buy food and toiletries in the prison shop twice a month (up to the value of the statutory minimum wage), and play board games. They could meet their lawyers in accordance with the national legislation. Medical treatment was provided also in accordance with the national legislation. 89. Prisoners could lodge complaints with the State authorities. Such complaints had to be dispatched within three days. Complaints addressed to the public prosecutor were not censored. 90. The Temporary Provisions extended the rights of persons sentenced to death compared with the Instruction. In particular, prisoners were allowed to have eight hours’ sleep during the night; they could receive six parcels and three small packets per year, buy food and toiletries in the prison shop (up to the value of 70% of the statutory minimum wage), pray, read religious literature and have visits from priests, and address written complaints to the State authorities. They were allowed to send and receive letters without any limitation and to have monthly visits of up to two hours from their relatives. A prison official had to be present during those visits. Meetings with lawyers in order to provide prisoners with legal aid were organised in accordance with the correctional-labour legislation. 91. According to the Code of Criminal Procedure, pre-trial detention is a preventive measure applicable to an accused, a defendant, a person suspected of having committed a crime punishable with imprisonment or a convicted person whose sentence has not yet been enforced. 92. Under section 8(4) of the Act, persons sentenced to death, but whose sentence had not become final, were to be held separately from all other prisoners. 93. Section 9(1) of the Act provides, inter alia, that detainees have the right (a) to be defended in accordance with the rules of criminal law; (b) to be acquainted with the rules of detention; (c) to take a one-hour daily walk; (d) to receive twice a month a parcel weighing up to 8 kg and to receive unlimited money transfers and amounts of money by way of remittance or personal delivery; (e) to buy food and toiletries to the value of one month’s statutory minimum wage (to be paid for by written order), as well as unlimited amounts of stationery, newspapers and books in prison shops; (f) to use their own clothing and footwear and to have with them documents and notes related to their criminal case; (g) to use television sets received from relatives or other persons and board games, newspapers and books borrowed from the library in their previous place of detention or bought from shops; (h) individually to perform religious rites and use religious literature and objects made of semi-precious materials pertaining to their beliefs, provided that this does not lead to a breach of the rules applicable to places of pre-trial detention or restrict the rights of others; (i) to sleep eight hours a night, during which time they are not required to participate in proceedings or to do anything else except in cases of extreme emergency; and (j) to lodge complaints and petitions and send letters to the State authorities and officials in accordance with the procedure prescribed by section 13 of the Act. 94. Under section 11, detainees are required to be provided with everyday conditions that meet sanitary and hygiene standards. The cell area for one person may not be less than 2.5 sq. m. Detainees are to be supplied with meals, an individual sleeping place, bedclothes and other types of material and everyday provisions free of charge and according to the norms laid down by the government. In case of need, they are to be supplied with clothes and footwear of a standard quality. 95. Under section 12(1), permission for relatives or other persons to visit a detainee (in principle, once a month for one to two hours) can be given by the administrative authorities of the place of detention, but only with the written approval of an investigator, an investigative authority or a court dealing with the case. Under subsection (4), detainees have the right to be visited by defence counsel, whom they may see alone with no restrictions on the number of visits or their length, from the moment the lawyer in question is authorised to act on their behalf, such authorisation being confirmed in writing by the person or body dealing with the case. 96. Under section 13(1), detainees may exchange letters with their relatives and other persons and companies, establishments and organisations with the written permission of an authority dealing with the case. Once a sentence starts to run, correspondence is no longer subject to any limitation. 97. According to Article 28 (Main features of the regime in penal institutions) of the Code, the principal characteristics of the regime in penal institutions are: the compulsory isolation and permanent supervision of sentenced persons, so as to exclude any possibility of crimes or other acts against public order being committed by them; strict and continuous observance of obligations by these persons; and various detention conditions dependent on the character and gravity of the offence and the personality and behaviour of the sentenced person. Sentenced persons must wear a uniform. They must be searched; body searches must be conducted by persons of the same sex as the person searched. Correspondence is subject to censorship, and parcels and packages are subject to opening and checking. A strict internal routine and strict rules must be established in correctional labour establishments. Sentenced persons are prohibited from keeping money and valuables, or other specified objects, in correctional labour establishments. Any money and valuables found are to be confiscated and, as a rule, transferred to the State in accordance with a reasoned decision of the governor of the establishment, sanctioned by a prosecutor. A list of objects which sentenced persons are allowed to possess, giving the number or quantity of each item and the procedure for confiscating objects whose use is prohibited in correctional labour establishments, must be established by the internal regulations of such establishments. Under the provisions of the Code, sentenced persons are allowed to buy food and toiletries (to be paid for by written order), to have visits, to receive parcels, packages, postal packages and money by remittance, to correspond and to send money to relatives by remittance. 98. Article 37 § 1 (Purchase of food and toiletries by sentenced persons) provides that sentenced persons are allowed to buy food and toiletries, to be paid for by written order from the money received by remittance. 99. Article 40 provides, inter alia, that a lawyer may be given permission to see his client on presentation of his licence and identity card. Visits are not limited as to their number and length and, at the lawyer’s request, may be carried out without a prison warder being present. 100. Under Article 41 (Receipt of parcels and small packets by persons sentenced to imprisonment) sentenced persons held in correctional labour colonies (виправнo-тpудова колонія) are allowed to receive, per year: seven parcels in colonies subject to the general regime (колонія загального режиму), six parcels in colonies subject to the restricted regime (колонія посиленого режиму) and five parcels in colonies subject to the strict special regime (колонія суворого режиму). Sentenced persons held in educational labour colonies (колонія виховно-трудова) are allowed to receive per year: ten parcels in colonies subject to the general regime and nine parcels in colonies subject to the restricted regime. Convicted offenders serving their sentence in a prison are not allowed to receive parcels. Irrespective of the type of regime under which they are held, sentenced persons are allowed to receive not more than two small packets per year, and to buy reading matter through the sales distribution network without any restrictions. The quantity of parcels and small packets of all types is not restricted for sentenced persons held in correctional labour colony camps (виправнo-тpудова колонія-поселення). A list of foodstuffs and toiletries which sentenced persons are allowed to receive in parcels and small packets, as well as the procedure for their receipt and delivery to the sentenced persons, is to be established in the internal regulations of correctional labour establishments. 101. Under Article 42 (Receipt and sending of money by sentenced persons by remittance) sentenced persons are allowed to receive unlimited amounts of money by remittance, as well as to send money to their relatives and, if this is permitted by the authorities of the correctional labour establishments, to other persons. The money received by remittance is transferred to the personal account of the sentenced person. 102. Article 43 § 2 (Correspondence of persons sentenced to imprisonment) provides that sentenced persons held in prisons may receive unlimited mail and may send letters as follows: one letter per month for those held under the general regime and one letter every two months for those held under the strengthened regime. 103. According to section 12(1) of the Public Prosecutor’s Office Act, the public prosecutor shall deal with petitions and complaints concerning breaches of the rights of citizens and legal entities, except complaints that are within the jurisdiction of the courts. Subsection (4) provides that an appeal lies from the prosecutor’s decision to the supervising prosecutor and, in certain cases, to the court. Subsection (5) provides that the decision of the Prosecutor-General is final. 104. Under section 38 the prosecutor or his deputy has the power to make a request to a court for any materials in a case where a judgment or another decision has come into force. If there are any grounds for reopening the proceedings, the prosecutor may challenge the court judgment or any other decision. 105. Under section 44(1) the matters subject to the public prosecutor’s supervision are: adherence to the legal rules on pre-trial detention and correctional labour or other establishments for the execution of sentences or coercive measures ordered by a court; adherence to the procedures and conditions for holding or punishing persons in such establishments; the rights of such persons; the manner in which the relevant authorities carry out their duties under the criminal law; and legislation on the enforcement of sentences. The public prosecutor may at any time visit places of pre-trial detention, establishments where convicted persons are serving sentences or establishments for compulsory treatment or reform, in order to conduct interviews or consult documents on the basis of which persons have been detained, arrested or sentenced or subjected to compulsory measures; he may also examine the legality of orders, resolutions and decrees issued by the administrative authorities of such establishments, terminate the implementation of such acts, appeal against them or cancel them where they do not comply with the law, and request officials to give explanations concerning breaches which have occurred. 106. In its resolution, the Assembly deplored the executions which, reportedly, had been carried out recently in Latvia, Lithuania and Ukraine. In particular, it condemned Ukraine for apparently violating its commitment to introduce a moratorium on executions of the death penalty upon its accession to the Council of Europe. It called upon this country to honour its commitments regarding the introduction of a moratorium on executions and the immediate abolition of capital punishment, warning it that further violation of its commitments, especially the carrying out of executions, would have consequences under Order no. 508 (1995). 107. The Assembly confirmed in this resolution that it had received official information that, in the first half of 1996, eighty-nine executions had been carried out in Ukraine, and regretted that the Ukrainian authorities had failed to inform it of the number of executions carried out in the second half of that year. The Assembly was particularly shocked to learn that executions in Ukraine had been shrouded in secrecy, with apparently not even the families of the prisoners having been informed, and that the executed prisoners had reportedly been buried in unmarked graves. It condemned Ukraine for having violated its commitment to put into place a moratorium on executions, deplored the executions that had taken place, and demanded that Ukraine immediately honour its commitments and halt any executions still pending. 108. In these texts, the Assembly noted that Ukraine had clearly failed to honour its commitments (212 persons had been executed between 9 November 1995 and 11 March 1997, according to official sources). At the same time, it noted that since 11 March 1997 a de facto moratorium on executions had been in effect in Ukraine. The Assembly insisted that the moratorium be reconfirmed de jure and that the Verkhovna Rada ratify Protocol No. 6 to the Convention. It stressed the importance of the de facto moratorium on executions and firmly declared that, if any further executions took place, the credentials of the Ukrainian parliamentary delegation would be annulled at the following part-session of the Assembly, in accordance with Rule 6 of its Rules of Procedure. 109. Delegates of the CPT visited places of detention in Ukraine in 1998, 1999 and 2000. Reports on each of the visits were published on 9 October 2002, together with the responses of the Ukrainian government. 110. The visit of the delegation, which took place from 8 to 24 February 1998, was the CPT’s first periodic visit to Ukraine. In the course of the visit the delegation inspected, inter alia, Pre-Trial Prison (SIZO – “investigation isolation establishment”) no. 313/203 in Kharkiv. On the ground floor of building no. 2 were housed at the time of the visit fifteen prisoners who had been sentenced to death, although as was recorded in a footnote to the report, the delegation had received assurances that since 11 March 1997 a de facto moratorium on executions had been observed. 111. In its report (§ 131), the CPT expressed at the outset its serious concern about the conditions under which these prisoners were being held and about the regime applied to them. It was noted that prisoners sentenced to death were usually accommodated two to a cell, the cell measuring 6.5 to 7 sq. m. The cells had no access to natural light, the windows being obscured by metal plates. The artificial lighting, which was permanently on, was not always sufficiently strong with the result that some cells were dim. To ventilate the cells, prisoners could pull a cord that opened a flap. Despite this, the cells were very damp and quite cold (§ 132). The equipment in the cells was described in the report as being rudimentary, consisting of a metal bed and/or sleeping platform (fitted with a thin mattress, sheets of dubious cleanliness and a blanket which was manifestly insufficient to keep out the cold), a shelf and two narrow stools. Prisoners were supposed to be able to listen to radio programmes via a speaker built into the wall of the cell, but the delegation had been told that the radio only functioned sporadically (ibid.). All the cells had non-partitioned toilets which faced the living area; as a result, a prisoner using the toilet had to do so in full view of his cellmate. As regards toiletries, prisoners sentenced to death were in a situation as difficult as that of many of the other inmates; items such as soap and toothpaste were scarce (ibid.). It was further recorded that prisoners sentenced to death had no form of activity outside their cells, not even an hour of outdoor exercise. At best they could leave their cells once a week to use the shower in the cell-block, and for an hour once a month if they were authorised to receive family visits. In-cell activities consisted of reading and listening to the radio when it worked. Apart from the monthly visits which some inmates received, human contact was limited essentially to the occasional visit by an Orthodox priest or a member of the health-care staff, who spoke to the prisoners through a grille in the cell door (§ 133). 112. The CPT summarised its findings as follows (§ 134): “In short, prisoners sentenced to death were locked up for 24 hours a day in cells which offered only a very restricted amount of living space and had no access to natural light and sometimes very meagre artificial lighting, with virtually no activities to occupy their time and very little opportunity for human contact. Most of them had been kept in such deleterious conditions for considerable periods of time (ranging from 10 months to over two years). Such a situation may be fully consistent with the legal provisions in force in Ukraine concerning the treatment of prisoners sentenced to death. However, this does not alter the fact that, in the CPT’s opinion, it amounts to inhuman and degrading treatment.” It was further recorded that the delegation had received numerous complaints from prisoners sentenced to death about the fact that they lacked information with regard to their legal situation (the progress of their cases, follow-up to applications for cases to be reviewed, examination of their complaints, etc.) (§ 138). 113. In its response to the 1998 report, the Ukrainian government recorded that a number of organisational and practical steps had been taken to resolve the problems identified by the CPT. In particular, the Temporary Provisions had been introduced to guarantee to prisoners sentenced to death the right to be visited once a month by relatives, to be visited by a lawyer to get legal assistance, to be visited by a priest and to receive and send correspondence without limitation. It was further noted (i) that prisoners sentenced to death would have daily walks in the open air and that for this purpose 196 yards of pre-trial prisons had been rebuilt or re-equipped; (ii) that, in order to improve the natural lighting and air of all cells, the blinds and metal plates over cell windows had been removed; and (iii) that, for the purposes of informing inmates sentenced to death of their rights and legal status, extracts from the Temporary Provisions had been posted on the walls of each cell. 114. A CPT delegation visited Ukraine from 15 to 23 July 1999, on which occasion it again inspected SIZO no. 313/203 in Kharkiv where, at that time, twenty-three prisoners who had been sentenced to death were being detained. The report noted that certain changes had occurred since the previous visit. In particular, the cells had natural light and were better furnished and the prisoners had an hour of exercise per day in the open air, although it was observed that there was insufficient space for real physical exercise (§§ 34-35). The report further recorded that important progress had been made in the right of prisoners to receive visits from relatives and to correspond (§ 36). However, the CPT noted certain unacceptable conditions of detention, including the fact that prisoners continued to spend twenty-three out of twenty-four hours a day in their cells and that opportunities for human contact remained very limited (§ 37). 115. A third visit to Ukraine took place from 10 to 21 September 2000, in the course of which the delegation inspected, inter alia, Pre-Trial Prison (SIZO) no. 15 in Simferopol. The CPT welcomed the decision of the Ukrainian authorities to abolish the death penalty and noted that most of the approximately 500 prisoners subject to the death sentence had had their sentences commuted to life imprisonment. 116. Despite these welcome developments, the CPT declared that the treatment of this category of prisoner was a major source of concern (§ 67). It was noted that, further to a provisional instruction issued in July 2000 and pending the establishment of two high-security units specifically intended for life prisoners, such prisoners were subjected to a strict confinement regime (§ 68). While living space in the cells was generally satisfactory and while work had started on refurbishing cells in all the establishments visited, there were major deficiencies in terms of access to natural light and the quality of artificial light and ventilation (§ 69). Moreover, life prisoners were confined in their cells for twenty-three and a half hours a day with no form of organised activities and, by way of activities outside their cells, were entitled to only half an hour of outdoor exercise, which took place in unacceptable conditions. There was virtually no human contact: since the entry into force of the July 2000 instruction, visits from relatives had been forbidden and prisoners were only allowed to send one letter every two months, although there were no restrictions on receiving letters (§ 70). 117. In their response to the report, the Ukrainian government noted further legal amendments which ensured that life prisoners had one hour of exercise per day and two family visits of up to four hours per month. Further, to ensure adequate access to light, the metal blinds had been removed from the windows of all cells.

dev

001-97655

ENG

TUR

ADMISSIBILITY

TASDEMIR v. TURKEY

Inadmissible

Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant, Mr Resul Taşdemir, is a Turkish national who was born in 1979. He was serving a sentence in the Erzurum Prison when the application was lodged. On 6 September 2005, to celebrate World Peace day, the applicant participated in a demonstration in the district of Doğubeyazıt in the Ağrı Province, outside the building that housed the DEHAP (the Democratic People's Party). During the demonstration someone read out a press statement and the crowd, including the applicant, shouted slogans. Subsequently, criminal proceedings were initiated against the applicant and five other accused persons, pursuant to Article 215 of the Criminal Code, for praising a criminal and a crime. In the indictment, the prosecution stated that the applicant had shouted “Biji Serok Apo, HPG cepheye misillemeye” (Long live Apo! HPG (the armed wing of the PKK) to the front line in retaliation!). During the proceedings, the court took into consideration the defence statements of the accused, as well as CD recordings and photographs taken during the demonstration. Before the court, the applicant accepted that he was the person in the CD recording and the photograph. He further stated he had shouted slogans in support of peace. In a final decision dated 13 April 2007, the Erzurum Assize Court convicted the applicant as charged and sentenced him to twenty-five days' imprisonment. The court then commuted the prison sentence to a fine of 500 Turkish liras (TRY) (equivalent to 270 euros). As the applicant failed to pay the fine, he served his sentence of imprisonment.

dev

001-114491

ENG

RUS

CHAMBER

CASE OF Y.U. v. RUSSIA

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

6. The applicant was born in 1980 and lives in the town of Khimki, the Moscow Region. 7. In July 2004 the applicant married Mr O.A. 8. In the applicant’s submission, after the registration of the marriage her husband told her that his father, Mr M.A., was an influential person in the criminal world. She also submits that her husband has informal connections with police officers. 9. On 19 August 2004 the applicant gave birth to a son, M. 10. In 2007 marital tensions began to develop between the couple. 11. On 28 April 2008 Mr O.A. threw the applicant out of their family home without M. He said that he would take M. to Armenia and would not allow the applicant to contact the boy. 12. The applicant kept calling her son on the phone, but her husband’s family did not allow her to speak to M. Her attempts to visit her son were futile. 13. On 15 May 2008 the applicant instituted divorce proceedings before the Moscow Kuzminskiy District Court (“the district court”). She also requested the court to make an order concerning the child’s place of residence and to restrict Mr O.A.’s parental rights (“to remove a child from a parent” within the meaning of Article 73 of the Family Code of Russia). 14. On 25 August 2008 Mr O.A. and M. officially registered their place of residence as being at the Nikitskoe residence. In the applicant’s submission, Mr O.A. did not ask for her consent when changing M.’s place of residence. 15. In September 2008 the applicant saw her son for the first time since her separation from her husband for twenty minutes in the presence of Mr O.A., his mother and sister, as well as officials of child welfare authorities. 16. Two different district child welfare authorities examined the applicant’s and Mr O.A.’s respective places of residence. The Khimki Town Child Welfare Authority (“the Khimki child welfare authority”) delivered a report stating that it was in the best interests of the child to stay with the applicant, while the Moscow Kuzminki District Child Welfare Authority (“the Kuzminki child welfare authority”) decided that it was best for M. to live with his father, who had good living conditions and was prosperous. 17. On 13 November 2008 the district court dissolved the applicant’s marriage. It further found that the best interests of M. required that he reside with his mother. The judgment read, in so far as relevant, as follows: “Having assessed all [the available] evidence as a whole, the court sees no reason to order that the child’s place of residence be with his father after the dissolution of the marriage, since it has not been proven that his mother has acted in breach of the child’s best interests. For a lengthy period of time the child has been living with the defendant without his mother’s consent. The defendant has not taken any real steps to reunite the family after the institution of court proceedings and has not provided the claimant with an opportunity to see the child. ... The court disagrees with the conclusions of the Kuzminki child welfare authority, as they are based exclusively on the fact that the defendant has certain assets ... The defendant did not deny that he had kept the child at his place [of residence against the claimant’s will], which was not taken into account by the [Kuzminki] child welfare authority when drafting the conclusions. The child was born in 2004 ... Taking into account the his mother to bring him up, [and] the conclusions of the Khimki child welfare authority, the court considers it appropriate, while dissolving the parties’ marriage, to order that the child live with his mother, while ensuring his father’s rights as a separately-residing parent. The court has thus decided to dissolve the marriage ... The child ... should continue residing with [the applicant].” 18. Mr O.A. later asked the police to institute criminal proceedings against the applicant, claiming that she had hired a hitman to kill him. On 6 March 2009 the authorities dismissed the request and refused to open a criminal investigation against the applicant. 19. Mr O.A. sent letters to child welfare authorities claiming that the applicant was trying to kill him. At some point he alleged that he had been beaten up on the street by persons hired by the applicant. Criminal proceedings instituted in this respect were suspended owing to the authorities’ inability to identify those responsible. 20. At some point the Kuzminki child welfare authority changed its view and produced another report stating that M. should live with his mother. 21. On an unspecified date Mr O.A. appealed against the district court judgment and sought the withdrawal of the applicant’s parental rights because she had allegedly organised an attempt on his life. 22. On 22 January 2009 the Moscow City Court (“the city court”) quashed the district court judgment of 13 November 2008 in part as regards the child’s place of residence for the reason that the two child care authorities had issued conflicting reports and remitted the case for fresh examination at first instance. 23. On 17 April 2009 the district court again decided that M. should reside with his mother. The judgment read, in so far as relevant, as follows: “The representative of the Kuzminki child welfare authority ... considers it appropriate [for the court] to order that the child’s place of residence should be with his mother, but does not support [the applicant’s] claim to have the child removed [from his father] and considers it unsubstantiated. The representative of the Kuzminki child welfare authority supports [the applicant’s] claims and considers it necessary to order that the child live with his mother, having removed him from his father. ... The court grants the claims in part ... Under Article 73 of the Family Code of Russia a court ... may decide to remove a child from [his or her] parents (or one of them) without a withdrawal of parental rights. [Such a] restriction of parental rights is permissible where it is dangerous for a child to stay with [his or her] parents (or a parent) because of circumstances out of the parent(s) control, such as a mental illness or other disease or distressing circumstances. The Khimki and Kuzminki child welfare authorities established that ... [the applicant]’s room was equipped with everything necessary for the child ... The court has established that the defendant has impeded the claimant’s contact with the child, has breached the child’s rights to know who his mother is and to be brought up by his mother and has thus breached Articles 55, 56, 61 and 63 of the Family Code of Russia, while under the law in force he as a parent is obliged to protect the child’s rights and interests ... and not to breach the claimant’s rights concerning the child. Taking into account all the circumstances as a whole, the court finds no reason to order that the child’s place of residence be with his father, because it has been proven that his father has been violating the child’s rights and those of the claimant. For a lengthy period the child has been living with his father without the claimant’s consent, the defendant has impeded the child’s contacts with his mother. The defendant has not ensured that the claimant could stay in full contact with the child, [and] has not ensured the child’s right to be brought up by his mother ... Taking into account all the his mother to bring him up, [and] the conclusions of the child welfare authorities, the court considers it appropriate to order that the child live with his mother, while ensuring the father’s rights as a separately-residing parent. The claim to remove the child from his father is not granted [on that basis that it is] unsubstantiated, since the plaintiff has not shown, as required by Article 73 of the Family Code of Russia, that [the defendant] suffers from a mental or other illness or is in distressing circumstances. The court has decided to order that M., born in 2004, reside with his mother, [the applicant]. The remainder of the claims is dismissed.” 24. Mr O.A. appealed against the judgment. 25. On 6 August 2009 the city court upheld on appeal the judgment of 17 April 2009, which became final. 26. On 31 August 2009 the applicant was issued a writ of execution on the basis of the judgment of 17 April 2009 stating that the child should reside with his mother. The writ was issued on a form which was no longer in use after 15 August 2009. 27. The applicant sent the writ to the circuit bailiffs’ office. On 3 September 2009 the bailiffs’ service for the South-Eastern Circuit of Moscow (“the circuit bailiffs’ office”) delivered a decision refusing to institute enforcement proceedings because the writ was issued on an old form. They sent the decision to the applicant by post. She received it on 29 September 2009. 28. It appears that on a number of occasions the applicant visited the circuit bailiffs’ office premises in person. 29. On 15 September 2009, during one of those visits, bailiffs showed the applicant their office’s undated decision not to commence the enforcement proceedings but refused to officially serve it on the applicant, claiming that she would receive it by post. 30. The circuit bailiffs’ office did not return the writ of execution issued on the old form to the applicant, thus precluding her from immediately applying to the district court for a writ in the new form. 31. On 21 September and 28 October 2009 the applicant requested the district court to issue a writ of execution in the new form. 32. On 21 September 2009 the applicant’s representative requested the district court to order the immediate enforcement of the judgment of 17 April 2009. 33. In October 2009 a deputy head of the circuit bailiffs’ office notified the applicant in writing that their decision of 3 September 2009 had been unfounded. 34. On 19 November 2009 the district court issued a new writ of execution and the applicant received it on an unspecified date upon her request. 35. The applicant complained to a prosecutor’s office about the failure to institute enforcement proceedings. On 4 December 2009 the prosecutor’s office for the South-Eastern Circuit of Moscow dismissed her complaint, stating that a decision making an order in respect of a child’s place of residence was of a factual nature and could not be enforced under the Federal Enforcement Act 1997. 36. Nevertheless, on 11 December 2009 the circuit bailiffs’ office instituted enforcement proceedings but delivered a decision to postpone the use of enforcement measures for the reason that the manner in which the judgment required to be executed was not clear. For this reason, on 16 December 2009 the circuit bailiffs’ office requested the district court to clarify the requirements of the writ of execution and to specify the manner in which it should be enforced. 37. While awaiting the district court’s decision, the circuit bailiffs’ office postponed the use of enforcement measures because the writ of execution was unclear on 25 December 2009 and 18 January 2010. 38. On 28 January 2010 the Federal Migration Service issued M., upon his father’s request, with a passport enabling him to leave the territory of the Russian Federation. 39. On 29 January 2010 the district court dismissed the circuit bailiffs’ office’s request for clarification stating that, when performing his duties, a bailiff should use all powers provided for by law. 40. On 4 February 2010 the circuit bailiffs’ office sent an official summons to Mr O.A.’s address and also sent him an order to immediately comply with the judgment of 17 April 2009 as upheld on appeal on 6 August 2009. Furthermore, on 3 and 11 February and 21 April 2010 bailiffs from the circuit bailiffs’ office visited Mr O.A.’s place of residence indicated in the writ of execution on Zelenodolskaya Street in Moscow (“the Zelenodolskaya flat”). Mr O.A. was absent on all three occasions. The bailiffs established that Mr O.A. resided at the address in question and that M. was absent. 41. On 11 February 2010 the circuit bailiffs’ office received a request for termination of the enforcement proceedings from Mr O.A. for the reason that M. had moved from Moscow to the village of Nikitskoe, in the Ramenskiy District of the Moscow Region. 42. On 25 February 2010 Mr O.A.’s representative was served with an order requiring Mr O.A. to comply with the court judgment. The representative explained that Mr O.A. resided together with his son M. in the village of Nikitskoe. The representative asked the circuit bailiffs’ office to terminate the enforcement proceedings for the reason that Mr O.A. had moved away from Moscow, which resulted in a delay in the execution of the judgment. 43. On the following day the circuit bailiffs’ office asked the bailiffs’ service for the Ramenskiy District of the Moscow Region (“the Ramenskoe bailiffs’ office”) to visit Mr O.A. at the Nikitskoe residence. A bailiff from that office visited the Nikitskoe residence on 19 March 2010. Nobody was home but the bailiff established that both Mr O.A. and M. resided there. 44. On 7 and 10 April 2010 the applicant notified the police that her son had been kidnapped. 45. On 20 April 2010 a bailiff from the Ramenskoe bailiffs’ office again visited the Nikitskoe residence. Nobody was home but the bailiff established that Mr O.A. resided there and M. was absent. On the same day, however, police officers paid a visit to Mr O.A.’s house in Nikitskoe. Both Mr O.A. and M. were there. M.’s identity was confirmed by his passport, which Mr O.A. presented to the police. A police officer talked to M. in the presence of Mr O.A.’s adult family members. No further action was taken. 46. Towards the end of April 2010 the applicant visited the Moscow City Department of the Interior. Officers P. and O. told her that they had gone to Nikitskoe on 20 April 2010 and had seen her son. They produced a picture of a boy. The applicant did not recognise her son in that picture. 47. On 21 April 2010 a bailiff from the circuit bailiffs’ office visited Mr O.A.’s flat at 11 Ferganskaya Street in Moscow. Nobody opened the door at first. Mr O.A. later appeared and told the bailiff that M. was absent from the flat. He refused to receive a copy of the decision ordering the commencement of enforcement proceedings and requiring him to comply with the judgment. 48. On 19 May 2010 an investigator from the South-Eastern Circuit Investigative Unit of the Investigative Committee of the Russian Prosecutor’s Office (“the investigator”) visited the village of Nikitskoe. He met Mr O.A., his father, as well as M.’s aunt, uncle and cousin near a café not far from the Nikitskoe residence. The investigator talked to M. and his minor cousin in the presence of the adults. M. said that he lived with his father and the latter’s wife and that he did not want to live with his mother. The investigator made a video of M. and his minor cousin. 49. On 20 May 2010 the police unit in charge of cases involving minors paid a visit to the Nikitskoe residence and issued a certificate upon its examination confirming that Mr O.A. and his son M. lived in good conditions. The following day the Ramenskoe Town Prosecutor’s Office notified the applicant of the following. Mr O.A., his wife, parents and M. were residing in Nikitskoe in a six-room house. M. did not go to kindergarten but was receiving daily private lessons from a teacher hired by Mr O.A. In the event of M. having medical problems Mr O.A. personally took him to a Moscow hospital. Mr O.A. performed his parental duties in full and the child had a separate bedroom. M. resided in Mr O.A.’s house in Nikitskoe on a permanent basis. 50. On 22 May 2010 the investigator issued a decision not to institute a criminal investigation into the alleged kidnapping for lack of a criminal event, because the child lived with his father. 51. On 3 June 2010 the circuit bailiffs’ office issued a decision to search for the applicant’s son which was forwarded to the police on 29 June 2010. 52. On 8 July 2010 the applicant and a journalist went to Nikitskoe and saw Mr M.A. and M.’s cousin. Mr M.A. told the applicant that her son was not in the village. On the same date the police established that M. resided at the Nikitskoe residence confirmed by a photo of a police officer together with M. and his cousin. On 12 July 2010 the police communicated this information to the circuit bailiffs’ office. 53. The decision of 22 May 2010 not to institute criminal proceedings into the kidnapping was quashed on 30 July 2010 by the Moscow City Investigative Committee of the Russian Prosecutor’s Office. On 6 August 2010 a new decision not to open an investigation into M.’s kidnapping was taken but this decision was also quashed. 54. On 13 August 2010 Mr O.A. came to the Ramenskoe Town Prosecutor’s Office to give “explanations” concerning his son. 55. On 25 August 2010 a bailiff from the Ramenskoe bailiffs’ office again visited the Nikitskoe residence. Nobody was home. The bailiff established that Mr O.A. resided there and M. was absent. 56. On 2 September 2010 the Ramenskoe bailiffs’ office took over the case, having received the writ of execution, and opened enforcement proceedings. 57. On 9 September and 2 and 25 November 2010 bailiffs from the Ramenskoe bailiffs’ office visited the Nikitskoe residence. Nobody was home on these dates. 58. On 18 October 2010 the Ramenskoe District Council Child Welfare Authority (“the child welfare authority”) paid a visit to the Nikitskoe residence and established that M. lived there with his father. 59. On 2 November 2010 the investigator together with a bailiff from the Ramenskoe bailiffs’ office, a representative of the child welfare authority, the applicant and her mother came to the Nikitskoe residence. Nobody was home. The investigator questioned the neighbours, who confirmed that Mr. O.A.’s family lived there most of the time. The authorities established that Mr O.A. might reside at three other Moscow addresses. 60. On 9 November 2010 the investigator visited two flats in Moscow: one at 11 Ferganskaya, and another one at 13 Ferganskaya Street. It was established that Mr O.A.’s brother lived at 11 Ferganskaya Street, while Mr O.A.’s sister resided at 13 Ferganskaya Street. Both explained that Mr O.A. lived at the Nikitskoe residence. 61. On 10 November 2010 the investigator again decided not to open a criminal case concerning the allegation of kidnapping. 62. On 29 November 2010 the Ramenskoe bailiffs’s office summoned Mr O.A. to their premises on 1 December 2010. Mr O.A. failed to appear. 63. On 30 November 2010 the applicant complained to the district court about the investigator’s decision of 10 November 2010 not to open criminal proceedings. The complaint was returned to the applicant in order for her to eliminate defects in the document. 64. On 2, 17, 25, 26, 27 and 29 December 2010 bailiffs from the Ramenskoe bailiffs’ office, accompanied on some occasions by the police and the applicant, visited the Nikitskoe residence. Nobody was home. 65. On 23 December 2010 the Ramenskoe bailiffs’ office ordered a temporarily limit on Mr O.A.’s freedom to leave the Russian Federation and forwarded the order to the border control service. On the same date the Ramenskoe bailiffs’ office decided to search for the child and forwarded a decision in that regard to the police. They repeated their request on 28 December 2010. 66. On 29 December 2010 a bailiff from the Ramenskoe bailiffs’ office imposed a fine of 1,000 Russian roubles (approximately 25 euros) on Mr O.A. for a continuing failure to comply with the requirements of the writ of execution. 67. On 4 January 2011 the district court dismissed the applicant’s complaint about the prosecutors’ refusal of 10 November 2010 to institute criminal proceedings in connection with her son’s kidnapping. 68. On 5, 12 and 17 January 2011 bailiffs from the Ramenskoe bailiffs’ office visited the Nikitskoe residence. Nobody was home. They also asked the police to send a police officer on a daily basis to the Nikitskoe residence in order to check whether Mr O.A. and M. resided there. 69. On 18 January 2011 the applicant lodged another complaint with the district court about the investigator’s decision of 10 November 2010. On 4 February 2011 the complaint was dismissed. On 23 March 2011 the Moscow City Court upheld the first-instance decision at final instance. 70. It appears that on an unspecified date the Ramenskoe district department of the interior decided to resume the investigation into the applicant’s allegations of kidnapping. In the course of this investigation, on 2 February 2011 an official from the unit in charge of cases involving minors questioned M. in the presence of his father. M.’s identity was confirmed by his passport. M. told the official that he wanted to live with his father. 71. On 7 February 2011 it was decided once more not to institute criminal proceedings into the alleged kidnapping. The applicant did not challenge the decision. 72. On an unspecified date the transport police informed the Ramenskoe bailiffs’ office that Mr O.A. had purchased a plane ticket to Sochi for 27 February 2011. On 27 February 2011 bailiffs came to the airport to question Mr. O.A. but he was not among the passengers boarding the plane. On the same date the bailiffs went to the Nikitskoe residence but Mr O.A. and M. were not there. 73. On 2 March 2011 the Khimki Town Police Department opened a file concerning the search for M. and put him on the federal search list. 74. On 10 March 2011 the Ramenskoe bailiffs’ office requested the district court to clarify the manner in which the execution of its judgment of 17 April 2009 should be carried out. On 21 March 2011 the district court issued a clarification concerning the execution of its judgment of 17 April 2009, stating that Mr O.A. was under an obligation to take M. to the applicant’s place of residence. 75. On 26 April 2011 the bailiffs suspended the execution proceedings in the absence of Mr O.A. and M. 76. On 10 May 2011 the police visited the Nikitskoe residence. Mr O.A. and M. were absent. Mr O.A.’s father explained that they were in the Zelenodolskaya flat. 77. On 11 May 2011 Mr O.A. talked to a prosecutor on the phone and stated that he and his family were on vacation until the end of May 2011 and refused to give the particulars of M.’s whereabouts. 78. According to the Government’s submissions of 30 May 2011, M.’s whereabouts remained unknown to that date. 79. According to the information provided by the applicant on 13 September 2012, the judgment of 17 April 2009 remains unenforced to that date and M. continues to live with his father. The applicant submitted that she had not seen her son for several years. 80. Both parents have equal parental rights (Article 61 § 1). Parents have a right and an obligation to bring up their children. The parents’ right to bring up their children has precedence over such a right of any other person (Article 63 § 1). A child’s place of residence in case of separation of the parents should be established by an agreement between the parents. If the parents disagree on a child’s place of residence, the dispute should be resolved by a court, taking into account the child’s best interests and their opinion. The court should consider how attached a child is to each parent, his or her age, the moral qualities of the parents, their material welfare, family status, and so forth (Article 65 § 3). A parent residing separately from his or her child has a right to contact him or her and to participate in his or her upbringing (Article 66 § 1). A court may restrict parental rights (“to remove the child from the parent”) if a parent could be dangerous to his or her child because of circumstances out of their control (a mental or other illness, distressing circumstances) or where their behaviour is dangerous for the child but not to the extent necessary to warrant withdrawal of parental rights (Article 73 § 2). 81. A bailiff must issue a decision to open enforcement proceedings or to refuse to do so within three days of receipt of a writ of execution (Article 30). The creditor, the debtor and the bailiff can ask the court which issued the writ of execution to clarify its provisions and the manner of its enforcement (Article 32 § 1). If the debtor fails to fulfil the obligations contained in the writ of execution within the time-limit established for doing so voluntarily, the bailiff shall recover an execution fee from the debtor and set up a new time-limit for the execution of those obligations (Article 105 § 1). If the debtor does not fulfil the obligations within the newly established time-limit, the bailiff shall impose a fine on the debtor (Article 105 § 2). The court must examine complaints about the decisions, actions or inaction of bailiffs within a ten-day time-limit (Article 128 § 4).

dev

001-59536

ENG

CHE

CHAMBER

CASE OF F.R. v. SWITZERLAND

Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

Christos Rozakis

8. The applicant, a Swiss citizen born in 1941, is a businessman residing in Gersau in Switzerland. 9. The applicant’s son founded the R.AG, a construction company, whereby the applicant acted as guarantor (Bürge) for a credit. He also assisted his son in various administrative tasks concerning the company. 10. In 1994, the R.AG company went bankrupt. The Compensation Office (Ausgleichskasse) of the Canton of Schwyz suffered losses in particular as to contributions of the company to the old age insurance scheme. The Compensation Office regarded the applicant as being the administrative and commercial manager of the company and therefore liable for the sum of 13,925.05 Swiss francs (CHF). 11. The applicant objected, whereupon on 28 January 1995 and 3 January 1996 the Compensation Office introduced a compensation action against the applicant. 12. The action was upheld on 11 December 1996 by the Administrative Court (Verwaltungsgericht) of the Canton of Schwyz which nevertheless reduced the amount to CHF 12,462.15. 13. In its decision, the Administrative Court referred, inter alia, to the statement of a certain R.H., a former member of the board of the company, according to which the applicant had granted the company an advance payment. The Court then examined whether the applicant had in fact had the position of an executive (Organ) of the company and whether in this respect it was necessary to hear the witnesses Ch.R and R.H. The decision referred, inter alia, to two letters of the applicant to the Compensation Office, i.e., of 24 December 1993 in which he stated that the company no longer had any assets, and of 27 July 1994 in which he had signed "as a representative". As a result, the Court concluded that the applicant had in fact had the position of an executive of the company, for which reason further evidence was not necessary. 14. On 31 January 1997 the applicant filed an administrative law appeal with the Federal Insurance Court (Eidgenössisches Versicherungsgericht), contesting the action, and requesting the hearing of various witnesses, inter alia, Ch.R. and R.H. as well as the March District Court where he had introduced proceedings against a certain R.H. 15. The applicant’s appeal was transmitted for observations to the Administrative Court of the Canton of Schwyz, the Compensation Office of the Canton of Schwyz, and the Federal Social Insurance Office (Bundesamt für Sozialversicherung). 16. On 28 February 1997, the Administrative Court of the Canton of Schwyz submitted its observations on the applicant’s administrative law appeal to the Federal Insurance Court, the statement numbering five pages. The Administrative Court proposed in particular the dismissal of the applicant’s appeal. In its statement the Administrative Court commenced with a "preliminary remark" according to which the applicant had not, in the administrative proceedings, referred to the separate procedure before another court concerning a certain R.H. As a result, the Court had not regarded it necessary to consult that case-file, and it could not be said that the Administrative Court had not sufficiently examined the facts. The Administrative Court further stated that the applicant had implicitly admitted that he was an executive of the R.AG company when filing the letters of 24 December 1993 and 27 July 1994. 17. According to the submissions of the Administrative Court, it further transpired from separate execution proceedings that various foreign currency deals had been transacted by the applicant’s family over the R.AG, leading to returns of CHF 65,989.40. However, the R.AG was concerned with constructions, not with foreign currency deals. It could not be said that the applicant had not been in a position to take decisions with binding legal effect. The Administrative Court also considered it unnecessary to hear the witnesses Ch.R. and R.H. Thus, in its decision it had considered that the two witnesses were quarrelling with each other, and the applicant had not shown in what respect the hearing of these witnesses would be useful. 18. The Compensation Office submitted a similar statement, whereas the Federal Social Insurance Office did not file any submissions. 19. On 2 May 1997 the Federal Insurance Court transmitted the statement of the Administrative Court of the Canton of Schwyz to the applicant for information, expressing its regret that it had by mistake not done so earlier on. 20. On 15 May 1997 the applicant submitted a statement on the submissions of the Administrative Court of 28 February 1997. The front page read: "the observations contain three important new points which were not contained in the decision of the Administrative Court. I could not therefore make any observations thereupon in my administrative law appeal of 31 January 1997. As a result, it must be possible for me now to make such observations which I am herewith submitting." 21. The applicant then pointed out that the Administrative Court had stated that he had never mentioned a further set of proceedings against a certain R.H. This was a new point. He had only found out about R.H. in the decision of the Administrative Court itself, for which reason he could not have commented thereupon in the proceedings before the Administrative Court. The applicant furthermore pointed out that the Administrative Court had made new submissions when stating that in view of his letters of 24 December 1993 and 27 July 1994 he had effectively accepted having the position of an executive of the R.AG company. 22. Finally, the applicant explained that the Administrative Court’s submissions were also new to the extent that reference was made to foreign currency deals. This information came from the separate proceedings before another District Court, the March District Court, and not from him. To the extent that the Administrative Court concluded on the basis of this information that the applicant had, in fact, had the position of an executive, he should have been permitted to comment on this point. 23. The Federal Insurance Court dismissed the applicant’s administrative law appeal on 10 June 1997. 24. The decision first recalled the procedure before the Federal Insurance Court itself, noting in particular that the applicant had submitted further observations on 15 May 1997 without being requested to do so. The court then noted that according to Section 110 § 4 of the Federal Judiciary Act (Organisationsgesetz), observations were only exceptionally exchanged a second time between the parties. The decision continued: "(Such a second exchange of observations) will be required for reasons of a fair hearing if in the observations new factual statements have been made, the correctness of which does not immediately transpire from the case-file and which are of relevance for the decision. As regards new legal arguments it must be borne in mind that the Federal Insurance Court is called upon ex officio to apply the correct law. The mere fact that these observations refer to supporting arguments in addition to those mentioned in the contested decision cannot justify the possibility to reply thereto. It would be different, if the Federal Insurance Court were of the opinion that the contested decision could be upheld, not with the reasons originally given, but with other reasons, now mentioned in the observations ... In the light of these principles the applicant’s request along these lines, namely to have a second exchange of observations, appears unfounded. It is irrelevant in this respect that the observations of the Administrative Court were only submitted belatedly (nachträglich). Thus, in those observations no new factual or legal points were raised: Rather, the circumstances mentioned by the applicant (statement of R.H. about advances paid to the capital of the company; profits from currency deals) disclose that they were already known in the case-file stemming from the proceedings of the Gersau and Lachen execution authorities and thus clearly transpired from the file. Therefore, the applicant could, and ought to, have prepared everything necessary in order to avoid a second exchange of observations ... Furthermore, the new point of the previous court which he has mentioned, regarding his executive position, merely concerns an additional argument which further supports the grounds mentioned in the contested decision. This does not warrant the possibility of a further reply. As a result, the applicant’s observations, submitted without being so requested, cannot be legally considered (aus dem Recht zu weisen)." 25. Insofar as the applicant complained that certain witnesses had not been heard, the Federal Insurance Court considered, inter alia, that the Administrative Court had pertinently mentioned the circumstances under which a company executive became liable for the company’s debts. In respect of the witnesses Ch.R. and R.H., the hearing of which had been requested by the applicant, the Court referred to the accurate observations filed by the Administrative Court on 28 February 1997. 26. According to Section 128 of the Federal Judiciary Act (Organisationsgesetz), the Federal Insurance Court is called upon to examine administrative law appeals against cantonal decisions in last resort concerning matters of social insurance. In principle, the court is free to establish the facts. However, according to Section 105 § 2 of the Act, it considers itself bound by the facts if the lower instance which determined them was a court to the extent that the determination is not manifestly incorrect, incomplete or in breach of essential procedural rules. As a result, there is only a limited possibility to put forward new facts in the proceedings before the Federal Insurance Court (see Bundesgerichtsentscheide [BGE] 120 V 485). 27. In the administrative law proceedings before the Federal Insurance Court there is, in principle, only one exchange of statements in which the other parties and instances concerned may file their observations on the administrative law appeal (Section 110 § 4 of the Federal Judiciary Act). According to the practice of the Federal Insurance Court, a second exchange of statements will take place if new facts transpire in the observations the correctness of which cannot be established in the case-file and which observations appear pertinent for the final decision. If new legal considerations are raised for the first time in these observations, a second exchange of statements will take place if the contested decision can no longer be based on the reasons given by the lower court (see BGE 119 V 323; 114 Ia 314; 111 Ia 3; 94 I 662).

dev

001-73128

ENG

RUS

CHAMBER

CASE OF CHERNITSYN v. RUSSIA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Christos Rozakis

8. The applicant was born in 1931 and lives in Krasnodar. 9. In 1993 the applicant sued his former employer, the public company “KAPRSM”, for unpaid compensation for a work-related injury, caused by a lorry owned by another company, “KTS”. 10. On 21 April 1997 the Takhtamukayskiy District Court found for the applicant and awarded him a lump sum and life-long monthly payments. The lump sum was made up of the principal amount, interest thereon and a penalty for belated payments. 11. On 3 June 1997 the Supreme Court of the Adygheya Republic set aside the judgment in the part concerning the claim for penalty and remitted that claim for a new examination. It upheld the remainder of the judgment. The claim for penalty was subsequently examined by courts of various levels. As of March 2002 the claim was pending before the District Court. 12. On 15 March 2002 the acting President of the Takhtamukayskiy District Court lodged an application (представление) with the Supreme Court of the Adygheya Republic to quash the judgment of 21 April 1997 and all other judgments in the case, because the defendant in the applicant’s action should have been KTS that had owned the lorry rather than KAPRSM that had been the applicant’s employer. 13. According to the Government, on 15 August 2002 the Supreme Court informed the applicant that the above application would be examined at a hearing on 27 August 2002. 14. On 27 August 2002 the Presidium of the Supreme Court of the Adygheya Republic granted the application and quashed the previous judgments, including those of 21 April and 3 June 1997. It found that those judgments had been unlawful because the lower courts had failed to determine the proper defendant. The applicant’s claims were remitted for a new examination. 15. In the resumed proceedings, on 12 May 2003 the Takhtamukayskiy District Court established that the applicant had been informed of the possibility to substitute the legal successor of the KTS company as the proper defendant and to join the regional branch of the Social Security Fund as a third party, but he had not agreed to the substitution. His claim was therefore dismissed as being directed against an improper defendant. 16. In his observations on the admissibility and merits of the case of 25 November 2003, the applicant made certain abrasive remarks which prompted the respondent’s Government request to declare the application inadmissible as an abuse of the right of petition. 17. In its admissibility decision of 8 July 2004, the Court rejected the Government’s request for the reason that they had not identified the allegedly abusive expressions or passages in the applicant’s submissions and as the application had not been knowingly based on untrue facts. The Court noted, nevertheless, that some of the applicant’s statements had been irrelevant and excessively emotional. 18. In September 2004 the applicant and the Government filed their observations on the merits of the application. The Section President set 11 November 2004 as the time-limit by which the parties could submit written comments in reply to each other’s observations. 19. In a letter of 19 October 2004, the applicant commented on the Government’s observations in the same abrasive manner. 20. In their observations on the merits of the case and letters of 14 December 2004 and 18 January 2005, the Government invited the Court to declare the application inadmissible as an abuse of the right of petition. Drawing a parallel between the conduct of Mr L.R. (see L. R. v. Austria, no. 2424/65, Commission decision of 24 May 1966) and that of the applicant, they claimed that the expressions used by the applicant were even more insulting than those used by Mr L. R. against the representatives of the Austrian Government. The Government reproached the Court for not having invited the applicant to withdraw or amend the objectionable statements. They submitted that the applicant’s letter of 19 October 2004 was a further evidence of his abusive attitude to the proceedings before the Court. 21. On 29 September 2005 the Court considered the Government’s request to declare the application inadmissible in connection with the applicant’s persistent use of offensive language and invited the applicant to withdraw his inappropriate remarks and to offer a formal apology. 22. By letter of 3 November 2005, the applicant informed the Court as follows (translated from Russian): “I formally withdraw my rough remarks about the Government and about the Government’s representative Mr Laptev which were considered offensive. I also offer my sincere apology to the Court, to the Government and to Mr Laptev. It was not my intention to offend anyone...” 23. In their comments on the applicant’s letter, the Government asked the applicant to identify the expressions he apologised for.

dev

001-72662

ENG

POL

CHAMBER

CASE OF LESZCZAK v. POLAND

Violation of Art. 5-3;Non-pecuniary damage - financial award

Nicolas Bratza

4. The applicant was born in 1982 and lives in Siecie, Poland. 5. On 15 April 2000 the applicant was arrested. On the following day the Słupsk District Court remanded him in custody until 15 May 2000 on suspicion of homicide and attempted burglary. It relied on the evidence given by the applicant’s co-suspect. In addition, the court held that his detention was justified in order to secure the proper conduct of the proceedings and referred to the severity of the anticipated penalty. Furthermore, having regard to the fact that the applicant had not confessed, the court considered that there was a reasonable risk that he would attempt to induce witnesses to give false testimonies or otherwise interfere with the proceedings. 6. On 11 May 2000 the District Court prolonged the applicant’s detention until 15 July 2000. It referred to the reasonable suspicion of his having committed the offences in question and the severity of the anticipated penalty. The court further held that there was a reasonable risk that the applicant would unlawfully obstruct the proceedings, having regard to the fact that his co-suspect had not been detained at the time. Additionally, it relied on the need to obtain further expert evidence. Lastly, the court considered that other preventive measures would not secure the proper conduct of the proceedings. 7. On 11 July 2000 the Słupsk Regional Court dismissed the prosecutor’s request for prolongation of the applicant’s detention and ordered his release. It found that there had been no other evidence of the applicant’s alleged involvement in the offences in question than the statements of his co-suspect. In addition, the statements of that co-suspect had not been consistent as at the earlier stage of the investigation he had excluded a possibility of the applicant’s involvement in the offences. The applicant was released on 11 July 2000. 8. On 11 July 2000 the Regional Court ordered the applicant to undergo a six-week psychiatric examination in order to determine whether he could be held criminally responsible. 9. On 17 July 2000 the prosecutor appealed against the decision refusing his request for prolongation of the applicant’s detention. On 26 July 2000 the Gdańsk Court of Appeal quashed the contested decision for failure to assess all the evidence in favour and against holding the applicant in custody and remitted the case. 10. Between 10 August and 4 September 2000 the applicant underwent examination in a psychiatric hospital. 11. On 17 August 2000 the Słupsk Regional Court again refused the prosecutor’s request for prolongation of the applicant’s detention. The prosecutor’s request was based on the evidence given by the applicant’s co-suspect. The Regional Court, however, found it to be unreliable. The prosecutor appealed against the decision of 17 August 2000. On 30 August 2000 the Gdańsk Court of Appeal quashed the impugned decision on procedural grounds and remitted the case. 12. On 18 September 2000 the Słupsk Regional Court ordered the applicant’s detention for a period of 2 months. It held that the period of the applicant’s examination in a psychiatric hospital should count towards his detention on remand. The Regional Court relied on the statements of the applicant’s co-suspect, which it had found to be consistent. Further, it had regard to a report by the smell recognition expert (opinia osmologiczna) of 10 September 2000 and medical evidence concerning the victim of the homicide. It also relied on the severity of the anticipated penalty. The applicant was re-detained on 22 September 2000. 13. On 19 October 2000 the bill of indictment against the applicant and three of his co-accused was submitted to the Słupsk Regional Court. 14. On 20 October 2000 the Regional Court extended the applicant’s detention until 28 January 2001. In addition to the grounds invoked in its previous decision, the court considered that the applicant’s continued detention was necessary in order to secure the proper conduct of the proceedings, given the serious nature of the offences with which the applicant had been charged. 15. The trial court held hearings on 22, 23 and 24 November and 8 December 2000. 16. On 15 December 2000 the Słupsk Regional Court convicted the applicant of aggravated homicide and attempted burglary and sentenced him to 15 years’ imprisonment. The applicant appealed against that judgment. 17. On 22 March 2001 the Gdańsk Court of Appeal quashed the judgment of the Regional Court and remitted the case for retrial. It found that the trial court had exceeded its discretion as to the assessment of relevant evidence, in particular in respect of that given by the applicant’s principal co-accused and the findings of the smell recognition expert. 18. On the same date the Court of Appeal ordered that the applicant be kept in custody until 30 June 2001. It noted, having regard to the statements of the applicant’s principal co-accused and the report by the smell recognition expert, that there was a strong likelihood that the applicant had committed the offences in question. Furthermore, it relied on the severity of the anticipated penalty. 19. The applicant’s detention was subsequently prolonged by the Regional Court on five occasions: on 28 June 2001 (until 30 October 2001), on 29 October 2001 (until 30 January 2002), on 15 January 2002 (until 30 April 2002), on 18 April 2002 (until 30 June 2002) and on 14 June 2002 (until 30 August 2002). In all those decisions, the Regional Court reiterated the grounds given in the Court of Appeal’s decision of 22 March 2001. In addition, it referred to the circumstances in which the offences in question had been committed and the need to obtain further expert evidence. 20. The Regional Court held hearings on 11, 12 and 13 December 2001 and 13 February, 18 March, 18 April and 10 May 2002. 21. On 10 July 2002 the Słupsk Regional Court convicted the applicant and his co-accused of aggravated homicide and attempted burglary and sentenced him to 15 years’ imprisonment. The applicant appealed against that judgment. On the same date the Regional Court prolonged the applicant’s detention until 30 October 2002. 22. On 30 January 2003 the Court of Appeal quashed the first-instance court judgment in respect of the applicant on the same grounds as previously and remitted the case. 23. Subsequently, the applicant’s detention was extended by the Regional Court on five occasions: on 28 April 2003 (until 30 July 2003), on 17 June 2003 (until 30 October 2003), on 10 October 2003 (until 30 December 2003), on 12 December 2003 (until 31 January 2004) and on 15 January 2004 (until 31 March 2004). The Regional Court reiterated the grounds previously given for his detention. In addition, the court held that the applicant’s continued detention was justified by the gravity of the offences with which he had been charged. In the court’s view, the applicant’s detention was the only measure which could secure the proper conduct of the proceedings. In the decision of 17 June 2003 the Regional Court noted that his continued detention was necessary in order to obtain another report of the smell recognition expert. 24. The applicant’s numerous appeals against the prolongation of his detention and requests to be released were to no avail. 25. The Regional Court held hearings on 17, 18, 20, 21 November, 10, 12 December 2003 and 15 January and 20 February 2004. In September and November 2003 respectively two reports of the smell recognition experts were submitted to the trial court. 26. On 27 February 2004 the Regional Court gave judgment and acquitted the applicant. He was released on the same day. On 8 July 2004 the Gdańsk Court of Appeal upheld the judgment of the Regional Court. The prosecution filed a notice of cassation appeal, but subsequently withdrew it. 27. In February 2005 the applicant filed an application for compensation in respect of his manifestly unjustified detention with the Słupsk Regional Court. These proceedings are pending. 28. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju). 29. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads: “1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.” 30. Article 258 lists grounds for detention on remand. It provides, in so far as relevant: “1. Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” 31. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” Article 259, in its relevant part, reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” 32. The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided: “1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months. 3. The whole period of detention on remand until the date of the first conviction at first instance may not exceed 2 years. 4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.” 33. On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested in the court of appeal within whose jurisdiction the offence in question has been committed.

dev

001-90179

ENG

BIH

CHAMBER

CASE OF KUDIC v. BOSNIA AND HERZEGOVINA

Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

4. The applicants were born in 1928 and 1933 respectively and live in Bihać. 5. Prior to the dissolution of the former Socialist Federal Republic of Yugoslavia (“the SFRY”) the applicants deposited foreign currency in their bank accounts at the Privredna banka Sarajevo Glavna filijala Bihać. In Bosnia and Herzegovina, as well as in other successor States of the former SFRY, such savings are commonly referred to as “old” foreign-currency savings (for the relevant background information see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-...). 6. Following several unsuccessful attempts to withdraw their funds, the applicants initiated court proceedings seeking the recovery of their entire “old” foreign-currency savings and accrued interest. 7. By a decision of the Bihać Municipal Court of 3 December 1993, the Privredna banka Sarajevo Glavna filijala Bihać was ordered to pay the applicants 54,469.42 German marks (DEM), 19,257.25 Swiss francs, 81.12 French francs, 60,120.49 Austrian shillings, 185.61 Canadian dollars, 231.86 US dollars, 163.39 Dutch guilders and 22,217.60 Italian liras, default interest on the above amounts at the rate applicable to overnight deposits from private individuals from 1 January 1992 and legal costs in the amount of DEM 1,940. The judgment entered into force on 12 June 1994. 8. On 9 April 1997 the Bihać Municipal Court issued a writ of execution (rješenje o izvršenju). The execution proceedings were effectively stayed between 12 January 1998 and 12 September 2001. 9. Meanwhile, on 28 November 1997, the judgment debt became a public debt pursuant to the Settlement of Claims Against the Federation of Bosnia and Herzegovina Act 1997. 10. On 6 April 2005 the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina (“the Human Rights Commission”) found a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention arising from a failure to enforce the judgment of 3 December 1993. It ordered the Federation of Bosnia and Herzegovina to ensure full enforcement of the judgment in issue within two months, to pay the equivalent of 255 euros in respect of non-pecuniary damage within three months and to pay default interest after the expiry of the above time-limits at the annual rate of 10%. 11. On 28 October 2005 the applicants received the compensation awarded by the Human Rights Commission. 12. The judgment of 3 December 1993 was fully enforced on 5 June 2007 (the applicants were paid the principal debt, default interest and legal costs in the amounts specified in the judgment). 13. For relevant law and practice see the admissibility decision in Jeličić, cited above; Suljagić v. Bosnia and Herzegovina (dec.), no. 27912/02, 20 June 2006; the judgment in Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006...; and Pejaković and Others v. Bosnia and Herzegovina, nos. 337/04, 36022/04 and 45219/04, 18 December 2007.

dev

001-104804

ENG

TUR

CHAMBER

CASE OF GAZİOĞLU AND OTHERS v. TURKEY

Violation of Art. 3;Violation of Art. 11

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

5. The applicants were born in 1984, 1980, 1955 and 1979 respectively and live in Istanbul. 6. On 17 October 2003 the applicants took part in an anti-war demonstration in Istanbul. The gathering was dispersed by police officers and the applicants were arrested and taken into police custody where they remained until their release the following day. The applicants allege that they were subjected to ill-treatment during their arrest and their detention in custody. 7. According to an incident report drawn up by a number of police officers on 17 October 2003, fifty to sixty persons, including the applicants, gathered in a square in Istanbul at 7.45 p.m. and chanted anti-war slogans, protesting against the Government’s proposals to send soldiers to participate in the invasion of Iraq. The police had warned them with loudspeakers that they were disturbing the flow of traffic and had unsuccessfully asked them to disperse. When the police had attempted to arrest some of the demonstrators and put them into the police vehicles, a number of the demonstrators had displayed “rowdy behaviour” and the police had had to use force against them. A total of six persons, including the applicants, had been arrested and taken to a police station at 8.30 p.m. the same evening. This incident report was signed by six police officers who were only referred to in the report with their identification numbers. 8. The same day the applicants were examined by a doctor. According to the medical reports, the second and third applicants had no signs of ill-treatment on their bodies. The first applicant had bruising on her lower lip and on her lower right leg. The fourth applicant had bruising on the left side of his lower back and on the back of his right ear. His legs were also sensitive and he had redness in his left eye. 9. The same evening the applicants were questioned by the police in the presence of a duty lawyer. With the exception of the third applicant, all the applicants exercised their right to remain silent. 10. The following day the applicants were examined by a doctor once more. According to the medical reports, there were no signs of ill-treatment on the applicants’ bodies other than those mentioned in the medical reports drawn up the previous day. 11. At around 2 p.m. the same day the applicants were brought before the Bakırköy prosecutor. The applicants told the prosecutor that by attending the demonstration they had been exercising their democratic rights. They also alleged that the police had arrested them without any previous warnings. The fourth applicant complained that he had been beaten up by the police officers. The first and fourth applicants also complained that police chief M. T. had sworn at them during their time in police custody. The same day the applicants were released. 12. On 21 October 2003 the Bakırköy prosecutor asked for an investigation to be opened into the applicants’ allegations of ill-treatment. 13. The applicants submitted a formal complaint to the Bakırköy prosecutor on 5 November 2003. With the exception of the third applicant, Mr Hacı Badem, the applicants complained of ill-treatment. Referring to Article 3 of the Convention the three applicants stated that the police officers had punched and kicked them in the course of their arrests, as well as during their detention at the police station. 14. Between 10 December 2003 and 13 April 2004 the Bakırköy prosecutor questioned eleven police officers. Ten of the police officers denied having been at the demonstration or having seen any of the demonstrators because they had been working elsewhere at the time. The remaining officer, police chief M.T., told the prosecutor that he had not taken part in the dispersal of the demonstration but had questioned the applicants in police custody. He denied having ill-treated any of the arrestees or having sworn at them. 15. On 14 April 2004 the Bakırköy prosecutor decided to close the investigation into the applicants’ allegations of ill-treatment. On the basis of the documents in the file the prosecutor considered that when the applicants refused to disperse the police had had to use force against them. The applicants’ “simple injuries” had thus been caused when the police had been exercising their statutory powers on the use of force. 16. The applicants’ objection against the prosecutor’s decision was rejected by the Eyüp Assize Court on 8 December 2004. This decision stated that it was to be served on the applicants. 17. According to a hand-written note on this decision, it was communicated to the applicants on 9 February 2005. 18. In the meantime, on 21 October 2003 criminal proceedings were instigated against the applicants for having taken part in an unlawful demonstration, in breach of sections 33, 36 and 40 of the Meetings and Demonstration Marches Act (Law no. 2911). 19. On 28 January 2008 the Bakırköy Criminal Court of First Instance acquitted the applicants, holding that they had exercised their democratic rights and not committed any offences.

dev

001-98965

ENG

ROU

CHAMBER

CASE OF RACAREANU v. ROMANIA

Violation of Art. 3

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

5. The applicant was born in 1971 and lives in Bucharest. 6. On 19 February 2001 the applicant was arrested by the Bucharest Police on suspicion of drug trafficking. The next day he was placed in pre-trial detention by the prosecutor attached to the Bucharest District Court. 7. On 15 March 2001 the prosecutor committed the applicant for trial. 8. On 19 November 2001 the District Court convicted the applicant of drug trafficking and sentenced him to ten years and four months' imprisonment. 9. The sentence was upheld on appeal by the Bucharest County Court (decision of 3 April 2002) and on appeal on points of law by the Bucharest Court of Appeal (final decision of 25 June 2002). 10. On 30 August 2002 the applicant requested the revision of the judgment, arguing that he was in possession of new relevant evidence that would prove his innocence and that he was willing to deliver it in person to the prosecutor. On 3 February 2003 the Bucharest District Court declared his application inadmissible. 11. The applicant was held in detention from 19 February 2001 until his release on 19 May 2009. 12. Between 19 February 2001 and 4 July 2001 he was held in the detention facilities at Bucharest Police Station. From 4 July 2001 he was detained for the most part in Jilava Penitentiary and Rahova Penitentiary in Bucharest. For short periods of time, from March 2008, he served his sentence in the penitentiaries in Mărgineni, Tîrgu Jiu, Craiova and Aiud. 13. The applicant described the cells in Jilava Penitentiary as overcrowded and dirty, alleging that he contracted skin infections and scabies and caught fleas. 14. As for Rahova Penitentiary, he claimed that he shared a 6 sq. m room equipped with 10 beds with 11-13 other detainees. The room was infested with bedbugs and the walls were mouldy. Warm water was available once a week for one hour and heating was available in the evenings for one hour. The cell was ventilated through a window, but the door was constantly closed. The window pane was missing and the inmates put up a blanket in order to cover it. 15. Outdoor exercise was allowed twice a week for one hour. 16. The food was bad, and meat was available only on Christian holidays and in the event of inspections. 17. The detainees were taken for medical check-ups once a week and when treatment was needed they were advised to seek medicine from their families. 18. The Government provided official information, submitted by the Penitentiary authorities, concerning the size and facilities of all the cells that the applicant had occupied during his detention. 19. In Jilava, he stayed in the following cells: nos. 301, 209, 210, 310 and 314 which were all 32.99 sq. m in size and accommodated 19-44 inmates at the time; no. 510 which was 42.39 sq. m in size and accommodated 41-44 inmates at that time; and in no. 308 which was 51.23 sq. m in size and accommodated 23 inmates. The official documents did not give the exact number of bunks per cell. 20. Each cell had a window and separate sanitary facilities with two toilets and a sink with drinking water. Hot water was available only in a special bathing area where the inmates were taken once a week. Each winter heating was available between 1 November and 31 March, according to a pre-established schedule. 21. The inmates were responsible for the cleaning of their cells, using products put at their disposal by the penitentiary. Pest control measures and insecticide treatments were carried out each trimester. 22. The applicant was allowed at least 30 minutes of outdoor exercise per day. 23. In Rahova Penitentiary, the applicant shared a 19.55 sq. m cell with a maximum of 9 co-detainees. It had 10 bunk beds. A 5.55 sq. m room with a toilet and cold water was attached to the cell. Hot water was available twice a week between 12 noon and 2 p.m. and 5 p.m. and 7 p.m. The cells and the toilets had windows. 24. As in Jilava, the inmates cleaned their own cells and pest control measures were carried out each trimester. Outdoor exercise was allowed for one to two hours each day. 25. According to the prison medical record, the applicant was registered on 19 February 2001 as a drug user, with the last dose being taken eight hours before the consultation. He was also recorded as suffering from posttraumatic stress, as a consequence of bone fractures suffered in 1996. On 21 and 23 February 2001 he was recorded as suffering from withdrawal syndrome. 26. From 28 February to 4 March 2001 he went on hunger strike. On 29 May 2003 the applicant was taken to the medical care centre after having attempted to commit suicide. 27. Regular check-ups were organised for the 1996 bone fractures. Several investigations were undertaken in the context of his requests for early release. On 5 February 2004 an orthopaedist in Jilava Penitentiary Hospital recommended surgery to remove the internal fixation (osteosynthesis) of the fractures. The repeated examinations and expert reports by the penitentiary doctors and by the Mina Minovici National Institute of Forensic Medicine (Institutul Naţional de Medicină Legală Mina Minovici - “the INML”) consistently concluded that adequate treatment and surgical intervention were possible in the penitentiary medical system. However, the applicant refused to be operated on in the penitentiary hospitals. 28. In letters of complaint sent to various authorities and to the Court, the applicant and his wife claimed that the painkillers that he had received in prison had been insufficient for the pain associated with his bone fractures. From 2006 the applicant was given additional medicine for stomach ache, which he attributed to the painkillers prescribed. 29. On two occasions the applicant requested early release from prison on medical grounds, arguing that the bone fractures he had suffered in 1996 needed further treatment. 30. His first request was rejected on 21 January 2004 by the Bucharest District Court, based on a medical expert report of 20 January 2004 which had concluded that the applicant's conditions were treatable in the penitentiary hospitals. The applicant appealed. A new expert report ordered in the case also concluded that the applicant was medically fit for detention. Therefore, on 24 June 2004 the Bucharest County Court upheld the above judgment. The County Court also found that, in so far as the applicant's conditions were treatable in the penitentiary hospitals, his repeated requests to be treated in a civilian hospital or abroad were an abuse of process. 31. His second request for release, filed with the Bucharest District Court on 29 September 2005, was finally rejected on 19 April 2007, after numerous postponements caused by the applicant's refusal to undergo a medical examination. The expert report drafted on 26 March 2007 after the applicant's examination concluded once again that his conditions were treatable in the penitentiary hospitals. 32. The domestic legislation on the execution of sentences, in particular Law no. 23/1969, Emergency Ordinance no. 56/2003 (“Ordinance no. 56/2003”) and Law no. 275/2006, is described in Petrea v. Romania, no. 4792/03, §§ 21-23, 29 April 2008. 33. The relevant findings and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are described in Bragadireanu v. Romania, no. 22088/04, §§ 73-75, 6 December 2007, and Artimenco v. Romania (no. 12535/04, §§ 22-23, 30 June 2009). In particular, the Court notes that in the report on the 2002-2003 visits, the CPT expressed concern at the limited living space available to prisoners and the insufficient space provided by the regulations in place at that date. It also noted that prisoners were sometimes obliged to share a bed and that the toilets were not sufficiently separate from the living space.

dev

001-58299

ENG

DEU

GRANDCHAMBER

CASE OF BEER AND REGAN v. GERMANY

No violation of Art. 6-1

Luzius Wildhaber;Paul Mahoney

10. Mr Karlheinz Beer is a German national, born in 1952 and resident in Darmstadt. MrPhilipRegan is a British national, born in 1960 and resident in London in the United Kingdom. 11. In 1982 the first applicant, a civil engineer by profession and employed by the French company S., was placed at the disposal of the European Space Agency to perform services at the European Space Operations Centre in Darmstadt. The first applicant’s contract was later taken over by the French company T. The second applicant, a systems programmer and employed by the Italian company T.I., was placed at the disposal of the European Space Agency to perform services at the European Space Operations Centre in Darmstadt in 1991. 12. The European Space Agency (“ESA”) with headquarters in Paris, formed out of the European Space Research Organisation (“ESRO”) and the European Organisation for the Development and Construction of Space Vehicle Launchers (“ELDO”), was established under the Convention for the Establishment of a European Space Agency (“ESA Convention”) of 30 May 1975 (United Nations Treaty Series 1983, vol. 1297, I – no. 21524). ESA runs the European Space Operations Centre (“ESOC”) as an independent operation in Darmstadt (Agreement concerning the European Space Operations Centre of 1967 – Official Gazette (Bundesgesetzblatt) II no. 3, 18.1.1969). 13. In October and November 1993 the applicants instituted proceedings before the Darmstadt Labour Court (Arbeitsgericht) against ESA, arguing that, pursuant to the German Provision of Labour (Temporary Staff) Act (Arbeitnehmerüberlassungsgesetz), they had acquired the status of employees of ESA. In his submissions, the second applicant indicated that, by letter of 27 September 1993, his employer T.I. had dismissed him. 14. In the respective labour court proceedings, ESA relied on its immunity from jurisdiction under Article XV § 2 of the ESA Convention and its Annex I. 15. On 21 March 1995 the Darmstadt Labour Court, following hearings, declared the applicants’ respective actions inadmissible. In both decisions, the Labour Court considered that ESA had validly relied on its immunity from jurisdiction. The Labour Court, referring to section 20(2) of the Courts Act (Gerichtsverfassungsgesetz), according to which immunity from jurisdiction could be provided for, inter alia, in international agreements, considered that ESA enjoyed such immunity under Article XV § 2 of the ESA Convention and its Annex I. In its reasoning, the Labour Court considered in particular that ESA had been established in 1975 as a new and independent international organisation. It therefore rejected the applicants’ argument that ESA was bound by Article 6 § 2 of the Agreement concerning ESOC, which had subjected the former ESRO to German jurisdiction in cases of disputes with its employees which were outside the competence of its Appeals Board. The Labour Court further recalled that the Federal Labour Court (Bundesarbeitsgericht), in a decision of 10 November 1993 in a similar case (file no. 7 AZR 600/92; see the Waite and Kennedy v. Germany judgment of 18 February 1999, to be published in the Court’s official reports, §§ 21-25), had found that the rules in question did not conflict with fundamental principles of German constitutional law. 16. In view of the decisions taken in the case of Mr Waite and Mr Kennedy, the applicants did not pursue the matter. 17. In the proceedings instituted by the second applicant against his dismissal by the company T.I. (see paragraph 13 above), a settlement had been reached in the Darmstadt Labour Court on 6 September 1994. According to this settlement, the second applicant’s employment with the company T.I. had terminated on 31 December 1993, and the company T.I. undertook to pay to the second applicant the sum of 22,000 marks (DEM) for loss of job. 18. Under the terms of an agreement concluded on 20 June 1995 with the first applicant, terminating his contract of employment on 30 June 1995, the company T. undertook to pay to the first applicant the sum of DEM 14,000 for lawyer’s fees incurred in labour court proceedings concerning his dismissal and DEM 305,000 for the loss of his job. 19. Section 1(1)(1) of the Provision of Labour (Temporary Staff) Act (Arbeitnehmerüberlassungsgesetz) provides that an employer who, on a commercial basis (gewerbsmäßig), intends to hire out his employees to third persons - hiring employers (Entleiher) - must obtain official permission. Section 1(9)(1) provides that contracts between the hirer-out (Verleiher) and the hiring employer and between the hirer-out and the employee hired out (Leiharbeitnehmer) are void if no official permission has been obtained as required by section1(1)(1). If the contract between a hirer-out and an employee hired out is void under section 1(9)(1), a contract between the hiring employer and the employee hired out is deemed to have been concluded (gilt als zustande gekommen) as from the envisaged start of employment (section1(10)(1)(1)). Section 1(10)(2) further provides for a claim in damages against the hirer-out in respect of any loss suffered as a consequence of having relied on the validity of the contract, except where the employee hired out was aware of the factor rendering the contract void. 20. Sections 18 to 20 of the German Courts Act (Gerichtsverfassungs-gesetz) regulate immunity from jurisdiction (Exterritorialität) in German court proceedings. Sections18 and19 concern the members of diplomatic and consular missions, and section 20(1) other representatives of States staying in Germany upon the invitation of the German Government. Section20(2) provides that other persons shall have immunity from jurisdiction according to the rules of general international law, or pursuant to international agreements or other legal rules. 21. The ESA Convention came into force on 30 October 1980, when ten States, members of ESRO or ELDO, had signed it and had deposited their instruments of ratification or acceptance. 22. The purpose of ESA is to provide for and to promote, for exclusively peaceful purposes, cooperation among European States in space research and technology and their space applications, with a view to their being used for scientific purposes and for operational space applications systems (Article II of the ESA Convention). For the execution of the programmes entrusted to it, the Agency shall maintain the internal capability required for the preparation and supervision of its tasks and, to this end, shall establish and operate such establishments and facilities as are required for its activities (Article VI § 1 (a)). 23. Article XV regulates the legal status, privileges and immunities of the Agency. According to paragraph 1, the Agency shall have legal personality. Paragraph 2 provides that the Agency, its staff members and experts, and the representatives of its member States, shall enjoy the legal capacity, privileges and immunities provided for in AnnexI. Agreements concerning the headquarters of the Agency and the establishments set up in accordance with Article VI shall be concluded between the Agency and the member States on whose territory the headquarters and the establishments are situated (Article VI § 3). 24. Article XVII concerns the arbitration procedure in case of disputes between two or more member States, or between any of them and ESA, concerning the interpretation or application of the ESA Convention or its annexes, and disputes arising out of damage caused by ESA, or involving any other responsibility of ESA (Article XXVI of Annex I), which are not settled by or through the Council. 25. Article XIX provides that on the date of entry into force of the ESA Convention the Agency shall take over all the rights and obligations of ESRO. 26. Annex I relates to the privileges and immunities of the Agency. 27. According to Article I of Annex I, the Agency shall have legal personality, in particular the capacity to contract, to acquire and to dispose of movable and immovable property, and to be a party to legal proceedings. 28. Pursuant to Article IV § 1 (a) of Annex I, the Agency shall have immunity from jurisdiction and execution, except to the extent that it shall, by decision of the Council, have expressly waived such immunity in a particular case; the Council has the duty to waive this immunity in all cases where reliance upon it would impede the course of justice and it can be waived without prejudicing the interests of the Agency. 29. Article XXV of Annex I provides for arbitration with regard to written contracts other than those concluded in accordance with the Staff Regulations. Moreover, any member State may submit to the International Arbitration Tribunal referred to in Article XVII of the ESA Convention any dispute, inter alia, arising out of damage caused by the Agency, or involving any other non-contractual responsibility of the Agency. According to ArticleXXVII of AnnexI, the Agency shall make suitable provision for the satisfactory settlement of disputes arising between the Agency and the Director General, staff members or experts in respect of their conditions of service. 30. Chapter VIII of the ESA Staff Regulations (Regulations 33 to 41) concerns disputes within ESA. As regards the competence of its Appeals Board, Regulation 33 provides as follows: “33.1 There shall be set up an Appeals Board, independent of the Agency, to hear disputes relating to any explicit or implicit decision taken by the Agency and arising between it and a staff member, a former staff member or persons entitled under him. 33.2 The Appeals Board shall rescind any decision against which there has been an appeal if the decision is contrary to the Staff Regulations; Rules or Instructions or to the claimant’s terms of appointment or vested rights; and if the claimant’s personal interests are affected. 33.3 The Appeals Board may also order the Agency to repair any damage suffered by the claimant as a result of the decision referred to in paragraph 2 above. 33.4 Should the Agency – or the claimant – maintain that execution of a rescinding decision would raise major difficulties the Appeals Board may, if it considers the argument valid, award compensation to the claimant for the damage he has suffered. 33.5 The Appeals Board shall also be competent in the case where a staff member wishes to sue another staff member and such action has been prevented by the Director General’s refusal to waive the immunity of the latter. 33.6 The Appeals Board shall also be competent to settle disputes concerning its jurisdiction, as defined in these Regulations, or any question of procedure.” 31. The Agreement was concluded between the Government of the Federal Republic of Germany and ESRO for the purpose of establishing a European Space Operations Centre, including the European Space Data Centre. Articles 1 to 4 of the Agreement concern the site for construction of the ESOC buildings and related matters. 32. Part III of the Agreement contains general provisions. Article 6 provides as follows: “1. Subject to the provisions of the Protocol on Privileges and Immunities of the Organisation and of any complementary Agreement between the Federal Republic of Germany and the Organisation according to Article 30 of that Protocol, the activities of the Organisation in the Federal Republic of Germany shall be governed by German law. If the terms of employment of a staff member of the Organisation are not governed by the Organisation’s staff regulations, then they shall be subject to German laws and regulations. 2. Disputes between the Organisation and such staff members of the Organisation in the Federal Republic of Germany who are not within the competence of the Organisation’s Appeals Board, shall be subject to German jurisdiction.”

dev

001-105355

ENG

RUS

CHAMBER

CASE OF MIMINOSHVILI v. RUSSIA

Violation of Art. 5-1;No violation of Art. 5-1;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 6-1;No violation of Art. 6-3-b;No violation of Art. 6-1 and 6-3-d;No violation of Art. 6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

5. The applicant was born in 1960 and lives in Moscow. 6. In 2000 Mr D., a businessman from Moscow informed the police that since 1996 he and his two business partners had been paying a monthly fee to a local gang for “protection”. Mr D. gave the police audio records of his telephone conversations with the gangsters, which he had secretly made when the “fee” had become too burdensome for him. The police set up an undercover operation. Police agents secretly observed the meetings between the three businessmen and the gangsters and recorded their conversations. At the last meeting, which took place on 25 September 2000, the businessmen handed to the emissaries of the gang the money they had earlier received from the police. After the receipt of the money the two emissaries of the gang were arrested and the money (which had been previously marked by the police) was seized from them. One of the alleged gangsters was Mr M., the applicant’s brother. 7. On 9 April 2001 the applicant was charged with large-scale extortion as part of an organised criminal group (Article 163 § 3 (a) and (b) of the Criminal Code of the Russian Federation). However, because his whereabouts were unknown, on 18 April 2001 the case against the applicant was separated from the case of other members of the group. On 22 May 2001 the applicant was put on a wanted list. 8. On 1 June 2001 the Moscow City Prosecutor issued a detention warrant in respect of the applicant. It referred to the gravity of the charges and the risk of his absconding, as well as to the fact that the applicant was on the wanted list. The detention warrant did not specify the period of detention. 9. On 7 April 2002 the applicant was arrested at his house in the Moscow Region. On the same date he was detained. 10. On 6 June 2002 the Moscow City Prosecutor authorised the extension of the applicant’s detention until 9 August 2002. The detention warrant referred to the gravity of the charges and the risk of the applicant absconding, re-offending or interfering with the investigation. There is no information on whether the applicant appealed against that decision. 11. On 1 August 2002 the Babushkinskiy District Court of Moscow considered the detention request lodged by the prosecution. The defence argued that there were no grounds for continued detention since the applicant had no criminal record, permanently resided in Moscow, and had not tried to flee from the investigation – at the time when he had been on the wanted list he had been living in his summer house in the Moscow Region with his minor children and had not been aware of the proceedings against him. The defence also contended that the charges against the applicant were unfounded and noted long periods of inactivity on the part of the investigation authorities during previous detention periods. 12. The court rejected those arguments and extended the applicant’s detention until 7 October 2002. The court held that the applicant had been accused of grave crimes and that he had to take part in several investigative activities. The court also found that the applicant would flee from justice given that he had previously been on the wanted list, and had been arrested in the Moscow Region. There is no information on whether the applicant appealed against that decision. 13. On 2 October 2002 the District Court extended the applicant’s detention until 9 December 2002 holding that there were no grounds to amend or revoke the preventive measure, given the gravity of the charges and the risk of his absconding. There is no information on whether the applicant appealed against the decision. 14. On 28 November 2002 the investigation was completed and the case file was sent to the Nikulinskiy District Court (hereinafter – the District Court). 15. On 11 December 2002 the District Court scheduled a preparatory hearing. In its decision to hold a preparatory hearing it also ordered that the applicant’s detention should remain unchanged. The court neither specified the time-limit for his detention nor gave the reasons for such decision. 16. On 24 December 2002 the preparatory hearing was held. The defence filed a request for release stating that the decision ordering the applicant’s detention pending investigation had expired and that he was therefore being unlawfully detained. They also noted that the decision of 11 December 2002 did not contain any reasoning. The District Court rejected the request referring to the gravity of the charges and to the fact that the court had not yet assessed the evidence. As to the subject matter of the accusations against the applicant, the District Court remitted the case to the prosecution because the bill of indictment had been issued improperly and was not ready for examination at the trial. The prosecution was given five days to modify the bill of indictment. The ruling of the District Court referred to Article 236 § 1 (2) of the Russian Code of Criminal Procedure (CCrP) (“Types of decision which can be taken at the preparatory hearing”), Article 237 § 1 (1) (“Returning the case to the prosecutor”), and Article 255 § 3 (“Deciding on the measure of restraint [during the trial proceedings]”). 17. The prosecution appealed against the part of this decision concerning the remittal. The defence appealed against the refusal to release the applicant. The appeals were lodged on 26 and 30 December 2002 respectively. 18. According to the Government, the applicant’s statement of appeal against the detention order of 24 December 2002 was received by the District Court on 15 January 2003. On 28 January 2003 the applicant was handed a copy of the appeal by the prosecution. The case was received by the Moscow City Court on 13 February 2003. The appeal hearing was scheduled for 5 March 2003. However, since the applicant’s lawyers failed to produce powers of attorney, the appeal hearing was adjourned until 13 March 2003. 19. On 13 March 2003 the Moscow City Court allowed the prosecution’s appeal and referred the applicant’s case back to the District Court for a preparatory hearing. The appeal of the defence was dismissed for the same reasons as given by the District Court in its decision of 24 December 2002. The City Court’s decision also referred to the provision in the CCrP establishing a default six-month detention period after the referral of a case to the trial court. 20. On 21 April 2003 the second preparatory hearing was held. The defence filed a new application for release. In addition to the arguments mentioned earlier they referred to the unreasonable period of detention and the lack of special diligence during the proceedings. The District Court once again ordered the case to be remitted to the prosecutor and rejected the request for release, relying on the same arguments as in the previous decision, namely the gravity of the charges and the need to carry out additional investigative activities. The ruling contained references to Articles 236 § 2 (1) and 237 § 1 (1) of the CCrP. Both prosecution and defence appealed. 21. On 5 June 2003 the Moscow City Court returned the case to the District Court for another preparatory hearing. It also upheld the decision of the District Court regarding the applicant’s detention. 22. On 2 July 2003 the District Court scheduled a preliminary hearing, and held that the applicant should stay in custody. It does not appear that the court indicated in its ruling any time-limit for the applicant’s further detention. 23. On an unspecified date the defence appealed against the ruling of 2 July 2003. 24. On 9 July 2003 the court held a preliminary hearing and scheduled a hearing on the merits. The District Court rejected the applicant’s request for release and confirmed that the applicant should remain detained pending trial, without, however, indicating any time-limit for the detention. 25. On 18 July 2003 the defence lodged an appeal against the decision of 9 July 2003. They claimed that the six-month time-limit for detention pending trial had expired on 28 May 2002 and that the applicant was therefore being detained unlawfully. 26. On 21 July 2003 the applicant’s detention pending trial was extended for three months because judgment on the merits had not yet been delivered. The District Court referred to the gravity of the charges and to the fact that the court had not yet assessed the evidence. The defence appealed. The statement of appeal against the decision of 21 July 2003 was dated 30 July 2003, although it is unclear whether it was introduced on that date. 27. On 3 September 2003 the Moscow City Court dismissed appeals against the decisions of 2, 9 and 21 July 2003 holding that the findings of the District Court had been correct. 28. According to the applicant, on 7 October 2003 his detention was extended for three more months, with the same reasoning as before. In support of his assertion the applicant submitted a copy of the ruling of the Nikulinskiy District Court of Moscow of that date, signed by Judge K. The defence appealed against that ruling; the applicant submitted a copy of the statement of appeal with the District Court’s stamp on it confirming the date of introduction (16 October 2003) and the incoming mail number (no. 4547). The applicant claimed that the appeal court had never considered the complaint. The Government claimed that on 7 October 2003 the applicant’s detention had not been extended, and that the applicant’s detention was still covered by the detention order of 21 July 2003. 29. On 21 October 2003 the District Court adopted the judgment in the applicant’s case. 30. The applicant’s case was initiated jointly with the cases of other members of the organised criminal group, including the applicant’s brother, Mr M. They were all accused of large-scale extortion. Owing to the failure to find the applicant, his case was separated from the case of the other members of the group. 31. On 27 December 2002 the Nikulinskiy District Court convicted Mr M. of large-scale extortion as part of an organised criminal group (Article 163 § 3 (a) and (b) of the Criminal Code of the Russian Federation). The District Court was sitting as a panel of three judges comprising a professional judge (Ms K., the president), and two lay judges. 32. The judgment of 27 December 2002 started with the finding that Mr M. had committed extortion in concert with “unidentified persons”. In relating the facts of the case the court once mentioned the applicant’s name. Specifically, on page 5 of the judgment the court held that an unidentified member of the gang had mentioned in a telephone conversation with one of the victims that “[the applicant] was unhappy that the victims had not transferred the money to [Mr M.] at his first request”. 33. The applicant’s name was also mentioned in the part of the judgment summarising the witness statements. In particular, on page 6 of the judgment in connection with the testimony of Mr M., who denied his or his brother’s involvement in the criminal group. The District Court, however, found that Mr M.’s testimony was refuted by the incriminating evidence, namely witness statements. Some of the witnesses, as well as confirming the role of Mr M. in the gang, mentioned that the applicant had been an important person in the gang and participated in negotiations as a person of authority (page 7). They further mentioned that the applicant had told the victims that “they had to pay him in order not to pay other persons he had talked to” (page 7), that the money was collected from the businessmen for the applicant (page 8), that “[the applicant] had been introduced [to them] as a leader of the criminal group” (page 8), and that the victims “had paid mobile telephone bills for [the applicant]” (page 8). The District Court also examined information on the telephone communications of Mr M. and the applicant and referred to them in its judgments (without, however, indicating their importance for the conviction). 34. The applicant’s case was heard by Judge K. of the Nikulinskiy District Court (the same judge who had earlier presided over the trial in the case of Mr M.). The first hearing on the merits took place on 29 September 2003. 35. The applicant pleaded not guilty. He did not deny that he knew the victims and that he had had some dealings with them. Namely, he confirmed that he had met with them several times between 1996 and 1999. However, he denied that his involvement in their business had been of a criminal character. He also denied having received from the victims or from Mr M. any criminal payments. He further denied the participation of Mr M., his brother, in any criminal activity. 36. At the following hearings the court heard testimony of two witnesses for the defence, R. and K., who both denied any involvement of the applicant or Mr M. in the crimes. They testified that the money had been paid by the victims to Mr M. as a rental fee for storage space on premises owned by the applicant. 37. The victims (Mr D. and his two partners), on the contrary, testified that in 1996 they had met with the applicant who had offered them criminal “protection” from other gangs and fixed a monthly fee for it. At one of the meetings with the applicant another gangster had threatened the victims with beatings. In the following years the victims had been paying the money to the gang, generally not to the applicant directly but to other gangsters, in particular to Mr M. However, the victims had understood that the money had been destined for the applicant. The victims had had several other meetings with the applicant in different places where the amount of the monthly fee had been discussed. Other members of the gang had always referred to the applicant as a person of authority. Throughout that period the applicant had been personally involved in the negotiations with other gangs. 38. The court also examined audio records secretly made by one of the victims and later by the police during the surveillance operation. Although the applicant was not identified as one of the speakers on those audio records, other gangsters had often referred to somebody named Tengiz (which is the applicant’s first name) who had supposedly been a person of authority within the gang. The applicant claimed that they had probably meant another person also named Tengiz. 39. The District Court also examined other evidence. Witness V. confirmed that several meetings between the applicant and the victims had taken place. Witness Ya., an accountant for the victims, confirmed that one of the alleged members of the applicant’s gang had been formally employed by the victims and had been receiving a salary, without, however, doing any actual work. She did not know about any official business transactions or rental agreements between the applicant and the victims. The prosecution also produced the applicant’s and other members of the gang’s telephone bills which had been paid by the victims, and some other circumstantial evidence. 40. During the court proceedings in the applicant’s case the defence requested that Mr M. be summoned. He explained to the courts that Mr M.’s testimony was important. The applicant claimed that according to the victims the money obtained from them had been passed to him by Mr M. and that the examination of the latter “could shed light on these events”. The defence also alleged that without proving the fact that the money had been passed to the applicant he could not be found guilty and that Mr M. had to be summoned as all the witnesses referred to him in their testimony. The trial court rejected the request holding that the court had not yet assessed all the evidence. 41. Some time later the defence requested the admission in evidence of Mr M.’s written statement obtained by one of the defence lawyers who had visited Mr M. in prison and had interviewed him. In those statements Mr M. had denied his and his brother’s (the applicant) involvement in the gang. The court refused on the ground that the written statement of Mr M. had not been “duly certified” and it was unclear whether that statement had indeed been taken from Mr M. 42. The defence also requested leave to examine the victims of the impugned extortion for a second time, owing to inconsistencies in their earlier submissions. The request was not granted. 43. At some point in the proceedings the defence challenged the judge claiming that she was not impartial. They contended that the same judge had earlier found the applicant’s brother guilty in a case closely connected with the applicant’s case. Moreover, the defence noted that the trial judge was the same judge who had earlier remitted the case to the prosecutor and might therefore have been prejudiced in this case. However, the judge refused to withdraw. On several later occasions the defence objected to questions put by the judge to the applicant, claiming that those questions were favourable to the prosecution. 44. It took the trial court eight hearings to examine the evidence produced by the parties. The hearings took place on 29 and 30 September, and on 1, 2, 7, 14 and 15 October 2003. The last hearing on the merits was held on 16 October 2003. On that day the court heard the last witness, examined certain written materials in the case file and examined the requests of the defence. The judge, having decided that the examination of evidence was over, invited the parties to proceed with their final submissions. The defence objected to ending the examination of the evidence without summoning Mr M. The objection was rejected. The defence then requested an adjournment for at least one day to prepare their final submissions. The judge ordered a twenty-minute break and then proceeded to the final submissions. These were made after a thirty-minute break. All three lawyers for the applicant were able to make oral submissions, in addition to their written submissions which they had handed to the court. 45. On 21 October 2003 the District Court found the applicant guilty of extortion and sentenced him to seven years’ imprisonment and confiscation of criminally obtained assets. In the opening paragraphs of the judgment the District Court found that the applicant and his brother, Mr M., who had earlier been convicted by the same court on 27 December 2002, as well as several other unidentified people, were members of an organised criminal group created to extort large sums of money from local businessmen. Between 1996 and 1998 the applicant had met with those businessmen on several occasions. He had offered them protection from other gangs in exchange for a monthly fee. The money had usually been passed from the victims to the applicant through other members of the group, including the applicant’s brother, Mr M. In addition, the victims had been required to pay an unidentified member of the gang’s telephone bills and later those of the applicant himself. The judgment contained a detailed account of all payments which had passed through Mr M. to the applicant and of the amounts of the telephone bills paid by the victims. It also described several episodes when unidentified members of the gang had claimed additional payments on the applicant’s behalf. 46. The court further analysed the testimony of witnesses R. and K. examined at the request of the defence. The judge noted that although both R. and K. had referred to the existence of a rental agreement between the victims and the applicant, it had allegedly been concluded in the name of a firm which had ceased to exist by that time and had never been signed by the applicant. Furthermore, the court did not have a copy of that agreement and other evidence in the case file contradicted the submissions of R. and K. Lastly, in a telephone conversation between one of the victims and a member of the gang, the latter had instructed the former to tell the police that the payments had been made within a rental agreement. As a result, the judge dismissed the testimony of R. and K. as unreliable. 47. The applicant’s lawyers appealed. In particular, they drew the court’s attention to the fact that at the trial the victims had acknowledged that they had been giving the money not to the applicant but to other persons. The applicant’s lawyers insisted that the trial court’s failure to summon and question Mr M. made the trial unfair. 48. On 17 March 2004 the Moscow City Court examined the appeal by the defence. It amended the judgment of the District Court because of changes in the Russian Criminal Law. The confiscation order in respect of criminally obtained assets was thus quashed. However, the remainder of the judgment of 21 October 2003 was upheld. 49. After arrest the suspect can be placed in custody “pending investigation”. Article 108 §§ 1, 3-6 of the new CCrP (of 2001, in force since 1 July 2002) requires a judicial decision by a district court on a reasoned request for detention by a prosecutor, supported by appropriate evidence, before a defendant can be detained or his or her detention extended. Detention “pending investigation” should not exceed eighteen months (Article 109 §§ 1-3). The period of detention “pending investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 109 § 9). 50. From the time the prosecutor sends the case to the trial court, the defendant’s detention is “pending trial”. Upon receipt of the case file the judge must determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 228 § 3 and 231 § 2 (6) of the CCrP). 51. The period of detention “pending trial” is calculated up to the date on which the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3 of the CCrP). 52. The trial judge can return the case to the prosecutor to remedy the defects impeding the trial (Article 236 § 1 (2) of the CCrP), for instance if the judge has identified serious deficiencies in the bill of indictment (Article 237 § 1 (1) of the CCrP) or a copy of it was not served on the accused. The judge must require that the prosecutor comply within five days (Article 237 § 2) and must also decide on a preventive measure in respect of the accused (Article 237 § 3). 53. By Federal Law no. 226-FZ of 2 December 2008, Article 237 was amended to the effect that, if appropriate, the judge could extend the term of detention with due regard to the time-limits set forth in Article 109 of the CCrP. 54. Pursuant to Article 376 of the CCrP, the court of appeal has to set the date, time and place of an appeal hearing and inform the parties accordingly. The parties should be informed no less than fourteen days in advance of the date of the appeal hearing. The court has to decide whether or not the detainee should be brought to the court of appeal in person. That Article also regulates the arrangements governing a detainee’s appearance in appeal proceedings in person and his or her appearance via video-link. 55. For further details concerning Russian legislation on pre-trial detention, detention pending trial and remittal of the case to the prosecution for correcting defects of the bill of indictment, see the cases of Lebedev v. Russia (no. 4493/04, §§ 33 et seq., 25 October 2007) and Shteyn (Stein) v. Russia (no. 23691/06, §§ 56 et seq., 18 June 2009). 56. Article 90 of the CCrP provides that “factual circumstances established in a court judgment ... which have acquired legal force, should be accepted by a court ... without additional verification. However, such a court judgment cannot predetermine the question of guilt of those persons who had not participated in [those] proceedings”. 57. Articles 61 – 63 of the CCrP describe situations in which a judge cannot sit on the bench in a particular case. The judge must withdraw if he is an injured party in that criminal case, if he has already participated in that criminal case in a different capacity (for example, as a representative of a party, as a witness, etc.), if he is a relative of any participant in the criminal proceedings, or “if there are other circumstances which give reason to believe that [the judge] is personally, directly or indirectly, interested in the outcome of the criminal case”. The judge whose impartiality is in doubt must withdraw of his own motion (Article 62 § 1); alternatively, a party to the proceedings may challenge a judge on those grounds (Article 62 § 2). Article 63 of the CCrP provides that the same judge cannot sit on the bench in the trial court and later in the court of appeal or in the supervisory review court in the same case. The same judge who sat on the bench during the first trial cannot remain in the composition if the case is remitted for re-trial. However, there are no rules governing the participation of the same judge in different, yet related, criminal cases.

dev

001-61437

ENG

HUN

CHAMBER

CASE OF MILITARU v. HUNGARY

Violation of Art. 6-1;Non-pecuniary damage - financial award

Gaukur Jörundsson

4. The applicant was born in 1957 and lives in Nagytarcsa, Hungary. 5. On 13 October 1995 the applicant filed for divorce before the Budapest Regional Court. She also claimed custody of the couple's three children, born respectively in 1984, 1986 and 1992, and requested the payment of maintenance and the division of the matrimonial property. 6. After repeated motions for bias filed by the applicant's husband, the Buda Central District Court was first appointed to hear the case. As a consequence of the husband's further motion for bias, the case-file was then transferred to the Zalaegerszeg District Court. 7. On 24 September 1996 the President, the Vice-President and all the judges of the Zalaegerszeg District Court declared bias. 8. On 6 February 1997 the Supreme Court appointed the Miskolc District Court and the Borsod-Abaúj-Zemplén County Regional Court to hear the case. 9. On 2 April 1997 the Miskolc District Court requested the applicant to supplement her action within 8 days. Following the grant of an extension of this time-limit, the applicant submitted additional material on 5 May 1997. 10. A hearing was held on 24 June 1997. 11. On 26 August 1997 the District Court requested the school attended by the couple's children to provide an opinion. It also appointed the Budapest Forensic Medical Expert Institute (“the Institute”) to give an expert psychological opinion on the parties and their children and requested to be advised as to which parent was the more suitable to raise the children. 12. The applicant together with the three children failed to appear at the examinations scheduled for 1 October 1997 as they had not received any notification. 13. The examinations scheduled for 18 November 1997 could not be carried out as the husband and two of the children failed to appear. 14. On 9 December 1997 the Borsod-Abaúj-Zemplén County Regional Court found the husband's renewed motion for bias of 4 September 1997 unsubstantiated. 15. On 12 January 1998 the Miskolc District Court ordered the parties to provide information about the children's situation and the issue of maintenance. 16. In her letters of 15 January and 5 May 1998, the applicant requested the District Court to schedule a hearing in the case and, as an interim measure, to order her husband to pay maintenance. 17. On 25 January 1998 the husband filed a motion for bias against all of the judges of the county. 18. On 5 May 1998 the applicant requested the District Court to deal with the case urgently. On 15 July 1998 she repeatedly requested the court to pronounce the divorce, to grant her custody of the children, to oblige her husband to leave their flat and to pay maintenance. 19. On 26 October 1998 the Supreme Court dismissed the husband's renewed motion for bias and warned him that if he submitted another unsubstantiated motion, he would be fined. 20. At the court's request of 27 November 1998, the applicant provided information about the maintenance of the children. 21. On 14 December 1998 the husband again filed a motion for bias against the judges dealing with the case. 22. On 22 December 1998 the District Court suspended the proceedings pending the outcome of a parallel action to place the husband under guardianship. 23. At the applicant's request, on 6 October 1999 the District Court decided to resume the proceedings and to appoint a guardian ad litem to represent the husband. 24. On 9 November 1999 the applicant elaborated her action and requested the court to obtain psychological and educational opinions on the children. The latter opinion was submitted on 24 November 1999. On 7 December 1999 the Institute appointed an expert psychologist. 25. On 27 January 2000 the parties' two eldest children requested the court to place them, by way of an interim measure, with the applicant. 26. On 3 February 2000 the Institute informed the court that it struck the case out of its list as the husband and the two eldest children had repeatedly failed to appear for the examination. 27. On 8 February 2000 the District Court ordered that the two eldest children be placed with the applicant and obliged the husband to hand them over to her within three days. On 17 February 2000 the husband appealed against this decision. On 23 February 2000 the applicant informed the court that its order could not be executed as the children had in the meantime been placed in a children's home. 28. On 29 June 2000 the Supreme Court dismissed the husband's renewed motion for bias of 7 March 2000. 29. On 26 September 2000 the Borsod-Abaúj-Zemplén County Regional Court quashed the order of 8 February 2000 and remitted the issue of interim measures to the District Court. 30. At the applicant's request, on 29 September 2000 the Miskolc District Court discontinued the proceedings. In her appeal, the applicant requested that the proceedings be resumed and that the case, rather than being discontinued, should be transferred from Miskolc to a court in the town where she was domiciled. On 30 January 2001 the Borsod-Abaúj-Zemplén County Regional Court dismissed her appeal. 31. On 21 July 2001 the applicant renewed her action before the Buda Central District Court. 32. A hearing took place on 15 January 2002 and a further hearing was scheduled for 30 May 2002. 33. At present, the case is pending before the District Court. Article 19 § 2 of the Code of Civil Procedure reads as follows: “If a party submits a motion for bias, which is manifestly unsubstantiated, or repeatedly submits unsubstantiated motions in the same proceedings in respect of the same judge, the court may, as a provision of the order dismissing the motion, impose a fine on him.”

dev

001-93166

ENG

SVN

CHAMBER

CASE OF STOJNŠEK v. SLOVENIA

Remainder inadmissible;No violation of Art. 3 (substantive aspect);No violation of Art. 3 (procedural aspect)

Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

5. The applicant was born in 1947 and lives in Rogatec. 6. On 25 February 1998 the applicant was charged with a criminal offence of “threatening security” (ogrožanje varnosti). He was represented by a lawyer in the ensuing proceedings. 7. On 3 February, 6 April, 6 June and 4 July 2000 hearings were held before the Šmarje pri Jelšah Local Court (Okrajno sodišče v Šmarju pri Jelšah) by a judge, T.G. In the course of the proceedings, the applicant, the aggrieved parties, four witnesses including two defence witnesses, and a psychiatrist were heard. 8. During the proceedings the aggrieved party lodged a compensation claim (premoženjsko-pravni zahtevek). 9. On 4 July 2000 the Šmarje pri Jelšah Local Court, further to the hearing at which the applicant was present, convicted the applicant. The Court found that in the evening of 3 December 1997 the applicant had called A.V., a police officer at the Rogaška Slatina Police Station, his wife and his children at least five times, and had threatened that he would kill them that night. The court sentenced him to three months’ imprisonment, but advised the injured parties to institute separate civil proceedings for damages. Since the applicant was unavailable at his address, the written judgment was ultimately served on his wife on 15 September 2000. 10. On 22 November 2000 the Celje Higher Court (Višje sodišče v Celju) rejected an appeal by the applicant’s representative on 4 September 2000 and upheld the first-instance court’s judgement. The server tried to serve the written judgment on the applicant on 10 January 2001. His wife refused to accept the mail and informed the server that the applicant was abroad. A notice was left in the mailbox. On 11 January 2001 the applicant’s wife returned the notice to the court and asked that the mail be served on the applicant once he returned, which was on 25 January 2001. On 26 January 2001 the court sent the applicant a letter informing him that the judgment did not necessarily have to be served on him but, in the case of the absence of the addressee, had to be accepted by an adult family member. On the same day the server again unsuccessfully tried to serve the mail on the applicant. On 10 February 2001 the applicant’s wife accepted the mail containing the written judgment of the Celje Higher Court. 11. On 21 February 2001 the applicant’s representative lodged a request for protection of legality (zahteva za varstvo zakonitosti) with the Supreme Court and requested the Šmarje pri Jelšah Local Court to adjourn the applicant’s sentence until the delivery of the Supreme Court’s decision. The Šmarje pri Jelšah Local Court rejected a request for adjournment of the sentence on 28 March 2001. The decision was served on the applicant’s wife on 23 April 2001, but the next day she returned the sealed mail to the court, stating that the applicant had left for a work-related trip. 12. On 10 April 2002 the Supreme Court rejected the applicant’s request for protection of legality. The applicant allegedly saw this judgment only in July 2002. 13. A request for a more lenient sentence lodged by the applicant’s representative on 15 February 2001 was rejected by the Supreme Court on 22 June 2001. 14. On 20 April 2001 the Celje District Court summoned the applicant to report to the Maribor prison to serve the prison sentence. The applicant was advised that if he did not report to the prison on 9 May 2001 an arrest warrant would be issued against him. He was also advised that he could ask for adjournment of the sentence provided that there were justified reasons. On 28 April 2001 the summons was served on the applicant’s wife. 15. On 9 May 2001 the applicant’s representative requested the President of the Celje District Court to adjourn the sentence until the request for protection of legality had been decided by the Supreme Court (see paragraph 11 above) and on the grounds that the applicant was unfit for prison. 16. On 21 May 2001 the President of the Celje District Court rejected the applicant’s request for adjournment as unfounded. The decision was served on the applicant’s representative on 22 May 2001. A consequent appeal was likewise dismissed by the President of the Celje Higher Court on 28 May 2001. 17. On 31 May 2001 the applicant’s representative was served with the court’s letter, with which the decision of 28 May 2001 was enclosed, informing the applicant that he should report to the prison the next working day. 18. On 1 June 2001 the applicant’s representative informed the court that she was not aware of the applicant’s whereabouts. 19. On 12 June 2001 the Celje District Court inquired with the Maribor prison as to whether the applicant had started to serve his sentence. On the same day the court issued a warrant for the applicant to be brought to the prison by the Rogaška Slatina Border Police Station (“the RSBPS”). The RSBPS received the order on 13 June 2001. 20. In the evening of 14 June 2001, the applicant and his wife were travelling in a car. At 9.45 p.m., on a road near Žahenberc, G. G. and B.P., two police officers from the RSBPS who were patrolling the road, stopped their car. G.G. recognised the applicant as he had seen him in connection with another traffic offence case. According to the Government, the officers had an arrest warrant to bring the applicant to the Maribor prison and were aware of the applicant’s continuing evasion of the pending imprisonment. G.G. knew that the applicant was a “problematic” person and was advised by B.P. to request the applicant to show that he had the required equipment for the car (obvezna oprema) in order to get him out of the vehicle. G.G. then first asked the applicant to show his identification documents and then to show the car equipment. The applicant stepped out of the car and opened the boot. In the meantime B.P. went to the police car to get a police baton since they were expecting the applicant to resist arrest. 21. When the applicant was standing in front of the car, G.G. told him that he would be arrested on the basis of the warrant issued against him due to his pending sentence and that he should comply with the procedure. The Government and the applicant disputed the subsequent events concerning the applicant’s arrest. 22. According to the applicant, the police had not shown him an arrest warrant and he thus refused to be arrested. According to the statements the applicant made in the domestic proceedings, one of the officers then punched him in the face and the applicant started to run. The officer caught him and knocked him down. The officer jumped on the applicant and strangled him using an unidentified object. In his observations to the Court, the applicant maintained that after handcuffing him the officers had beaten him up while he was lying on the ground, despite the presence of his wife and neighbours. The applicant was then left on the ground until his wife helped him to stand up. The applicant was weak and asked for water. The police refused to give him water. They also refused to give him water when asked for it by the applicant at the police station. 23. According to the Government, after being informed of the arrest warrant, the applicant replied to the officers that it was invalid as he had appealed against the conviction. In an attempt to conduct a search of the applicant (varntostni pregled), G.G. ordered him to put his hands on the car. The applicant refused. After being warned twice to comply with the order, the applicant said “no, that is not going to happen” and started to run. G.G., followed by B.P. and the applicant’s wife, ran after the applicant. The latter stopped after approximately 100 metres. At that point the applicant turned towards G.G. and appeared to attempt to hit the officer. G.G. blocked the blow with his left hand and at the same time threw the applicant on to the ground using his left leg. Both officers then tried to handcuff the applicant, who was lying face down on the ground. Due to the applicant’s resistance B.P. used the technique of “strangling from behind” in order to release his grip. G.G. then managed to handcuff the applicant, tying the applicant’s hands behind his back. The applicant continued to try to resist arrest by kicking. B.P. then went to the police car to call a police van. During that time, which was a minute or two, the applicant remained lying on the ground. Once B.P. returned, the officers lifted the applicant up and waited for the arrival of the police van. During that period, the applicant’s wife drove away and returned with several people from the neighbouring area. After the situation had been explained to them these persons did not interfere with the procedure. 24. It was undisputed that when the police van arrived the applicant was taken first to the Rogaška Slatina Police Station and then, at 10.30 p.m., to the Maribor prison. 25. According to the Government, the applicant was shown the arrest warrant at the police station, where none of the officers noticed that the applicant was injured, except for a bruise on his nose. The applicant also did not complain of pain, except for discomfort caused by the handcuffs. Later, at the Maribor prison the applicant complained that he had injuries due to handcuffs, which had been removed, but there was nothing that would require medical care. 26. A written confirmation of the applicant’s arrival to the prison issued on 14 June 2001 by the Maribor prison authority stated that the applicant had no apparent injuries or symptoms of any diseases. 27. The next day, on 15 June 2001, at around 2 p.m., the applicant was examined by a doctor in the Maribor General Hospital, who drew up a report. In the report it was stated that the applicant had alleged that he had been beaten up by the police. An X-ray of his right hand, left hemi-thorax and spine was also taken. Nothing was observed on the X-ray. According to the medical report, the applicant had a reddish bruise around his right eye (areal pordelosti) and his right wrist was slightly swollen. The applicant had no signs of injury, haematoma or bruising to his thorax. The doctor noted that the applicant complained of pain between the seventh and tenth ribs, that direct pressure on that area was painful while indirect pressure caused no pain. The kidney area was without any signs of injury, but was slightly painful. The neck was also without any sign of injury. 28. On 18 June 2001 the applicant had a follow-up examination in the Maribor General Hospital as he was complaining of pain in his chest. Further to the examination, the doctor noted that there were no injuries to that area. He was prescribed pain-killers and advised on breathing exercises. 29. On 18 June 2001 the applicant’s wife reported the incident to the office for complaints at the General Police Administration Unit (Urad za pritožbe pri Generalni policijski upravi). 30. On 21 June 2001 the applicant’s wife’s legal representative lodged a criminal complaint against the police officers involved in the applicant’s arrest. The criminal complaint, to which a note written by the applicant’s wife was attached, states, inter alia: “on 14 June 2006 , at 9:45 p.m.,... in the presence of his wife... (they) severely beat and tortured him, threw him on to the ground, pushed his head into the soil ..., and at the same time suppressed his breathing by squeezing his neck, trod on him while he was lying on the ground, stepped on his neck, and then, wearing torn and dirty clothes and barefoot ..., he was arrested and taken to the prison in Maribor.” 31. The applicant’s wife mentioned in her note also that the officers had refused to give water to the applicant, refused to provide him with medical aid and had not given him an arrest warrant. In addition, she asked that the inquiry be conducted by the Ljubljana Police Unit instead of Rogaška Slatina or Celje Police Unit, which she did not trust. 32. On 3 July 2001 the Celje Police Unit received the above-mentioned documents, together with a note prepared by the officer from the General Police Administration Unit. On 20 August 2001, further to an interview with the two officers involved in the arrest, three official notes were prepared by an officer of the RSBPS, S.K. 33. In one of the notes, S.K. stated that he had been informed about the applicant’s arrest as it happened. When he had arrived at the RSBPS the applicant, who was handcuffed, was sitting in the waiting room. According to the note, S.K. saw only a bruise on the applicant’s face and the applicant only complained of pain from the handcuffs. Soon afterwards the applicant was taken to the police van where the handcuffs were taken off. 34. The other two notes recorded what would appear to be separate interviews with the officers G.G. and B.P. However, the text of the two notes is for the most part identical and appears to be copied and pasted. The officers’ testimonies are in line with the version of events submitted by the Government. 35. On 31 August 2001 the Celje Police Unit sent a report to the Celje District Prosecutor’s Office (Okrožno državno tožilstvo v Celju) informing them of the findings of the above inquiry and stating their opinion that the applicant’s wife’s allegations were unsubstantiated. 36. On 27 October 2001 the applicant’s wife submitted a medical certificate (see paragraph 27 above) to the Celje District Prosecutor’s Office. 37. The Celje Distict Public Prosecutor subsequently requested the Celje Police Unit to interview the applicant. They conducted an interview on 23 November 2001. According to the records of the interview, the applicant stated that after being stopped he was asked to follow the officers to the prison. After he had refused to go to the prison on the grounds that he had not received any warrant to that effect, one of the officers allegedly punched him on the right side of his face and he then started to run. After being tackled by one of the officers the applicant lay on the ground without resisting. Both officers knelt on him and one of them started to strangle him with an unknown object and shouted “the pig should die”. When the applicant’s wife arrived the officers desisted but after the wife left to find help the officers resumed strangling him. The two officers were kneeling on his back the whole time. He was subsequently lifted up by his wife. 38. According to the above-mentioned records, the applicant also stated that he believed that officer A. V. (see paragraph 9 above) had been informed about the arrest and had asked the arresting officers to beat him. 39. On 28 December 2001, on the reasonable suspicion that a criminal offence of “Violation of Human Dignity by Abuse of Office or Official Duties” (Kršitev človeškega dostojanstva z zlorabo uradnega položaja ali uradnih pravic) had been committed, the Celje Distict Public Prosecutor requested that the hearing (zaslišanje) of the two officers, the applicant and his wife be carried out before the judge of the Šmarje pri Jelšah Local Court and that the latter ensure that all the circumstances of the case were established. 40. The officers G.G. and B.P. were examined separately by judge B.Z. on 25 February 2002 in the presence of their lawyers. G.G.’s statement of what happened during the arrest corresponds to the Government’s version of events (see paragraph 23 above). According to the records of the hearing, G.G. also made the following statement: “When he was brought to the police station, we noticed that he had a bruise (praska) on his nose, but I do not know where he got it, maybe in the police van, but that was a small bruise, which did not bleed, it looked more like a rash (odrgnina). In any case, when he was brought to the Maribor prison, it was established that he had no injuries. ...” 41. Further to a question by the judge, G.G. stated that the “osotogari” throw, which was used against the applicant, was a self-defence technique and that the strangling was a fighting technique in jiu-jitsu and judo, which the officers had learned at police school and more recently at a self-defence class. These two techniques were among the least severe. If these two techniques had not worked the officers would have needed to use professional blows, which were more likely to cause injuries. 42. Likewise, the statement given by officer B.P. corresponds to the above described version of events relied on by the Government (see paragraph 23 above). As regards the applicant’s alleged injuries, B.P. stated that he had noticed at the police station that the applicant had had a superficial bruise on his nose. He assumed that the bruise had been incurred while the applicant was lying face down on the ground and trying to stand up. 43. Due to the unavailability of the applicant, B.P.’s lawyer and the applicant’s wife during different periods of time, the next hearing was not held until 24 May 2002. On that day, the applicant and his wife were examined by judge B.Z. 44. The applicant testified, inter alia, as follows: “On the road to Žahenberc I was stopped at the junction by a police officer. A car with the other police officer was hidden in the bushes. (...). After I stopped the car, a police officer asked me to show the car’s documents, which were all in order; after he had checked everything he asked me to open the boot, now I do not know why, but I got out of the car and opened the boot. Next, I closed the boot and the officer told me that I was under arrest. I asked ‘why’ and told him that I did not have a warrant, which I really did not have. He told me to follow him, but I told him that I was not going anywhere as there was no warrant. Then, the officer hit me on the right side of my forehead. Right now, I do not know what he hit me with, perhaps with a racket or with his hand. I had a red spot there afterwards. As I was hit I started to run in the direction of the hunters’ house, through a field. ... One officer ran after me while the other stayed in the car. While he was running the officer hit me on the right leg, so that I fell face down and stayed in that position. The officer jumped on me and started treading on me. Then the officer lay on top of me and started strangling me with a rubber or metallic object. He continued until the second officer came. Then they handcuffed me. Subsequently, while I was lying face down, the officer who had thrown me to the ground and hit me started kicking me in the back and kidney area until my wife arrived and then he stopped. When my wife ran to the hunters’ house the [same] officer started strangling me again (...) by pushing my head into the grass. (...) It took about 30 minutes from the time the officers stopped my car until I was taken away in the police van. While the officer was strangling me he was shouting “‘the pig should die’” and other ugly words (...) until the neighbours came.(...) I was lifted up by my wife. When the police van arrived, I was taken to the police station. I was dirty, barefoot and muddy (...) I asked for water, which they refused to give me. (...) When I arrived at the Maribor Prison, they said they had never seen anything like it and gave me water.” 45. In reply to B.P’s representative’s questions, the applicant stated, inter alia: “During my arrest the police officers called somebody by phone, I suspect that was A.V. I heard that this person told the officers to beat me up and arrest me. (...) After I had closed the boot, the officer and I stood facing each other and he hit me. [According to the records, the applicant showed the area above the right eyebrow as the place where the officer had allegedly hit him]. (...) The officer threw me to the ground and kicked me about ten times in the back and kidney area. Then he put the handcuffs on so tightly that the circulation was stopped. (...) The officer trod on my back and on the handcuffs (...). I have had a quarrel with officer A.V. for about twenty years. At the police station they did not show me the warrant. (...)” 46. In reply to a question from G.G.’s representative, the applicant stated that he had been continuously beaten by the same officer. He further stated that when his wife and the neighbours arrived he was released, and had started vomiting while he was still lying face down on the ground. Replying to the judge’s question, he said that he was barefoot when lying on the ground but that he did not know at what point the officers had taken his shoes off him. 47. The applicant’s wife described the events following the applicant’s notification of the arrest warrant by the police as follows: “My husband was extremely terrified and was in shock. At that point, after the officer had jumped (planil) on him, my husband started to run. The officers ran after him and as I was also terrified I started to run too. The other policemen also ran after them. Once I arrived at the spot I was shocked to see my husband handcuffed and lying face down on the ground, with an officer holding him by the neck and pushing his head into the ground. I have to stress that the other officer was not violent. (...) As I got no reply to my question [concerning the reasons for the applicant’s arrest] I ran to the neighbours. [After she and the neighbours came to the scene], my husband was still on the ground totally dizzy (omamljen). Both officers were standing next to him [further to request for clarification by B.P.’s representative she said that they, the officers, were doing nothing at that point]. My husband asked to be lifted up and said “please lift me up and give me some water” but nobody wanted to help him, so I lifted him up. (...) As regards the summons to the prison, we had not received it at home. (...)” 48. Further to the B.P.’s representative’s request, she gave a further statement on the events immediately following the applicant’s notification of the arrest warrant: “My husband was very scared, but I do not remember why (....). The officer jumped on my husband, who was standing very close to him. (As regards the exact manner of the officer’s reaction) I do not remember as I was in shock. (...) I did not observe the officer touching my husband physically or hitting him. (...) I cannot tell or show the way the officer jumped on my husband as I do not remember.” 49. In reply to a question put by the judge, the applicant’s wife stated: “When I came to the scene where my husband was lying on the ground, I saw that he was barefoot, but I do not know where he lost his shoes (...).” 50. On the conclusion of the above hearings the case file, together with the records of the hearings, was sent to the Celje District Public Prosecutor’s Office on 29 May 2002. 51. On 18 July 2002 the Celje District Public Prosecutor issued a decision dismissing the criminal complaint on the grounds of insufficient evidence. The prosecutor found that the statements made by the applicant and his wife were inconsistent and contradictory. The prosecutor noted in particular, that while the applicant had stated that he was hit in the face after being told he was under arrest, his wife had not observed the applicant being hit by the officer. In addition, the applicant testified that he had been beaten up by the officer up to his wife’s arrival. She, on the other hand, stated that she saw the applicant having his head pushed into the ground, but not being beaten. Moreover, the public prosecutor found that the medical evidence obtained on 15 June 2001 did not support the applicant’s allegations. Had the officers employed the force alleged by the applicant, the latter would have undoubtedly sustained different injuries. The prosecutor, who noted that he could not find the applicant’s version credible, concluded on the basis of the evidence gathered in the investigation that: “... the applicant resisted the officers, started to run away and by doing so prevented them from carrying out their official duty. Due to his resistance, the officers, in accordance with Section 51 of the Police Act, employed force leading to the least severe consequences, which is demonstrated by the fact that the applicant did not sustain bodily injuries (poškodbe).” 52. The Celje District Public Prosecutor’s decision of 18 July 2002 was served on the applicant on 30 September 2002. It drew the applicant’s attention to his right to initiate a criminal prosecution as a subsidiary prosecutor (subsidiarni tožilec), that is an injured party acting as a prosecutor, by lodging a bill of indictment (obtožni predlog) within eight days. He did not avail himself of this opportunity. 53. As instructed by the first-instance court (see paragraph 9 above), police officer A. V. and his wife and children instituted civil proceedings against the applicant at the Šmarje pri Jelšah Local Court on 31 July 2001. On 1 October 2003 the court held a hearing. By a judgment issued on the same day, it partly granted the police officer’s claim for compensation for non-pecuniary damage. The applicant lodged an appeal on 23 October 2003. There is no information in the case file as to the state or the outcome of these proceedings. 54. Article 18 of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) reads as follows: “No one may be subjected to torture, inhuman or degrading punishment or treatment. ...” 55. Further to section 1 of the Administrative Disputes Act 1997 (Zakon o upravnem sporu, Official Gazette no. 50/97), when no other judicial protection is available the Administrative Court has jurisdiction to consider the lawfulness of decisions and actions which interfere with constitutional rights. Under section 62 it is possible to seek a declaration that there has been a violation of a right guaranteed by the Constitution and compensation for any loss. The Administrative Court’s decision can be challenged before the Supreme Court and ultimately before the Constitutional Court. 56. Section 270, headed “Violation of Human Dignity by Abuse of Office or Official Duties”, of the Penal Code (Kazenski zakonik, Official Gazette no. 63/94) provides as follows: “An official exercising his office who, by abuse of his office or official duties, treats another person badly, insults him, inflicts minor bodily harm upon him or otherwise treats him in such a way as to affect his human dignity, shall be sentenced to imprisonment for not more than three years.” 57. In Slovenia, public prosecution is mandatory when reasonable suspicion (utemeljeni sum) exists that a criminal offence subject to mandatory prosecution has been committed. Public prosecutions are conducted by the public prosecutor’s office, an autonomous body within the justice system (Article 135 of the Constitution, and sections 3 and 5 of the State Prosecutor Act, Zakon o državnem tožilstvu, Official Gazette no. 63/94). 58. If the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the course of the proceedings, the aggrieved party has the right to take over the conduct of the proceedings in the capacity of a subsidiary prosecutor (subsidiarni tožilec), that is, as an aggrieved party acting as a prosecutor (section 19(3) of the Criminal Procedure Act, Zakon o kazenskem postopku, Official Gazette no. 63/94; - “CPA”). A subsidiary prosecutor has, in principle, the same procedural rights as the public prosecutor, except those that are vested in the public prosecutor as an official authority (CPA, section 63(1)). If the subsidiary prosecutor takes over the conduct of the proceedings, the public prosecutor is entitled at any time pending the conclusion of the main hearing to resume the conduct of the prosecution (CPA, section 63(2)). 59. The aggrieved party, who may be represented in the proceedings by a lawyer, may during the investigation call attention to all facts and propose evidence relevant to establishing the commission of a criminal offence, the perpetrator thereof and damages incurred as a result of the offence (CPA, sections 59 (1) and 65 (1)). This should apply analogously (CPA, section 429) to the investigative measures taken in the summary proceedings (see paragraph 61 below). 60. Slovenian criminal proceedings are divided into three stages – preliminary proceedings (predkazenski postopek), conducted by the police and the public prosecutor; criminal investigation (preiskava), conducted by the investigating judge of the district court, and trial (glavna obravnava), conducted before mixed panels of professional judges and lay judges at district court level or a single professional judge of the local court. Proceedings falling under the jurisdiction of local courts (offences punishable by a fine or imprisonment of not more than three years) are summary proceedings (skrajšani postopek), which do not include the criminal investigation stage. 61. In summary proceedings before a local court, the criminal proceedings may start with a bill of indictment (obtožni predlog, CPA, section 430) submitted by the public or subsidiary prosecutor. Before lodging the bill of indictment, the public prosecutor or subsidiary prosecutor can request the judge to perform individual investigative measures (CPA, section 431). If such measures have been carried out, the court, further to the submission of the bill of indictment, may dismiss the latter as not allowed if it considers that there is no reasonable suspicion that the accused has committed the alleged criminal offence (CPA, section 437, read together with section 277). 62. For a more detailed presentation of the legislation concerning the criminal proceedings in Slovenia see Matko v. Slovenia, no. 43393/98, §§ 54-62, 2 November 2006. 63. According to section 120 of the CPA, the judgment imposing imprisonment should be served on the accused in person as well as on his or her representative. However, if the convicted person is not found at his address, the server should leave a note informing him or her of a new date on which he or she is to be served with the mail. If the accused person is not found at his or her address on that date, the server shall serve the mail on, inter alia, an adult family member, who is required to accept that mail. The mail is thereby considered to have been effectively served on the addressee. (sections 118 and 119 of the CPA). 64. Once the judgment becomes enforceable, that is when no ordinary appeal lies against it (for example, a higher court judgment upholding the first-instance court’s judgment) and has been effectively served (section 129 of the CPA), the convicted person is summoned to report to prison by the district court which has jurisdiction over the place of his or her residence (section 25 of the Enforcement of Penal Sentences Act, Zakon o izvrševanju kazenskih sankciji, Official Gazette no. 22/2000, - “EPSA”). 65. It would appear to suffice that the summons to the persons which are represented by a lawyer be served on the latter (section 8 of the EPSA and section 88 of the General Administrative Procedure Act, Zakon o splošnem upravnem postopku, Official Gazette no. 80/1999). 66. If the request for an adjournment of the sentence, which in principle can be lodged with the president of the district court within three days of the receipt of the summons (see paragraph 64 above), is rejected, that decision can be challenged before the president of the higher court. If an appeal is dismissed, the convicted person must start serving his sentence the day after the service of the decision. If the convicted person is legally represented, the decisions concerning the request for adjournment shall be served on his or her representative only (sections 25 and 26 of the EPSA). 67. If the convicted person fails to report to prison despite being summoned, the court shall issue an arrest warrant against him or her after establishing that the summons has been served effectively or that the circumstances indicate that he or she has been evading the service of summons (section 20 of the EPSA).

dev

001-61549

ENG

GBR

GRANDCHAMBER

CASE OF COOPER v. THE UNITED KINGDOM

No violation of Art. 6-1

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

10. The applicant was born in 1968 and lives in Birmingham. At the relevant time he was a member of the Royal Air Force (RAF). 11. On 18 February 1998 the applicant, along with a co-accused, was convicted by a district court-martial (pursuant to section 70(1) of the Air Force Act 1955) of theft contrary to the Theft Act 1968. He was sentenced to fifty-six days' imprisonment, to be dismissed from the service and to be reduced to the ranks. 12. The applicant's court-martial was composed of a permanent president (Wing Commander Rodgers), two other officers of lower rank (Squadron Leader Borthwick and Flight Lieutenant Winks) and a judge advocate. Wing Commander Rodgers' appointment to the post of permanent president was his last before retirement in September 1998. Although he had been the subject of appraisal reports prior to August 1997, he was not reported on thereafter. The two ordinary members had attended the junior officers' command course in 1993, which included training in disciplinary processes. 13. By a letter from the reviewing authority dated 3 April 1998, the applicant's representative was informed that neither the findings nor the sentence of the court-martial would be varied. The authority had received advice from the Judge Advocate General. 14. The applicant's appeal to the Courts-Martial Appeal Court against conviction and sentence was dismissed on 5 February 1999. 15. The Armed Forces Act 1996 (“the 1996 Act”) came into force on 1 April 1997 and amended, inter alia, the Air Force Act 1955 (references below to “the 1955 Act” are to that Act as amended). Trial by court-martial in the RAF is regulated, inter alia, by the 1955 Act, the Courts-Martial (Air Force) Rules 1997 (“the 1997 Rules”) and the Queen's Regulations for the RAF. 16. Section 70(1) of the 1955 Act provides that any person subject to air-force law who commits a civilian offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against that section. 17. Section 71(1) of the 1955 Act lists the punishments available to a court-martial following conviction and establishes, as a matter of law, the relative positions of each punishment in the hierarchy of punishments available (the “coda” to section 71(1) of the 1955 Act). 18. The powers of punishment of courts-martial (general and district) are set out in section 85 of the 1955 Act: “(1) A general court-martial shall have power to try any person subject to air force law for any offence which under this Act is triable by court-martial, and to award for any such offence any punishment authorised by this Act for that offence. (2) A district court-martial shall have the powers of a general court-martial except that it shall not try an officer or sentence a warrant officer to imprisonment, discharge with disgrace, dismissal or detention, and shall not award the punishment of death or of imprisonment for a term exceeding two years or make an order committing a person to be detained under section 71AA of this Act for a period exceeding two years.” 19. A person guilty of theft is liable on conviction on indictment to imprisonment for a term not exceeding ten years or, on summary conviction, to imprisonment for a term not exceeding six months or a fine or both (section 7 of the Theft Act 1968). 20. An allegation that a person subject to air-force law has committed an offence must be reported to the CO of the accused. The CO must investigate the charge, after which he may refer the matter to the higher authority (section 76(5)(b) of the 1955 Act). 21. The higher authority is a senior RAF officer (the Air Officer Commanding). He is not legally qualified. He must decide, in respect of cases referred to him by a CO, whether to refer the matter back to the CO to be dealt with summarily (unless the accused has already elected trial by court-martial); to refer the matter to the prosecuting authority for a decision as to whether the accused should be prosecuted; or to drop the charges. The higher authority's decision is essentially a command decision, the higher authority being required to ask himself whether there are service reasons for prosecuting or not. Once the higher authority has taken this decision, he has no further involvement in the case. 22. The role of prosecutor is performed by the prosecuting authority. He is appointed by the Queen and must have been legally qualified for ten years (section 83A of the 1955 Act). The prosecuting authority has a staff of between six to eight RAF officers, who are all legally qualified (section 83C of the 1955 Act) and employed full-time on prosecuting duties. The barristers on staff are, as members of the Bar of England and Wales, subject to the professional and ethical duties of the Bar Code of Conduct (including a duty to act with independence and in the interests of justice). Similar professional obligations apply to the solicitors on staff, who are members of the Law Society of England and Wales. Those lawyers also apply the Code for Service Prosecutors, which has been endorsed by the Attorney General. 23. Following the higher authority's decision to refer a case to it, the prosecuting authority has an absolute discretion, applying similar criteria as those applied in civilian cases by the Crown Prosecution Service, to decide whether or not to prosecute, what type of court-martial would be appropriate and what charges should be brought. The prosecuting authority also prefers the charges, conducts the prosecution (Part II of Schedule I to the 1996 Act) and, in particular, has the power to make all decisions concerning the prosecution (section 83B(7) of the 1955 Act). 24. The prosecuting authority (Air Vice Marshal Weeden) was, at the relevant time, also Director of Legal Services (RAF). In his prosecuting role, he was answerable solely to the Attorney General. As Director of Legal Services (RAF) he was answerable to the Air Member for Personnel/Commander in Chief of Personnel and Training Command. Air Vice Marshal Weeden was not reported on in relation to his performance as the prosecuting authority, although he was reported on in relation to his role as Director of Legal Services (RAF). Annual appraisal reports on prosecuting officers were drawn up by 1st reporting officers within the prosecuting authority. 25. CAOs are RAF officers appointed by the Defence Council. Once notified of a prosecution by court-martial by the prosecuting authority, a CAO is responsible for making the arrangements for courts-martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required will be available, securing the attendance of witnesses and selecting members of the court-martial. Before commencement of the court-martial hearing, the power to dissolve it is vested in the responsible CAO. The Courts-Martial Administration Unit discharges the administration and functions of the CAOs on their behalf and at their direction. 26. A district court-martial comprises a judge advocate, a president and not less than two serving air-force officers (“the ordinary members”) of at least two years' experience in the RAF (section 84D of the 1955 Act). 27. The Judge Advocate General and his staff of judge advocates are appointed by the Lord Chancellor and are civilians who must have at least seven years' experience as advocates or five years' experience as barristers. A judge advocate is appointed to each court-martial (section 84D(1) of the 1955 Act) by the Judge Advocate General. 28. A judge advocate is robed and sits in the centre with the president and one of the members on his left and the other member on his right. A judge advocate's role during a court-martial is to ensure the fair and regular conduct of the proceedings. He controls the course of the evidence and rules on legal objections. All rulings and directions on questions of law (including questions of procedure and practice) are given by the judge advocate in open court and are binding on the court-martial (section 84B(3) and (4) of the 1955 Act). In this respect, judge advocates have available to them the same model directions (prepared by the Judicial Studies Board) as are available to Crown Court judges. Once the court-martial hearing has commenced, the power to dissolve it is vested in the judge advocate. 29. A judge advocate also delivers a summing-up and further directions in open court before the members of the court-martial retire to consider their verdict, in the same way as a Crown Court judge would direct the jury. The judge advocate does not retire with the president and ordinary members and has no vote on verdict: as the members of the court-martial are the sole arbiters of fact, they alone must decide whether the charge has been proved or not (section 96(1) and (1A) of the 1955 Act). Following the deliberation on verdict, the judge advocate checks the findings. If he is satisfied that they are not contrary to law, the findings are announced. If he is not so satisfied, he gives the president and ordinary members further directions in open court, following which they retire to reconsider their findings in the light of the judge advocate's directions (Rule 72(3) and (4) of the 1997 Rules). The judge advocate retires with the other members of the court-martial for the deliberations on sentence (during which he can give, if necessary, guidance on the appropriate sentence to be imposed) and votes on sentence. 30. The president of a court-martial ensures that the hearing is conducted in accordance with service tradition (Rule 33 (1) of the 1997 Rules). During the deliberations on verdict, the president chairs the discussions. 31. The post of permanent president was first created in 1941, not by any statutory provision but rather as a matter of policy. Permanent presidents were selected from among serving RAF officers of suitable age and rank; they have always had the rank of wing commander. Legal qualifications or experience were not required. The appointment was full-time, was usually expected to be for a period in excess of three years and, almost without exception, was the officer's last posting before his retirement. The Air Secretary had the power to terminate the appointment of a permanent president, although this never happened. While appraisal reports were not prepared on permanent presidents sitting in army courts-martial, such reports were made on those sitting in RAF courts-martial. However, the reports did not concern their judicial decision-making. 32. In R. v. McKendry (6 March 2000, unreported), the judge advocate held that a particular permanent president could not be regarded as independent and impartial for the purposes of Article 6 § 1 of the Convention. Although the ruling was limited to the particular case, recourse to permanent presidents was abandoned pending the outcome of the judgment of the House of Lords in R. v. Boyd, Hastie and Spear Saunby and Others (“R. v. Boyd and Others”). That judgment was delivered on 18 July 2002 (see paragraphs 63-76 below), but permanent presidents have not been reintroduced to RAF courts-martial. 33. There is no requirement that the ordinary members of courts-martial should have formal legal training (Rule 17(b) of the 1997 Rules). 34. Certain officers cannot be selected for courts-martial. Section 84C(4) of the 1955 Act provides that the CAO, the COs of the accused, members of the higher authority, investigating officers and all other officers involved in inquiring into the charges concerned are all excluded from selection. Rule 17 of the 1997 Rules excludes from selection an officer serving under the command of the higher authority referring the case, the prosecuting authority and the CAO. The Queen's Regulations for the RAF (QR 1154(f)) further underline that, so far as is practicable, a court-martial is to be composed of officers from different RAF stations. 35. At the relevant time (between 1997 and early 2000), ordinary members were randomly selected from a volunteer database for each court-martial. Individual officers were allowed to volunteer by completing a standard form or, alternatively, over the telephone. The information so provided would be entered on a computer database by the CAO. When members were required for a court-martial, the CAO looked for members in the database who were not excluded from participating in a court-martial. If volunteers could not be found in this way, a station would be selected from an alphabetical roster in each command using a separate database. The station would then be notified of those officers on that station, if any, who were on the volunteer database and the station would then be responsible for designating the officer(s) and informing the CAO. 36. The ordinary members remain subject to RAF discipline in the general sense since they remain RAF officers, but they are not reported on in relation to the carrying out of their duties as members of the court-martial and, in particular, in relation to their judicial decision-making. Attempting to influence, or influencing, a member of a court-martial amounts to the common-law offence of perverting the course of justice and/or to the offence of conduct to the prejudice of good order and air-force discipline (section 69 of the 1955 Act). 37. When the members have been designated and the court-martial has been convened, the members are sent the Courts-Martial Administration Unit (RAF) briefing notes for court-martial members (see paragraphs 45-62 below) along with a list of prosecution witnesses. The members are required to examine the list and to tell the CAO if any of the witnesses are known to them. They are also advised that, should they subsequently discover that they do know someone, they should inform the judge advocate. 38. At the start of the court-martial hearing, the names of all of the members of the court-martial are read out and the accused can object to any sitting member (section 92(1) of the 1955 Act and Rule 40 of the 1997 Rules). Each member of an RAF court-martial must take the following oath: “I swear by Almighty God that I will well and truly try the accused before the court according to the evidence, and that I will duly administer justice according to law without partiality, favour or affection, and I do further swear that I will not on any account, at any time whatsoever, disclose the vote or opinion of any member of this court-martial, unless thereunto required in due course of law.” 39. Deliberations of the court-martial members are confidential, a member being forbidden to reveal any opinion or vote. The members of the court-martial are required to speak during deliberations, and at the close of deliberations to vote on verdict and sentence in ascending order of seniority. Decisions on verdict and sentence are reached by majority vote (section 96 of the 1955 Act). The casting vote on sentence, if needed, rests with the president (section 96(5) of the 1955 Act) who, at the time of the applicant's court-martial, gave the reasons for the sentence in open court. Under the present procedure, those reasons are given by the judge advocate (Rule 80(2) of the 1997 Rules). 40. All guilty verdicts reached, and sentences imposed, by a court-martial must be reviewed by the reviewing authority within prescribed time-limits (section 113 of the 1955 Act). Although ultimate responsibility rests with the Defence Council, the review is, as a matter of practice, generally delegated to the Air Secretary or to such officer who at that time is carrying out the duties of the Air Secretary (section 113(5)(b) of the 1955 Act). Post-trial advice is received by the reviewing authority from the Judge Advocate General, who advises whether or not the conviction or sentence should be altered in the convicted person's favour. This advice is not binding, but is generally accepted by the reviewing authority. It is disclosed to the accused, who has the right to present a petition to the reviewing authority. 41. The reviewing authority may substitute a finding of guilt which could have been made by the court-martial and if the court-martial must have been satisfied as to the facts which would justify making that finding (section 113AA(2) of the 1955 Act), and it may also “pass any such sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) open to a court-martial on making such a finding as appears proper” (section 113AA(4) of the 1955 Act). The reviewing authority also has the power to quash any verdict of guilt and associated sentence and to authorise a retrial (section 113A(1) of the 1955 Act). It is then for the prosecuting authority to decide whether to seek a retrial. While the person concerned is not specifically heard by the reviewing authority on the question of retrial, the decision of the prosecuting authority to seek a retrial can be challenged by an accused as an abuse of process. If convicted following a retrial, an individual retains his access on verdict and sentence to the Courts-Martial Appeal Court (see paragraphs 42-44 below). The reviewing authority gives a reasoned decision and, should it substitute a finding of guilt and/or sentence, that ruling is treated for all purposes as if it was reached or imposed by the court-martial itself. 42. The Courts-Martial Appeal Court is a civilian court composed of judges from the Criminal Division of the Court of Appeal. A convicted person has a right of appeal to the Courts-Martial Appeal Court against both conviction and sentence (section 8 of the Courts-Martial (Appeals) Act 1968, as amended – “the 1968 Act”). 43. An appeal against conviction will be allowed where the Courts-Martial Appeal Court finds that the conviction is unsafe, but dismissed in all other cases. The test of what is “unsafe” is the same as that applied in appeals against convictions by the civilian criminal courts. An appeal against sentence may be allowed where the Courts-Martial Appeal Court considers that the sentence is not appropriate for the case (section 16A of the 1968 Act). It has power, inter alia, to call for the production of evidence and witnesses, whether or not produced at the court-martial (section 28 of the 1968 Act). It can also authorise a retrial (section 19(1) of the 1968 Act). 44. In R. v. McKendry (judgment of the Courts-Martial Appeal Court of 20 February 2001), the appellant pleaded guilty to a charge of absence without leave and was sentenced to, inter alia, 265 days' detention. The reviewing authority rejected his petition and Mr Justice Ouseley gave the judgment of the Courts-Martial Appeal Court. Having noted in detail the advice of the Judge Advocate General to the reviewing authority, he quoted as follows from a prior judgment of the Courts-Martial Appeal Court (R. v. Pattinson, judgment of 25 January 1999): “In our judgment, the Court has to bear in mind, in dealing with an appeal of this kind, ... the somewhat 'hybrid jurisdiction' which [the Courts-Martial Appeal Court] exercises; in that it is clearly free to correct any injustice, but it nonetheless has to be mindful that those imposing and confirming sentences, particularly, it is to be said ... in relation to an offence of desertion, are particularly well placed and indeed better placed than [the Courts-Martial Appeal Court] in assessing the seriousness of offending in the context of service life.” Mr Justice Ouseley continued: “The offence of going absent without leave, as indeed the offence of desertion, is not one in respect of which any civilian parallel exists. The sentencing considerations involve factors that are particular to the armed services, in respect of which their judgment and experience are entitled to great weight. A court should be reluctant to interfere with such courts-martial sentencing decisions, particularly where the Judge Advocate General has reviewed the matter and has dismissed the petition in the terms in which he did here. The considerations particular to this sort of military offence relate to the significance of the offence for the maintenance of military discipline and efficiency, the need for deterrence, the significance of rank and the availability of other measures from dismissal to loss of rank and pay, which are in many ways not available or not paralleled in the civilian sphere. Indeed some of those factors would also be of particular weight when the Courts-Martial Appeal Court is dealing with offences which do have parallels in the civilian sphere, and would justify caution in interfering with courts-martial sentences; even more so do they justify caution when dealing with offences which have no parallel in the civilian sphere.” R. v. Holtby-Smith (judgment of the Courts-Martial Appeal Court of 26 February 2003) concerned a retrial following a decision of the reviewing authority. Lord Justice Kennedy in the Courts-Martial Appeal Court stated as follows: “The Reviewing Authority directed ... that the Prosecuting Authority consider whether there should be a retrial. That was an inappropriate direction on the part of the Reviewing Authority because under section 113A of the [1955 Act] the decision whether or not to order a retrial must be one for the Reviewing Authority itself and not for the Prosecuting Authority, though of course the Reviewing Authority could, if so disposed, canvas the views of the Prosecuting Authority, and of the proposed defendant, as to whether or not there should be a retrial. Following that, the Reviewing Authority was advised of the error of its approach and ... directed a retrial in the interests of justice ... If [such a] decision of the Reviewing Authority was to be challenged, it could only be challenged by means of judicial review ... ” In R v. Ball and R. v. Rugg (judgment of the Courts-Martial Appeal Court of 12 February 1998), the sentence of the court-martial was one year's detention and the reviewing authority substituted a sentence of one year's imprisonment. The Courts-Martial Appeal Court quashed the latter sentence and replaced it with a sentence of nine months' detention. 45. The briefing notes are sent by the Courts-Martial Administration Unit to the members selected for a court-martial. The notes applicable at the time of the applicant's court-martial (February 1998) could not be located by the parties. The notes issued in July 1999 are described below. 46. The introductory part of the notes was entitled “Important points for members of courts-martial” and provided as follows: “Before trial 1. Read the accompanying briefing document. 2. Contact the Courts-Martial Administration Unit (CMAU) if you are wrongly described in the convening order. 3. If you think that you may not be eligible to sit as a member of the court-martial – e.g. because you know the accused or something about him or a witness, or for any other reason – tell the CMAU or, if you are already at court, ask to see the Judge Advocate privately and tell him. Do not mention your concerns to anybody else. 4. Do not attempt to find out any details of the case in advance of going to court, and do not speak to any one, or allow anybody to speak to you about it – including when you arrive at the unit where the court-martial is to be held. At the trial 5. Once the trial has started you must not talk to anyone about the case (other than the remaining members of the court when all together) for as long as it continues. 6. Listen carefully to the witnesses and advocates, and to what the Judge Advocate tells you; and reach your decision only on what you hear in court. 7. You may only question witnesses through the Judge Advocate, or with his permission. 8. You must not visit the scene of the alleged offence unless the Judge Advocate so directs, when everyone involved in the case will go. After the trial 9. You must never reveal anything to anyone about the deliberations on finding or sentence unless required to do so '... in due course of law'.” 47. Paragraph 2 of the briefing notes emphasised the central role of the judge advocate by telling the members of the court-martial that: “The main thing to remember is that the Judge Advocate will conduct the court-martial ... He will therefore decide all questions of law, practice and procedure ... He is a member of the court and his rulings and directions are binding on the other members of the court and, of course, the parties to the proceedings. Subject to the Judge Advocate's conduct of the trial, it will be the President's duty to ensure that the trial befits the traditions and standards of the Service; and, in particular, that officers and other persons under instruction do not interfere in the trial ....” 48. The notes went on to warn the members as follows: “3. When you arrive at the Unit, do not speak to any Unit personnel ... and certainly not to any Unit executive. If you disregard this direction you may find yourself inadvertently talking to, for example, a witness or a lawyer involved in the case, which in turn might result in you being debarred from the trial or, indeed, the trial being prejudiced. If someone has spoken to you and you have any doubts about your position in this respect, you must tell the Judge Advocate privately before the trial commences. 4. Mention has been made above of the President's duties. Apart from that, the function of the President and the other officer members is to decide, on the evidence, whether the accused is guilty or not guilty; and if guilty, then to decide, together with the Judge Advocate, the sentence to be imposed. The Judge Advocate will tell you all you need to know about the law and procedure in order to discharge those functions.” 49. Paragraph 6 informed the members that they were: “... exempted from occupying public accommodation on the accused's Unit. Justice must manifestly be seen to be done and this aim is assisted by your being seen to avoid local Unit influences.” 50. Paragraph 8 of the briefing notes went on to advise that: “Save for resolving any queries members may have about court etiquette and procedure (e.g. putting on and removal of head-dress, etc.) under no circumstances must the President purport to carry out any form of briefing with other members of the court in the absence of the Judge Advocate. However, he should at this stage make sure the officers under instruction are aware of their duty not to do anything which interferes with the conduct of the trial – e.g. must not say anything or make gestures or imply they have any prior knowledge about the case or the accused, etc.” 51. Paragraphs 9 and 10 provided: “9. It is the [CAO]'s duty to ensure that the officer members of the court are qualified to act as members, and are not ineligible in any way, i.e.: that they have the requisite number of years' commissioned service, for example; and that they have not sat as members of a court-martial which has tried the accused before, or been involved in any investigation or inquiry into matters relating to the subject matter of the charge against the accused ... However, if before the date of trial, you think you may be ineligible, or not qualified to sit, or for example know something about the accused which could prejudice your impartiality, or know someone who might be a witness in the case (you will receive prior notice from the CAO of persons who may be called as prosecution witnesses) you must not mention the matter to any other member but should tell the CAO who will, if necessary, arrange for your place on the court to be taken by someone else. If your concern about any of the above matters does not arise until you get to court, you must not talk about it to anyone else but should ask to see the Judge Advocate privately and tell him. Likewise, if during the trial you realise that, e.g. you know a witness, you should tell the Judge Advocate privately without mentioning it to anyone else. 10. Before the court is opened, the Judge Advocate may join you in your room briefly and, if he does, will answer any queries about this briefing document. If he does not meet you beforehand and you have any such queries, you should send him a message to that effect through the Court orderly.” 52. Paragraph 15 provided that the convening order would be read when everyone was assembled in the courtroom, that the members of the court-martial would identify themselves and that the judge advocate would ask the accused if he or she objected to any of the members. The judge advocate would then administer the oath to each member of the court-martial individually (paragraph 17 of the notes). 53. Paragraph 20 informed members that, when the opening formalities were complete: “... The Judge Advocate may then warn the court not to talk to anyone else about the case for as long as it continues. That includes family, friends, work associates, the prosecutor, defence counsel and, most importantly, the accused and anyone who may be a witness. To that end, other than when the Judge Advocate is sitting alone, members are not to leave the courtroom during the trial except to go to the lavatory, and for any overnight or luncheon adjournment; and are not to associate with Unit personnel either professionally or socially until it is over. Refreshments will be brought into the courtroom as required.” 54. Paragraph 21 of the notes provided: “The President and members must not, when taking refreshments in the courtroom, or at any other time, including when sitting alongside the Judge Advocate, look at papers lying on the desks of the Judge Advocate, prosecutor or defence counsel. Such papers might include information which the court must not see under any circumstances.” 55. Paragraph 29 (reflecting Rule 62(2) of the 1997 Rules) pointed out that the president and ordinary members of the court-martial might only put questions to a witness through the judge advocate. If at the end of the witness's evidence they felt that they must hear that witness on a particular question, then the question was to be passed on in writing to the judge advocate, who could put it to the witness in the correct way. 56. Paragraph 34 (drawing on Rule 69 of the 1997 Rules) provided that, following the addresses of the prosecuting and defence counsel, the judge advocate would sum up the main points of evidence and direct the other members of the court on the law relating to the case. The members of the court-martial were not to ask the judge advocate any questions during his summing-up, but they could ask in writing for further directions, which the judge advocate had to give in open court. 57. Paragraph 35 (reflecting rule 70 of the 1997 Rules) dealt with deliberations on the verdict: “While the court is deliberating on the findings, no one is to be present except the President, members and officers under instruction. The President and members are not to separate until the finding has been reached, unless the Judge Advocate directs that in the interests of justice they may separate ... If any person has to leave the courtroom for personal reasons, he must be told by the President not to speak to any person on any account. If the court wishes to hear again evidence recorded by the VCR, the Judge Advocate must be told and, on his direction, the court must be reopened and the passage read in open court.” 58. Further guidance on deliberations was given in paragraph 38 of the briefing notes: “The President will normally initiate the discussion on the issue of guilt or innocence. The President should ensure that every court member present gives his opinion as to the finding on each charge separately, in ascending order of seniority commencing with the junior member. A unanimous decision is preferable, but a majority of votes will decide the issue, and the finding of the majority will be recorded as the finding of the court. The President should write down the finding(s) on the record of findings sheet and sign it. Prior to reopening the court, the President should remind any members overruled by the majority that they must now adopt the finding of the court. This is important if it becomes necessary to consider the sentence, as their previous feelings should not influence their decisions.” 59. Paragraph 39 explained the process by which the judge advocate would review the record of the deliberations to check whether the findings were not contrary to law and his related powers (see also paragraph 29 above). This paragraph also noted that the judge advocate “may, for sentencing purposes, inquire into any finding of fact reached by the court during its deliberation on finding ... though it is anticipated he will exercise this power very sparingly”. 60. Paragraph 25 explained what was to happen when sentence was being considered, either after a guilty plea or following conviction: “The court will close to deliberate on sentence, i.e. no one will be present save for the members (including, of course, the Judge Advocate) and any person under instruction. The Judge Advocate will initiate discussion on the sentence and will inform the members, e.g. about punishments and the principles to be observed. Sentence will be determined by a majority of votes if necessary and the opinions of the officer members will be given orally in ascending order of seniority, commencing with the junior member. The Judge Advocate will decide where he votes in the order. In the case of an equality of votes, the President has a second or casting vote on sentence which is exercisable once, i.e. he has a final, determining vote. When sentence has been decided, it is entered on the record of sentence which the Judge Advocate will have. The President will sign that record, as will the Judge Advocate.” 61. Finally, paragraph 44 provided as follows: “After the President has announced the trial is concluded and directed the court orderly to carry on, and the Judge Advocate has dissolved the court, the President may invite the officers under instruction to express their views about the case. Thereafter, he should remind them of the oath of secrecy they have taken before releasing them. The court orderly should be instructed to burn or shred all scrap paper. ...” 62. An aide-mémoire for non-permanent presidents of courts-martial was annexed to the briefing notes (Annex A). This document described the court-martial procedures from the point of view of the duties and role of the president. Annex B to the notes outlined the court orderly's duties (essentially to ensure the smooth running of the court-martial). Annex C contained the general rules for personnel attending courts-martial which concerned the wearing of head-dress, seating arrangements for witnesses and members of the public and other matters of etiquette. 63. The appellants (from both the RAF and the army) had been convicted by a district court-martial (apart from one who had pleaded guilty). Their appeals to the Courts-Martial Appeal Court were unsuccessful. Before the House of Lords, three of the appellants argued that the permanent president's role meant that their courts-martial lacked independence and impartiality. The remaining appellants challenged more generally the compatibility with Article 6 § 1 of the Convention of their trials by court-martial on charges of an offence against the ordinary criminal law. The House of Lords granted leave to appeal. 64. Prior to the delivery of the House of Lords' judgment in that case, a Chamber of this Court adopted its judgment in Morris v. the United Kingdom (no. 38784/97, ECHR 2002-I), in which the Chamber concluded that Mr Morris's (army) court-martial, convened under the 1996 Act, fell foul of the independence and impartiality requirements of Article 6 § 1 of the Convention. 65. Subsequently, the House of Lords unanimously dismissed the appeal in R. v. Boyd and Others. Lord Steyn, Lord Hutton and Lord Scott of Foscote agreed with the detailed judgments delivered by Lord Bingham of Cornhill and Lord Rodger of Earlsferry. 66. Lord Bingham rejected the challenge to the impartiality and independence of the permanent president, agreeing with the Chamber's finding on the point in Morris, cited above: “I do not for my part doubt that ... the European Court [was] correct. [Permanent presidents] are appointed to that office in the closing years of their service careers, whether in the army or the [RAF]. They are officers who have no effective hope of promotion and no effective fear of removal. While no doubt they are, as officers, answerable for any extra-judicial delinquency, as any judge might be, they are answerable to no one for the discharge of their decision-making function. The only factual matters on which [the appellants] could rely were the reports written on Wing Commander Chambers who presided [at one of the RAF courts-martial] (there being no report on any army [permanent president]). It would in my opinion be preferable if no annual report were written on officers serving as [permanent presidents], but those on Wing Commander Chambers gave no support in substance to [the appellants'] argument. While praising the wing commander's efficiency and effectiveness as a [permanent president], they made no allusion at all to the quality or outcome of any of his judicial decisions, but instead made express reference to the isolated, unsupervised and independent nature of his role. There is no substance in this challenge.” 67. As to the role of the ordinary or junior members of the court-martial, Lord Bingham found as follows: “It goes without saying that any judgment of the European Court commands great respect, and section 2(1) of the Human Rights Act 1998 requires the House to take any such judgment into account, as it routinely does. There were, however, a large number of points in issue in Morris v. the United Kingdom, and it seems clear that on this particular aspect the European Court did not receive all the help which was needed to form a conclusion. It is true that the junior officers who sit on courts-martial have very little legal training, but that is also true of the [permanent president] whose presence was accepted [in Morris] as a guarantee of the rights of the accused. It is also true that junior officers sitting on courts-martial remain subject to army discipline and reports. But there is nothing to suggest that any report ever is or ever has been made on any junior officer's decision-making as a member of a court-martial, and it is hard to see how any such report could be made given the prohibition on disclosure of the deliberations of the tribunal in the oath taken by the members. There is nothing to suggest that they remain subject to service discipline in relation to their judicial decision-making, and again it is hard to see how they could. It is true that there is no statutory bar on an officer being made subject to external army influence when sitting on the case. Any person seeking to influence the decision of a sitting member of a court-martial otherwise than at the hearing would, however, be at risk of prosecution either for perverting or attempting to pervert the course of justice or under section 69 of the 1955 Act. The officer members are drawn from a different command from the accused. Briefing notes sent to officer members of courts-martial before they sit enjoin them not to 'speak to any unit personnel and certainly not to any unit officer who may be attending the trial in an official capacity or as a spectator'. They are instructed in writing not to talk to anyone about the case (other than the other members of the court-martial, when all are together) for as long as the trial continues, and this instruction is routinely emphasised by the judge advocate. The officers do not occupy accommodation at the unit of the accused and are told to be seen to avoid 'local unit influences'. They are instructed 'not to associate with Formation or Unit personnel either professionally or socially until the trial is over'. At the outset of the hearing the officers take an oath in terms quoted by the European Court in [paragraph 27 of its judgment in Morris], swearing to try the accused 'according to the evidence' and to 'administer justice according to the Army Act 1955 without partiality, favour or affection'. In considering the independence and impartiality of the [permanent president] both the [Courts-Martial Appeal Court in the appellants' cases] and the European Court in Morris ... attached weight to established convention and practice. In my opinion the rules governing the role of junior officers as members of courts-martial are in practice such as effectively to protect the accused against the risk that they might be subject to 'external army influence', as I feel sure the European Court would have appreciated had the position been more fully explained.” 68. Turning to the criticism of the reviewing authority in Morris, Lord Bingham noted: “Its role can certainly be seen as anomalous, since ordinarily a binding decision of any court cannot be disturbed otherwise than (exceptionally) by itself or by a superior appellate court. It is however to be noted that the review of conviction and sentence carried out by the reviewing authority, whether the accused seeks such review or not ... cannot work otherwise than to the advantage of the accused. The reviewing authority cannot substitute conviction of a more serious offence, nor can it substitute a sentence which is in its opinion more severe (section 113AA(4)). This subsection does not confer a discretion, but calls for an exercise of judgment. It is essentially the same exercise of judgment as is required of the Court of Appeal ... which has not given rise to difficulty in practice. If the reviewing authority were to substitute a sentence which the accused considered to be more severe than that imposed by the court-martial, it would be open to the accused to challenge the substituted sentence on appeal to the Courts-Martial Appeal Court, and it is important to note that the intervention of the reviewing authority in no way diminishes the rights of the accused on appeal. It is difficult to see any analogy with the situation which the European Court considered in Brumarescu v. Romania ... where the applicant, with a final and irreversible judgment of a court in his favour, was deprived of the benefit of that judgment by a later decision in proceedings initiated by a party not involved in the earlier case. If a court-martial is not an independent and impartial tribunal for the trial of civil offences committed by service personnel in England and Wales, the reviewing authority could not be relied on to save it. But if it is, I find it difficult to understand how the role of the reviewing authority can undermine or reduce its independence and impartiality. [The appellants] recognised the difficulty of this argument and did not seek to sustain the judgment of the European Court on the point.” 69. The appellants had also generally argued that the whole culture of the services was such as to incline those who took part in courts-martial to attach excessive weight to the values of discipline and morale, to the point of rendering a trial unfair. It was argued that the ritual accompanying courts-martial was oppressive and unfair. Lord Bingham observed: “I would for my part have no hesitation in agreeing that a court-martial is a court of law, not a parade, and its procedures (while properly involving some formality) should be those appropriate to a court of law and not the parade ground. I would also accept that officers serving on courts-martial will disapprove of those found to have acted in breach of the law governing their respective service. But judges and jurors in the Crown Court will similarly disapprove of those found to have infringed the ordinary criminal law. There is no reason to think that in the former case any more than in the latter such disapproval will infect the tribunal's approach to deciding whether the particular accused has broken the law in the manner charged. Officers will appreciate, better than anyone, that to convict and punish those not shown to be guilty is not to promote the interests of good discipline and high morale but to sow the seeds of disaffection and perhaps even mutiny. In the absence of any evidence at all to support it, I could not accept the suggestion that any modern officer would, despite the oath he has taken, exercise his judgment otherwise than independently and impartially or be thought by any reasonable and informed observer to be at risk of doing so.” 70. Lord Rodger rejected the suggestion that, by its very nature, a trial of a civilian offence by court-martial was incompatible with Article 6 § 1 of the Convention and he referred, in this respect, to this Court's judgment in Engel and Others v. the Netherlands (judgment of 8 June 1976, Series A no. 22) and to Morris (cited above, § 59). Since the trial by court-martial did not in itself violate Article 6 § 1, the decision as to whether the court-martial was to be regarded as an independent and impartial tribunal depended on the safeguards which were in place. He noted generally in this respect: “A submission of this kind requires one, as a starting-point, to consider what is meant by the requirement that a tribunal should be independent and impartial. As the European Court noted in Morris ... the concepts of independence and objective impartiality are closely linked. In the present cases, in substance, the court-martial must be guarded from the risk of influence by the prosecution and guarded from the risk of influence by the relevant service authorities, especially superior officers who might wish to secure some particular result, supposedly in the interests of the morale or discipline of the service or of some particular unit. As a result of the abolition of the role of the convening officer by the 1996 Act, no issue was raised in these cases as to the independence of the members of the tribunal from the prosecution. On the other hand, Article 6 does not require that the members of the tribunal should not share the values of the military community to which they belong any more than it requires that the judge or members of the jury in a civil court should be divorced from the values of the wider community of which they form part. What matters is that, while sharing the values of the service community, the members of the court-martial should put aside any prejudices which they may have and act – and be seen to act – independently and impartially in deciding the issues in the case before them.” 71. As to permanent presidents, Lord Rodger observed that, while there had been no appraisal reports on permanent presidents in the army since 1997, the RAF had continued the practice of preparing reports on permanent presidents. He was of the view that “that practice [was] undesirable and, as the army experience show[ed], unnecessary. It would be better if it were discontinued”. However, he went on to observe that such reports generally, and the ones completed in the case before him, commented on the manner in which the permanent president had tackled his role as a permanent president (referring to the administrative aspects of the job) and did not bear on his actual decisions when sitting in a court-martial. Indeed, Lord Rodger noted that the reports in question had recognised that the permanent president's role was one in which the president was “isolated and unsupervised and which require[d] independence” which the Air Secretary “honour[ed] and respect[ed]”. The reports did not therefore give the slightest reason to doubt the permanent president's independence. On the contrary, he considered that “ ... all involved in making these reports were well aware of the need not to intrude upon the decisions reached by him when sitting as president. Even had anyone wished to intrude, the oath of secrecy taken by the members of courts-martial would have made it impossible to investigate those decisions.” 72. As to the other members of the court-martial, Lord Rodger noted the conclusion of the Chamber in Morris. He also observed, however, that “for whatever reason ... the European Court was given rather less information than the [House of Lords] about the safeguards relating to the officers serving on courts-martial”. He drew parallels between the members of the court-martial and jurors, noting that, while jurors brought certain prejudices and experiences with them to a trial, the safeguards of an oath and the trial judge's directions were considered by the domestic courts and by the European Court to be sufficient to ensure that jurors put aside their prejudices and reached a just verdict on the evidence. The members of courts-martial took a similar oath and the judge advocate gave them the same kind of directions which a trial judge would have given jurors: there was no reason to suppose that members of a court-martial would be less faithful to their oath or less diligent in applying the directions given by the judge advocate than would jurors, particularly when “trust and obedience to commands” were important to the officers sitting on a court-martial. 73. Indeed, Lord Rodger considered that the steps taken to ensure that the members of a court-martial acted independently and impartially were, on one view, even more strict than with a jury. Those steps had not, he noted, been outlined to the Chamber in Morris. He went on to detail those steps. In this connection, he referred to the briefing notes sent to members of the court-martial and noted as relevant safeguards those matters outlined at paragraphs 2, 3, 4, 6, 8, 9, 20, 21, 25, 29, 30, 33, 35, 36, 39, 40, 42 and 45 of those notes. Lord Rodger commented on these safeguards as follows: “The various provisions which I have quoted from the briefing notes for the members of courts-martial reinforce significantly the message, proclaimed in any event by the oath and the directions of the judge advocate, that the members are to act independently and impartially. In order to be seen to avoid local unit influences, the members are not to stay in public accommodation at the accused's unit. They are not to speak to unit personnel and especially not to any officer who may be attending the trial – at the risk of being debarred from the trial or indeed of the trial being prejudiced. They are not to associate either professionally or socially with such personnel until the trial is over. There is a veto on the president briefing the other members of the court in the absence of the judge advocate. The members are to tell the court administration officer if they know something about the accused which could prejudice their impartiality or if they know someone who might be a witness in the case. The members are warned not to talk to anyone else about the case as long as it continues. They are not to look at any papers which are before the judge advocate, prosecutor or defence counsel, for fear of seeing something which they ought not to. When they deliberate on conviction or sentence, the most junior member is to give his opinion orally first – again, obviously, with the aim of ensuring that the junior members express their own personal view, uninfluenced by the more senior members. In terms of the members' oath their deliberations are to be kept secret and this secrecy is further ensured by the instruction to the court orderly at the end of the proceedings to burn or shred all scrap paper. Again, the object is to prevent the members feeling, or coming under, any outside pressure during or after the trial by reason of their participation in the decision in the case. [The appellants] did not suggest that these were other than genuine instructions to the members which they were intended to observe. Nor was it suggested that the instructions were in practice ignored or that they had been ignored in these particular cases. But if they are indeed observed, I find it hard, if not impossible, to see how anyone either in the court or, more particularly, outside the court could improperly influence the members' decision either on conviction or on sentence. Certainly, it is hard to see what more could be done to ensure that, while sitting in the court-martial, the officers act not as officers subject to command but as independent and impartial members of the court, reaching the verdict and determining the sentence according to law but according also to their own individual conscience.” 74. Lord Rodger noted that there were, however, two differences between members of a court-martial and an ordinary jury, differences which he concluded did not undermine the independence of the former: “First, the routines, the periods of boredom and the pleasures, pains and pressures of service life would be unknown to most jurors today, although they would have been familiar to many of their fathers and grandfathers. By contrast, members of a court-martial know all about them and about the society in which the accused lives and works. [The appellants' counsel] suggested that officers on a court-martial, imbued by their training with notions of rank and discipline, would always tend to believe the evidence of a fellow officer or a non-commissioned officer rather than the evidence of a private. By contrast, he said, members of a jury, who carried no such burden of preconceptions, would be able to see more clearly and judge purely on the evidence before them. Of course, this submission was really just a matter of assertion. There was, and could be, no evidence to back it up. Indeed, it was somewhat undermined by the conviction of [two of] the appellants ... [Those appellants'] conviction was based on the evidence of [two Guardsmen] ... In accepting the guardsmen's evidence, the court-martial must have disbelieved the evidence of their superiors in rank ... In any event, it is possible to fashion an argument – equally a matter of assertion – that officers who are familiar with service life and who are in close contact with service personnel of all ranks may well be less impressed by mere rank and better able to gauge the underlying realities than jurors confronted for the first time with officers or non-commissioned officers telling an apparently plausible tale. Viewed in this light, the specialised knowledge and experience of the members of a court-martial could be seen as a positive advantage rather than as a disadvantage. However that may be, I see no reason to think that, when duly directed by the judge advocate, officers on a court-martial cannot properly assess the evidence and return a true verdict based on it. I therefore reject the appellants' argument on this point. The members of a court-martial perform a role in deciding sentence which is no part of a jury's function in the United Kingdom. I accept that, in determining sentence, the members will indeed have regard to such issues as the impact of the offence on service morale and discipline. They will, inevitably, be more aware of these effects than a civil judge would be. Therefore, while the safeguards of the independence and impartiality of the members should mean that they approach their verdict in much the same way as jurors in a civil trial, it cannot be assumed that, when passing sentence, the court-martial will necessarily give exactly the same weight to these service factors as would a Crown Court judge. The sentences which a court-martial passes may therefore not coincide exactly with the sentences which a civil judge would pass on the same facts. In my view that does not call the decisions of the courts-martial into question, either generally or in terms of Article 6. Any difference in sentencing does not mean that the members are not independent or impartial, but merely that, though both independent and impartial, they may assess the various factors differently ... There are ... two additional points to bear in mind. The first is that the judge advocate advises the other members on sentence and also has a vote on sentence. He will be able to bring to bear his informed view as a lawyer on what sentence would be suitable. The second safeguard is that any sentence imposed by the court-martial is subject not only to review by the reviewing authority but also to appeal, on the ground that it is not appropriate, with the leave of the [Courts-Martial Appeal Court]. The members of the [Courts-Martial Appeal Court] are civil judges and are in a position to correct any inappropriate punishment that the court-martial may impose by reason of the members' military background.” 75. Lord Rodger considered that all of these matters had to be borne in mind when considering the particular characteristics of the members of the court-martial to which the Chamber attached importance in Morris. He went on to identify and disagree with the specific concerns expressed by the Chamber in that case as regards the independence of the ordinary members: “The first was that the officer members had no legal training. That applies also in the present cases and indeed must apply in virtually all cases. As the briefing notes show, officers who may be called upon to sit on courts-martial are given some training by being allowed to sit and observe proceedings, including the members' deliberations. This should mean that, when they are eventually asked to sit, they should not find the procedures wholly unknown or strange, but it goes no further than that. While in Morris v. the United Kingdom the Third Chamber seems to have regarded the lack of formal legal training as a significant defect, as I have already noted, in Engel v. the Netherlands ... the European Court held that the Dutch Supreme Military Court was an independent and impartial tribunal, even though four of the six members were military officers with no legal training. Given the other safeguards which were in place in the present cases, I see no reason to conclude that the absence of legal training undermined the members' independence and impartiality. The European Court attached importance to the fact that the officers, other than the permanent president, remained subject to army discipline and reports. In so far as the members of the courts-martial in the present cases also remained subject to service discipline, they simply shared the characteristic of all serving members of the armed forces. It must have been equally true of the military members of the Dutch Supreme Military Court in Engel v. the Netherlands. Moreover, the fuller information available to the House about the safeguards in place to protect the independence of the members of courts-martial shows clearly, in my view, that, just like the Dutch officers in Engel v. the Netherlands, the officers in these cases would not have been under the command of any higher authority in their function as members of the courts-martial. Indeed, as [the Ministry of Defence] pointed out, contrary to the assumption of the European Court, there was even a formal legal bar to any superior officer trying to influence their decision, since this would have constituted the criminal offence of attempting to pervert the course of justice. It is true, of course, that, as in Morris v. United Kingdom, so also in these cases, leaving aside the permanent presidents, the officers sitting on the courts-martial would have remained subject to reports. [The appellants] indeed drew attention to a number of such reports where mention is made of the fact that, during the year in question, the officer concerned had sat as a member of a court-martial. In itself that must be unobjectionable since the information that the particular officer has had this experience may be relevant at some future date if, for instance, consideration is being given to appointing a permanent president. What would be objectionable would be any report which made reference, whether favourable or unfavourable, to an officer's decisions when sitting on a court-martial. But [the appellants] could point to no report where this had been done. The only report which referred to an officer's performance in relation to a court-martial was one relating to [one officer]: 'Her foray into the court-martial arena has brought particular accolades for her thoughtful and incisive contribution to the legal process'. The report showed that [that officer] had acted not only as junior member on several courts-martial but also as assistant defending officer to an airman tried by a general court-martial. It appears that the comment may well have related to this second role. In any event the report makes no comment on any decision reached by [that officer] when sitting as a member of a court-martial. Indeed counsel for the [Ministry of Defence] showed the House a number of statements from officers concerned with personnel matters who had read thousands of annual reports and had never seen mention of such a thing. That being so, again with the benefit of this more detailed information, I would not share the view of the European Court in Morris v. the United Kingdom that the independence and impartiality of officers sitting on courts-martial are compromised by the fact that they remain subject to the system of annual reports. For all these reasons I consider that those charged with administering the system of courts-martial have been at pains to put in place a series of practical safeguards which are designed to secure the independence and impartiality of those sitting on these courts. Nor is this surprising. There is not a little force in the point made by the [Courts-Martial Appeal Court] that, if service factors are to be seen as an aspect or function of the public interest, they will themselves require that the court-martial process should be, and should be seen to be, fair and impartial and, so far as possible, to achieve accurate results. Otherwise both servicemen and the public would lose confidence in it, with consequential effects on good order and discipline. Having regard in particular to the additional information which was not before the European Court, I would therefore hold that the safeguards built into the system are indeed such that no fair-minded and informed observer who had considered them would conclude that there was a real possibility that the courts-martial in these cases lacked independence or impartiality in this respect. In other words they were, objectively, independent and impartial. I would accordingly reject the Article 6 challenge based on the role of the officer members.” 76. Finally, Lord Rodger turned to the reviewing authority and to the finding in Morris that the role played by that authority constituted in itself a reason for finding that a court-martial had not been independent or impartial. Lord Rodger did not agree. Indeed, he noted that even the appellants before him had difficulty in supporting the Chamber's reasoning in Morris on this point. He continued: “The reviewing authority is, admittedly, an unusual institution. It does not operate like an ordinary court and, at a certain level of abstract theory, its existence could seem to be inconsistent with the charge against an accused being determined by only a system of 'tribunals'. That appears to be the way in which the European Court has treated it. But if, as the court indicates, the issue can also be characterised as relating to the independence of the court-martial, I find it difficult to see how the existence of this body affects that independence. It might, of course, be different if there were any suggestion that the decisions of the courts-martial were influenced by the existence of the reviewing authority, for example, because they tended to convict more readily or to impose heavier sentences in the knowledge that the reviewing authority could always quash them. But [the appellants] made no such submission and there is nothing whatever in the information before the House that would support it. On the contrary, [the appellants] accepted that the provision for review could only be to the benefit, and not to the detriment, of someone who had been convicted. In particular, it could provide a quick and simple means of correcting a mistaken decision by a court-martial. ... In reaching its conclusion on this point the European Court was particularly concerned by the fact that the decision as to whether any substituted sentence was more or less severe than that imposed by the court-martial would have been left to the discretion of the reviewing authority. When making this observation the Court does not appear to have been referred to, or to have had in mind, the coda to section 71(1) of the [1955 Act] which establishes, as a matter of law, the relative positions of particular punishments in the hierarchy of punishments set out in the subsection and which deals specifically with how detention and imprisonment are to relate to one another. Particularly when these provisions are taken into account, it is hard to see how, in reality, there is likely to be any scope for the reviewing authority to exercise the kind of discretion that appears to have troubled the European Court. In truth, counsel could refer to no case where any problem as to the relative severity of two punishments had arisen. If, by chance, however, the reviewing authority were to go wrong on the point, the person affected could ask the appeal court for leave to appeal. In all the cases under appeal except [one], the reviewing authority did not intervene, but the appellants were granted leave to appeal to the [Courts-Martial Appeal Court]. Where they had other arguable grounds of appeal relating to conviction or sentence, the [Courts-Martial Appeal Court] dealt with them, as well as with the Article 6 grounds, in their reasoned judgments. In these circumstances I am, with due respect to the decision of the European Court in Morris v .the United Kingdom, unable to see why the mere existence of the reviewing authority, or the reduction of [a] period of detention [in one case], should lead to the conclusion that the determination of the charges against the appellants was not reached by a 'tribunal' that was 'independent and impartial' for the purposes of Article 6. I would therefore reject the appellants' Article 6 argument based on the role of the reviewing authority.” 77. In 2002 the rate of acquittals in contested RAF courts-martial was 52%. The rate of acquittals in contested Crown Court trials has been: Year ending in March 1999: 42.8% Year ending in March 2000: 42.8% Year ending in March 2001: 44.3% Year ending in March 2002: 42% Year ending in December 2002: 37.4%

dev

001-22106

ENG

CYP

ADMISSIBILITY

KYRIAKIDES v. CYPRUS

Inadmissible

Gaukur Jörundsson

The applicant, Savvas Kyriakides, is a Cypriot national, born in 1965 and living in Nicosia. He is represented before the Court by Mr E. Pourgourides, a lawyer practising in Limassol. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the Managing Director of the company Stellios Kyriakides Trading Ltd and in that capacity he obtained a number of loans from Dr Neophytou. Each time a loan was agreed, both parties entered into a written agreement which provided that the loan would become payable to Dr Neophytou with 7% interest at the end of 60 days. Each time the applicant received a loan, he issued a personal post-dated cheque in Dr Neophytou’s favour for the sum due at the end of the 60 days period. The amount included both the capital and the interest. When the various cheques became payable, Dr Neophytou did not cash them, but instead, entered into new agreements with the applicant whereby the sums due were referred to as “capital loaned”, again attracting 7% interest. The old agreements and cheques were cancelled by the new agreements. In the summer of 1995, the parties decided to merge the numerous agreements and, when all sums fell due, they were added together to form the basis of two further agreements: the first, dated 23 July 1995, showed the capital at 30 000 Cypriot pounds (CYP). The second, dated 19 August 1995, showed the capital at 32 000 CYP. The new agreements provided for the reimbursement of the capital, plus interest at 7%, at the end of 60 days and were supported by two new post-dated personal cheques of the applicant. These cheques were presented to the applicant’s bank and were both dishonoured. On 31 May 1996, Dr Neophytou filed a private prosecution before the District Court of Nicosia against the applicant pursuant to Section 305(A)1 of the Cyprus Criminal Code. At the material time in 1995, a criminal offence was deemed to have been committed under Section 305(A)1 where a cheque was dishonoured due to a lack of funds in the drawer’s bank account. Subsection 3 of the same Section provided that no offence was committed if the bearer of the cheque had no “actionable right” against the drawer. On 26 November 1997 the District Court of Nicosia acquitted the applicant. In particular, it accepted the applicant’s argument that subsection 3 of Section 305(A) applied in the case since the agreements under which the cheques were issued were illegal under Cypriot law (Sections 3 and 5 of Law 2/77 and Sections 23 and 24 of the Contract Law Cap.149). In fact, Dr Neophytou had charged interest above the 9% per year allowed by law, namely 42% (7% every 60 days). This being so, Dr Neophytou had no right of action against the applicant. On 2 December 1997 Dr Neophytou appealed to the Supreme Court. On 8 March 1999 the Supreme Court quashed the judgment of the District Court and convicted the applicant, sentencing him to three months’ imprisonment. The Supreme Court held that the District Court had misinterpreted Section 305(A)3. According to the Supreme Court, the correct meaning of that provision was that “the cheque must have the necessary characteristics of a cheque as these are referred to in the Bills of Exchange Law”, “the complainant must be the legal bearer of the cheque” and the trial court should not have examined the civil aspect of the agreement between the parties which led to the issue of the post-dated cheques. Following that decision, Parliament passed a retroactive amendment to Section 305(A), which came into force on 30 April 1999. The amendment provided that Section 305(A) did not apply to any cheques which were issued under an illegal transaction. Furthermore, it provided that the amending Law was to apply to all pending cases. Since the applicant’s case was still pending, as regards the imposition of sentence, the issue was raised before the Supreme Court on 17 May 1999. The applicant applied for a halt to the judgment, pursuant to Section 79 of the Criminal Procedure Law Cap.155. On 1 June 1999 the Supreme Court held that the amending law did not apply to the applicant’s case. The applicant served 56 days of the sentence and was released after a pardon. Section 305(A)1 of the Criminal Code provides that a person is guilty of a criminal offence carrying a sentence of imprisonment not exceeding six months, if he draws a cheque, which on being presented to the issuing bank within a reasonable time from the date on which it becomes payable, it is not discharged owing to the lack of available funds of its drawer and the latter fails to discharge payment within fifteen days as from the time he acquires knowledge of that fact. Section 305(A)3 states that the provisions of Section 305(A)1 are not applicable with regard to any cheque on which no actionable right ensues against its drawer. Section 25(1) of the Contract Law Cap.149 provides that “an agreement made without consideration is void...”. In the case of Loizou v. Republic of Cyprus (Supreme Court, judgment of 24 June 1994), the defendant raised before the first instance court the defence of Section 305(A)3, claiming inter alia that the complainant had no right of action against him because the agreement under which the cheque was issued was made without consideration. The court examined the contract between the parties and decided that, on the facts of the case, consideration was given and therefore the contract between the parties was valid and enforceable, giving rise to a right of action. Consequently, the defence failed and the defendant was convicted. The same question was raised on appeal and the Supreme Court found that the first instance court examined this matter extensively and that it correctly concluded that consideration was given for the issuing of the relevant cheque. After referring to the facts relating to this matter the Supreme Court added the following: “We also note that the relevant provision refers to an “actionable right”, and not to a good basis or arguable action. We are therefore of the view that the judgment of the first instance court is impeccable and the appeal against conviction is rejected”. Section 62 of the Contract Law Cap.149 provides that “if the parties to a contract agree to substitute a new contract for it or to rescind or alter it, the original contract need not be performed”. In the case of Ergatides Motors Ltd and Georgios Ergatides v. the Police (Supreme Court, judgment of 19 June 1997), the defendant claimed under Section 305(A)3 that the contract under which the cheque was issued had been rescinded and that the parties had entered into a new contract. He contended that since the cheque was issued under the first contract which was rendered unenforceable by virtue of the new one, no right of action existed against him under the former. The Supreme Court examined the first contract and, having found that it was indeed rescinded and replaced, upheld the defence under Section 305(A)3 and acquitted the defendant. No right of action existed under the first contract.

dev

001-85728

ENG

GBR

CHAMBER

CASE OF SZULC v. THE UNITED KINGDOM

Violation of Article 14+P1-1 - Prohibition of discrimination (Article 1 of Protocol No. 1 - Protection of property)

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

4. The applicant was born in 1955 and lives in Leicester. 5. His wife died on 16 February 1996, leaving two children of ten and twelve years of age respectively. His claim for widows’ benefits was made on 9 February 1997 and was rejected on 18 February 1997 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant appealed and his claims were consistently rejected up to the most recent decision dated 23 October 2000. 6. On an unspecified date the applicant made a claim to the Inland Revenue, requesting an allowance equivalent to that received by a widow, namely Widow’s Bereavement Allowance (“WBA”). After various rejections, on 20 September 2000 the Inland Revenue confirmed that he was ineligible for WBA as he was not a woman. 7. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security or tax benefits were payable to widowers under United Kingdom law. 8. The relevant domestic law and practice is described in the Court’s judgments in the cases of Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV; and Hobbs, Richard, Walsh and Geen v. the United Kingdom, nos. 63684/00, 63475/00, 63484/00 and 63468/00, judgment of 26 March 2007.

dev

001-107206

ENG

TUR

CHAMBER

CASE OF ALTUĞ TANER AKÇAM v. TURKEY

Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

5. The applicant was born in 1953 and lives in Ankara. 6. He is a professor of history who researches and publishes extensively on the subject of the historical events of 1915 concerning the Armenian population in the Ottoman Empire. 7. On 6 October 2006 the applicant published an editorial opinion in AGOS, a bilingual Turkish-Armenian newspaper, entitled “Hrant Dink, 301 and a Criminal Complaint”. In this editorial opinion the applicant criticised the prosecution of Hrant Dink, the late editor of AGOS, for the crime of “denigrating Turkishness” under Article 301 of the Turkish Criminal Code. He also requested, in an expression of solidarity, to be prosecuted on the same ground for his opinions on the Armenian issue. 8. On 12 October 2006 a complaint was lodged against the applicant with the Eyüp public prosecutor. The complainant, R.A., alleged that the applicant’s defence of Hrant Dink in the editorial published in AGOS violated Articles 301, 214 (incitement to commit an offence), 215 (praising a crime and a criminal) and 216 (incitement to hatred and hostility among the people) of the Turkish Criminal Code. Following this complaint, the applicant was summoned to the Şişli public prosecutor’s office to make a statement. He was informed that he would be brought to the public prosecutor’s office by force, in accordance with Articles 145 and 146 of the Criminal Code, if he did not comply with the summons. 9. On 5 January 2007 the applicant went to the Şişli public prosecutor’s office to submit his defence statement in relation to the criminal complaint against him. The applicant stated, in the presence of his two lawyers, that he had indeed written the said article published in AGOS. He explained that the policy of the Ittihad ve Terakki towards the Armenians in 1915 could well be defined as genocide within the meaning of the Convention on the Prevention and Punishment of the Crime of Genocide of the United Nations of 1948. He had written the said article in order to express his opinion on the Armenian issue in the context of freedom of the press. He pointed out that he was a professor of history who had been working on this subject for almost twenty years and that he had expressed his opinion several times in his books and articles. He had not written the impugned article in order to serve any association, organisation, race or ethnic group, or to denigrate a nation. The applicant’s two lawyers also argued that the applicant’s statements did not amount to a crime. 10. On 30 January 2007 the investigation against the applicant was terminated by the Şişli public prosecutor, who noted that at all the scientific seminars he had taken part in and in his publications the applicant had expressed the opinion that the events that took place between 1915 and 1919 could be described as genocide. Having examined the applicant’s article published in AGOS, the public prosecutor concluded that the applicant’s statements in his capacity as a professor of history came within the realm of protected expression under Article 10 of the European Convention on Human Rights and that as such they did not constitute denigration of Turkishness. Nor did they amount to incitement to commit a crime, or to praising a crime or criminal, or incitement to hatred and enmity amongst the people. 11. On 6 July 2007 the complainant, R.A., filed an objection against the above-mentioned decision of non-prosecution. 12. On 30 October 2007 the Third Chamber of the Beyoğlu Assize Court dismissed the complainant’s objection. Having examined the investigation carried out and the reasons given by the Şişli public prosecutor, the court held that the decision of non-prosecution was in accordance with procedure and law. 13. On 11 October 2007 a judgment was issued by the Şişli Criminal Court against Arat Dink (the editor of AGOS) and Serkis Seropyan (the owner of AGOS) whereby both were sentenced to one year’s imprisonment under Article 301 of the Turkish Criminal Code for accusing the Turkish nation of genocide via the press. Although the applicant was not a party to those proceedings, the court decided of its own motion that the Şişli public prosecutor had erred in discontinuing the investigation against the applicant on 30 January 2007 and held that this matter should be duly investigated by the prosecutor’s office. 14. On 26 November 2007 another complaint was lodged against the applicant, by a certain A.P., with the Chief Public Prosecutor’s office in Şişli. The complainant alleged that the applicant’s statements published in AGOS on 6 October 2006 violated Article 301 of the Turkish Criminal Code. 15. On 28 November 2007 the Şişli Public Prosecutor issued a decision of non-prosecution. He noted that a similar complaint by another complainant had been examined and dismissed by a non-prosecution decision on 30 January 2007. 16. On 10 January 2008 the applicant made an urgent request for interim measures under Rule 39 of the Rules of Court. He also requested that the respondent Government be notified of the introduction of the application in accordance with Rule 40 of the Rules of Court and that the case be given priority under Rule 41 of the Rules of Court. 17. On 14 January 2008 the applicant’s requests under Rules 39, 40 and 41 of the Rules of Court were rejected. 18. The Government submitted to the Court a decision of nonprosecution issued by the Şişli Chief Public Prosecutor’s office on 17 February 2006. It appears from this decision that on 21 October 2005 a criminal complaint was lodged by a certain K.K., who alleged that the applicant had attempted to denigrate the Republic and to influence the trial of Hrant Dink by his editorial opinion dated 14 October 2005 published in the AGOS newspaper. The public prosecutor who examined the complaint concluded that the alleged offence was time-barred and therefore issued a decision of non-prosecution. 19. According to the information provided by the applicant’s representative on 6 May 2008, no further investigation had been instigated against the applicant after the judgment of the Şişli Criminal Court dated 11 October 2007. 20. The Government submitted a list of thirteen books published by the applicant. It appears that these books are on sale in Turkey and that they mainly concentrate on the Armenian question. A selection of the books included is as follows: – “The Armenian question has been resolved; Ottoman documents concerning the policies towards the Armenians during the war years”, 2008; – Turkish national identity and the Armenian question: “From the Ittihad ve Terakki to the War of Independence”, 2001; – “Lifting the Armenian taboo, is there any solution other than dialogue” 2000; and – “Human Rights and the Armenian Question”, 1999. 21. The Government further noted that, contrary to the applicant’s allegations that he had been prevented from pursuing his research on the Armenian issue, he had been given permission to conduct research in the State Archives by the Directorate General of State Archives. Between 27 June 2006 and 17 July 2007 the applicant personally consulted the Ottoman archives and had been granted further permission to photocopy 527 documents. On page 17 of his book entitled “The Armenian question has been resolved” the applicant thanked the State Archives for assisting him in his research. 22. In an annex to their observations, the Government have furnished the Court with sample copies of non-prosecution decisions issued by public prosecutors and judgments of acquittal given by criminal courts in cases concerning prosecutions under Article 159/1 of the former Criminal Code and Article 301 of the new Criminal Code. In particular, the suspects were mainly accused of insulting or denigrating the army, the security forces, the judiciary or the Republic. 23. In these decisions and judgments, given between 2005 and 2008, the prosecuting authorities either dropped the charges against the suspects, considering that the necessary elements of the crime in question were not present, or terminated the proceedings on the grounds that the Ministry of Justice had refused permission to prosecute the suspects. In acquitting the suspects, the criminal courts relied on the case-law of the European Court in cases concerning Article 10 of the Convention. 24. The above-mentioned documents furnished by the Government included two judgments given by the Beyoğlu and Şişli Criminal Courts in respect of two prominent writers, namely Elif Şafak and Orhan Pamuk. 25. In the criminal proceedings against Elif Şafak the Beyoğlu Criminal Court had examined a criminal complaint filed by a group of lawyers and an association called the Turkish World and Culture and Human Rights Association of Izmir, who alleged that Elif Şafak had denigrated “Turkishness” as a result of statements about the Armenian issue in her book entitled “Baba ve Piç” (“The Bastard of Istanbul” in English). In a judgment dated 21 September 2006, the court acquitted Elif Şafak, holding that the book in question was fiction and that the impugned statements made by the characters in the novel could not be taken as constituting an offence of denigrating Turkishness. Having examined the novel written by the accused, the court concluded that the statements contained in the book should be examined in the context of freedom of expression. The court, however, observed that the limits of the concept of “Turkishness” should be determined and based on a solid ground by the legislator. It further remarked that opinions should only be compared with opinions. Otherwise, one could not talk of freedom of opinion and expression and would be forced to adopt uniform thoughts. 26. In the case brought against Orhan Pamuk, the Şişli Criminal Court had examined a criminal complaint lodged by two individuals who alleged that the writer had denigrated Turkishness in a speech he had given abroad. In a judgment dated 20 January 2006, the court decided to discontinue the proceedings on the ground that the requisite permission to press charges against the accused had not been obtained from the Ministry of Justice. It thus ruled that the lack of permission should be considered as a refusal and that the proceedings should be terminated. 27. The Government submitted statistical information which indicated the situation by 5 November 2008. They noted that following the amendments made to Article 301 of the Criminal Code on 8 May 2008 there had been a significant decrease in prosecutions under Article 301. In this connection, of the seventy authorisation requests made by public prosecutors to commence criminal proceedings under Article 301, the Ministry of Justice had granted only three. 28. The Government further pointed out that between 2003 and 2007 the number of sets of criminal proceedings instituted under Article 301 (Article 159/1 of the former Criminal Code) was 1,894. Of those, 744 cases had resulted in convictions and 1,142 in acquittals; 193 cases were still pending following the Court of Cassation’s decisions to quash the first-instance courts’ judgments. 29. In their supplementary observations dated 30 October 2009, the Government noted that between 8 May 2008 and 30 September 2009 the Ministry of Justice had received 955 requests for authorisation to institute criminal proceedings under Article 301. The Ministry had refused 878 of these requests but granted 77. In this connection, the Government furnished the Court with sample copies of decisions of refusal issued by the Ministry of Justice. It appears from these decisions that the Ministry of Justice extensively relied on the case-law of the Court in cases concerning Article 10 when refusing public prosecutors’ requests for authorisation to institute criminal proceedings under Article 301 of the Criminal Code. The Government further noted that in 244 cases where the Ministry of Justice refused authorisation to institute criminal proceedings, the criminal complaints mainly concerned publications in the press. 30. The European Commission’s 2008 Progress Report on Turkey stated: “Following the adoption of the amendments to Article 301, Turkish courts had forwarded, by September [2008], 257 cases to the Minister of Justice for prior authorisation. This requirement concerns cases at the investigation stage or for which judicial proceedings have started. By September, the Ministry had reviewed 163 cases and refused to grant permission to proceed in 126 cases. However, the wording of Article 301 remains largely the same and the prior authorisation requirement opens up the possibility that the article will become subject to political consideration. So far, the Minister of Justice authorised the criminal investigations to continue in 37 statements made by a Turkish writer on the Armenian issue shortly after the assassination of the Turkish journalist of Armenian origin, Hrant Dink. Furthermore, there is legal uncertainty as regards cases which had been granted authorisation by the Minister of Justice under the former Article 159 of the Turkish Criminal Code”. 31. The applicant highlighted examples of post-amendment Article 301 cases with specific reference to the Armenian issue. He noted that in October 2008 the Ministry of Justice had authorised the continuance of the trial of Temel Demirer for stating that Hrant Dink had been killed not only for being an Armenian, but also for raising the issue of genocide. Another example was Ragıp Zarakolu’s conviction and sentencing on 17 June 2007 to five months’ imprisonment (subsequently commuted to a fine) under Article 301 for translating and publishing a book about the Armenian genocide entitled “The Truth Will Set Us Free”, written by George Jerjian. 32. Furthermore, according to the United States Department of State’s 2008 Human Rights Report on Turkey, the Minister of Justice himself (Ali Şahin) also made a statement that could be interpreted as instructions to the judiciary: “I will not let someone call my state ‘murderer’. This is not freedom of expression. This is exactly what the crime of insulting the person of the state is.” 33. The applicant also submitted a report published by the Media Monitoring Desk of the Independent Communications Network, for the period of July-August-September 2008. According to this report a total of 116 people, 77 of whom were journalists, were prosecuted in 73 freedom of expression cases. 34. In its editions of 10 and 29 October 2000, 5 November 2000 and 31 December 2000 the magazine Aydınlık published articles alleging that the applicant was a paid employee of the German intelligence service and that he had been commissioned to conduct research and write on the subjects “Violence in Turkish history”, “Torture in Turkish history” and “the Armenian Genocide”. These studies had been commissioned and financed by the German intelligence service and had been published in a book. 35. In its edition dated 4 January 2001 the daily newspaper Hürriyet published an article entitled “The German Intelligence Chief and Tessa Hoffmann couple” containing allegations that the applicant’s studies were determined and financed by the German intelligence service. 36. In its editions dated 21, 22 and 23 June 2007, the Hürriyet newspaper published articles describing the applicant as an individual who had betrayed Turkey and vomited hate towards Turkey in all of his books and speeches. 37. By press releases, the applicant and his family condemned the allegations published by the Hürriyet newspaper and called for apology. They referred to the killing of Hrant Dink and said that the press should act with responsibility and sensibility when publishing articles containing allegations labelling someone as a “traitor”. They further warned against Turkey becoming a country where citizens could be lynched with the help of the press. 38. By a judgment dated 8 November 2005 the Istanbul Civil Court of First Instance dismissed the applicant’s claims for non-pecuniary damage. The court held that even though the words used and allegations made by the defendants were offensive they were within the limits of permissible criticism. This judgment was confirmed by a Court of Cassation decision dated 14 March 2007. 39. On 26 July 2007 the applicant brought an action in the Ankara Civil Court of First Instance requesting the court to order the Hürriyet newspaper to publish a letter of correction in response to the offensive articles published on 21, 22 and 23 June 2007. By a decision dated 30 July 2007 the court dismissed the applicant’s request. It held that even though the criticism contained in the impugned articles was harsh in tone, it was covered by the right to freedom of expression enjoyed by the press in a pluralist democracy. 40. On 24 November 2007 the Taraf newspaper published an article criticising the attitude of the judiciary in regard to the media campaign against the applicant. 41. The applicant claimed that he had received hate mail from unknown persons. He submitted a copy of an e-mail sent by a person insulting him and threatening him with death as a result of his views on the Armenian issue. 42. Between 9 and 23 July 2007 a number of articles were published on internet portals and in magazines and newspapers criticising the attacks against the applicant and expressing support for him. 43. Former Article 301 of the Turkish Criminal Code reads as follows: “1. A person who publicly denigrates Turkishness, the State of the Republic of Turkey or the Grand National Assembly of Turkey shall be sentenced to a penalty of imprisonment for a term of six months to three years. 2. A person who publicly degrades the Government of the Republic of Turkey, the judicial bodies of the State or the military or security organisations of the State shall be sentenced to a penalty of imprisonment for a term of six months to two years. 3. In cases where denigration of Turkishness is committed by a Turkish citizen in another country the punishment shall be increased by one third. 4. The expression of an opinion for the purpose of criticism does not constitute an offence.” 44. The new text of Article 301 of the Turkish Criminal Code, as amended on 29 April 2008, reads as follows: “1. A person who publicly degrades the Turkish nation, the State of the Republic of Turkey, the Grand National Assembly of Turkey, the Government of the Republic of Turkey or the judicial bodies of the State, shall be sentenced to a penalty of imprisonment for a term of six months to two years. 2. A person who publicly degrades the military or security organisations of the State shall be sentenced to a penalty in accordance with paragraph 1 above. 3. The expression of an opinion for the purpose of criticism does not constitute an offence. 4. The conduct of an investigation into such an offence shall be subject to the permission of the Minister of Justice.” 45. In the criminal proceedings against Hrant Dink (see Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 28, ECHR 2010... (extracts)), the Grand Chamber of the Court of Cassation interpreted the term Turkishness as follows (Yargıtay Ceza Genel Kurulu, E.2006/9-169, K.2006/184, judgment of 11 July 2006): “... [T]he term “Turkishness” (Türklük) refers to the human element of the State; that is to say, the Turkish Nation. Turkishness is constituted by the national and moral values as a whole, that is, human, religious and historical values as well as the national language and national feelings and traditions ...” 46. The European Commission’s 2009 Progress Report on Turkey stated the following, insofar as it concerns the use of Article 301 of the Criminal Code in cases concerning freedom of expression: “...[t]he Turkish legal framework still fails to provide sufficient guarantees for exercising freedom of expression and, as a result, is often interpreted in a restrictive way by public prosecutors and judges. There are still some prosecutions and convictions based on Article 301...” 47. The European Commission’s 2010 Progress Report on Turkey stated, insofar as relevant, the following: “...As regards freedom of expression, an increasingly open and free debate continued on a wide scale in the media and public on topics perceived as sensitive, such as the Kurdish issue, minority rights, the Armenian issue and the role of the military. There are few cases initiated on the basis of Article 301 of the Turkish Criminal Code (TCC) after it was amended in May 2008. According to the Ministry if Justice, since the amendment to Article 301 of the Turkish Criminal Code, a decrease in the number of cases opened has been observed. The figures below cover examinations concluded between 1 January 2010 and 31 July 2010: 369 files examined, 270 files for which permission was denied, 10 files for which permission was granted, 3.57% file for which permission was granted...” 48. In his report dated 12 July 2011 Thomas Hammarberg Commissioner for Human Rights of the Council of Europe, stated the following: “17. Following his visit to Turkey in 2009, the Commissioner expressed his concern regarding Article 301, notwithstanding an amendment adopted in 2008 which led to a decrease in the number of proceedings brought under this article. On 14 September 2010 the Court delivered its judgment in the case of Dink v. Turkey in which it found a violation of Article 10 ECHR on account of Hrant Dink’s conviction based on Article 301. The Court held that Hrant Dink’s conviction for denigrating Turkish identity prior to his murder did not correspond to any “pressing social need” which is one of the major conditions on which interference with one’s freedom of expression may be warranted in a democratic society. The Commissioner considers that the amendment adopted in 2008, which subjects prosecution to a prior authorisation by the Ministry of Justice in each individual case, is not a lasting solution which can replace the integration of the relevant ECHR standards into the Turkish legal system and practice, in order to prevent similar violations of the Convention.”

dev

001-61542

ENG

HUN

CHAMBER

CASE OF SESZTAKOV v. HUNGARY

Violation of Art. 6-1 with regard to length;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Inadmissible under Art. 6-1 with regard to fairness, Art. 8 and P1-1

Gaukur Jörundsson

4. The applicant was born in 1959 and lives in Somlóvásárhely, Hungary. 5. On 6 May 1993 the applicant's wife requested the Ajka District Court to hold a preliminary hearing with a view to instituting divorce proceedings. In turn, on 7 July 1993 the applicant brought an action before the District Court claiming maintenance for the couple's son, who was at the time in the applicant's care. The District Court held hearings on the maintenance claim on 13 September and 3 November 1993. On the latter date the applicant's wife formally filed for divorce. The divorce proceedings were subsequently joined to the claim for maintenance. 6. In the joined proceedings, hearings took place on 27 April, 17 June, 16 September and 31 October 1994, 3 February and 5 April 1995. 7. On the latter date the District Court pronounced, in a partial decision, the couple's divorce. In line with the parties' agreement, it granted the mother custody of their son. The court ordered the applicant to pay maintenance, regulated his right of access to the boy and ordered the parties to share the use of their flat which was in common ownership. The court relied on the testimonies of numerous witnesses, including a social worker, the applicant's two step-children born out of the mother's previous marriage, and the couple's son. 8. On the applicant's appeal of 12 May 1995, the Veszprém County Regional Court held a hearing on 26 September 1995. At a hearing on 10 October 1995 the Regional Court allowed the applicant's appeal and amended the District Court's decision in the part concerning the amount of maintenance and the details of his access rights. 9. On 13 December 1995 the proceedings were resumed before the District Court in respect of the division of the matrimonial property. A hearing was held on 13 December 1995. A further hearing took place on 21 February 1996. On the latter date the District Court decided to obtain various expert opinions. 10. On 31 May and 23 July 1996, respectively, property and valuation experts submitted their opinions. 11. At a hearing on 18 October 1996 the District Court appointed a motor-vehicle expert to prepare an opinion. On 12 December 1996 the expert was urged to submit his opinion. On 31 December 1996 the expert informed the court that the applicant could not be located at the address notified to him. On 17 February 1997 the expert was requested to submit an opinion as soon as possible. On 27 February 1997 the expert submitted his opinion. 12. Further hearings were held on 28 April, 12 May and 17 November 1997. Meanwhile, on 6 June 1997 the applicant requested further expert evidence to be taken. Although it experienced difficulties in finding an expert jeweller, the District Court finally appointed one on 27 February 1998 and requested the parties to contact him. On 30 July 1998 the expert submitted his opinion. 13. On 28 September 1998 an expert psychologist submitted his opinion. A hearing scheduled for 28 October 1998 was adjourned at the applicant's request. 14. The next hearing took place on 20 January 1999. The District Court ordered the property expert to complete his opinion of 31 May 1996, taking into account any possible changes which might have occurred in the meantime. On 19 March 1999 the District Court requested the expert to proceed as a matter of urgency. On 24 March 1999 the expert submitted his opinion, which was based on an on-site inspection of the property. 15. Further hearings took place on 27 September and 25 October 1999. On the latter date both the applicant and his representative failed to appear before the court. Meanwhile, the District Court made enquiries with the parties' bank as regards the mortgage situation of their flat. On 29 October 1999 the court requested the parties to waive their rights to secrecy in respect of their bank details. The waivers were sent to the bank on 17 November 1999. On 28 December 1999 the District Court made a further enquiry with the bank as regards payments transferred from the parties' bank account to cover housing expenses. On 24 January 2000 the District Court ordered the applicant to submit his waiver in the form required by the bank. The bank submitted the requested banking details on 27 March 2000. 16. At the hearings of April and 22 May 2000 several witnesses were heard on the use of the parties' flat. On the latter date the District Court carried out an inspection of the flat. 17. On 13 December 2000 the District Court ruled on the division of the matrimonial property. On 20 and 27 December 2000, respectively, the applicant and the defendant appealed. 18. The Veszprém County Regional Court held hearings on 20 February, 1 and 20 March 2001. During this period the parties were involved in negotiations aimed at reaching an agreement on the sale of their flat. On the parties' joint request of 28 March 2001, the Regional Court discontinued the proceedings on 3 April 2001 and annulled the decision of 13 December 2000.

dev

001-5026

ENG

AUT

ADMISSIBILITY

YAVUZ v. AUSTRIA

Inadmissible

Nicolas Bratza

The applicant is a Turkish national, born in 1965 and living in Turkey. He is represented before the Court by Mr L. Weh, a lawyer practising in Bregenz. A. In November 1991 the applicant arrived in Austria. On 1 June 1992 he married an Austrian citizen. Subsequently he requested a work permit and a residence permit. In June 1992 he was given a work permit. The residence permit, however, was refused. On 12 August 1993 the Bregenz District Administrative Authority (Bezirkshauptmannschaft) issued a deportation order (Ausweisungsbescheid) against the applicant. It found that the applicant had no residence permit and that his stay in Austria was therefore unlawful. Thus, his removal from Austria was necessary in the public interest. The applicant, assisted by counsel, instituted appeal proceedings, which were terminated in April 1994 by the decision of the Administrative Court (Verwaltungsgerichtshof) which found that the deportation order was lawful. These proceedings were the issue of Application No. 25050/94 which was declared inadmissible by the European Commission of Human Rights on 16 January 1996. On 11 May 1994 the District Administrative Authority ordered the applicant to leave Austria. On the basis of the deportation order, the applicant was arrested in October 1994. On 12 October 1994 the applicant, assisted by lawyer, appealed to the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat) against his detention with a view to expulsion. He argued that his detention was not necessary because five months had already elapsed since the Authority’s order to leave Austria in May 1994. Besides, the Administrative Court’s decision of April 1994 was no longer enforceable for lapse of time. Furthermore, he requested the resumption of the expulsion proceedings and a hearing before the Independent Administrative Panel. On 18 October 1994, having taken into account the case-file and the Administrative Authority’s comments on the applicant’s appeal (Gegenschrift), the Independent Administrative Panel dismissed the appeal and upheld the applicant’s detention. It found that it was not competent to review the lawfulness of the underlying deportation order. It noted that the Administrative Court had found that the measure was lawful and that the applicant had been ordered to leave Austria on several occasions, but had not complied. He had been lawfully detained with a view to enforcing the expulsion, in accordance with Section 41 of the Aliens Act (Fremdengesetz). It noted further that the applicant was mistaken when arguing that the deportation order was no longer enforceable. Finally, it found that no hearing was necessary because the factual basis was clear from the file. On 29 November 1994 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). He argued that his detention was not necessary and that the Independent Administrative Panel had violated Article 5 § 4 of the Convention as it had not held a hearing and had not communicated the District Authority’s comments on his appeal. On 28 February 1995 the Constitutional Court refused to deal with the case and transferred it to the Administrative Court. It found that Article 5 § 4 of the Convention did not guarantee a public hearing, and that access to the file as well as the submission of any further observations had been possible for the applicant throughout the proceedings. On 10 October 1995 the Administrative Court dismissed the complaint. It found that the detention with a view to expulsion had been necessary. As to a hearing, access to the file and the possibility to submit further information, it agreed with the Constitutional Court. The Administrative Court’s decision was served upon the applicant on 27 December 1995. B. Relevant domestic law Section 41 of the Aliens Act 1992 (Fremdengesetz), applicable at the material time, allows the arrest and detention of an alien if these measures are necessary to ensure, inter alia, expulsion. The detainee must be released as soon as the grounds for detention cease to exist. The maximum period of detention is limited to two months (Section 48). Everyone arrested and detained under the Aliens Act has the right to apply to the competent Independent Administrative Panel and to challenge the lawfulness of the arrest and the detention order (Section 51 § 1). An appeal may be filed either directly with the Independent Administrative Panel or with the authority of first instance. In the latter case this authority has to present the appeal to the Independent Administrative Panel within a maximum delay of two days (Section 51 § 2). Besides, the detaining authority has to inform the Panel immediately in case of the applicant’s release (Section 51 § 3). If the detainee, however, is not released before, the Independent Administrative Panel has to decide on the continuation of the detention within one week (Section 52 § 2). Section 17 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) provides for the right to inspect the case-files. This section is applicable to proceedings concerning the review of an arrest or a detention with a view to expulsion.

dev

001-96033

ENG

ALB

CHAMBER

CASE OF CAKA v. ALBANIA

Remainder inadmissible;No violation of Art. 6-1+6-3-c;No violation of Art. 6-1+6-3-d;Violations of Art. 6-1+6-3-d;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

6. The applicant, Mr Lulzim Caka, was born in 1970 and is currently serving a prison sentence in Tirana, Albania. 7. On 21 July 1997 P. was murdered. On an unspecified date in 1997 a criminal investigation was opened against the applicant. During the criminal investigation, the victim's sister, A., even though she had not been present at the crime scene, stated that the applicant had killed her brother. She based her testimony on the account of three eyewitnesses, B., C. and D., who, it would appear, were questioned on an unspecified date. 8. On 6 October 1998 the judicial police, the body responsible for the conduct of the criminal investigation and the identification of the perpetrator, recommended that the criminal investigation be suspended, as the perpetrator of the crime could not be identified. However, on 15 October 1998 the prosecutor filed an indictment against the applicant with the Berat District Court (see paragraph 17 below). 9. In 1997 Albania was hit by civil unrest as a result of the fall of pyramid schemes. Army depots were looted and a very considerable number of weapons were in civilian hands. The gradual restoration of ordre public necessitated frequent police checkpoints. Consequently, on 18 March 1998 the Berat police forces set up checkpoints to conduct searches of people for illegal possession of firearms. In the early afternoon of the same day, police officers on duty at a checkpoint situated on the main road between the cities of Berat and Fier shot the applicant and X., another person riding a motorcycle with him. As a result, X. died and the applicant was seriously wounded. 10. According to the police report on the incident, two persons riding a motorcycle (identified later as the applicant and X.), did not stop when ordered to do so by the police at the first checkpoint. The police at the second checkpoint reported that the applicant, who had been driving the motorcycle, had fired at the police officers with both an automatic gun and a revolver simultaneously. The police had returned fire and shot X., the pillion passenger, dead. Notwithstanding the fact that the applicant was wounded, he had continued to shoot until he surrendered. The police reported having collected from the scene two Kalashnikov automatic guns (automatikë kallashnikov), two pistols (pistoletë), bullets and cartridges, the motorcycle, a mask, a hat, a pair of sneakers, and other things allegedly used by the applicant and X. It appears that the automatic weapons, pistols, bullets and cartridges were sent for ballistics examination. 11. On 18 March 1998 the applicant and another suspect, E., were arrested in relation to the above event (see paragraph 9-10 above). 12. The applicant was taken to hospital, where he stayed for a couple of hours for medical treatment as he had been wounded. After release from the hospital on the same day, he was remanded in custody in Berat. On 19 March 1998 the applicant was examined by a doctor, who found that his overall state of health was satisfactory. It was concluded that the injuries the applicant had sustained fell under the category of light bodily injuries requiring no more than nine days' rest. 13. On 19 March 1998 the prosecutor charged the applicant with attempted murder in collusion with others and illegal possession of firearms. During questioning the same day, the applicant did not provide any information regarding the charges levelled against him. The applicant requested the presence of his lawyer, F. 14. On 20 March 1998 the lawfulness of the applicant's arrest was confirmed by the Berat District Court. 15. On 8 April 1998 the prosecutor decided to discontinue the criminal investigation against E., finding that he had not committed any criminal offence. 16. On 9 June 1998, 22 September 1998 and 15 October 1998, when questioned by the prosecutor, the applicant was defended and represented by G., another lawyer of his own choosing. 17. On 15 October 1998 the Berat prosecutor filed a bill of indictment with the Berat District Court, accusing the applicant of the intentional murder of P. and attempted murder of police officers on 18 March 1998. It would appear that both criminal proceedings against the applicant were joined. 18. The Berat District Court commenced the trial against the applicant on 17 November 1998. Thirteen hearings were held between 17 November 1998 and 13 April 1999, on which date the proceedings were transferred to the Fier District Court (see “Transfer of proceedings” section below). Seven hearings had been adjourned owing to the absence of the prosecutor, the applicant or his lawyer. In the remaining six hearings, the applicant was represented by his lawyer, G. 19. The applicant contested the facts as submitted by the prosecution. He stated that he had been riding the motorcycle unarmed when the police officers at the second checkpoint had opened fire, without ordering him to stop. He also asked the court to summon witnesses who, at the time of the incident, had been driving on the same road. 20. At the hearings of 23 December 1998 and 6 January 1999, four witnesses, who had been driving on the same road and had seen the applicant while he was riding the motorcycle, testified that the applicant had not been carrying any weapons. 21. On 15 February 1999 the prosecutor submitted a request to the Supreme Court for the transfer of the criminal proceedings against the applicant from the Berat District Court. He argued that the state of insecurity in Berat made witnesses hesitant to testify before the court. He also mentioned the existence of “pressure of various forms, even threats to the life of the prosecutor concerning the outcome of the proceedings”. 22. On 5 March 1999 the Supreme Court granted leave to transfer the proceedings from the Berat District Court to the Fier District Court, in accordance with Article 94 of the Code of Criminal Procedure (“the CCP”). 23. Pursuant to Article 97 § 3 of the CCP, the Fier District Court was required to take a decision as regards the validity of the actions carried out by the Berat District Court. No such decision was contained in the case file. The Government submitted that the case file and acts carried out by the Berat District Court were considered valid on the strength of a certificate of 9 March 2005 issued by the Fier District Court's registrar. 24. On 25 May 1999 the applicant appointed another lawyer of his own choosing, H. 25. On 26 May 1999 the Fier District Court commenced the trial of the applicant. Twenty-four hearings were conducted between 26 May 1999 and 11 May 2000, the date on which the applicant was found guilty of the offences and sentenced to imprisonment. 26. From 26 May to 27 November 1999 ten hearings were scheduled, but adjourned owing to the absence of the applicant or his representative. No witnesses were heard and no other procedural measures were taken. On 9 November 1999 the court informed the applicant that he could appoint another counsel given the repeated absence of his lawyer H. 27. On 8 December 1999 the applicant revoked H.'s power of attorney. From 8 December 1999 to 7 February 2000, during which time five hearings were held, the applicant represented himself. No witnesses appeared or were questioned at those hearings, as a result of which they were adjourned. On 7 February 2000 the prosecutor read out witness statements which had been taken during the criminal investigation. The applicant contested the statements of witnesses B. and D. On the same day the applicant reappointed his previous lawyer H. The court decided to examine witness A. at the next hearing on 21 February 2000 in the presence of the applicant's lawyer. 28. On 21 February 2000 the court heard the testimony of A., who stated that the applicant was the murderer of her brother P. She relied on the evidence of witnesses B., C. and D. She had not been a witness at the crime scene. Neither the applicant nor his lawyer, H., questioned A. Further to the applicant's request, the Fier District Court issued several summons for the appearance of B., C. and D. However, the witnesses never appeared before the court. 29. At the hearing of 23 February 2000 the applicant appointed I. to act as his lawyer alongside H. Three police officers K., L. and M. gave evidence at the trial. In light of the discrepancies in M.'s testimony at the investigation stage and the trial proceedings, the prosecutor requested leave to challenge the testimony pursuant to Article 362 of the CCP by reading out his statement made during the criminal investigation. While the applicant and lawyer I. did not initially question M., they requested that he be cross-examined after the reading of his statement. The District Court rejected their request as they had initially waived their right to question the witness. 30. On 1 March 2000 the applicant's lawyer I. requested the court to summon M. for cross-examination. He repeated the request at the hearing of 6 March. On the same date the court rejected the request as ill-founded. It however granted the lawyer's request to summon four other police officers N., O., Q. and S. 31. On 15 and 21 March the applicant's lawyer repeated his request to summon and cross-examine M. On 21 March the court rejected the requests as ill-founded. It reasoned that M. had attended a hearing in which the accused and his lawyer had had the opportunity to put questions to him. On the same date, the court heard police officer N. The applicant was represented by his lawyer I. Witnesses O., Q. and S. never appeared and were questioned before the court, despite repeated summons and information sent by the court to the respective authorities, for example the Ministry of Justice, the Ministry of Interior and the Police General Directorate. 32. On 18 April 2000 the applicant's lawyer I. withdrew from representing the applicant. The applicant's other lawyer H. was absent. The court decided to adjourn the proceedings until 3 May 2000. 33. On 26 April 2000 the applicant's lawyer H. withdrew from representing the applicant. His reasons related to his involvement in the defence of other criminal cases. He also mentioned procedural irregularities committed by the Fier District Court, which had not served him with written summons to appear at hearings. He alleged that the court lacked impartiality. He requested the court to proceed in accordance with section 49 § 5 of the CCP. 34. On 3 May 2000 the applicant appointed another lawyer of his own choosing, J. The court decided to adjourn the proceedings until 11 May 2000. 35. On 11 May 2000 the court read a fax received from the applicant's lawyer J., whose involvement in other business did not enable him to defend the applicant. J. stated that he had not received any request to represent the applicant. The record of the hearing stated that the applicant wished to defend himself. The applicant stated that he had not been in possession of any weapons on 18 March 1998. He agreed to the reading out of statements of witnesses Q., R. and S. taken during the criminal investigation and waived his right to have witness O. questioned. The prosecutor proceeded with the reading out of the above-mentioned witnesses' statements. He then concluded with his final submissions. The applicant subsequently stated that he did not accept the charges as he had neither killed P., nor shot at the police officers. 36. On the same day the Fier District Court delivered its judgment, finding the applicant guilty as charged, and sentenced him to twenty-five years' imprisonment. 37. In relation to the charge of attempted murder of police officers, the Fier District Court based its judgment on the testimonies of four police officers K., L., M. and N. given at the hearings of 23 February and 6 March 2000 (see paragraphs 29 and 31 above) and on the statements of two witnesses made during the criminal investigation. The court took note of the crime scene investigation report, the applicant's arrest report and the ballistics report. 38. In that connection, the court also found the applicant guilty of illegal possession of firearms on the strength of the ballistics report, adding that the cartridges found at the crime scene had been fired from the weapons found close to the accused. However, there was no mention in the judgment as to whether the weapons had been in the actual possession of the applicant. 39. In relation to the murder of P. on 21 July 1997, the Fier District Court based its reasoning on the testimony of A. given before the trial and the statements of witnesses B., C., and D. given during the criminal investigation (see paragraphs 7, 27 and 28 above). 40. On 16 May 2000 the applicant appealed against his conviction and sentence to the Vlora Court of Appeal, alleging a violation of the right to a fair trial. In particular, he argued that the lack of legal assistance during the trial and the fact that the court of first instance had admitted witness statements without the possibility of cross-examination of the deponents constituted a breach of the right to adversarial proceedings. Furthermore, he had been deprived of the right to cross-examine witness M. who had testified at the hearing of 23 February 2000. He also maintained that, during the stage in which the parties had made their final submissions, he had not been assisted by defence counsel. The applicant was represented before the Court of Appeal by I., who had previously withdrawn from the case on 18 April 2000 (see paragraph 32 above). 41. On 20 October 2000 the Vlora Court of Appeal dismissed the applicant's appeal and upheld the Fier District Court's judgment. In so far as the appeal was directed against the District Court's refusal to allow the applicant to cross-examine witness M., the Court of Appeal noted that at the hearing of 23 February 2000 the applicant's counsel had stated that he had no questions to ask. The applicant had addressed only one question to the witness, which was answered. The Court of Appeal rejected the applicant's complaint about the lack of legal assistance at the final hearing, relying on his statement that he wished to defend himself. 42. On 6 March 2001 the applicant appealed to the Supreme Court relying on the same grounds of appeal as before the Court of Appeal. He added that the record of the hearing of 11 May 2000 had been forged by the Fier District Court in so far as his request to be defended by a lawyer had been distorted to read that he wished to defend himself. 43. On 16 October 2001 the Supreme Court declared his appeal inadmissible as “its grounds fell outside the scope of Article 432 of the CCP”. 44. On 22 October 2003 the applicant lodged a complaint with the Constitutional Court about the unfairness of the proceedings. He complained about the length of his pre-trial detention and relied on Article 6 § 3 (b) and (c) and (d) of the Convention. 45. On 18 November 2003 the Constitutional Court, sitting as a bench of three judges, declared the complaint inadmissible. It held that the applicant's complaint did not raise any fair trial issues, but mainly concerned the assessment of evidence which was the function of the lower courts. 46. On 6 June 2003 the applicant lodged with the Court a notarised statement by B.H., the judge who had presided over the bench of the Berat District Court in the criminal proceedings. According to B.H., the proceedings had been transferred to the Fier District Court, to the applicant's detriment, at a point when the Berat District Court had been nearing the end of the examination of the case and had been likely to conclude that there was insufficient evidence against him. Furthermore, B.H. maintained that the Fier District Court had admitted witness statements obtained at the police station rather than those obtained during the trial before the Berat District Court. He also maintained that the Fier District Court had not considered a ballistics report submitted during the trial before the Berat District Court, from which it transpired that the automatic guns allegedly used by the applicant belonged in fact to the Berat Police Force. Moreover, he stated that the applicant's lawyers had withdrawn from defending him during the trial before the Fier District Court as a consequence of threats to their own lives and those of their families. 47. The applicant also submitted four notarised statements made by eyewitnesses who had been present some minutes before the incident and had seen the applicant riding the motorcycle unarmed and had then heard the police shooting. The same eyewitnesses gave testimony before the Berat District Court on 23 December 1998 and 6 January 1999 (see paragraph 20 above). 48. On 28 April 2008 the Court requested the Government to provide a copy of the entire investigation file and legible records of all hearings before the District Courts. On 31 July 2008 the Government provided records of all the hearings held before the District Courts. No documents from the investigation file were provided. Article 31 During criminal proceedings, everyone has the right: a. to be notified immediately and in detail of the charges brought against him, of his rights, and to have the possibility to notify his family or relatives; b. to have sufficient time and facilities to prepare his defence; c. to have the assistance of a translator free of charge, when he does not speak or understand the Albanian language; ç. to present his own case or defend himself through the assistance of counsel of his own choosing; to communicate freely and privately with him, as well as to be provided free legal counsel when he does not have sufficient means; d. to examine witnesses who are present and to request the appearance of witnesses, experts and other persons who can clarify the facts. Article 32 1. No one shall be obliged to testify against himself or his family or to confess his guilt. 2. No one shall be declared guilty on the basis of evidence collected unlawfully. Article 33 1. Everyone has the right to be heard before being judged. 2. A person who is seeking to evade justice may not avail himself of this right. “In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” “The Constitutional Court shall decide: ... (f) in a ruling that shall be final, complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” 50. Article 49 § 5 of the CCP provides that the presence of a defence lawyer shall be required when the appointed lawyer has not been provided, has not appeared or has abandoned the defence. In such circumstances the court or the prosecutor shall appoint another lawyer as substitute, who shall exercise the rights and assume the obligations of the defence lawyer. 51. Articles 94-97 govern the transfer of proceedings. According to the wording of Article 94, as in force at the material time, “at any stage and instance during the trial, when public safety or the free will of the persons participating in the trial are impaired by serious local events which may affect the conduct of the trial and which may not be avoided by other means, the Supreme Court, further to a reasoned request by the prosecutor or the defendant, may transfer the case to another court.” Article 97 provides that the Supreme Court decides in private. A decision to grant a request for the case to be transferred shall be notified to the court in which the proceedings have been conducted and the court to which the proceedings are to be transferred. The court which had previously conducted the proceedings shall immediately transfer the procedural documents to the designated court and shall order the notification of the decision of the Supreme Court to the prosecutor, defendant and private parties. Article 97 § 3 states that “the court designated by the Supreme Court shall give a decision as to whether the actions already carried out are valid and the extent of their validity”. 52. Under Article 362 § 1, as in force at the material time, “in order to challenge, entirely or partly, the content of the testimony or when the witness refuses to testify, the parties may use the statements previously made by the witness before the prosecutor or the judicial police and which are in the case file, but only after the witness has testified to the facts and circumstances which can be contested”. Article 362 § 2 stipulated that “these statements do not constitute evidence for the facts found therein, but they can be examined by the court in order to determine the reliability of the person in question and are a constituent part of the case file”. 53. Article 425 establishes the scope of the examination of the appeal by the Court of Appeal. It provides that the examination of the case by the Court of Appeal is not limited to the grounds of appeal but extends to the whole case. 54. Under Article 427, at the party's request, the Court of Appeal shall be empowered to directly re-examine previous evidence and additional new materials, if it considers necessary. 55. Article 428 establishes which decisions may be taken by the Court of Appeal. It provides that the Court of Appeal may decide to dismiss the appeal and uphold the judgment, to amend the judgment, to quash the judgment and terminate the criminal proceedings, or to quash the judgment and remit the case for a fresh trial. 56. The Court of Appeal's judgments may be appealed to the Supreme Court in compliance with one of the following requirements of Article 432: a) the criminal law has not been respected or has been erroneously applied; b) there have been breaches which result in the court's judgment being declared invalid in accordance with Article 128 of this Code; c) there have been breaches of procedural rules that have affected the adoption of the judgment. 57. Article 434 provides that the Supreme Court examines the appeal in so far as points of law have been raised therein.

dev

001-107016

ENG

SRB

CHAMBER

CASE OF STANIMIROVIĆ v. SERBIA

Violation of Art. 3 (procedural aspect);Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi

5. The applicant was born in 1972. He is currently serving his sentence in Zabela Prison near Požarevac in Serbia. 6. On 9 February 2001 a couple were killed. 7. On 10 February 2001 at about 8 p.m. the applicant was arrested at his home in Grocka. He was taken to Smederevo police station and beaten up by police officers. He then confessed to having participated in the killing. 8. On 11 February 2001 the applicant was taken to Smederevo Prison. 9. On 13 February 2001 the applicant was taken to the investigating judge. He met his counsel there, who had meanwhile been appointed by the applicant’s wife, but he was not given the opportunity to talk with him in private. While the applicant confirmed his earlier confession, he complained to the judge that he had been beaten up by the police. The applicant was then examined at Smederevo Hospital. According to the medical report, he had a broken rib and bruises on his chest. 10. On 14 February 2001 the applicant was taken to the investigating judge again. His counsel was not present. The applicant met his counsel in private for the first time later that day. 11. On 17 February 2001 the applicant was returned to Smederevo police station and beaten up again. After having collapsed, he was taken to Smederevo Hospital. According to the medical report, he was concussed and had bruises on his head. The investigating judge was informed of the incident. 12. On 19 February 2001 the applicant appeared before the investigating judge again. His counsel was not present. 13. When the applicant was taken to the investigating judge for the fourth time on 16 March 2001, his counsel was present and he retracted his confession. 14. Following a criminal complaint lodged by the applicant’s counsel against unidentified criminal police officers, the public prosecutor obtained a report from Smederevo police station rejecting the applicant’s allegations. The public prosecutor also obtained the medical reports of 13 and 17 February 2001. On 24 September 2001 the public prosecutor decided not to prosecute and informed the applicant’s counsel of the possibility of starting a subsidiary prosecution within eight days. Counsel did not do so. 15. On 4 November 2002 the Smederevo District Court found the applicant and S.P. guilty of murder and sentenced each of them to forty years’ imprisonment. On 9 July 2003 the Supreme Court of Serbia quashed that judgment and remitted the case to the first-instance court for a retrial. It instructed the first-instance court to establish whether the applicant had been ill-treated by the police and whether any of his statements were therefore inadmissible. 16. At a hearing held on 13 May 2004, the applicant described his illtreatment in detail and named the alleged perpetrators for the first time. Counsel for S.P. then applied for the minutes of that hearing to be sent to the public prosecutor with a view to prosecuting the police officers named by the applicant. The public prosecutor, who was present at the hearing, raised an objection. She emphasised that a criminal complaint in that connection had been dismissed on 24 September 2001 and that her office had no intention of dealing with the same case again. Counsel for S.P. then applied for that prosecutor to be excluded from the proceedings. On 17 May 2004 the Smederevo District Chief Public Prosecutor rejected that application, but confirmed that the 2001 decision might be reconsidered in view of the new facts, notably the names of the alleged perpetrators. 17. On 27 December 2004 the Smederevo District Court found the applicant guilty of murder and S.P. of incitement to murder and sentenced each of them to forty years’ imprisonment. It held that the applicant had indeed been beaten at Smederevo police station. The applicant’s statements made there on 10 and 17 February 2001 were thus declared inadmissible. However, it regarded the statements which the applicant had made before the investigating judge on 13, 14 and 19 February as admissible. The court relied in that regard on an expert report prepared by a team of psychiatrists, stating that the applicant’s fear must have receded by the date of his appearance before the investigating judge. 18. The applicant appealed against the judgment of 27 December 2004. He maintained, among other grounds of appeal, that the admission of the statements which he had made before the investigating judge in February 2001 should have also been barred. On 13 May 2005 the Supreme Court of Serbia upheld the first-instance judgment. 19. The applicant appealed against the judgment of 13 May 2005. He repeated that the admission of the statements which he had made before the investigating judge in February 2001 should have also been barred. On 14 April 2006 the Supreme Court of Serbia, in a different formation, upheld the second-instance judgment. 20. On 3 November 2006 the applicant lodged a criminal complaint with the public prosecutor against six police officers in relation to the events of February 2001. On 18 January 2007 the public prosecutor decided not to prosecute. The reasons for that decision are unknown because the applicant was not informed thereof and the entire file was allegedly destroyed in early 2010 (that is, three years after the decision not to prosecute). 21. In March 2011 both the applicant and his counsel applied for the reopening of the criminal proceedings described above. On 17 March 2011 the Smederevo Higher Court rejected both applications. On 29 April 2011 the Belgrade Court of Appeal upheld the decision of 17 March 2011. 22. The Criminal Code 1977 (Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, and Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force until 31 December 2005. The relevant Articles read as follows: “(1) Any person acting in an official capacity who uses force or threat ... in order to extort a confession or another statement from an accused, a witness, or another person, shall be punished with imprisonment of between three months and five years. (2) If extortion is aggravated by serious violence or results in particularly serious consequences for an accused in criminal proceedings, the offender shall be punished with imprisonment of at least three years.” “Any person acting in an official capacity who ill-treats, insults or humiliates another, shall be punished with imprisonment of between three months and three years.” 23. The Code of Criminal Procedure 2001 (Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) entered into force on 28 March 2002. Most criminal offences (including those mentioned above) are subject to public prosecution, but some minor offences are only subject to private prosecution. Pursuant to Article 20 of the Code, the public prosecutor must prosecute when there is sufficient evidence that a certain individual has committed a criminal offence which is subject to public prosecution. Article 61 of the Code provides that when the public prosecutor decides not to prosecute such an offence because of lack of evidence, the victim of the offence may nevertheless start a subsidiary prosecution within eight days from the notification of that decision. The Code of Criminal Procedure 1977, which was in force until 28 March 2002, contained similar provisions (see Articles 18 and 60 thereof). 24. In accordance with Article 414 of the Code of Criminal Procedure 2001, as amended in September 2009, the reopening of a criminal trial may be sought where the Constitutional Court or an international court has found that the convicted person’s rights have been breached in the trial.

dev

001-4724

ENG

GBR

ADMISSIBILITY

BALBONTIN v. THE UNITED KINGDOM

Inadmissible

Nicolas Bratza

The applicant is a British national, born in 1964 and living in London. He is represented before the Court by Ms. R. Karp, a lawyer practising in London. A. On 18 August 1994 a boy, J, was born to the applicant and Ms C.S., an Italian national. The child's parents were not married and separated towards the end of 1994. The applicant maintained regular contact with J but at no time had a parental responsibility order. J lived with and was cared for by C.S. On 17 February 1997 the applicant issued an application for a parental responsibility order in the Willesden County Court. He also requested a contact order, an order prohibiting C.S. from taking J to Italy and an order that J be known by his correct name. On 3 March 1997 C.S. took J to Italy. On 6 March 1997 the applicant applied to Willesden County Court for a direction that J be returned to the jurisdiction and that the matter be referred to the High Court. On the same date the County Court transferred the matter to the High Court. On 7 March 1997 there was an ex parte hearing before the High Court. The applicant requested the court to grant him parental responsibility. The court observed that his parental rights had not been breached when C.S. took the child to Italy because the applicant did not have parental responsibility. Even if the court were to grant the applicant parental responsibility at that stage, this would not make the removal of the child unlawful ex post facto. The applicant also requested the court under Article 8 of the Child Custody and Abduction Act 1985 to declare that J had been removed from the jurisdiction in breach of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, because the applicant's custody rights had not been respected. He submitted in this connection that the notion of “custody” should be interpreted broadly by reference to Article 8 of the Convention on Human Rights. However, the court considered that the applicant did not have custody within the meaning of Article 3 of the Hague Convention. In particular, the court considered that the applicant did not have any formal rights of custody in English law and the European Convention on Human Rights had not been incorporated into domestic law. Finally, the applicant sought a declaration in wardship. This would have enabled the applicant to seek an order that J be returned to England and Wales. However, the court declined to make such a declaration on the ground that J had always lived with C.S. and it was inappropriate at that stage to demand that C.S. should return with him to England and Wales so that the applicant could visit him. The applicant was treated differently from married fathers because he did not have parental responsibility. The applicant could issue proceedings in wardship or under the Children Act 1989, serve them on the mother and promptly request the appropriate orders. However, the court stressed that, in the circumstances, it would not make any ex parte orders. The applicant sought leave to appeal. On 24 March 1997 the High Court refused his application. The applicant renewed his application before the Court of Appeal. On 18 April 1997 the Court of Appeal refused the applicant leave to appeal reasoning as follows: The purpose of the Hague Convention was to ensure the speedy return, without lengthy proceedings or inquiries, of children who had been wrongfully removed from the person having their care. However, J was not cared for by the applicant. The applicant simply had contact with him. The applicant's case could be also distinguished from cases where wards of court had been removed from the jurisdiction. In one such case the court had ordered the return to the jurisdiction of a child that had been made a ward of court on the day following its removal. Finally, the mere fact that the applicant had instituted proceedings before the English courts had not resulted in those courts acquiring custody powers over J. This could have happened only if the courts had made an interim custody order. As a matter of fact, the precedent relied on by the applicant in this connection concerned a case where the child had been removed by a mother in favour of whom the courts had previously made an interim custody order in contested proceedings. As a result of all the above, the Court of Appeal considered that the applicant's case was not an appropriate one for an ex parte order. However, the applicant had the possibility of making further applications in the context of contested proceedings. B. Relevant domestic law and practice Section 2 of the Children Act 1989 provides the following: “(1) Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child. (2) Where a child's father and mother were not married to each other at the time of his birth - (a) the mother shall have parental responsibility for the child; (b) the father shall not have parental responsibility for the child, unless he acquires it in accordance with the provisions of this Act.” It is within the inherent jurisdiction of the High Court to make children wards of court (wardship jurisdiction). Once a child has been made a ward of court, no important step in its life can be taken without the consent of the court. Section 8 of the Child Abduction and Custody Act 1985 provides the following: “The High Court or Court of Session may, on an application made for the purposes of Article 15 of the Convention by any person appearing to the court to have an interest in the matter, make a declaration or declarator that the removal of any child from, or his retention outside, the United Kingdom was wrongful within the meaning of Article 3 of the Convention.” The Hague Convention on the Civil Aspects of International Child Abduction provides the following: Article 3 “The removal or the retention of a child is to be considered wrongful where (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Article 15 “The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”

dev

001-69499

ENG

POL

ADMISSIBILITY

KACZMAREK v. POLAND

Inadmissible

Nicolas Bratza

The applicant, Mr Zbigniew Kaczmarek, is a Polish national who was born in 1940 and lives in Łódź, Poland. He is represented before the Court by Mr S. Janiszewski, a lawyer practising in Zgierz, Poland. The facts of the case, as submitted by the parties, may be summarised as follows. On 28 September 1989 the applicant lodged a claim for the division of matrimonial property with the Łódź District Court (Sąd Rejonowy). The proceedings are pending before the first-instance court. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. Section 2 of the 2004 Act reads, in so far as relevant: Section 5 reads, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant: “1. The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. ...” On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.

dev

001-61317

ENG

FRA

CHAMBER

CASE OF KOUA POIRREZ v. FRANCE

Violation of Art. 14 and P1-1;No violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

András Baka;Gaukur Jörundsson

9. The applicant was born in 1966 and lives in the Paris area. 10. The applicant has been physically disabled since the age of seven. He was adopted by Mr Bernard Poirrez, a French national, under the terms of a judgment of 28 July 1987 of the Bouaké Court of First Instance. On 11 December 1987 the Bobigny tribunal de grande instance granted authority for the judgment to be executed. 11. In December 1987 the applicant applied for a declaration of French nationality. His application was found inadmissible on the ground that he was over 18 years old when it was submitted. He appealed to the Bobigny tribunal de grande instance, which gave judgment on 15 January 1988 declaring the application inadmissible. That judgment was upheld by the Paris Court of Appeal on 24 June 1993. 12. In the meantime, the Seine-Saint-Denis Occupational Counselling and Rehabilitation Board (commission technique d'orientation et de reclassement professionnel – “COTOREP”) registered the applicant as 80% disabled and issued him with an invalids' card. In May 1990 he applied to the Family Allowances Office (caisse d'allocations familiales – “CAF”) for the Paris area for an “allowance for disabled adults” (allocation aux adultes handicapés – “AAH”). In support of his application, he stated that he was a French resident of Ivory Coast nationality and the adopted son of a French national residing and working in France. His application was rejected on the ground that, as he was neither a French national nor a national of a country which had entered into a reciprocity agreement with France in respect of the AAH, he did not satisfy the relevant conditions laid down in Article L. 821-1 of the Social Security Code (see paragraph 24 below). 13. On 13 June 1990 the applicant brought his case before the Friendly Settlements Board of the Family Allowances Office. 14. In a decision of 6 September 1990, the Board confirmed the CAF's decision on the ground that the applicant did not satisfy the conditions laid down in Article L. 821-1 of the Social Security Code. The authorities noted that the Ivory Coast, of which the applicant was a national, had not signed a reciprocity agreement with France in respect of the AAH. 15. On 26 February 1991 the applicant lodged an application with the Bobigny Social Security Tribunal for judicial review of the decision rejecting his claim. The applicant and the CAF lodged their pleadings on 26 February and 25 April 1991 respectively. 16. In a judgment of 12 June 1991, the court decided to stay the proceedings pending the referral of a question to the European Court of Justice (ECJ) for a preliminary ruling. The question was whether the decision not to award the allowance for disabled adults to the applicant, a member of the family (adopted son) of a European Community national resident in the country of which the head of household (the adoptive parent) had the nationality (in accordance with French legislation) was compatible with the European provisions contained in the Treaty establishing the European Economic Community (“the EEC Treaty”). In a judgment of 16 December 1992 the ECJ replied to the question with a ruling that the refusal to award the benefit to the applicant was not incompatible with the relevant Articles of the EEC Treaty. It pointed out that the applicant's adoptive father could not claim to be a “migrant worker”, which was the category to which the European provisions in question applied. It based that finding on the fact that the applicant's adoptive father, being French, had always lived and worked in France. The ECJ accordingly concluded that the applicant could not “rely on Community law in support of his application for a social security benefit awarded to migrant workers and members of the family”. In doing so, it did not examine the question whether the refusal to award the applicant the allowance was, in general, compatible with Community law or not. 17. The applicant started receiving the minimum welfare benefit (revenu minimum d'insertion – “RMI”) on 17 December 1991. 18. On 31 March 1993, on the strength of the reply from the ECJ, the Bobigny Social Security Tribunal rejected the application as ill-founded. The applicant appealed against that decision on 27 July 1993. He applied for legal aid on 23 November 1993. 19. On 14 January 1994 the Legal Aid Office at the Paris tribunal de grande instance rejected the application for legal aid to fund the applicant's appeal on the ground that the request was manifestly ill-founded. On 21 February 1994 the applicant appealed against that decision. In a decision of 5 May 1994 the President of the Legal Aid Office allowed the appeal. 20. In a judgment of 19 June 1995, the Paris Court of Appeal upheld the decision of 31 March 1993. It referred to the provisions of Article L. 821-1 of the Social Security Code in the wording then applicable and to the lack of a reciprocity agreement between France and the country of the applicant's nationality in respect of the allowance. 21. On 2 May 1996 the applicant appealed to the Court of Cassation on points of law. The applicant and the CAF lodged their pleadings on 1 August and 21 October 1996 respectively. On 2 June 1997 a reporting judge was appointed. He filed his report on 10 October 1997. A hearing before the Court of Cassation took place on 27 November 1997. In a judgment of 22 January 1998, the Court of Cassation dismissed the appeal lodged by the applicant and worded as follows: “With regard to the applicant's ground of appeal that '... Article 26 of the Covenant of New York prohibits any discrimination, including on grounds of national origin; that, in refusing to award Mr Koua Poirrez an allowance for disabled adults on grounds of his nationality, the Court of Appeal disregarded the binding nature of that provision, which it subsequently breached by refusing to apply ...' ” 22. The Court of Cassation ruled as follows: “Article 26 of the International Covenant of New York of 19 December 1966, which prohibits any discrimination on grounds of national origin, cannot be construed as forbidding all nationality criteria on which domestic law makes the availability of a right conditional. After reiterating the terms of Article L. 821-1 of the Social Security Code, which restricts the right to an award of the allowance for disabled adults to French nationals and nationals of a country that has signed a reciprocity agreement, the Court of Appeal properly decided that Mr Koua Poirrez, an Ivory Coast national, could not claim that allowance in the absence of a reciprocity agreement between France and the Ivory Coast. ...” 23. Following the enactment of the Act of 11 May 1998, which lifted the nationality condition for awards of non-contributory allowances, the applicant reapplied for an allowance for disabled adults from 1 June 1998. His application was rejected by the CAF, whereupon he applied to the Social Security Tribunal again. In a judgment of 11 June 1999 that court declared his application ill-founded on the ground that the applicant had not complied with the formal conditions governing the submission of his application for the allowance because he had not submitted to the CAF all the documentary evidence of his financial situation. The applicant appealed. According to information provided by the Government and undisputed by the applicant, the COTOREP re-examined the applicant's claim, at the request of the CAF, and awarded him the allowance for the period from June 1998 to November 2000. It is not apparent from the file whether the applicant continued to receive the benefit after that date. In any event, the applicant has not made any complaint regarding the current period and has not alleged that the allowance has been withdrawn. 24. The Disabled Persons Act of 30 June 1975 (Law no. 75-534) provides for the benefit of an allowance for disabled adults. Article L. 821-1 of the Social Security Code, as worded prior to the entry into force of the Act of 11 May 1998, provided for the award of this minimum income to any disabled person, subject to the fulfilment of certain conditions: “Any French national or national of a country that has signed a reciprocity agreement in respect of benefits payable to disabled adults resident in metropolitan France ... who is over the age of entitlement to the special education allowance provided for in Article L. 541-1 and whose permanent disability is at least equal to the percentage determined by decree, shall receive an allowance for disabled adults if they are not eligible for an old-age or invalidity or employment-injury benefit under a social security or retirement pension scheme or special legislation of an amount at least equal to that of the allowance.” 25. The Aliens (Conditions of Entry, Residence and Asylum) Act of 11 May 1998 (Law no. 98-349) abolished the nationality condition. Since that Act was passed, any foreign national lawfully resident in France may claim the allowance. 26. With regard to another benefit, namely the supplementary allowance paid by the National Solidarity Fund, the Court of Cassation has ruled that the refusal to award the benefit solely on the ground of their foreign nationality to claimants resident in France who received an invalidity pension under the French scheme breached Article 14 of the Convention and Article 1 of Protocol No. 1 (Social Division, judgment of 14 January 1999, published in the Bulletin). 27. Recommendation No. R (92) 6 on a coherent policy for people with disabilities, adopted by the Committee of Ministers of the Council of Europe on 9 April 1992, cross-refers to its Appendix, which provides, inter alia, as follows: “... 2. Aims All people who are disabled or are in danger of becoming so, regardless of their age and race, and of the nature, origin, degree or severity of their disablement, should have a right to the individual assistance required to enable them to lead a life as far as possible commensurate with their ability and potential. Through a coordinated set of measures they should be enabled to: ... – have a minimum livelihood, if appropriate by means of social benefits; ... 4. General directives To implement this policy States should take the following steps: ... – ensure that people with disabilities enjoy a respectable standard of life, if necessary by means of economic benefits and social services; ... Social provisions remain, however, in many spheres an essential means of either activating and supporting self-help or initiating and promoting rehabilitation and integration processes. ... IX. Social, economic and legal protection 1. Scope and principles 1.1. In order to avoid or at least to alleviate difficult situations, sidelining and discrimination, to guarantee equal opportunity for people with disabilities, and to develop personal autonomy, economic independence and social integration, they should have the right to economic and social security and to a decent living standard by: – a minimum livelihood; – specific allowances; and – a system of social protection. 1.2. If there is a global system of economic and social protection for the population as a whole, people with disabilities should be able to benefit fully from it, and their specific needs must be taken into consideration. In so far as this does not exist, a specific system must be established for continuous provision for people with disabilities. 1.3. Socio-economic protection must be ensured by financial benefits and social services. This protection must be based on a precise assessment of the needs and the situation of people with disabilities which must be periodically reviewed in order to take into account any changes in personal circumstances which had been the reason for such protection. 1.4. Economic protection measures must be considered as one of the elements of the integration process for people with disabilities. 2. Economic and social security 2.1. In addition to social benefits granted to people with disabilities as well as to other people (for example unemployment benefits), the economic and social security system should grant: – special benefits in cash or in kind, for people with disabilities, covering rehabilitation and other special needs, such as medical treatment, vocational training, technical aids, access to and adaptation of housing, transport and communication facilities; – special financial support for families who have a child with a disability; – adequate assistance, for example installation allowances or investment loans for people with disabilities wishing to become self-employed; – a minimum livelihood covering their and their families' basic needs and requirements for people with a degree of disablement which prevents them from working; – benefits for people who need the continuous assistance of another person because of their disablement; – benefits to people who are unable to seek employment because of care provided to a person with a disability; – where financial assistance is given up in order to take up employment, this financial assistance should be protected and guaranteed if employment proves unfeasible; ...” 28. This recommendation also states that “the exercise of basic legal rights of people with disabilities should be protected, including being free from discrimination”. 29. The European Committee of Social Rights, in Conclusions concerning Article 12 of the Charter in respect of France (15th report, reference period 1997-1998; Conclusions XV-1, vol. 1, p. 262, Council of Europe Publishing, 2000), states as follows: “The Committee notes that Act no. 98-349 on entry of foreign nationals into France, their residence in the country and the right of asylum brings the French Social Security Code into line with the Social Charter. The reciprocity requirement for awarding the AAH and the FSV supplementary allowances to foreigners had been found in breach of the Charter by the Committee since supervision cycle VI for the former and XIII-2 for the latter. Since this requirement has been lifted – the only condition now applied is that the beneficiary be lawfully resident in France (new Article L 816-1 of the Social Security Code) – nationals of all Contracting Parties are now on an equal footing with French nationals. The Committee considers that the situation is now in conformity with Article 12 para. 4 of the Charter.”

dev

001-84475

ENG

AZE

CHAMBER

CASE OF ABBASOV v. AZERBAIJAN

Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

5. The applicant was born in 1964 in Dashkesan, Azerbaijan, and currently lives in Russia. 6. The applicant was a unit commander in the Azerbaijani Army. On 7 October 1994 he was arrested in Ganja, Azerbaijan, due to his alleged participation in the coup d'Etat organised by S. Huseynov. 7. On 31 July 1996 the Supreme Court, sitting as a court of first instance for especially serious crimes, convicted the applicant for high treason, use of armed forces against the citizens and constitutional government authorities, creation of illegal armed units, and illegal possession of weapons. He was sentenced to thirteen years' imprisonment and confiscation of property. This judgment was final and not subject to appeal under the rules of criminal procedure applicable at that time. 8. Upon Azerbaijan's admission to the Council of Europe, the applicant's name was included in the lists of the “alleged political prisoners in Azerbaijan” submitted to the experts of the Secretary General. 9. Pursuant to a presidential pardon decree of 18 October 2002, the applicant's sentence was reduced by half. 10. Pursuant to another presidential pardon decree of 28 August 2003, the applicant was released from serving the remainder of his sentence. As the applicant was no longer imprisoned, no final opinion was adopted by the experts of the Secretary General on whether he could be considered as a political prisoner. 11. In 2000 a new Code of Criminal Procedure (“the CCrP”) and new Criminal Code of the Republic of Azerbaijan were adopted. Before the new CCrP's entry into force on 1 September 2000, on 14 July 2000 Parliament passed a transitional law allowing the lodging of an appeal under the new CCrP against the final judgments delivered in accordance with the old criminal procedure rules (“the Transitional Law”). 12. On 11 August 2004 the applicant, using the opportunity granted to him by the Transitional Law, filed a cassation appeal against the judgment of 31 July 1996 with the Supreme Court. On 17 August 2004 the Supreme Court refused to accept the appeal due to the applicant's failure to enclose a copy of the challenged judgment. 13. On 4 October 2004 the applicant again filed the cassation appeal, which was registered by the Supreme Court on 6 October 2004. In his appeal he noted that, although he had been pardoned and released from imprisonment, his conviction for high treason remained intact. He argued that his trial by the first-instance court had been unfair. He also argued that, under the new Criminal Code the actions for which he had been convicted could not be qualified as “high treason”. He asked the court to quash the judgment of 31 July 1996. 14. According to the Government, on 15 October 2004 the Supreme Court “informed the applicant that the appeal hearings concerning his case would be held on 7 December 2004”. According to the applicant, he did not receive any such summons and, in general, did not receive any information concerning his case for several months. 15. On 27 January 2005 the applicant wrote a letter to the Supreme Court inquiring about the status of the proceedings. He also requested to add an issue concerning the confiscation of property to his appeal. In reply, by a letter dated 15 February 2005, the Head of the Registry of the Supreme Court informed the applicant that the court had not received from him any documents in this respect. 16. On 5 April 2005 the applicant was sent a copy of the Supreme Court decision concerning his case, dated 7 December 2004. The applicant was informed that on 7 December 2004 the Supreme Court had examined his cassation complaint in the presence of a public prosecutor but in the absence of the applicant. The judgment was silent as to the reasons for holding the hearing in the applicant's absence. During the hearing, the prosecutor asked the court to dismiss the appeal. The court found that the applicant's guilt had been duly established during the trial in the first-instance court and that his actions had been properly qualified under the criminal law. Accordingly, the court dismissed the applicant's appeal as being unsubstantiated. 17. In accordance with the Law of 14 July 2000 on the Adoption and Entry into Force of the Code of Criminal Procedure of the Republic of Azerbaijan (“the Transitional Law”), judgments and other final decisions delivered by first instance courts under the old CCrP before the entry into force of the new CCrP, may be reconsidered by an appellate court or the Supreme Court in accordance with the relevant provisions of the new CCrP. 18. In accordance with Article 415.0.3 of the new CCrP, the Supreme Court may leave the cassation appeal unexamined if the person lodging the appeal fails to attach to his appeal a copy of the disputed judgment or decision. 19. A cassation appeal lodged with the Supreme Court is transmitted to one of the judges of the relevant chamber of the Supreme Court for preliminary examination (Article 418.1 of the CCrP). Within three days of receiving the appeal, the judge carrying out the preliminary examination of the appeal must, inter alia, inform the public prosecutor, the convicted (or acquitted) person and other parties to the case or interested parties about the time and place of examination of the merits of the appeal (Articles 418.2 and 418.2.7 of the CCrP). 20. When examining the merits of the appeal, the Supreme Court deals only with the points of law and verifies whether rules of criminal law and criminal procedure had been applied correctly (Article 419.1 of the CCrP). The examination on the merits is carried out by a chamber composed of three judges. The persons having a right to lodge an appeal and the public prosecutor representing the prosecution before the Supreme Court have the right to be present at the court hearing (Article 419.2 of the CCrP). 21. The Supreme Court hearing is opened by the president of the chamber who announces which court decision will be examined and on what grounds, the composition of the chamber examining the case, and which of the parties to the criminal proceedings are present at the hearing. The absence of the person who has lodged the appeal, if he has been duly informed about the hearing, does not prevent the Supreme Court from deciding to proceed with the hearing in his or her absence (Article 419.4 of the CCrP).

dev

001-109191

ENG

ROU

CHAMBER

CASE OF KARRER v. ROMANIA

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria

6. The first applicant was born in 1982 and lives in Furstenfeld, Austria. He is the father of the second applicant, who was born in 2006 and lives at an unspecified address in Romania. 7. On 13 April 2004 the first applicant married a Romanian citizen, K.T. The marriage was concluded in Salzburg, Austria. On 15 February 2006 their daughter, the second applicant, was born. The parents had joint custody of the child under Austrian law. They lived in Salzburg. 8. On 1 February 2008 K.T. and the first applicant separated. On 25 February 2008 K.T. filed a divorce petition with the Salzburg authorities. The first applicant lodged a counter petition on 25 March 2008. 9. On 29 January 2008 K.T. filed for an interim injunction against the first applicant, seeking his removal from the family home on the ground of his violent behaviour. On 8 February 2008, the Salzburg District Civil Court granted the interim injunction for a period of three months. Criminal proceedings were also initiated against the first applicant for infliction of bodily harm. 10. On 1 February 2008 K.T. lodged an action for temporary sole custody of the second applicant throughout the divorce proceedings. At the end of September 2008, while the proceedings for the award of custody were pending before the Austrian courts, K.T. left for Romania together with the second applicant. The first applicant was not informed of the departure, even though at the time the spouses had joint custody of the second applicant. 11. In the meantime, on 25 July 2008 the Salzburg District Criminal Court acquitted the first applicant of inflicting bodily harm. The Salzburg Public Prosecutor reserved the right to initiate criminal proceedings against K.T. for perjury. 12. On 25 November 2008, the Salzburg District Civil Court granted the first applicant temporary sole custody of the second applicant until the finalisation of the divorce proceedings. The court relied, inter alia, on expert opinion which concluded that the first applicant was better suited to have custody. K.T. does not appear to have appealed against the judgment. 13. Currently, the divorce proceedings between the first applicant and K.T. are pending before the Romanian courts. 14. On 30 September 2008 the first applicant submitted a request for the return of the second applicant to Austria under Article 3 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). He argued that the second applicant had been removed from Austrian territory in breach of the joint custody held by the spouses at the time of the removal. On 7 October 2008 the Austrian authorities submitted the request to the Romanian Ministry of Justice (“the Romanian Ministry”), the Central Authority responsible for the obligations established under the Hague Convention. 15. On 28 October 2008, at the request of the Romanian Ministry, the General Police Department (Inspectoratul General al Poliţiei) confirmed that the second applicant was living with her mother, in Romania, at her grandparents’ home. Furthermore, on 3 November 2008 the Department for Social Services and Child Protection (Departamentul General de Asistenţă Socială şi Protecţia Copilului) drafted a report in relation to the second applicant. The report mainly mentioned K.T.’s statements concerning her situation in Austria, her reasons for departure as well as the maternal grandparents’ declarations concerning their commitment to provide housing and financial support to the second applicant indefinitely. It was also mentioned that the second applicant did not appear to be an abused or neglected child and that she was very attached to her mother and her maternal grandparents. The report concluded that the second applicant had appropriate living conditions, both from a material and emotional point of view. 16. On 5 December 2008 the Romanian Ministry instituted proceedings on behalf of the first applicant before the Bucharest County Court. By a judgment of 28 January 2009, communicated on 28 May 2009, the Bucharest County Court found in favour of the first applicant, ordering the return of the second applicant to Austria. The Bucharest County Court held that the request fell under Article 3 of the Hague Convention and that none of the exceptions provided for under Article 13 applied. 17. K.T. appealed. She submitted several pieces of evidence, including declarations of her parents as witnesses given before a Romanian Court in the context of the divorce and custody proceedings. She further submitted a welfare report drafted by the Custody Service within the Timişoara City Hall (Serviciul de Autoritate Tutelară din cadrul Primariei Municipiului Timişoara). The report included information on K.T.’s family situation, living conditions, and K.T.’s declarations in relation to the circumstances of her living and departing from Austria. Finally, the report recommended that K.T. were awarded the custody over the second applicant. 18. By a final judgment delivered on 8 July 2009, and rendered in written form on 17 September 2009, the Bucharest Court of Appeal allowed the appeal on points of law, holding that the return of the second applicant to Austria would expose her to physical and psychological harm, within the meaning of Article 13 § 1 (b) of the Hague Convention. On the merits, the Bucharest Court of Appeal held that the first applicant had shown violent behaviour towards K.T., as the Salzburg District Civil Court had maintained when granting K.T. the interim injunction of 8 February 2008. The Bucharest Court of Appeal further held that the first applicant had breached the restraining order in September 2008, which determined K.T. to come to Romania. Finally, the domestic court reasoned that even if there was no evidence of a violent behaviour of the first applicant towards the child, this could be inferred from his behaviour towards K.T. and from K.T.’s departure to Romania. The Salzburg District Civil Court’s judgment of 25 November 2008 was set aside on the ground that by that time K.T. and the second applicant had already left Austria. 19. Throughout the domestic proceedings, the Romanian Ministry informed the Austrian authorities of the progress of the Hague Convention proceedings. The information included the date of the hearings and whether or not an appeal had been lodged. From the evidence adduced to the case file, it appears that the Romanian Ministry did not have any direct contact with the first applicant in connection with the Hague Convention proceedings. 20. The relevant provisions of the Hague Convention, which entered into force in respect of Romania on 30 September 1992, read, in so far as relevant, as follows. “The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” “The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.” “A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. [..]” “Central Authorities shall co-operate with each other and promote cooperation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures – [..] f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; [..]” “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.” “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.” “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” 21. Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“the Regulation”), in so far as relevant reads as follows: (17)“In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. [...]” “1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention [..], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. [...] 3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. 4. A court cannot refuse to return a child on the basis of Article 13 (b) of the [...] Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. 5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard. 6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order. 7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives [a copy of an order on non-return pursuant to Article 13 of the Hague Convention and of the documents relevant to that order] must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. [..]”

dev

001-115004

ENG

AUT

CHAMBER

CASE OF KÜCHL v. AUSTRIA

No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

5. The applicant was provost of the Eisgarn monastery and principal (Regens) of the St Pölten seminary, where future Roman Catholic priests are trained. He resigned from his post as principal on 4 July 2004. 6. In the issue of the weekly news magazine Profil of 5 July 2004 an article was published on searches carried out by police in the St Pölten seminary. According to the article, police had searched the seminary on suspicion of someone having downloaded child pornography from the Internet. The article further stated that, according to rumours, police had also found photographs showing seminarians engaging in homosexual activities, and that there were rumours of unwanted homosexual advances towards seminarians involving abuse of authority. The article was accompanied by a photograph of the applicant, showing him standing in a garden, and by an interview with him in which he said that he did not believe that there had been any unwanted sexual advances by superiors and that the rumours were part of an intrigue or a revenge plot by a former seminarian. He denied involvement in any such incidents. 7. In its issue of 12 July 2004 Profil published an article entitled “Go on!” (Trau dich doch). The sub-heading read “Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray. First the principal and now the deputy principal have resigned. High-ranking dignitaries expect Kurt Krenn [the bishop of the diocese] to be removed from office.” 8. The article stated that the applicant and the deputy principal had had sexual relations with seminarians and that two of them had regularly spent weekends or longer periods with the applicant at the Eisgarn monastery. It also stated that there was nothing to corroborate the rumours of unwanted homosexual advances which had been reported earlier. The article further reported that some seminarians had downloaded pornography and child pornography onto their computers. According to the article, the existence of homosexual relations was well-known within the seminary and was even known to the bishop, who had tried to “hush up” the case at first. The article contained a photograph showing the applicant with his left arm around one of the seminarians, holding the seminarian’s wrist with his left hand and with his right hand on the man’s crotch. This picture had been taken by one of the seminarians at a birthday party and the applicant was shown looking into the camera, apparently aware that he was being photographed. In the article the applicant was identified by name while the seminarians’ identities were not disclosed. Likewise, in the published photograph, the applicant’s face was visible while that of the seminarian was blurred. The article was also accompanied by a statement from the applicant saying that the photograph could be interpreted in different ways. 9. On 6 August 2004 the applicant initiated proceedings under the Media Act (Mediengesetz) against Verlagsgruppe News GmbH, the publisher of Profil, in relation to the article published on 12 July 2004. Relying on sections 6 and 7 of the said Act, he requested compensation for defamation (üble Nachrede) and for the violation of his strictly personal sphere (höchstpersönlicher Lebensbereich) caused by the publication of the photograph and the impugned article, especially the following passages: “‘Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray.’; ‘A painful truth: Krenn’s principal engaged in sex with subordinates, also Krenn’s private secretary and legal adviser ...’; ‘Photos showing, among others, seminarians from St Pölten in kinky situations, in some cases with their superiors ... and because they were doing it with the boss and his deputy too, it was all quite normal and they felt perfectly safe ...’; and ‘In June of the previous year principal Ulrich Küchl allegedly performed a kind of ‘sacrament of marriage’ between H. and Polish priest A. in a St Pölten restaurant.’” 10. The publisher of Profil replied that the content of the article was true. The company also argued that in the light of the Roman Catholic Church’s position condemning homosexuality, and the fact that the applicant was responsible for the training of future priests in the seminary, the public had an interest in knowing about the facts published in the article and there was a direct connection with public life. The article was thus lawful by virtue of the right to freedom of expression guaranteed by Article 10 of the Convention. 11. On 15 September 2005, after holding several hearings at which evidence was heard from a number of witnesses, the Vienna Regional Criminal Court (Landesgericht, hereinafter “the Regional Court”) dismissed the applicant’s request for compensation. 12. The Regional Court observed that a large percentage of readers of the weekly Profil that had published the impugned article and the photograph would read the news magazine in only a cursory manner and would also consult other media before forming their opinion. Those readers would learn that there had been homosexual contacts between the applicant and seminarians and also among seminarians, and that there existed photographs to support this. The published photograph showed that the applicant and the seminarian were more than just friends and had had homosexual contacts. It represented the applicant with his left arm around the seminarian and his hand on the man’s crotch and conveyed the impression that the latter consented to this close embrace. 13. Giving a detailed evaluation of various witness statements, the Regional Court found it established that the applicant had had consensual homosexual relationships with several seminarians, one of whom had repeatedly spent weekends at Eisgarn monastery; this had led to an explicit instruction from Bishop Krenn prohibiting such visits by seminarians. Furthermore, the court found that the applicant had spent a holiday with a seminarian during which they shared an apartment in a hotel. It also found that the applicant had performed a ceremony in a restaurant which an outside observer could have understood as bestowing a kind of “sacrament of marriage” on two seminarians. Moreover, the statements of the witnesses had confirmed that the published photograph had been taken in the applicant’s apartment at Eisgarn monastery during a birthday party for one of the seminarians. The Regional Court therefore held that the facts contained in the article were in essence true. 14. Owing to the considerable importance of the Roman Catholic Church as a role model, the public had a great interest in being informed about what was going on within the Church. The public also had an interest in knowing what happened in the seminary, especially since it had become known that pictures containing child pornography had been downloaded from the Internet. The circumstances leading to such incidents were a subject of public interest and had a direct connection with public life. The applicant, as the head of the seminary, was a public figure in that capacity. Even though the impugned picture had been taken in his private residence there was a connection to his public life. While accusing a dignitary of the Roman Catholic Church of having homosexual contacts constituted the actus reus of defamation within the meaning of section 6 of the Media Act and exposed his strictly personal sphere within the meaning of section 7 of the said Act, the publisher had proved that the reported facts were essentially true. Accordingly, the applicant’s claim for compensation had to be dismissed. 15. The applicant lodged an appeal on points of law and fact with the Vienna Court of Appeal (Oberlandesgericht). The Court of Appeal, after holding a hearing, dismissed the appeal in a judgment of 24 May 2006. 16. The Court of Appeal upheld the judgment of the Regional Court, ruling that the said court had not erred in fact or in law and had rightly held that the newspaper publisher had managed to prove that the content of the article was true. Regarding the complaint concerning the performance of a sort of sacrament of marriage, the Court of Appeal found that it had not been proven that this allegation was true; however, the allegation in question made up only a minor part of the article and thus would not render the judgment void. Furthermore, the Court of Appeal held that, in reporting on photographic evidence of seminarians in “kinky situations”, the publisher had provided proof that the statements were true. The average reader of the magazine would understand the term “kinky” to mean a deviation from what was considered normal, which would include a photograph of priests and seminarians in a sexual pose wearing clerical clothing, especially as the persons concerned belonged to a group of people who publicly spoke out against homosexuality and denounced homosexual contacts as sinful. The Court of Appeal went on to state as follows: “The court cannot accept the additional arguments to the effect that the substantive law was incorrectly applied because the conduct reported on fell within the sphere of strictly private life and had no connection with public life. The Catholic Church, to which the majority of the Austrian population belongs and which, according to Article II of the Concordat (BGBl. II No. 2/1934), has public-law status, has a level of importance in Austria going beyond that of a small association, as is clear from the overall content of the Concordat and the circumstances in which it was ratified. Accordingly, conduct on the part of Church dignitaries which is in flagrant contradiction with Catholic teachings may very well be of public interest, particularly where – as in the present case – homosexual contacts take place and are maintained, albeit on a consensual basis, between staff and students in an educational establishment and between students themselves. The Catholic Church strives for acceptance and credibility among the public at large, and the activities of a principal and a deputy principal, particularly those in charge of a training college for future priests, are directly related to public life. The Catholic Church is engaged in public relations work in many spheres and regularly makes its views on (sexual) morality known to the population as a whole, with the result that the general public is also entitled to be informed if individual officials are failing to practise what they preach, condemning homosexuality as a sin in public while practising it in private, even between staff and students. It should also be taken into consideration that the teachings of the Catholic Church on the subject of homosexuality are contrary to the fundamental right to sexual self-determination under Article 8 of the European Convention on Human Rights and to the prohibition on discrimination; hence, on this basis also, there is a public interest in the publication of specific allegations that Church dignitaries are failing to observe their Church’s teachings on sexual morals. This is even more so where the reports concern homosexual contacts between a teacher and his students. Such relationships of dependency call for particular vigilance in order to avoid potential breaches of a fundamental code of conduct designed to protect the physical and psychological integrity of the students. The media have a vital role in publicly exposing misconduct in a democratic society governed by the rule of law. The exposure and public condemnation of such misconduct is thus in any event in the public interest; the same is true of the reports identifying those concerned, without which it would not be possible to express credible criticism of specific inadmissible situations and thus fulfil the role of “public watchdog”. The weighing of interests in the present case should undoubtedly lead to the conclusion that the public right to information prevails. The professional activity of an ordained priest who is active in public life both as a clergyman and as head of a seminary does not take place merely within the Church; the Catholic Church has an important and, in some respects even a State role, and the credibility of its officials, who demand moral standards from the population and compliance with the Church’s rules of community life, occupies an important position in that regard. In particular, the fact that the events involved students who, as future officials of the Catholic Church are supposed to be taught these moral precepts by example, lends those events a public-interest dimension extending beyond the Church itself and affects all sections of the population...” 17. The Court of Appeal concluded that since the article had reported essentially true facts and there was a public interest in their being reported, the Regional Court had rightly rejected the applicant’s request for compensation. The judgment was served on the applicant’s counsel on 12 June 2006. 18. On 9 July 2004, after publication of the first article in Profil (see paragraph 6 above), the applicant brought proceedings against the publisher and the editor-in-chief under the Copyright Act (Urheberrechtsgesetz) and the Civil Code (Allgemeines Bürgerliches Gesetzbuch). Those proceedings are the subject of application no. 59631/09, Verlagsgruppe News and Bobi v. Austria. They are summarised here, in so far as is necessary for the examination of the present case. 19. Relying on section 78 of the Copyright Act the applicant asked the Vienna Commercial Court (Handelsgericht) to order the publisher of Profil and its editor-in-chief to (i) refrain from making and publishing express statements or statements to the effect that photographs existed which showed him having homosexual contacts or appeared to show that he was homosexual and (ii) refrain from publishing photographs of the applicant which violated his legitimate interests, especially in connection with allegations of unwanted homosexual advances involving abuse of authority, which were damaging to his honour and reputation. 20. The applicant also requested the Commercial Court to issue an interim injunction prohibiting the publisher and the editor-in-chief of Profil from publishing the above-mentioned statements and pictures. 21. After publication of the second article in the issue of Profil of 12 July 2004, showing for the first time the photograph of the applicant with his hand on the seminarian’s crotch, the applicant notified the Commercial Court of the further statements contained in that article and of the fact that the photograph had been published. He repeated the requests made on 9 July 2004. 22. In so far as relevant in the context of the present case, the applicant’s request for an interim injunction was rejected by the Vienna Commercial Court, which gave its decision on 29 March 2005, and by the Vienna Court of Appeal, which gave its decision on 18 June 2005. 23. In a decision of 15 December 2005 the Supreme Court varied the lower courts’ decisions, granting point (ii) of the applicant’s request for an interim injunction. The publisher and the editor-in-chief of Profil were thus prohibited from publishing photographs of the applicant, in particular in connection with allegations of unwanted homosexual advances involving abuse of authority, which were damaging to the applicant’s honour and reputation. However, the Supreme Court dismissed point (i) of the applicant’s request, namely that the defendants be ordered to refrain from making and publishing express statements or statements to the effect that photographs existed which showed the applicant having homosexual contacts or appeared to show that he was homosexual. 24. The Supreme Court (Oberster Gerichtshof) held that even the publication of true statements was capable of interfering with a person’s right to privacy and thus might become unlawful. In such cases the interests of the persons concerned in the protection of their reputation or the intimate sphere of their private lives had to be weighed against the interests of the recipient of the information. Referring to the Court’s case-law under Article 10 of the Convention, the Supreme Court noted the importance of freedom of the press, in particular where the latter reported on issues of general interest. In the present case, information about the homosexuality of officials of the Roman Catholic Church was an important issue and as such was often the subject of public attention and discussion. It was the media’s task to report and comment on actual cases. Thus, the applicant’s interest was outweighed by the publisher’s right to publish the statements, the truth of which was not in dispute. 25. As to the publication of the photograph, the Supreme Court held as follows: “1. The publication of images that would cause injury to legitimate interests is prohibited (section 78(1) of the Copyright Act). The injury must arise out of the actual publication of the image (RIS-Justiz RS0077782). However, not only the image itself must be assessed, but also the manner of its dissemination and the context in which it is set (RS0078077). The assessment as to whether legitimate interests have been infringed must aim to establish whether the interests of the person depicted can be objectively said to be worthy of protection (4 Ob 165/03y = MR 2003, 377 with further references). 2. On the basis of these principles, the interests of the claimant in the present case should be considered worthy of protection, contrary to the Court of Appeal’s view. The accompanying text portrays the claimant in a negative light. He is neither a ‘figure of contemporary society ‘par excellence’’ (to use the terminology of the German case-law) nor a ‘public figure’ (the term used in Austrian legal practice) whose appearance was already known to the general public before the picture was published (4 Ob 15/93). It is clear that the publication of the picture intensifies the demeaning effect of the accompanying text, which is damaging to the honour of the person concerned (‘pillorying effect’). In such cases, therefore, publication of the picture can be justified only if, after the required weighing of interests, the interest of the publisher in publishing is found to prevail (RIS-Justiz RS0077767). However, that is not the case here. The protection of the intimate sphere of the claimant’s private life carries greater weight in this case than the public interest in being informed of the image, in contrast to the case already examined concerning the text of the article. Of course, there is some force to the Court of Appeal’s argument that publication was designed to some extent to ‘prove the claimant guilty’ after he had denied the accusations as ‘slander’, and thus to allow the public to make up its own mind on the basis of the photograph. In the Supreme Court’s view, however, this argument is not sufficiently decisive to justify intruding upon the intimate sphere of the claimant’s private life and providing documentary ‘evidence’ of the allegations denied by the claimant. It must first be taken into consideration that the photograph was taken at a private party and thus indisputably fell within the private sphere protected by Article 8 of the ECHR. If sexual freedom between consenting adults is recognised as an absolute personal right and the innermost private sphere is protected under the Constitution, then this must also apply in principle to members of religious organisations and Church officials, even if the practice of that sexual freedom is contrary to the Church’s teachings. Forfeiture of the right to anonymity requires particularly weighty reasons which do not apply here to the required degree. There is no overriding interest for the public at large to be informed of the claimant’s appearance and to identify him via publication of his photograph. Even when publication takes place in connection with a criminal offence, the principle of proportionality of the interference applies. Likewise, even a genuine need to inform must not go beyond what is strictly necessary, so that it cannot be accepted in all cases in which the public has reason to take an interest in a particular individual that there is a genuine need to be shown a picture of that person (RIS-Justiz RS0077883). The interest in dissemination of a picture can only take precedence if the picture has a particular news value – for instance, to warn the public about an escaped criminal (4 Ob 63/95 = SZ68125 4 Ob 1013/96). In any case, the proportionality principle prohibits publication merely in order to satisfy an appetite for scandal. The interest in being informed can be sufficiently met without publication of an image, simply by reporting the facts and referring to the existence of a photograph (several photographs) as evidence.” 26. On 4 July 2006 the applicant narrowed his previous claim to the publication of pictures, amended the wording of the injunction sought and added a claim for damages. He thus requested the court to order the publisher of Profil and its editor-in-chief to refrain from publishing photographs of him which violated his legitimate interests, especially in connection with allegations of unwanted homosexual advances towards seminarians involving abuse of authority, and/or of engaging in sexual antics or “kinky” situations with seminarians or similar allegations. 27. In a judgment of 18 June 2007 the Vienna Commercial Court rejected the claims. 28. In a judgment of 13 December 2007 the Vienna Court of Appeal partly granted the applicant’s appeal. Relying on section 78 of the Copyright Act, it prohibited the publication of photographs of the applicant which violated his legitimate interests by accusing him of unwanted homosexual advances towards seminarians, especially involving abuse of authority, and of engaging in sexual antics or “kinky” situations with seminarians or similar accusations. However, it dismissed the claim for compensation. 29. The Court of Appeal summarised the content of the articles published in Profil on 5, 12 and 19 July 2004 and the reasoning set forth by the Supreme Court in its decision of 15 December 2005 in the interim injunction proceedings. It went on to state as follows: “No factual circumstances came to light in the main proceedings which would cause the Supreme Court to alter the manner in which it weighed the interests at stake in the preliminary injunction proceedings. It was established that the photograph was taken in Eisgar monastery at the birthday party of one of the seminarians, attended by the claimant and four or five students of the seminary. The party was held in a meeting room and a ‘reception room’ of the apartment made available to the claimant in his capacity as provost of the monastery. Protection of the private sphere encompasses all matters which, on the basis of their information content, are typically classified as private. This covers individuals in their home, family or other environment removed from the public gaze (Neukamm, Bildnisschutz in Europa, 118). The right to protection of one’s private sphere encompasses the spaces in which the individual can rest, relax or simply let go. This includes any premises from which the individual can exclude outsiders and escape the public gaze (Neukamm, loc. cit., 120). On that basis, there can be no doubt that the birthday party in the claimant’s apartment fell within the private sphere, despite the fact that it was attended by seminarians and took place (partly) in a ‘reception room’ in the claimant’s apartment. Neukamm, loc. cit., 213). Hence, it is beyond dispute that the photograph in question falls (exclusively) within the claimant’s private sphere. Furthermore, the Supreme Court previously ruled in the preliminary injunction proceedings that the public interest in the text of the article did not automatically justify publication of pictures of the person concerned. The publication of pictures depicting private conduct is not justified on the grounds of the public’s interest in being informed (Neukamm, op. cit., 233, and ECtHR judgment of 11.1.2000, application no. 31457/96 – News Verlag GmbH). This applies also to articles concerning private-life matters (Neukamm, op. cit., 235). If the publication of photographs serves the public’s interest in being informed, that interest must be weighed against the personality rights of the person depicted. As a general rule, the latter should prevail (Neukamm, op. cit., 236).” 30. The Court of Appeal also upheld the Commercial Court’s decision in so far as the latter had dismissed the applicant’s claim for damages. It noted that damages under the Copyright Act were to be awarded only if the general requirements laid down in the Civil Code were met. In particular, it was necessary for the publisher to have acted culpably, with at least minor negligence. In the present case, the defendants had based their decision to publish the photograph on an arguable legal opinion. It was a borderline case in which a detailed weighing of the interests at stake had eventually led to the assessment that the publication of the photograph at issue had violated the applicant’s legitimate interests. In the preliminary injunction proceedings the Commercial Court and even the Court of Appeal had come to the opposite conclusion, holding the view that the publication of the picture had an information value of its own, while the Supreme Court had overturned their decisions. In these circumstances, the defendants were entitled to believe that the publication of the picture was admissible, and they had therefore not acted culpably. 31. The applicant and the defendants lodged extraordinary appeals on points of law with the Supreme Court. 32. The Supreme Court rejected the extraordinary appeals in a judgment of 26 March 2009, holding that the prerequisite for it to deal with the case, namely a question of law which was of fundamental importance for the unity of the law, was not met. With regard to the defendant’s appeal it noted that it had already given detailed reasons in its decision of 15 December 2005 explaining why, as far as the publication of the photograph was concerned, the applicant’s interests in the protection of his private sphere under Article 8 of the Convention outweighed the freedom to impart information protected by Article 10 in the circumstances of the present case. The Vienna Court of Appeal had followed that reasoning in the main proceedings. 33. Finally, the Supreme Court dismissed the defendant’s argument that the courts’ decisions in the proceedings under sections 6 and 7 of the Media Act were binding on the courts in the present case. It held that a decision taken under sections 6 and 7 of the Media Act did not resolve a preliminary question (Vorfrage) in relation to the claim under section 78 of the Copyright Act. There was no logical contradiction in prohibiting a newspaper publisher from publishing a picture under section 78 of the Copyright Act while on the same facts dismissing a compensation claim under sections 6 and 7 of the Media Act. The finding that the requirements for granting compensation were not met did not provide a basis for concluding that the publication of a picture did not violate legitimate interests within the meaning of section 78 of the Copyright Act. 34. Section 6 of the Media Act provides for the strict liability of the publisher, inter alia in cases of defamation. The victim can thus claim damages from the publisher. Section 6 reads as follows: “(1) Where a medium publishes statements which constitute the actus reus of disparagement, insult, derision or defamation the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered ...” (2) The right referred to in paragraph 1 above shall not apply ... 2. in the case of defamation (a) [where] the statements published are true or ... (3) Where the publication concerns the strictly personal sphere, a claim under subsection 1 shall be excluded only on the grounds set forth in ... subsection 2(2)(a) ...; in the case of subsection 2(2)(a), this shall not apply where the published facts are directly related to public life.” 35. Section 7 of the Media Act provides for a claim for damages in cases of interference with the strictly personal sphere of an individual’s life. It reads as follows: “(1) If the strictly personal sphere of an individual’s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned, he or she shall have the right to claim compensation from the media proprietor (publisher) for the damage sustained. ... (2) The right referred to in paragraph 1 above shall not apply where (i) ... (ii) the statements published are true and are directly related to public life; (iii) ...” 36. For the purpose of Section 6 of the Media Act “defamation” is to be understood as defined in Article 111 of the Criminal Code (Strafgesetzbuch), which reads as follows: “(1) Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ... (2) Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ... (3) The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.” 37. Section 78 of the Copyright Act, in so far as relevant, reads as follows: “(1) Images of persons shall neither be exhibited publicly nor in any way made accessible to the public where injury would be caused to the legitimate interests of the persons concerned or, if they have died without having authorised or ordered publication, those of a close relative.” 38. Article 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows: “(1) Anybody who, as a result of defamation, suffers real damage or loss of profit may claim compensation. (2) The same shall apply if anyone disseminates allegations which jeopardise a person’s reputation, income or livelihood, the untruth of which was known or should have been known to him or her. In this case there is also a right to request a retraction and the publication thereof ...” 39. The Court refers to this resolution, adopted by the Parliamentary Assembly of the Council of Europe on 26 June 1998. Its relevant passages are reproduced in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, § 71, ECHR 2012).

dev

001-80083

ENG

POL

CHAMBER

CASE OF KOZIMOR v. POLAND

Violation of Art. 8

Nicolas Bratza

5. The applicant was born in 1971 and lived in Przemyśl, Poland. 6. On 14 August 1997 the applicant was arrested by the police. On 15 August 1997 the Przemyśl District Court (Sąd Rejonowy) decided to detain the applicant on remand in view of the reasonable suspicion that he had committed a homicide. 7. Subsequently, the applicant's pre-trial detention was prolonged on several occasions, in particular at the hearing held on 5 November 1998. 8. On 21 December 1998 the Przemyśl Regional Court (Sąd Wojewódzki) convicted the applicant of homicide and sentenced him to 25 years' imprisonment. 9. On 29 April 1999 the Court of Appeal quashed the impugned judgment and remitted the case. 10. On 2 June 1999 the Przemyśl Regional Court (Sąd Okręgowy) decided to prolong the applicant's pre-trial detention. The court gave the following reasons: “Prolongation of the applicant's detention on remand is justified by the fact that the applicant has been accused of homicide.” 11. On 24 February 2000 the Przemyśl Regional Court dismissed the applicant's request for release. The reasons of the decision are as follows: “[The applicant] has been accused of having committed [a homicide] and the original reasons for keeping him in detention are still valid.” 12. On 3 March 2000 the Przemyśl Regional Court further prolonged the applicant's pre-trial detention. The court found that keeping the applicant in detention was necessary because he had been charged with homicide and the trial court had started the process of obtaining expert evidence. 13. On 12 April 2000 the trial court held the first hearing. Subsequently, ten hearings were held. 14. On 2 June and 29 August 2000 the applicant's pre-trial detention was prolonged as the courts considered that the necessity to secure the proper conduct of the proceedings and the severity of the anticipated penalty justified keeping him in custody. 15. On 14 September 2000 the Rzeszów Court of Appeal dismissed the applicant's appeal against the decision of 29 August 2000. The applicant submits that neither he nor his lawyer was informed about the majority of scheduled court sessions at which his detention on remand was prolonged and that he was not allowed to attend any of these sessions. 16. On 28 December 2000 the Rzeszów Regional Court gave judgment. The court convicted the applicant and sentenced him to 25 years' imprisonment. The applicant appealed. 17. On 17 May 2001 the Rzeszów Court of Appeal (Sąd Apelacyjny) amended the impugned judgment. The court sentenced the applicant to 15 years' imprisonment. The applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy). 18. On 28 February 2002 the Supreme Court dismissed his cassation appeal as being manifestly ill-founded. 19. On 28 February 2001 the Court's Registry sent to the applicant, who at that time had been detained on remand in the Przemyśl Detention Centre, an application form and accompanying documents in reply to his letter in which he had notified his intention to lodge a complaint with the Court. The Court's envelope delivered to the applicant bears the stamp: Rzeszów Regional Court (Sąd Okręgowy w Rzeszowie) and a handwritten note: censo., 21.03.2001 (cenzu. 21.03.01). 20. The envelope from the Chancellery of the Senate of the Republic of Poland of 30 January 2001 bears the same stamp as above and a handwritten note: censored, 1 [February 20]01 (cenzurowano, 7.02.01) and an illegible signature. 21. The applicant also submitted that his correspondence with his courtappointed lawyer had been censored by the authorities of the Przemyśl Detention Centre. He provided an envelope addressed to his lawyer which bears the following stamps: the Rzeszów Regional Court (Sąd Okręgowy w Rzeszowie), a hand-written note: censored, 19 [July 20]00 (cenzurowano, 19.07.2000) and an illegible signature. The envelope was posted on 19 July 2000. The second envelope, also addressed to his lawyer, bears the same stamp of the Regional Court, a date: 1.02.2001 and an illegible signature. The third envelope was addressed to the applicant by his lawyer. The envelope, posted on 26 January 2001, bears the following stamps: the Przemyśl Prison 29.01.2001 (Zakład Karny w Przemyślu), the Rzeszów Regional Court, 1.02.2001, and an illegible signature. 22. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze). Article 249 § 5 provides that the lawyer of a detained person should be informed of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand. 23. A more detailed rendition of the relevant domestic law provisions is set out in the Court's judgments in Kudła v. Poland [GC], no. 30210/96, § 75, ECHR 2000XI, and Celejewski v. Poland, no. 17584/04, §§ 22 and 23, 4 May 2006. 24. Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the 1997 Code”) which entered into force on 1 September 1998. Article 102 (11) of the 1997 Code provides that convicted persons are entitled to uncensored correspondence with the State authorities and with the Ombudsman. The relevant part of Article 103 § 1 of the Code provides as follows: “Convicts (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.” Pursuant to Article 214 § 1, “Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison....” Article 73 of the Code of Criminal Procedure provides that a person detained on remand has a right to communicate freely with his lawyer. A prosecutor may order the control of the detainee's correspondence with his lawyer; however, such measure cannot be maintained longer than 14 days after the detention order has been imposed. For a more detailed rendition of the relevant domestic law provisions, see the Court's judgments in Michta v. Poland, no. 13425/02, § 33, 4 May 2006 and Kwiek v. Poland, no. 51895/99, § 23, 30 May 2006.

dev

001-102896

ENG

RUS

CHAMBER

CASE OF GISAYEV v. RUSSIA

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violations of Art. 3;Violation of Art. 5;Violation of Art. 13 + 3;No violation of Art. 34;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

7. The applicant was born in 1973 and lives in the city of Grozny, in the Chechen Republic. 8. In the morning of 23 October 2003 the applicant, his parents Kh.G. and S.B. and three siblings, Z.G., M.G. and Z.Kh.G., were at home at 25, Shakespeare Street, Katayama district of Grozny. 9. At about 7 a.m. on 23 October 2003 five grey UAZ vehicles without registration numbers arrived at the house. A group of twenty to thirty men got off the vehicles and burst into the applicant's house. The intruders were wearing camouflage uniforms with insignia on the forearm indicating “Armed Forces of Russia” (Вооруженные Силы России), black masks and green helmets with plexiglass parts to protect their faces, those helmets being, according to the applicants, a usual part of the equipment of specialpurpose squads of the Russian security forces, such as the Federal Security Service (“FSB”). All intruders carried sub-machine guns, wore bullet-proof jackets and vests used for carrying full sub-machine gun cartridges. Some of them were, in addition, armed with pistols and were carrying black Kenwood walkie-talkies, through which they were communicating. They spoke unaccented Russian. According to the applicant and his relatives, the intruders' actions were very well co-ordinated. 10. The intruders took the applicant's family members outside and searched the house, without giving any explanations or presenting any warrants. One of the armed men ordered the Gisayevs to produce their identity papers. Having checked them, he ordered his subordinates to put the applicant in one of the UAZ vehicles. Shortly thereafter the applicant was placed in the vehicle and one of the intruders, sitting in the front passenger seat, ordered another man, whom he referred to as “Number 12”, to put a shirt over the applicant's head. He also told someone over his walkie-talkie: “To the base station, we carry out an arrest, do not disturb” (“По опорному пункту, у нас задержание, не беспокоить”). 11. After the applicant had been put in the vehicle, his father repeatedly requested the intruders to explain the reasons for the applicant's arrest, to name the State authority to which they belonged and to which he could apply in connection with the applicant's detention. Although the armed men initially disregarded his questions, one of them finally replied: “We will check him and let him go. You can request further information from the FSB.” 12. Shortly thereafter the intruders got into their vehicles and drove off in the direction of the Staropromyslovskoye highway in Grozny. While the applicant and his relatives were outside, they had an opportunity to memorise several details concerning the vehicles. In particular, they noticed that they were armoured and equipped with loopholes for riflemen and had on their roofs square boxes with long antennas. Subsequently, the applicant and his relatives learnt that those boxes were containers for radio-frequency suppression, which formed part of the special equipment of the FSB and the Main Intelligence Directorate of the Russian army (the “GRU”). 13. When the applicant's relatives went back inside, they discovered that some items and money had been taken. 14. After the abductors had taken off with the applicant, they drove for about twenty minutes. On its way the vehicle honked while passing through a checkpoint, stopped for a while and then continued moving. Shortly thereafter the vehicle stopped and honked again and the applicant heard the sound of a gate opening. He was then ordered to get out. While doing so, he managed to look around and concluded that he was near the “Avtobaza” station on the Staropromyslovskoye highway, where the premises of the operational-search bureau ORB-2, the FSB, the Organised Crime Unit (“the UBOP”), the military commander's office and the government of the Chechen Republic were located. 15. The applicant's abductors took him inside an unknown building to a room located on the fourth floor, sat him down in the corner and handcuffed him to a heating pipe. When they left, the applicant managed to remove the shirt from his face and saw that he was in a room where there was a table and a chair. On the chair he saw a camouflage jacket with Russian military insignia on its sleeve. On the table there was a phone. 16. Later the same day the servicemen interrogated the applicant as to whether he was a member of illegal armed groups or knew something about them. In his submission, they considered that he must have had that information based, among other things, on the fact that he had used to work in the Ministry of the Interior under the Maskhadov regime. He refused to confess to anything. They then threatened him with violence and mentioned that his family was in danger because of his reluctance to speak. Then they left the room and locked the door. 17. After a while several persons entered the room; they asked the applicant if he had any information on the Chechen rebels and weapon hoards. The applicant denied his involvement in any illegal activities; the men beat him with a truncheon. Then they attached electric wires to his right hand and right foot and started passing an electric current through his body. They also burned his hands and feet with cigarettes, beat and insulted him. The applicant was denied any food and water. Then the servicemen again handcuffed him to the pipe and left him alone. 18. Some two hours later five to six persons returned to the applicant's room and gave him some water. Immediately thereafter they put a plastic bag over his head. About two hours later a few more men entered the room. They plastered the applicant's eyes and mouth with adhesive tape and began to beat and kick him. The applicant was lying face down; one of the servicemen stood on his back. The servicemen connected an electric wire to the applicant's handcuffs and to the little toe of his right foot and passed, again, an electric current through his body. The men told the applicant that they would blow up his family house unless he confessed that he was a rebel fighter. They tortured him in that way for about three hours. At about midnight they handcuffed the applicant to the pipe and left. 19. In the morning of 24 October 2003 the servicemen brought the applicant to the ground floor and allowed him to wash the blood off his body. The applicant discovered that his nose was swollen, his right wrist and right ankle were burned and one of his lips was badly cut. Then the servicemen brought the applicant back to the room on the fourth floor and continued to interrogate him even more violently. 20. In the evening of 24 October 2003 the servicemen again used an electric current on the applicant, beat and abused him. Then they tied him to the pipe and left. At night the applicant moaned in pain; having heard the noise, the servicemen returned and beat him again. 21. In the morning of 25 October 2003 two servicemen whom the applicant had not seen before entered the room and beat him. They threw some sharp objects at the applicant's head; when it started bleeding, they bandaged his head with a piece of cloth to stop the bleeding and continued to beat him. One of the servicemen beat the applicant on the abdomen and back with another sharp object, and kicked him on the throat and shoulder. 22. According to the applicant, when speaking among themselves, the servicemen often used specific terms. In particular, some of them would ask others if anything happened while they had been on duty or when they would take leave. Over the phone, which was in the room where the applicant was held, the servicemen would inform their interlocutors that someone “had gone to the military commander's office”. In the applicant's presence they were addressing each other as “Number 6” or “Number 12”. On several occasions the persons who had tortured the applicant, when leaving the room, were addressing others saying “You have been called by the commander” or “Get down to the canteen and fetch us some food, don't forget the apples”. Once at night the applicant heard the sounds of machine guns coming from outside. The person who was in the room with him took the phone and asked someone over it: “Why are you shooting?”. 23. On 25 October 2005 the man who had been in command of the operation when the applicant was abducted came to the applicant's room and told the others that the applicant's relatives were at the gate. He called someone over the phone several times asking if the applicant's relatives had left. He also told the person to frighten them to make them leave. Among themselves, the servicemen who were in the room were discussing how the applicant's relatives could have learnt about his whereabouts and from whom they might have obtained that information. 24. Shortly thereafter, at about 3 or 4 p.m. on 25 October 2003 the servicemen put a black plastic bag over the applicant's head, plastered his eyes with adhesive tape and took him outside the building. Then they placed him in a car, put on some loud music and drove for around forty or fifty minutes. Despite the music, the applicant was able to hear that the car was moving through busy streets. He also heard the servicemen talking over their walkie-talkies. During the ride they told the applicant that they were going to shoot him. According to the applicant, the car was moving in the direction of the Minutka Square or Khankala. When the car stopped, the servicemen dragged the applicant out and placed him in a boot of another car. That car drove for about twenty or thirty minutes stopping four times, presumably at checkpoints. Then the servicemen took the applicant out of the boot and took him to the basement of a building which was unfamiliar to him. The applicant's abductors referred to the place as “Khankala”. 25. In the basement the servicemen tied the applicant to a pole and started interrogating him. They asked him whether he knew anything about rebel fighters and weapon hoards; the applicant replied in the negative. The servicemen beat him all over his body, including the face, head and solar plexus. After two hours of beating they ordered the applicant to lie on the left side of his body and tied him to the table legs and left. When they left, he managed to lift the plastic bag off his eyes so that he could see a cellar of concrete blocks measuring around 5 x 10 square metres. After a while the servicemen brought him a blanket and a pillow. 26. In the morning of 26 October 2003 the servicemen gave the applicant some tea and a piece of bread and asked him whether his real name was Lyanov, not Gisayev. The applicant replied that he had never forged his identity papers to change his name. 27. While kept in the basement, the applicant had to lie on the floor covered with water. Occasionally he heard the noise of helicopters and armoured vehicles outside. At times different persons came to the basement; they threatened the applicant, insulted and beat him. 28. On the fourth day of the detention in the basement a man entered and hit the applicant on the face. The applicant fell; the man ordered him to rise. Then two other men arrived; they put a plastic bag over the applicant's head, plastered his eyes and mouth and told him that his death had come. The applicant asked them to give his corpse to his parents after his death; the men replied that they would feed his dead body to dogs. For the next three hours they passed an electric current through the applicant's body and beat him. Then the applicant vomited and nearly fainted; he was bleeding. Later, when the applicant regained consciousness, several servicemen beat him again. 29. Over the following days the servicemen repeatedly came to the basement and ill-treated the applicant; at times they used an electric current. They surrounded the applicant and took turns to hit him; they stood on the applicant's back and beat him with truncheons; they hung him up by his arms and left him hanging for a long time. From time to time they attached an electric cable to the applicant's ear and passed electricity though it. Several times they put a gas-mask on his face so that he was forced to inhale a substance with a strong suffocating smell. 30. The servicemen threatened the applicant with murder again and again. They forced him to drink alcohol and smoke cigarettes to make sure that he was not a radical Islamic fundamentalist, which was particularly insulting for the applicant, a devout Muslim. They also put to him all sorts of questions concerning his religious beliefs and the Muslim traditions of the Chechen people in which they appeared to be interested. 31. The servicemen spoke unaccented Russian; they employed legal terms used by the police and FSB officers. According to the applicant, there were offices above his room in the basement. He heard people saying that the special-purpose squad (“the OMON”) had arrived, that someone needed to be sent to a particular location in a helicopter, that a special-purpose squad would take off to the town of Malgobek in Ingushetiya. Every morning a woman called “Nadya” would arrive at the office upstairs and tell the others that she had had ordered from the stock a certain quantity of soap, bedding or tinned food. The applicant also heard the noise of armoured vehicles, helicopters and a working military radio station coming from the outside. 32. On an unspecified date several servicemen entered the basement, put a plastic bag on the applicant's head, plastered his eyes with adhesive tape and told him that they were going to shoot him. They took the applicant outside the building and put him in the boot of a car. After a half-an-hour ride the car stopped; the servicemen took the applicant out of the boot and led him inside a building. There they attached him to a pipe and left. 33. At some point the servicemen took the plastic bag off the applicant's head and gave him food and water. The applicant spent a day and a half in that room; he was not beaten during that period. Then the servicemen took the applicant to another room and handcuffed him to a bed. He spent two more days there. Then a man came who asked the applicant if he had seen any faces, apparently of those who had beaten him. The applicant replied in the negative. The man told him that he had not been detained but kidnapped. 34. In the evening of 8 November 2003 the servicemen again put a plastic bag on the applicant's head and told him that he would be released. They commented that the applicant would have to leave Chechnya; otherwise they would kill him and his family. Then they put the applicant in a car; after a half-an-hour ride the car stopped. A man asked the applicant in Chechen if he was Akhmed from the Katayama district; the applicant replied in the affirmative. The man told the applicant to get out of the car and escorted him to another car. There he removed the plastic bag from the applicant's head and told him not to worry and that he would bring him home. The applicant saw that the man was his relative who was working with the law-enforcement authorities. When the applicant looked around, he realised that the cars were parked on the Staropromyslovskoye highway in Grozny near a fence over which was written “Ministry of Defence of the Russian Federation”, about five hundred metres away from the buildings of the FSB, the city military commander's office, the UBOP, ORB-2 and the Chechen Government. 35. The applicant saw his relative give something to two servicemen wearing camouflage uniforms with the Russian military insignia. One of them, a forty-year-old man of medium height, carried a gun; the other was a tall brown-haired man in his mid-thirties. Later the applicant discovered that his relatives had paid a ransom of some 1,500 US dollars for his release. 36. Then the applicant's relative brought him home. According to the applicant, he could not communicate the name of his relative because the latter feared for his life. 37. The above description of the events is based on the applicant's fivepage typed complaint to the prosecutor's office of the Staropromyslovskiy District of Grozny dated 11 February 2004, his elevenpage written statement made on 26 March 2004 and his written statement of 21 June 2004; the applicant's father's statements of 26 March and 22 December 2004 and 2 February 2005; the applicant's mother's statements of 22 December 2004 and 2February 2005; written statements by Z.Kh.M. made on 6 July 2004 and 2 February 2005; a written statement by Z.M. made on 2 February 2005; a written statement by M.Z. of 2 February 2005; a detailed sketch of the area of the Staropromyslovskoye highway, on which are located the premises of the FSB, the UBOP, the ORB-2, the Ministry of Defence and other authorities mentioned by the applicant, with the indication of where those authorities' premises, as well as their checkpoints, fences and car parks, are to be found, accompanied by the applicant's detailed description and written explanation. 38. On 23 October 2003 unidentified armed persons in camouflage uniforms and masks, driving five grey UAZ vehicles, burst into the applicant's house at 25, Shakespeare Street, Grozny, and abducted the applicant. 39. On 23 October 2003 the applicant's father complained about his son's abduction to the prosecutor's office of the Staropromyslovskiy District of Grozny (“the district prosecutor's office”) and the police. However, those State authorities denied having any information on the applicant's whereabouts and also refused to institute a criminal investigation into his abduction. 40. The applicant's father also reported the circumstances of his son's kidnapping to the Special Envoy of the Russian President in Chechnya for Rights and Freedoms (“the Special Envoy”) and the State Council of the Chechen Republic. On 28 October 2003 the Special Envoy requested the prosecutor's office of the Chechen Republic (“the republican prosecutor's office”) that requisite measures be taken to establish the applicant's whereabouts. 41. On an unspecified date in October 2003 the applicant's relatives applied to the local police in connection with his abduction. The police officers allegedly told them that in the early morning on 23 October 2003, while they had been on duty, unspecified FSB officers informed them over radio channels that the latter were carrying out an arrest on Shakespeare Street and that the police officers were not to interfere with the operation. 42. On the same day two young men who knew about the abduction of the applicant allegedly came to the applicant's father and told him that they had been in the city centre on the morning of 23 October 2003 and had seen five UAZ vehicles, which had first been driven through the city centre and had then entered the premises of ORB-2, located on the Staropromyslovskoye highway near the premises of the UBOP, the military commander's office, the FSB and the Ministry of Defence. 43. On an unspecified date the applicant's relatives went to ORB-2 and tried to obtain information concerning him. However, the persons to whom they talked denied having arrested him. At one point two men approached the applicant's relatives. They introduced themselves as FSB officers and asked the applicant's father who had given him the information that his son had been abducted by the FSB. When he refused to reply, they became aggressive and insisted that he tell them his source of information. Faced with his refusal to do so, they ordered him to leave, saying that the place was dangerous and that he could be shot dead. They also said that they did not have the applicant. Having heard that, the applicant's relatives returned home. 44. On 26 October 2003 a friend of the applicant, an official of a lawenforcement agency, came to the applicant's relatives and told them that the applicant had been abducted by officers of ORB-2, which was under direct command of the FSB. He also told them that after his abduction the applicant had been held for three days on the premises of ORB-2 and then transferred to Khankala for further interrogation. 45. Subsequently, the applicants found a person who was an officer of the FSB and who negotiated with the abductors the applicant's release in exchange for 1,500 US dollars (USD). The applicant's relatives collected the money and gave it to that man. 46. Upon his return home the applicant experienced major health problems. He suffered from insomnia and severe headaches; at some point he had a fever. His extremities ached and wounds festered. He had bruises, burns and cuts all over his body. He was not able to walk on his own and needed assistance in moving around the house. The applicant's health was so poor that he could not visit a doctor for several weeks following his release. According to the applicant, after his release he had to undergo medical examinations and treatment on a permanent basis and to take various medication including painkillers, to ease the pain. 47. In support of his submissions concerning his state of health the applicant also referred to statements of his relatives mentioned in paragraph 37 above. 48. On 3 December 2003 the applicant was examined by a doctor. According to a certificate of that date, he submitted to the doctor that he had been held in detention between 23 October and 7 November 2003 and had been beaten on numerous occasions. The applicant complained, among other things, about headache, pain in the lower back and frequent urination. The certificate noted, among other things, the following injuries: a 3 × 5 square-centimetre scar in the cervical region of the head, a scar measuring 7 × 3 square centimetres on the right hip, a round scar measuring 1 × 1 square centimetres on the right wrist. The applicant was diagnosed with “numerous scars on his head and body” and an examination by a neuropathologist was recommended. 49. According to a certificate of 3 December 2003, on that date the applicant was examined by a neuropathologist, to whom he complained about headaches, dizziness, insomnia, overall fatigue, numbness of extremities and pain in the lower back. The certificate noted that the applicant had a closed craniocerebral injury, was unstable in the Romberg test and had tremor of eyelids and hands. The palpation of the spine and chest area was painful. The applicant was diagnosed with “after-effects of closed intracranial injury”, “astheno-neurological syndrome” and “posttraumatic osteochondrosis of the thorax region”. 50. On 5 December 2003 the applicant was examined by a neurologist. According to his medical certificate of the same date, the applicant was diagnosed with chronic prostatitis. 51. According to a certificate of 28 December 2004, the applicant was diagnosed with continuing after-effects of a craniocerebral injury, including encephalopathy of the first and second degree. 52. According to the applicant's medical report dated 10 March 2005, from 12 to 26 January 2005 he underwent in-patient treatment in the neurological department of hospital no. 3 in Grozny. The document, in so far as relevant, reads as follows: “After-effects of closed craniocerebral injury, severe brain contusion in the form of persistent intercranial hypertension; recurring hypertensive-hydrocephalic crises (three to four times a week); recurring vestibular crises (one to two times a week), accompanied by loss of coordination; strongly pronounced astheno-neurotic syndrome; mombalgia. Complaints about: recurring headaches accompanied by dizziness and vomiting; weakness in arms and legs; attacks of dizziness accompanied by loss of coordination; loss of memory of current events; lower back pain becoming stronger in a static position and while walking. An morbi: The patient has been sick since he was abducted, detained in a basement and ill-treated (in his words). The applicant has had the above-mentioned complaints since that time; underwent in- and outpatient treatment on numerous occasions, has been under continuous supervision of a neuropathologist. The effectiveness of the treatment is negligible. ... The overall state of health is of medium gravity. ... Muscular reflexes in arms reduced... Muscular reflexes in legs reduced... ... Established numbness in hands and legs.” 53. On 1 November 2003 the district prosecutor's office instituted an investigation into the applicant's abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). 54. On 27 November 2003 the district prosecutor's office replied to the head of the State Council of the Chechen Republic that on 1 November 2003 it had launched an investigation into the abduction of the applicant. A copy of that letter was forwarded to the applicant's relatives. 55. On 23 December 2003 the Memorial Human Rights Centre, acting on the applicant's relatives' behalf, requested the district prosecutor's office to inform them of the progress in the investigation into the kidnapping. 56. On 5 February 2004 the applicant requested the district prosecutor's office to open an investigation into his unlawful abduction, detention and ill-treatment, to grant him the status of victim of a crime and to order and carry out his medical examination. He also vaguely mentioned the search of his home carried out on the night of the kidnapping, but did not make any distinct complaint in this respect. 57. On 11 February 2004 the applicant wrote to the district prosecutor's office, giving a detailed written description of the circumstances of his abduction, detention and ill-treatment and requesting to be admitted to the criminal proceedings as a victim and a civil party. He also reiterated his request for a medical examination. He stated that he feared for his life because his abductors and torturers were working in law-enforcement bodies, that he was about to leave the Chechen Republic because of it and requested protection for his family and himself. The applicant enclosed copies of medical certificates of 3 December 2003. The applicant's letter was received by the district prosecutor's office on 20 February 2004. 58. On 1 June 2004 the applicant requested the district prosecutor's office to update him on the progress in the investigation into his kidnapping and to inform him whether his requests lodged on 11 February 2004 had been granted. 59. On 5 July 2004 the district prosecutor's office informed the applicant that on an unspecified date the investigation into his kidnapping in case no. 50127 had been stayed for failure to identify those responsible. The letter also mentioned that despite the applicant's repeated summonses to the district prosecutor's office, he had failed to appear, and that the issue of granting him victim status depended on his personal appearance. 60. On 28 July 2004 the applicant complained about the investigators' inactivity to the republican prosecutor's office. He referred to his numerous and repeated complaints about the abduction and ill-treatment lodged with the district prosecutor's office and claimed that they had been left unanswered. He further requested that the investigation in case no. 50127 be resumed. 61. On 27 August 2004 the republican prosecutor's office replied that on an unspecified date the investigation had been reopened and that unspecified investigative measures were being taken to resolve the crime. 62. On 30 September 2004 the district prosecutor's office informed the applicant that the investigation was underway and summoned him to their premises. 63. On 15 October 2004 the applicant replied that he had already requested to be granted the status of the victim of a crime in his absence because he had fled the Chechen Republic to hide from his kidnappers. He asked the investigators to arrange for his medical examination anywhere outside Chechnya. He also stressed that he was ready to provide to the investigation any information which it might wish to request from him in writing and without delay. 64. On 9 November 2004 the district prosecutor's office informed the applicant that they could not admit him to the proceedings as a victim in his absence and requested him either to come to the prosecutor's office or to indicate his whereabouts, as well as to inform them in which hospital he had been treated after his release. 65. On 28 January 2005 the applicant complained about the inactivity of the investigators to the Staropromyslovskiy District Court of Grozny (“the District Court”). He submitted, in particular, that, despite the fact that he had provided detailed information on his abduction and ill-treatment and had apprised the district prosecutor's office of his fear for his life, the latter had taken no steps to investigate the crime against him and conditioned the grant of victim status on his showing up at their office. 66. By a decision of 16 March 2005 the district prosecutor's office granted the applicant the status of victim of a crime in case no. 50127. The decision stated that at about 7 a.m. on 23 October 2003 a group of twenty to thirty armed persons in camouflage uniforms, who had arrived in grey UAZ vehicles without registration plates, had burst into the applicant's house and had taken the applicant to an unknown destination. It also stated that since his abduction the investigation had no information on the applicant's fate. 67. On 17 March 2005 the District Court examined the applicant's complaint of 28 January 2005 and dismissed it for the reason that the investigators had already admitted him to the proceedings as a victim. The court specifically indicated that the investigator's persistent refusal to grant the applicant victim status had been unlawful and asked the former to inform the applicant of the progress in the investigation. 68. On 15 May 2005 the applicant wrote to the district prosecutor's office, requesting to be provided information on the progress in the investigation and seeking access to the case file. 69. On 20 May 2005 the district prosecutor's office replied to the applicant that the investigation was in progress and that he was to come to the office to obtain access to the case-file materials. 70. On 6 June 2007 the applicant again wrote to the district prosecutor's office, requesting information on the progress in the investigation and the specific investigative steps taken, the name of the investigator in charge of the case, the reasons for the failure to carry out his medical examination and to append to the case file as material evidence the clothes in which he had been ill-treated. 71. On 21 June 2007 the district prosecutor's office granted the applicant's request of 6 June 2007 in part concerning his access to the documents from the case file related to the investigative steps taken with the applicant's participation. It dismissed the remainder of the request and also informed the applicant that on an unspecified date the investigation had been suspended owing to failure to identify the perpetrators. 72. On 8 August 2007 the applicant wrote to the district prosecutor's office. He submitted that he had given his clothes in which he had been illtreated to investigator D. The latter had requested him to provide those clothes in order to append them to criminal case file no. 50127 as material evidence and to carry out a biological forensic examination, which was particularly important in solving the crime. According to the applicant's letter, D. had subsequently informed him that the examination of the clothes had been carried out and that it had found on them traces of blood and of tissue fluids. Accordingly, the applicant requested the district prosecutor's office to clarify whether his clothes had indeed been examined and to inform him of the developments in the investigation. 73. On 27 August 2007 the district prosecutor's office informed the applicant that on an unspecified date the investigation in case no. 50127 had been suspended owing to failure to identify the perpetrators. As to the clothes issue, the applicant was to contact the investigator in charge of his case. 74. On 25 October 2007 the Leninskiy Interdistrict Investigating Unit of the Investigating Department in the Chechen Republic of the Investigative Committee with the Prosecutor's Office of the Russian Federation (“the investigating unit”) informed the applicant that on the same date it had reopened the investigation in case no. 50127. 75. On 1 November 2003 the district prosecutor's office instituted a criminal investigation into the applicant's abduction under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 50127. 76. On an unspecified date the investigators interviewed the applicant as a witness. He stated that at about 7 a.m. on 23 October 2003 a group of armed persons in masks and uniforms had burst into his house. They had put him against the wall and searched him. At about that time his father had gone outside and asked the intruders what was going on. They had replied that they were officials of the FSB but refused to produce any documents. The intruders had then searched the house, without providing any official authorisation, such as an arrest warrant, but had not found anything. After that, despite the applicant's parents' attempts to stop them, the armed men had taken the applicant to one of the UAZ vehicles stationed at the gate. They had put a shirt over his head and put him in the vehicle. The applicant had then been taken to an unknown place. He had been led to the fourth floor of an unknown building and handcuffed to a pipe, whereupon the abductors had started beating him and asking whether he knew any rebel fighters. He had replied in the negative. The abductors had tortured him with electric wire, beaten him up with truncheons and had put a plastic bag over his head. On the third day he had been transferred to another place. There he had been kept in a basement, tied to a pole and severely beaten up. For thirteen days the abductors had tortured the applicant, requesting that he confess to something. Subsequently, he had been returned to the first place of his detention, from where they had taken him to a hospital. 77. On an unspecified date the investigators also interviewed the applicant's father. He stated that in the morning of 23 October 2003, while he had been at home with his family, around twenty to thirty armed men in camouflage uniforms and masks had burst into his yard. They had ordered the family to produce their identity papers. The applicant's father had returned home to fetch them and when he had come back, he had seen the applicant standing against the wall with the intruders pointing their guns at him. When he had asked the intruders what the applicant had done, they had replied that they would take the applicant with them and check on him but had refused to say where. Despite the applicant's father's attempts to prevent them from taking the applicant away, the intruders had put him into their vehicle and had driven off. The applicant's mother, interviewed on an unspecified date, provided a similar account of the events. 78. On an unspecified date the investigators interviewed the applicant's neighbour M.I. as a witness. She stated that in the morning on 23 October 2003 she had heard noise and shouting coming from the applicant's house. Having gone outside, she had seen that several UAZ vehicles were parked at the applicant's house. She had not seen anything else and had learnt about the applicant's abduction from his relatives. 79. On unspecified dates the investigators interviewed L.Sh., B.I., Z.B. and A.Ya. as witnesses. The Government did not specify who those persons were but stated that they had given accounts of the events of 23 October 2003 similar to that given by M.I. 80. On 16 March 2005 the applicant was granted victim status in the proceedings in case no. 50127. On the same date his forensic medical examination was carried out. According to its conclusions, the applicant had the following injuries: scars on the occipital part of the head, the right thigh and the back of the right hand. However, owing to the time that had elapsed since the infliction of the injuries, it was impossible to establish their origin. 81. According to the Government, the investigation in case no. 50127 was pending. 82. Despite specific requests by the Court the Government did not disclose any documents from criminal case no. 50127. They stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature, such as disposition of military and special troops and particulars of their activities, as well as personal data concerning the witnesses or other participants in the criminal proceedings. 83. In his observations submitted to the Court on 28 March 2008 the applicant stated that he had been intimidated by State agents, referring to the following events described in his written statements of 8 April 2005 and 24 April 2006. 84. On an unspecified date after the applicant's release several persons allegedly approached the applicant's father, telling him not to complain about the applicant's abduction to the authorities and to be glad that the applicant was alive. 85. On an unspecified date, during the applicant's interview at the district prosecutor's office, an investigator allegedly told him that it was dangerous to try to identify the applicant's abductors and torturers because they were officials of State authorities. 86. On an unspecified date in March 2005, during the applicant's interview at the district prosecutor's office, an investigator allegedly told him in a threatening tone that persons in the applicant's situation were disappearing, that he was lucky to have returned home and that it would be better to close the investigation. When the applicant subsequently went to the district prosecutor's office, seeking access to the criminal case-file materials, an investigator asked him why he needed those documents and told him that if he wished to complain to the Strasbourg Court, it might end up badly for him. After that, on an unspecified date a group of persons in camouflage uniforms, who were driving a white VAZ-2107 vehicle, allegedly came to the applicant's parents' home, introduced themselves as officials of the prosecutor's office and told the applicant's brother that only fools were complaining in Chechnya. Following that, on an unspecified date the applicant was allegedly approached by a local police officer who told him that his fellow colleagues were tired of replying to requests of the prosecutor's office concerning the applicant's criminal case and advised the applicant to agree to its termination. In the applicant's submission, the investigators also insulted his lawyer. 87. On an unspecified date in April 2006 a number of persons driving a VAZ-21099 vehicle allegedly came to the applicant's house. One of them wore a camouflage uniform. They told the applicant that he was lucky to be alive and advised him in a threatening tone to write a request for the investigation into his alleged ill-treatment to be closed, to find a job and to live like everyone else. 88. For an overview of the public statements of the European Committee for the Prevention of Torture (“the CPT”) on the issue of ill-treatment of detainees in the Chechen Republic by members of law enforcement authorities in the period 2000–2003, see Chitayev and Chitayev v. Russia (no. 59334/00, §§ 97-98, 18 January 2007). 89. Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of up to ten years' imprisonment (Article 286 § 3 of the Criminal Code). 90. The Code of Criminal Procedure of the Russian Federation, in force since July 2002 (the CCrP), establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual (Articles 140 and 146). Within three days after receiving such complaint the investigator or prosecutor must carry out a preliminary inquiry and take one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or (3) to refer the complaint to the competent investigative authority. The complainant must be notified of any decision taken. 91. Article 161 of the CCrP provides that data from the preliminary investigation cannot be disclosed. Under Article 161 § 3, information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in the criminal proceedings without their permission. 92. Article 22 § 1 of the Constitution of the Russian Federation stipulates that everyone has the right to liberty and security. Arrest, placement in custody and custodial detention are permissible only on the basis of a court order. The term during which a person may be detained prior to obtaining such an order cannot exceed forty-eight hours (Article 22 § 2 of the Constitution). The same principle is proclaimed in Article 10 of the CCrP, which provides that no one can be arrested or remanded in custody unlawfully, in the absence of a court order and for a period exceeding forty eight hours. 93. Under Article 91 of the CCrP, an investigating authority can arrest a person on suspicion of having committed a criminal offence punishable by imprisonment (i) at the time of the offence or immediately thereafter; (ii) if eyewitnesses pointed to him as the perpetrator of the crime; or (iii) if the suspect bore or was in possession of evident traces of the crime or if such traces were found on his clothes or at his home. 94. Within three hours after the delivery of a suspect to an investigating authority, a record of the arrest is to be drawn up, indicating the time and date of its compilation, as well as the date, time, place and grounds for a person's arrest and other relevant information (Article 92 §§ 1 and 2). A prosecutor is to be informed in writing about the arrest within twelve hours and the suspect is to be granted access to a lawyer and interviewed (Article 91 §§ 3 and 4). If no court order to place the person in custody or to extend his arrest is issued or received within forty eight hours, the detained suspect is to be immediately released (Article 94 §§ 2 and 3). Upon release, he is to be provided with a certificate indicating the authority which had arrested him, the date, time, place and legal grounds for detention, as well as the date, time and grounds for the release (Article 94 § 5).

dev

001-68119

ENG

MDA

CHAMBER

CASE OF ZILIBERBERG v. MOLDOVA

Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

Nicolas Bratza

7. The applicant was born in 1980 and lives in Chişinău, Moldova. He was a student at the time of the events and earned a stipend of 50 Moldovan Lei (MDL). 8. On 18 April 2000, between 9.30 a.m. and 12.30 p.m., the applicant attended a demonstration against the decision of the Municipal Council to abolish urban transport privileges for students. The demonstration was not authorised in accordance with the law and it appears from the statements of the parties that its organisers did not even apply for authorisation. The demonstration took place on the Great National Assembly Square in Chişinău. In the beginning it was peaceful, but later some of the demonstrators started to throw eggs and stones at the Municipality building and the police intervened. 9. Around 12.30 p.m. the applicant was arrested by the police on grounds of being an active participant in an unauthorised demonstration in breach of Article 174/1 § 4 of the Code of Administrative Offences (hereinafter referred to as the “CAO”). He was brought to the precinct police station an hour later. Between 1.30 p.m. and 7.00 p.m., he was detained in the police station and interrogated by several criminal investigators. 10. In his written statement given at the police station, the applicant mentioned, inter alia, that he had been arrested by the police when he and a journalist from the National Radio approached a group of policemen beating up a student. Since he had written on his forehead the word “STUDENT”, the police arrested him. He stated that he was an active participant but that he was not involved in violence. 11. On an unspecified date, the district police completed the administrative case file in connection with the offence committed by the applicant, mentioning inter alia that he had actively participated in an unauthorised meeting that had taken place in front of the building of the Municipal Council. The case was then referred to the competent district court. 12. Following an oral hearing on 19 April 2000, the Centru District Court imposed on the applicant an administrative fine of MDL 36 (the equivalent of 3.17 euros (EUR) at the time) provided for in Article 174/1 § 4 of the CAO. In its order, the court stated, inter alia, that the applicant had actively participated in a demonstration of students, which had been carried out without authorisation from the Municipal Council, and that he had admitted having participated in the demonstration. 13. On 28 April 2000 the applicant lodged an appeal against the above order. He argued that the fine had been unlawfully imposed on him and that the sanction was contrary to the freedom of assembly and to the right to strike guaranteed by Articles 40 and 45 of the Constitution. 14. On 4 May 2000 at 10 a.m. the Chişinău Regional Court heard the applicant’s appeal in his absence and dismissed it. 15. According to the Government the summons for the hearing was sent on 2 May 2000 by regular post and should have arrived at its destination on 3 May 2000. 16. According to the applicant, it was sent on 3 May 2000 and was received by him on 4 May 2000 after 10 a.m. 17. The postmark on the envelope, applied by the outgoing post office (namely, by the first post office through which the envelope was routed) indicates the date of 3 May 2000. The postmark applied by the incoming post office is not entirely legible. 18. On 5 May 2000, the applicant appeared before the Registry of the Chişinău Regional Court to inquire about his case. He was issued with a copy of the judgment of the Chişinău Regional Court of 4 May 2000 dismissing his appeal and upholding the order of the District Court of 19 April 2000. 19. On 10 May 2000 the applicant filed a request for annulment (contestaţie în anulare) with the Chişinău Regional Court against its decision of 4 May 2000, arguing that he had not been properly summonsed and consequently did not have a fair trial. The court refused to register the request on the ground that the CAO did not provide for such a remedy. On 18 May and 22 June 2000 respectively, the court rejected the repeated requests lodged by the applicant and his lawyer. 20. On 18 May 2000, the applicant accompanied by a lawyer of the Helsinki Committee of Human Rights and by an advocate made another attempt to file a request for annulment with the Registry of the Chişinău Regional Court but the Registry refused to register it. 21. On 12 June 2000, following the bailiff’s request, the applicant paid the fine provided for in the decision of 19 April 2000. 22. The relevant provisions of the Code of Administrative Offences in force at the material time read: The Code of Administrative Offences aims at the protection of the personality, the rights and the legal interests of the physical and moral person, property, the State and public order, as well as at finding, preventing and eliminating the consequences of administrative offences and at educating citizens in the spirit of respect for the law. ... The sanction for the attempt to commit an administrative offence is established in accordance with the article which provides for the responsibility for that offence. Only persons who were 16 years old at the moment of the commission of an administrative offence can be held responsible. The person who has committed an administrative offence while acting in legitimate defence shall not be responsible... The administrative sanction is a measure of responsibility and is applied in order to educate the person who committed an administrative offence, as well as to deter any future similar acts by the perpetrator himself or by others. In case of evasion of payment of a fine imposed for an administrative offence in bad faith, the court may replace the fine with imprisonment of ten days for every MDL 18, the maximum term being thirty days. (În caz de sustragere cu rea-voinţă de la achitarea amenzii aplicate pentru contravenţia administrativă savârşită, instanţa judecatorească poate înlocui această sancţiune cu arest administrativ, calculându-se zece zile de arest pentru un salariu minim, termenul fiind cel mult treizeci de zile.) The conversion of an administrative fine into imprisonment is ordered by a court following a request lodged by the bailiff in accordance with Article 26 of the CAO. According to the Government, the courts can convert administrative fines into imprisonment when the following circumstances are present: - when a person who knows about a fine imposed on him/her refuses to appear before a bailiff after multiple summonses; - when the offender does not have any revenue or goods that could be sold; - when the offender is unemployed and accordingly does not have a salary from which the fine could be deducted; - when the offender has failed to comply with the time limit set by a court for the payment of an administrative fine. A judgment by which an administrative fine is converted to imprisonment can be challenged before the hierarchically superior court. A person to whom such a measure is applied can always bring it to an end, by paying the administrative fine. The conversion cannot be made in respect of pregnant women, women who have children under twelve years of age, persons aged under eighteen and invalids of the first and second degree. As to the latter provision the parties submitted copies of seven recent judgments in which administrative fines have been converted into imprisonment, in some of which the conversion had been ordered in the absence of the offender and not in a public hearing. In one of them the conversion was made due to the offender’s failure to pay an administrative fine in time. At the same time the Government submitted copies of letters addressed to the Government Agent by presidents of thirteen courts in which it was stated that in the last two years their courts had converted administrative fines into imprisonment in twenty six cases. The circumstances that mitigate the administrative responsibility are: 1) repentance of the offender; 2) prevention by the offender of the negative effects of the offence and voluntary compensation for the damage caused; 3) committing the offence under influence of strong emotions or amidst difficult personal or family circumstances; 4) committing the offence as a minor; 5) committing the offence as a pregnant woman or as a woman who has a child aged under one year. The circumstances that aggravate the administrative responsibility are: 1) the continuation of illicit behaviour in spite of the demand to refrain from it, made by an authorised person; 2) the commission of a similar administrative offence for the second time within one year or the commission of an offence by a person who had earlier committed a criminal offence; 3) involving a minor in an activity contrary to CAO; 4) the commission of an offence by a group of people; 5) the commission of an offence during natural calamities...; 6) the commission of an offence while under influence of alcohol.... (2) The organisation and holding of an assembly without a prior declaration deposited with the Municipal Council or not authorised by it, and in breach of the conditions (manner, place, time) concerning the conduct of a meeting as indicated in the authorisation shall be punishable by a fine to be imposed on the organisers (leaders) of the assembly in an amount equal to between ten and twenty five times the minimum wage.... (4) Active participation in an assembly referred to in paragraph 2 of the present article shall be punishable by a fine in an amount between MDL 36 and 90. The hearing regarding an administrative offence shall be conducted in the presence of the suspect. If the suspect is absent, the hearing can take place only when it is proved that he or she was informed in due time about the place and the time of the hearing and if he or she did not submit any request for adjournment. A decision of the first instance court regarding an administrative offence may be challenged before the hierarchically superior court, by an application lodged by the interested person or by the prosecutor. When the parties have been informed in due time about the date of the hearing but do not appear, the appeal may be heard in their absence.... In examining a case regarding an administrative offence, the appeal instance may render one of the following decisions: 1) to leave the challenged decision unchanged and to reject the appeal application; 2) to quash the challenged decision and to order a re-examination by the first instance court; 3) to quash the challenged decision and to send the file to the investigation organs; 4) to quash the challenged decision and to stop the proceedings; 5) to change the administrative sanction and to mitigate the sanction imposed. The appeal instance may quash the challenged decision for the following reasons: when the first instance court committed procedural mistakes or when it applied the wrong law. A decision which is correct on its merits cannot be quashed for procedural reasons, except in the following circumstances: 1) the case was examined by a set of judges which was not composed in accordance with the law; 2) the decision was not signed by the judge who examined the case or it was signed by a judge who did not participate at the trial of the case; 3) the decision was not pronounced by the judge who examined the case; 4) there were no minutes of the hearing, contrary to the law; 5) the case was examined without an interpreter, contrary to the law. After examining the case, the appeal instance pronounces its decision. The decision does not have to contain any reasoning. If an offender does not pay the fine within the time provided for in Article 292 of the present Code, the amount of the fine shall be compulsorily deducted from his or her salary, pension, stipend or other income in accordance with the rules set in the Code of Civil Procedure. If the offender does not have an employment or if the deduction of the fine from the salary, pension, stipend or other income is not possible, the amount of the fine shall be recovered from the forced sale of his or her personal belongings or of his or her part of a co-ownership.... 23. The relevant provisions of the Code of Criminal Procedure in force at the material time read: The accused is called before the investigator by means of a summons. The summons is handed to the accused and the certificate confirming the date of the receipt is returned to the investigator. The summoning can also be done by telephone or by telegram. 24. The relevant provisions of the Code of Civil Procedure in force at the material time read: The court informs the parties to the proceedings about the date and the place of the hearing by means of a summons.... The summons is to be handed to the parties in due time, so that they have enough time to prepare for the hearing in front of the court. In any event, the summons should be handed to the defendant at least three days ahead of the hearing. 25. In a book entitled “The Procedure in Administrative Offence cases” by Sergiu Furdui (judge at the Supreme Court of Justice in Moldova), (Chişinău 2000), the author states the following: “The Code of Administrative Offences provides for a number of procedural measures such as: detention, body search, search of property, administrative arrest... The CAO provides for few procedural guarantees as it does not guarantee legal aid, presumption of innocence, etc. The CAO cases are heard by criminal sections of the courts.... Only the convicted person may pay the administrative fine... It is illegal for the fine be paid by somebody else”.

dev

001-102113

ENG

SVN

CHAMBER

CASE OF TRDAN AND Ć. v. SLOVENIA

Remainder inadmissible;No violation of Art. 8

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

4. The applicants are father and son. The first applicant was born in 1969 and lives in Ribnica. The second applicant was born in 2005 and lives in Ljubljana. 5. The first applicant was in a relationship with S.Ć. The relationship ended four months before the second applicant was born. The first applicant acknowledged the child by signing a statement on paternity with the Ljubljana Administrative Unit (Upravna enota Ljubljana). The second applicant's mother S.Ć. never gave her consent to the above-mentioned statement. 6. On 10 February 2006 the first applicant brought an action with the Ljubljana District Court (Okrožno sodišče v Ljubljani) for custody and determination of paternity. He also lodged a request for an interim measure ensuring him contact with his son pending the outcome of the main proceedings. Moreover, he requested the appointment of a special representative to represent the second applicant and to be exempted from paying court fees. 7. On 17 February 2006 the Ljubljana District Court issued a decision rejecting the request for an interim measure. The court stated that the question of paternity should be resolved before such measure could be applied. The first applicant appealed. 8. On 5 March 2006 and 5 April 2006 the first applicant lodged two requests for a hearing to be set and for the matter to be resolved promptly. 9. On 12 April 2006 the Ljubljana Higher Court (Višje sodišče v Ljubljani) issued a decision upholding the appeal and remitting the question of provisional contact arrangements for re-examination. 10. On 9 May 2006 the first applicant lodged a supervisory appeal (nadzorstvena pritožba) with the Ministry of Justice (Ministrstvo za pravosodje), complaining that the judge's work in the case was slow and ineffective. 11. On 10 May 2006 the first applicant lodged preliminary submissions and a reply to the counterclaim lodged by S.Ć. on 21 March 2006. 12. On 17 May 2006 Ljubljana District Court issued the first interim contact order allowing the first applicant to have contact with the second applicant once a week for two hours. The order was immediately enforceable, as appeals do not stay the enforcement of such orders. S.Ć. lodged an objection. 13. On 24 May 2006 the Ljubljana Moste Polje Welfare Authority (Center za socialno delo Ljubljana Moste Polje) issued a decision appointing a curator ad litem to represent the second applicant. 14. On 25 May 2006 the Ljubljana District Court sent a report to the Ministry regarding the progress in the case following the first applicant's supervisory appeal. 15. On 2 June 2006 the first applicant lodged an appeal against the order on provisional contact arrangements issued on 17 May 2006. He claimed that S.Ć. and her father had prevented him from visiting the second applicant and had threatened him with physical violence. He requested the first-instance court to modify the interim contact order concerning the enforcement by setting a fine in the event of non-compliance to ensure contact with the second applicant. 16. On 8 June 2006 the first applicant lodged a request for priority treatment, claiming that he had again been prevented from seeing the second applicant. He also lodged a complaint (ustna ovadba) with the police. 17. On 14 June 2006 Ljubljana District Court set a hearing for 5 July 2006. The first applicant requested that the hearing be set earlier. 18. On 15 June 2006 Ljubljana District Court issued a decision exempting the first applicant from paying court fees. 19. On 16 June 2006 the first applicant requested the hearing to be rescheduled, which was refused. 20. On 5 July 2006 the Ljubljana District Court held a hearing regarding provisional contact arrangements and the objection of S.Ć. to the order of 17 May 2006. The court issued a new contact order of its own motion pending the resolution of the case. The court allowed contact between father and son twice a week under the supervision of a social worker. It also set out a fine of 50,000 Slovenian tolars (SIT) (approx. 200 euros (EUR)) to be imposed in the event of non-compliance. On the same day a partial judgment was issued establishing that the first applicant was indeed the biological father of the second applicant. The parents also resolved the issue of alimony by signing a court settlement. 21. On 13 July 2006 the first applicant lodged an appeal challenging both interim contact orders (see paragraphs 12 and 20 above) by requesting more frequent contact. 22. On 6 September 2006 Ljubljana Higher Court quashed both appeals. 23. On 27 November 2006 the first applicant lodged a request for a new interim contact order, requesting more frequent contact. 24. On 6 December 2006 Ljubljana District Court rejected the first applicant's request and issued an order of its own motion, allowing contact under new terms. The court allowed contact twice a week without supervision and every other Saturday and fixed an arrangement for Christmas holidays. The court set a fine of SIT 50,000 (approx. EUR 200) in the event of non-compliance. S.Ć. lodged an objection. 25. On 4 and 5 January 2007 the first applicant lodged two requests with Ljubljana District Court for imposition of a penalty or use of physical force to enforce the order, since S.Ć was not respecting the interim contact order and was obstructing the applicant's visiting rights. The first applicant stated that the visits had been obstructed on nine occasions between 16 December 2006 and 2 January 2007. It transpires from the case-file that the second applicant was frequently ill between December 2006 and February 2007 and was hospitalized on 26 February 2007. 26. On 7 February 2007 the first applicant lodged a supervisory appeal in accordance with the provisions of the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”). 27. On 14 February 2007 Ljubljana District Court held a hearing regarding contact arrangements and rendered a decision, rejecting S.Ć.'s objection to the decision issued on 6 December 2006; the decision therefore remained in force (see paragraph 24 above). Both parties appealed. 28. On 27 February 2007 Ljubljana District Court issued a decision appointing an expert in psychology in order to determine which party to the proceedings should be granted custody. On the same day, following an unsuccessful contact, the first applicant lodged a complaint with the police against S.Ć. accusing her of abduction of a minor. It transpires from the case-file that the first applicant lodged at least ten such complaints during the proceedings. 29. On 2 March 2007 Ljubljana District Court issued a decision, rejecting the first applicant's requests from 4 and 5 January 2007 as unsubstantiated. The court found that the contact visits had been obstructed or prevented mainly because of the child's illness, and that the first applicant had not made an attempt to reschedule as set out in the interim order. The first applicant appealed. 30. On 7 March 2007 the supervisory appeal was rejected as unfounded (see paragraph 26). 31. The second applicant was again hospitalized between 7 May 2007 and 10 May 2007. 32. On 9 May 2007 Ljubljana Higher Court issued a decision quashing the decision of 6 December 2006 (see paragraphs 24 and 27 above) and rejected the first applicant's request for a new interim contact order. The court found that despite the progressing relationship between father and son allowing contacts without supervision was premature and such changes should be done more gradually. The order of 5 July 2006 was now again in force. 33. On 25 May 2007 Ljubljana District Court received the expert's opinion. 34. On 31 May 2007 the first applicant lodged a new request for an interim contact order. 35. On 4 June 2007 Ljubljana District Court issued an interim contact order of its own motion allowing more frequent contact visits following the favourable expert opinion. A fine for non-compliance was set. S.Ć. lodged an objection. 36. On 21 June 2007 Ljubljana District Court issued a decision rejecting the objection lodged by S.Ć. to the interim contact order. 37. On 16 July 2007 S.Ć. lodged an appeal against the decision of 4 June 2007, claiming that the order was based on an expert opinion on which she had not been given the opportunity to comment. 38. On 16 July 2007 the court received a report by the Moste-Polje Medical Centre, from which it was evident that both parents had been offered assistance by the department of psychology. S.Ć. had attended two meetings, the first applicant none. 39. It transpires from the case-file that the second applicant was frequently ill between June 2007 and August 2007 and again hospitalized on 24 July 2007. 40. On 17 October 2007 Ljubljana Higher Court upheld the appeal and remitted the case for re-examination (see paragraph 37 above). 41. On 28 November 2007 Ljubljana District Court issued a decision requesting the appointed expert to modify the report. 42. On 30 November 2007 the first applicant lodged a request for a hearing to be set and a new request for an interim contact order. 43. On 15 February 2008 Ljubljana District Court received the modified expert opinion. 44. On 17 March 2008 the first applicant lodged a supervisory appeal under the 2006 Act. 45. On 2 April 2008 the supervisory appeal was rejected as unsubstantiated. 46. On 4 April 2008 the first applicant lodged a new request for an interim contact order and a request for a hearing to be set. 47. On 10 April 2008 the first applicant's representative lodged a motion for a deadline under the 2006 Act. 48. On 17 April 2008 the motion for a deadline was rejected. 49. On 21 April 2008 the first applicant personally lodged a motion for a deadline. 50. On 13 May 2008 the motion for a deadline was upheld and the case was given priority treatment. 51. On 18 May 2008 the first applicant lodged an urgent request for the issuing of a new interim contact order. 52. On 22 May 2008 the court issued a new interim contact order of its own motion, allowing more frequent contact visits without supervision and imposing a fine of EUR 300 for non-compliance. S.Ć. lodged an objection. 53. On 11 June 2008 the case was reassigned to a new judge due to the previous judge's extended sick leave. 54. On 3 July 2008 a hearing was held and a new interim contact order was issued, setting a fine for non-compliance and further modifying contact arrangements. Both parties waived the right to appeal. 55. On 21 October 2008 S.Ć. lodged a preliminary submission requesting an additional expert opinion, whereby it could be established whether there had been physical violence against the second applicant by the first applicant. She had also informed the Welfare Authority about her concerns. 56. On 23 October 2008 the first applicant requested amendments to the new interim contact order. 57. On 4 November 2008 the first-instance court rejected both requests and found it unnecessary to change the contact arrangements. The court acknowledged that the relations between the parties presented a problem, since there had been frequent accusations of a criminal nature on both sides. Following the report by the Welfare Centre, the court assessed that the circumstances are not of such nature that the contact arrangements should be altered. 58. On 12 November 2008 a main hearing was held regarding custody. The first-instance court tried unsuccessfully to reach a settlement between the parties. The court also ordered the expert to supplement the opinion and establish whether there is any reason the contacts between father and son should not take place. A new interim contact order was issued setting new contact arrangements and a fine for non-compliance. S.Ć. appealed. 59. On 4 March 2009 a hearing was held at which the first applicant submitted a request for a new interim contact order. The court issued a new order slightly modifying the provisional contact arrangements until the next main hearing, fixed for 1 July 2009. Based on the supplemented expert opinion the court slightly extended the contacts. A fine in the event of non-compliance was set again. 60. On 1 July 2009 a hearing was held. Ljubljana District Court issued a judgment whereby the child was placed in the care of S.Ć. and contact arrangements were set. The first applicant stated that the contact visits had been carried out in line with the last interim decision. Both parents stated that the contact visits had gone ahead satisfactorily in the preceding months. Pending final resolution of the case the court issued a new interim order establishing in detail the contact arrangements for the summer and public holidays. 61. On 14 August 2009 the first applicant lodged an appeal against the first-instance judgment. 62. On 14 December 2009 Ljubljana Higher Court rejected the appeal and upheld the first-instance judgment. 63. For the description of the relevant domestic law see Eberhard and M. v. Slovenia (nos. 8673/05 and 9733/05, 24 June 2008, §§ 57-66).

dev

001-83870

ENG

CHE

GRANDCHAMBER

CASE OF STOLL v. SWITZERLAND

No violation of Art. 10

Anatoly Kovler;András Baka;Antonella Mularoni;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Matti Pellonpää;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vladimiro Zagrebelsky

13. The applicant was born in 1962 and lives in Switzerland. 14. In 1996 and 1997 negotiations were conducted between, among others, the World Jewish Congress and Swiss banks concerning compensation due to Holocaust victims for unclaimed assets deposited in Swiss bank accounts. 15. Against that background Carlo Jagmetti, who was the Swiss ambassador to the United States at the time, drew up on 19 December 1996 a “strategy paper”, classified as “confidential”, which was faxed to Thomas Borer, head of the task force that had been set up to deal with the matter within the Federal Department of Foreign Affairs in Berne. Copies were sent to nineteen other individuals in the Swiss government and the federal authorities and to the Swiss diplomatic missions in Tel Aviv, New York, London, Paris and Bonn. 16. Below are some extracts from the document, based on the article “That’s all we need”, which appeared in the Tages-Anzeiger on 27 January 1997, the day after the applicant’s articles were published (unofficial translation): “Ambassador, The campaign against Switzerland and the huge claims accompanying it, reflected in the activities of the Jewish organisations, the statements of American politicians and the class actions, will greatly occupy the authorities and public opinion on both sides of the Atlantic for some time to come ... However, the real reverberations will not be felt until the inquiries which are to be launched have been completed, those claims that are well-founded have been met, the proceedings have been concluded and matters have been put right in historical, political, legal and moral terms. That will take at least three years, possibly much longer. Moreover, it is impossible to predict today the course of Swiss domestic and foreign policy in the years ahead. In any event, the political, economic and social challenges facing the country internally and the uncertainty surrounding the European issue (the EU, security, etc.) and globalisation are already prompting some painful soul-searching by the Swiss people. The comments now coming from America are all we need. Suddenly, on top of the present and future uncertainties, we must come to terms with the past. The campaign against Switzerland, therefore, is being conducted in an already difficult climate ... All Switzerland’s efforts are aimed at preserving the country’s integrity, forestalling or at least warding off dangers and maintaining international relations (in particular with the United States) during the crisis and beyond while avoiding any lasting damage. All interim goals must be viewed solely in relation to the main objective. Short-lived successes such as ‘truces’, temporarily positive reactions from the media, satisfaction at seeing certain projects put in hand, historical insights which may be favourable to Switzerland or constructive remarks from our negotiating partners abroad should not blind us to the long-term reality. Individual battles may be important, but ultimately it is the war that Switzerland must win ... If we assume that the demands of the Jewish organisations and Senator D’Amato must be satisfied as a matter of urgency, and that then calm will be restored, an actual deal might be struck with the organisations concerned. Instead of just making the ‘gesture’ currently being speculated on, we could act immediately to resolve the matter by paying a lump sum in order to settle all the claims once and for all. Given that a large number of groups and countries are affected by this issue and that Switzerland is now being called to account, as it were, by the international community, the plan must have both a national and an international dimension and be based on a long-term strategy. It might look something like this: – the measures planned to date (publication of the expert report on the compensation agreement with the countries of eastern Europe, commencement of the work of the historical commission, inquiries by the Volcker Committee) will be effectively implemented by Switzerland using the necessary resources and within a realistic time frame, with any difficulties being overcome in a determined manner; – the dialogue with all the groups concerned must be continued in a correct and conciliatory manner, without making interim concessions which could jeopardise the entire process; – as far as the activities of foreign governments and parliaments are concerned (particularly in the United States and the United Kingdom), the aim should be to bring about courteous bilateral cooperation focusing primarily on establishing the truth and avoiding any polemics. Where necessary, of course, a clear and firm stance should be taken, particularly if Switzerland is disparaged or accused without absolutely clearcut reasons; – when significant interim findings have been obtained and, especially, when all the inquiries have been completed, negotiations will need to be conducted on the conclusions to be drawn and on how any funds released should be used. These should be conducted at governmental level, either multilaterally, if possible with all the countries concerned (including the Allies, those countries that were neutral at the time, Israel and Germany), bilaterally with Israel (which would mean giving up a long-standing position and accepting the risk of adverse reactions from the Arab world), or with non-governmental organisations. Much will depend on the strategy of our adversaries. However, the issue must be made an international one and other countries must be held to account. Switzerland, which has set a good example with its inquiries, should assume a leading role and hence seize the initiative ... It must also be borne in mind that scenarios and strategies are not immune to outside influences and that events may occur or a new trend emerge at any time, calling everything into question or at least requiring considerable flexibility. Accordingly, a mix of action based on international law and interim payments would, if possible, be more realistic. Opting for this kind of mix from the outset would almost inevitably mean taking a pragmatic approach that evolves from day to day and scarcely deserves the ambitious description of a ‘strategy’ ... Switzerland cannot afford to just muddle through in this matter. Whatever strategy is chosen, action will be needed on the external front to lend credibility to Swiss efforts. This can be done by taking the same – essentially reactive – stance taken hitherto or by adopting a more innovative approach. As part of the latter I would advocate campaigning systematically in political circles and in the media, maintaining ongoing contacts with the American administration in order to compare results and refine methods, cultivating relations with the Jewish organisations wherever possible in a friendly manner but without servility, and conducting a well-orchestrated public relations campaign including, for instance, seminars and round-table sessions. On the subject of public relations, however, statements should be made only if there is something new to be said and the time and place are right. Pilgrimages abroad are best avoided on tactical grounds and in view of the domestic policy aspects ... The advantages and drawbacks of the different approaches are fairly obvious. However, it is clear that, from a historical, political and legal perspective, a ‘deal’ will never be satisfactory. Ideally, all the same, the legal strategy should be chosen. This places considerable demands on all concerned and calls for initiative, time and energy, to say nothing of the cost. In view of the main objective, however, we would be well advised to change the habit of a lifetime and make the necessary funds available without unseemly haggling. Let me repeat: this is a war Switzerland must wage and win on the external and domestic fronts. Most of our adversaries are not to be trusted. The potential damage to Switzerland from a boycott or perhaps even legislative action by other countries is immense. Even the figures for our national pension insurance scheme or the cost of the new trans-Alpine rail links, for instance, are liable to look modest by comparison. Switzerland must present a united and determined front ... Carlo Jagmetti, Swiss Ambassador” 17. The applicant obtained a copy. It seems clear that he could not have acquired possession of the document without a breach of official secrecy by a person whose identity remains unknown. 18. On Sunday 26 January 1997 the Zürich Sunday newspaper, the Sonntags-Zeitung, published the following article by the applicant (unofficial translation): “Ambassador Jagmetti insults the Jews [original title in German: Botschafter Jagmetti beleidigt die Juden] Secret document: ‘Our adversaries are not to be trusted’ [Geheimpapier: ‘Man kann dem Gegner nicht vertrauen’] by [the applicant] Berne/Washington – Another scandal involving the Swiss ambassador to the United States: Carlo Jagmetti, in a confidential strategy paper on the assets of Holocaust victims, talks of the ‘war Switzerland must wage’, and of ‘adversaries’ who ‘are not to be trusted’. The paper is classified as ‘confidential’. It was written by Carlo Jagmetti, Swiss ambassador to the United States. On 19 December the 64-year-old high-ranking diplomat in Washington sent the task force in Berne his views on what he described as a ‘campaign against Switzerland’. This report has been obtained by the SonntagsZeitung, and is dynamite. In terms of its content, it is an unremarkable assessment of the situation. But the aggressive language used by Carlo Jagmetti has the effect of an electric shock on the reader. ‘It is a war,’ writes the ambassador, ‘a war Switzerland must wage and win on the external and domestic fronts.’ He describes Senator D’Amato and the Jewish organisations as ‘adversaries’, saying that ‘most of our adversaries are not to be trusted’. In his paper, Carlo Jagmetti mentions the possibility of concluding an agreement, because ‘the demands of the Jewish organisations and Senator D’Amato must be satisfied as a matter of urgency’. He uses the word ‘deal’ in this context. Ambassador Jagmetti suggests ‘paying a lump sum’ to the Jews in order to settle ‘all the claims once and for all’. Then, he writes, ‘calm will be restored’. Speaking of the ‘external front’, Carlo Jagmetti says that Switzerland should ‘campaign systematically in political circles and in the media’. Relations with Jewish organisations should be ‘cultivated in a friendly manner but without servility’, with the help of a firm of lawyers, and a ‘well-orchestrated public relations campaign [should be conducted], including seminars and round-table sessions’. No comments on this strategy paper by the eminent diplomat – due to retire in the spring – were forthcoming yesterday either from Flavio Cotti [head of the Swiss diplomatic service] at the Federal Department of Foreign Affairs or from the task force headed by Thomas Borer. Carlo Jagmetti had no comment to make to this newspaper. Martin Rosenfeld, President of the Swiss Federation of Jewish Communities (SIG/FSCI) described Carlo Jagmetti’s remarks as ‘shocking and profoundly insulting’. He said he foresaw ‘a difficult run-up to retirement’ for Mr Jagmetti.” 19. In the same edition of the Sonntags-Zeitung of 26 January 1997, another article by the applicant read (unofficial translation): “The ambassador in bathrobe and climbing boots puts his foot in it [Mit Bademantel und Bergschuhen in den Fettnapf] Swiss Ambassador Carlo Jagmetti’s diplomatic blunderings [Der Schweizer Botschafter Carlo Jagmetti trampelt übers diplomatische Parkett] by [the applicant] Berne/Washington – Swiss Ambassador Carlo Jagmetti constantly gets himself noticed on the diplomatic scene. With his insensitive remarks on the assets of Holocaust victims, he has thrown Swiss foreign policy into turmoil – and not for the first time. Early on Friday morning the temperature began to rise in the offices of the Swiss embassy in Washington. ‘We do not comment on internal documents’ said an embassy spokesman emphatically to this newspaper ... By the following day, nevertheless, ... [an] editor on the [daily newspaper] Neue Zürcher Zeitung had already leapt to the defence of his close friend Carlo Jagmetti. Under the heading ‘Leaks continue unabated’, he announced that ‘this balanced document, some parts of which might, of course, be mischievously construed, may be published this weekend’. Damage limitation, therefore, was the name of the game in Washington on Friday. Ambassador Carlo Jagmetti, who has represented Switzerland abroad for 34 years, was clearly aware of the explosive nature of his strategy paper, dated 19 December 1996, on the subject of unclaimed Jewish assets. In his paper, he talks about a ‘war Switzerland must wage and win on the external and domestic fronts’. He winds up with a flourish by observing: ‘Most of our adversaries are not to be trusted.’ The Swiss embassy in Washington is, however, experienced in crisis management. Carlo Jagmetti, who heads the embassy, regularly puts his foot in it. In 1993, a few months after moving into his office in the prestigious Cathedral Avenue, this senior diplomat committed his first faux pas. In an interview with the magazine Schweizer Illustrierte, he complained about the American administration, saying ‘I’ve observed a certain lack of courtesy’. Even Bill Clinton, who was said to ‘burst out laughing sometimes at inopportune moments’, was criticised during the interview. Apparently, Mr Clinton had ‘kept [Carlo Jagmetti] waiting for four months’ before he was accredited. And, according to the ambassador, it was legitimate to ask, on a general note, ‘who [was] actually governing the United States’. Berne reprimanded the ambassador for his ill-chosen remarks and for an unconventional public appearance (Carlo Jagmetti and his wife were pictured [in an article in Schweizer Illustrierte] in their bathrobes), but the ambassador did not prove much more reticent in his subsequent utterances. And in the highly topical debate concerning the assets of Holocaust victims, Carlo Jagmetti has also given the impression of somebody blundering onto the diplomatic stage in outsize boots. He rebuked the Holocaust survivor Gerda Beer in front of the assembled American press, saying that her claims were unfounded as her uncle had emptied the Swiss bank account in question. The incident-prone diplomat based his remarks, however, not on proven facts, but on unsubstantiated rumours which had been circulating. Berne was left with no choice but to apologise for his undiplomatic remarks in a bid to limit the damage. These remarks, which have now been made public, are all the more embarrassing since the tension seemed to be easing. Only last Friday Senator D’Amato and the World Jewish Congress had for the first time welcomed Switzerland’s agreement to set up a fund for Holocaust victims. Swiss diplomats are now engaged in behind-the-scenes efforts to head off the impending crisis by stressing the fact that Carlo Jagmetti is due to retire shortly. In any event, they argue, Mr Jagmetti played only a minor role in the recently concluded negotiations between Jewish organisations and the American Senator D’Amato. Carlo Jagmetti himself has declined to comment. He absented himself from the major press conference held by Senator D’Amato on Friday before the world’s press. He was reportedly on holiday in Florida.” 20. A third article, which also appeared in the Sonntags-Zeitung on 26 January 1997 and was written by the editor Ueli Haldimann, was entitled “The ambassador with a bunker mentality” (“Botschafter mit Bunkermentalität”). 21. On Monday 27 January 1997 the Zürich daily, the Tages-Anzeiger, reproduced lengthy extracts from the strategy paper in an article entitled “That’s all we need” (“Das hat gerade noch gefehlt”). Subsequently, another newspaper, the Nouveau Quotidien, also published extracts from the paper. 22. Following publication of these articles, the Swiss Federal Council (Bundesrat) requested the Swiss Press Council (Presserat) to examine the case. 23. The Swiss Press Council acts as a complaints body for media-related issues. It is an institution under Swiss private law set up by four associations of journalists which formed a foundation (Stiftung) to organise and fund the activities of the Press Council. According to the Press Council rules, its activities are intended to contribute to the discussion of fundamental ethical issues in relation to the media. Its task is to uphold freedom of the press and freedom of information, and it adopts opinions, on its own initiative or in response to complaints, on issues concerning journalistic ethics. The Swiss Press Council has adopted a “Declaration on the rights and responsibilities of journalists”, which is available on the Internet. 24. Its opinion (Stellungnahme) of 4 March 1997 concerning the present case (no. 1/97, C. J./Sonntags-Zeitung) reads as follows (unofficial translation): “II. Considerations ... 2. With regard to the publishing of confidential information, the following extracts from the Declaration on the rights and responsibilities of journalists are of relevance: (a) ’[Journalists’] responsibility to the public [shall take precedence over] their responsibility ... towards the ... authorities ... in particular’ (Preamble). (b) Journalists shall have free access ‘to all sources of information and [shall have the] right to investigate without hindrance any facts which are in the public interest; objections of secrecy in public or private matters may be raised only in exceptional cases, with sufficient reasons given in each case’ (point (a) of the Declaration of rights). (c) Journalists shall publish only ‘such information, documents [or] images whose origin is known to them; [they shall not suppress] information or essential elements [and shall not] distort any text, document, image ... or opinion expressed by another. [They shall] present unsubstantiated news items very clearly as such [and] make clear when pictures have been edited’. They shall comply with reasonable deadlines (point 3 of the Declaration of responsibilities). (d) Journalists shall not make use of ‘unfair methods in order to obtain information, ... images or documents’ (point 4 of the Declaration of responsibilities). (e) They shall respect ‘editorial secrecy and shall not reveal the sources of information obtained in confidence’ (point 6 of the Declaration of responsibilities). (f) They shall not accept ‘any favours or promises which might compromise their professional independence or their ability to express their own opinions’ (point 9 of the Declaration of responsibilities). ... 5. It must first be established whether diplomats’ reports come under the heading of vital interests. The federal authorities and those who share their point of view argue that these reports are highly sensitive and comparable to the negotiations conducted by the Federal Council and the reports preceding such negotiations. These documents, they argue, merit greater protection than, for instance, expert reports or minutes of parliamentary committees. The Federal Department of Foreign Affairs and the Federal Council cannot form an accurate picture of international relations unless the ambassadors provide them with additional information, different from and more sensitive than that provided by the media. Diplomats also provide information they have obtained from confidential sources, behind the scenes or off the record. They need, for instance, to be able to express in plain language their views about violations of human rights and political relations in Iran, the involvement of leading Colombian politicians in drug trafficking and the true picture with regard to the balance of power and intrigue in the Kremlin. If, despite everything, reports of this kind are published, the ambassador concerned will almost automatically be declared persona non grata in the host country. If reports of this kind were to be published on a regular basis, ambassadors would no longer be able to report on everything that was going on. That would have an adverse impact on Swiss foreign policy, perhaps even paralysing it completely. And if everything were to be made public, Switzerland might just as well recall its diplomats and replace them with the media. In exercising their function as critic and watchdog, the media must always remain mindful of their responsibilities. This applies with particular force in the sphere of foreign policy, as the reports relating to foreign policy are also read abroad. If only for this reason, they are more sensitive than reports on domestic policy matters. ... The Press Council acknowledges the importance of the principle that diplomatic correspondence should remain confidential. In the past, the Swiss media have observed that principle in substance and have not set out to expose the internal workings of diplomacy to public view. Disclosures in the foreign policy sphere have been the exception rather than the rule in Switzerland. Media bosses are clearly aware of the responsibilities inherent in the media’s role as critic and watchdog in this sphere. At the same time, it should not be forgotten that disclosures by the media in the field of foreign policy are commonplace in other countries, particularly in the United States, but also in the United Kingdom and Israel. Clearly, other governments and diplomats have long had to contend with this risk of disclosures concerning foreign policy, and have learned to live with it. Whether they like it or not, the Swiss authorities must also learn to adjust to a situation in which foreign policy is as much the focus of media attention as domestic policy, and in which revelations may come not just from the Swiss media but also from foreign media. An approach which places confidentiality before the public interest in too rigid a manner is neither realistic nor legitimate, particularly since diplomatic reports are regularly forwarded to a large number of authorities. There can be no doubt that the revelations in the Sonntags-Zeitung and the TagesAnzeiger were a source of embarrassment and problems for those responsible for Swiss foreign policy, but they did not restrict their room for manoeuvre substantially. Diplomatic reports are confidential by right, but when the conditions that allow confidential reports to be published are met, freedom of the press must take precedence (Opinion 2/94, Moser/Reimann parliamentary questions). 6. The Press Council must now examine whether the content of Mr Jagmetti’s strategy paper is of such importance that it was appropriate to invoke the public interest, and whether it should have been published. In the view of Ueli Haldimann, editor of the Sonntags-Zeitung, the public interest lay in the fact that it was important to let people know how the Swiss ambassador in Washington perceived the complex issue of Holocaust victims’ assets and the way Switzerland was coming to terms with its past, and what kind of aggressive language he used. According to Haldimann, his newspaper did not publish any leaked information unless the public interest was at stake. Although there were more leaks now than previously, they were not damaging in principle, and were often the only remaining means of putting a stop to harmful conduct ... From the Press Council’s standpoint, the next step is to assess the strategic importance of Mr Jagmetti’s paper. Mr Jagmetti set out in this document to make a perfectly reasonable analysis of the situation, making a number of constructive proposals. He explored two ‘extreme’ options – the first involving some kind of ‘deal’ and the second involving a ‘legal strategy’. The paper testifies to a fundamental concern to get at the truth, to find a generous financial solution and to protect Swiss interests and the country’s good relations with the United States. However, it could not escape the attention of even the most casual reader that Mr Jagmetti used very bellicose language and that he regarded his negotiating partners as adversaries who were not to be trusted and who might be amenable to some kind of deal. The language used betrays attitudes which are problematic even in an internal document, since attitudes are liable to be reflected also in negotiations and informal contacts. In that connection, Mr Jagmetti was to have been engaged in important discussions concerning the assets of Holocaust victims during the last six months of his tenure. The Press Council is mindful of the fact that the degree of public interest of confidential information cannot be determined in a wholly objective manner, but depends on the ideological, cultural, economic and advertising context in which the medium operates. Nevertheless, in the case of Mr Jagmetti’s strategy paper, the public interest was clear, as the debate surrounding the assets of Holocaust victims and Switzerland’s role in the Second World War was highly topical in late 1996 and early 1997 and had an international dimension, and because the Swiss ambassador in Washington was to occupy a prominent position in the forthcoming discussions. Knowing what that ambassador thought and how he formulated his opinions was relevant, and not a trivial concern. Leaving aside the question of the public interest and the relevance of the ambassador’s remarks, the publication of this supposedly confidential paper was justified from an ethical viewpoint, since only as a result of its publication did it become clear that those in charge still had no clear idea, despite the creation of the task force, as to the question of Swiss responsibility and what steps should be taken. From the perspective of political transparency, publication of the confidential paper, despite the fact that it was more than a month old and that in the meantime there had been talk of setting up a fund for Holocaust victims, might have spurred the government on to engage in debate in order to overcome the problems, demonstrate leadership and devise convincing solutions. 7. Finally, it is necessary to assess whether the information was made public in the most appropriate form. According to one school of thought, the media are in a position of power, since not only do they inform, they also suggest by the way in which they present the information how it is to be assessed. In the present case the Sonntags-Zeitung, it is argued, presented an internal analysis of foreign policy in truncated form and, by publishing it alongside comments from third parties who had not seen the original text, planted in people’s minds the idea that Ambassador Jagmetti had ‘insulted the Jews’. The newspaper, by accusing Mr Jagmetti of antiSemitism, started a rumour in an irresponsible manner. Reproducing the full text would not have placed Mr Jagmetti under the same kind of pressure and would not have forced him to resign. The manner in which the information was published, therefore, was a source of problems and consternation. The opposing school of thought argues that it is vital to analyse the salient points of Mr Jagmetti’s remarks. According to the Sonntags-Zeitung, there was no question of accusing Ambassador Jagmetti of anti-Semitism. Nevertheless, the newspaper’s editors have acknowledged off the record that it would have been wiser to publish the strategy paper in full. They maintain that, on the day of publication, it would have been virtually impossible to add another page to the newspaper and that plans to publish the full text on the Internet were abandoned owing to technical problems. The Press Council regards these arguments as spurious, and agrees with the criticism regarding the manner of publication. The Sonntags-Zeitung did not make sufficiently clear that Ambassador Jagmetti had outlined several options in his strategy paper, of which the ‘deal’ was just one. Nor did it make the timing of the events sufficiently clear, particularly since the document was already five weeks old and had reached the addressees before the interview given by the outgoing Swiss President on the programme 24 heures/Tribune de Genève. The newspaper unnecessarily made the affair appear shocking and scandalous and, by its use of the headline ‘Ambassador Jagmetti insults the Jews’, misled the reader and made it appear that the remarks had been made the previous day. It was incorrect to assert that Mr Jagmetti’s letter undermined the process which had begun in January, particularly since the document had been circulated beforehand and had not previously been in the public domain, and could not therefore adversely affect the talks with the country’s partners at home and abroad. When the Sonntags-Zeitung attempted to contact Mr Jagmetti on Friday 24 January in order to obtain a comment, and failed to reach him because he was in Florida, the newspaper’s editors should have considered whether it might not be wiser to delay publication by a week so as to be able to publish an interview with Carlo Jagmetti alongside the extracts from his paper. The fact that publication went ahead in the next issue in spite of everything can only have been prompted by the fear of competition, which on no account constitutes sufficient justification for immediate publication. Hence, by publishing the strategy paper in the way it did, the Sonntags-Zeitung omitted vital pieces of information, in breach of the Declaration on the rights and responsibilities of journalists (point 3 of the Declaration of responsibilities). ... III. Findings 1. Freedom of the press is too fundamental a right to be made subservient as a matter of principle to the interests of the State. The role of critic and watchdog played by the media requires them to make information public where the public interest is at stake, whether the source of information is freely accessible or confidential. 2. As to the publication of confidential information, the pros and cons must be weighed up carefully, with an eye to whether interests which merit protection are liable to be damaged in the process. 3. Internal reports by diplomats are confidential by right, but do not necessarily merit a high degree of protection in all cases. The media’s role as critic and watchdog also extends to foreign policy, with the result that those in charge in the media may publish a diplomatic report if they consider its content to be in the public interest. 4. In the case of Mr Jagmetti, the interest to the public of his strategy paper should be acknowledged, as should the fact that its publication was legitimate on account of the importance of the public debate on the assets of Holocaust victims, the prominent position occupied by the Swiss ambassador in Washington and the content of the document. 5. In this case the Sonntags-Zeitung, in irresponsible fashion, made Mr Jagmetti’s views appear shocking and scandalous by printing the strategy paper in truncated form and failing to make the timing of the events sufficiently clear. The newspaper therefore acted in breach of the Declaration on the rights and responsibilities of journalists (point 3 of the Declaration of responsibilities). The Tages-Anzeiger and the Nouveau Quotidien, on the other hand, placed the affair in its proper context following the revelations by reproducing the document in its nearentirety.” 25. Following publication of the articles, the applicant was made the subject of an investigation by the Zürich cantonal authorities. By a decision of 6 March 1998, the Federal Public Prosecutor’s Office ordered the discontinuation of the investigation into a breach of official secrecy (Verletzung des Amtsgeheimnisses) within the meaning of Article 320 of the Swiss Criminal Code. It remitted the case in respect of the charge of publication of official deliberations within the meaning of Article 293 of the Criminal Code to the prosecuting authorities of the Canton of Zürich. 26. On 5 November 1998 the Zürich District Office (Statthalteramt des Bezirkes Zürich) fined the applicant 4,000 Swiss francs (CHF) (approximately 2,382 euros (EUR) at the current exchange rate) for contravening Article 293 § 1 of the Swiss Criminal Code (see paragraph 35 below) by publishing the articles entitled “Ambassador Jagmetti insults the Jews” and “The ambassador in bathrobe and climbing boots puts his foot in it”. 27. On 22 January 1999, following an application by the applicant to have the decision set aside, the Zürich District Court (Bezirksgericht) convicted him of an offence under Article 293 § 1 of the Swiss Criminal Code, but reduced the fine to CHF 800 (approximately EUR 476 at the current exchange rate). 28. The relevant passages of the District Court judgment read as follows (unofficial translation): “5.2.2 According to the case-law of the Federal Court, the offence defined in Article 293 of the Criminal Code is based on a formal notion of secrecy whereby the confidential nature of a document, a set of talks or an investigation stems not from its content but from it being classified as such by the competent body. In accordance with this approach by the Federal Court, the strategy paper in question, which was marked ‘(classified) confidential’ (Document 2/2), amounts to a secret in the formal sense, and as such attracts the protection of Article 293 of the Criminal Code. When it comes to interpreting Article 293 of the Criminal Code, freedom of expression and freedom of the press (Article 10 of the European Convention on Human Rights and Article 55 of the Federal Constitution) should in principle be taken into consideration in the appellant’s favour. With the revision of the Criminal Code of 10 October 1997, which made the publication of secrets of minor importance an extenuating circumstance (Article 293 § 3), the legislature added a substantive component to the notion of secrecy under Article 293. But even assuming that for these reasons – and contrary to the case-law of the Federal Court – the court were to base its decision on a purely substantive notion of secrecy, the outcome would not be favourable to the appellant. The views expressed by Ambassador Jagmetti in the strategy paper were not in the public domain. This, moreover, is also apparent from the fact that the information conveyed and the way it was analysed provided the basis for ‘sensationalist’ articles by the appellant. Whether or not Ambassador Jagmetti might have been willing to divulge the content of the strategy paper in an interview is of little relevance here. However, there is every reason to doubt it, the more so given the limited number of persons to whom the document was sent. Furthermore, contrary to the appellant’s claims, the content of the strategy paper was far from unremarkable. The document contained an assessment of the delicate foreign policy situation in which Switzerland found itself in December 1997 on account of the unclaimed assets, in particular visàvis the United States. It also proposed a variety of strategies aimed at helping the country get out of its predicament. Documents setting out often carefully worded evaluations and assessments are an essential part of the formation of opinions and decision-making at embassy level, a process during which strongly held and often diverging opinions are exchanged and discussed internally until agreement is reached on a particular position. The protection which Article 293 of the Criminal Code is intended to provide also applies to the formation of opinions in as free a manner as possible and without undue outside influence (BGE (Federal Court Reports) 107 IV 188). In that regard, the document in question was aimed at helping the head of the task force to form an opinion and hence at influencing the course of events and the country’s handling of the issue of the unclaimed assets. By its very nature, the publication of internal documents of this kind, which are designed to help form opinions, can have devastating consequences for the negotiations to be conducted. Consequently, given its explosive content and the fact that it was unknown to the public, the document in question was also secret in the substantive sense. It is thus fair to say that the question whether the broad formal notion of secrecy adopted by the Federal Court takes precedence over Article 10 of the European Convention on Human Rights remains open ... 6. To justify his actions, the appellant claims to have been defending legitimate interests. According to the Federal Court, this extra-legal justification may be relied on ‘if the act in question constitutes a necessary and reasonable means of achieving a legitimate aim, is the sole possible course of action and is manifestly of less importance than the interests which the perpetrator is seeking to defend’ (BGE 120 IV 213). The appellant argues that the editors of the Sonntags-Zeitung assessed the situation before arriving at the conclusion that the public interest carried greater weight. They took the view that the public was entitled to be informed when leading diplomats used language which was in glaring contradiction with Switzerland’s official position (Document 2/5, p. 2). The tone employed by the ambassador was so inappropriate, they argued, that publication was necessary (Document 2/7). Ambassador Jagmetti, according to the editors, was not the right person to be conducting the negotiations with Senator D’Amato and the Jewish organisations, as he lacked the finesse needed to deal with this important issue (Document 17, p. 13). By publishing the confidential strategy paper, therefore, the appellant was in part attempting, as it were, to sideline from the negotiations a leading diplomat whose style he disliked. It must be said that, even if it was genuine, the indignation expressed by the appellant with regard to the tone of the document seems somewhat naïve. While a section of the public may well have wished to be informed about internal documents of this kind, this has little to do with legitimate interests. Moreover, the appellant undoubtedly undermined the climate of discretion which is of vital importance in the sphere of diplomatic relations, thereby weakening Switzerland’s position in the negotiations or at least compromising it substantially. In assessing the public interest relied on by the appellant in the light of the strict requirements laid down by the Federal Court with regard to the extra-legal justification of defence of legitimate interests, it is clear, firstly, that the means employed by the SonntagsZeitung, consisting in the impugned publication of secret official documents, were neither necessary nor reasonable and, secondly, that the interests which were damaged as a result were not ‘manifestly’ of less importance. In addition, the public debate on unclaimed assets which the appellant wished to see could perfectly well have been conducted without infringing Article 293 of the Criminal Code. The defence of legitimate interests cannot therefore be relied on as justification ... 8. Under Article 293 § 3 of the Criminal Code, the publication of secrets of minor importance amounts to an extenuating circumstance. As indicated above, however, the secret divulged in the present case was not of minor importance. The publishing of a strategy paper which was vital to the formation of opinions within the Federal Department of Foreign Affairs and the Federal Council, while it may not have actually weakened Switzerland’s position vis-à-vis the outside world and in particular in the negotiations, at least temporarily compromised it. It was important to preserve the confidentiality of the document not just because it was classified as ‘confidential’. The implications of the subject under discussion for Swiss foreign policy also called for greater discretion in dealing with the strategy paper. There are therefore no extenuating circumstances under Article 293 § 3 of the Criminal Code in relation to the facts constituting the offence. ... The offence committed cannot now be regarded as minor, as the secrets which the appellant made public are not of secondary importance. In publishing the strategy paper, the appellant unthinkingly compromised Switzerland’s tactical stance in the negotiations. Nevertheless, the offence is not a very serious one, as the appellant did not divulge an actual State secret whose publication could have undermined the country’s very foundations. Nor should too much be made of the fault committed by the appellant, in so far as he committed his actions – with the backing of the newspaper’s editor and its legal department – in a legitimate attempt, among other things, to start an open debate on all aspects of the unclaimed assets issue. A fine of CHF 800 is therefore appropriate ...” 29. The applicant lodged an appeal on grounds of nullity (Nichtigkeitsbeschwerde), which was dismissed by the Court of Appeal (Obergericht) of the Canton of Zürich on 25 May 2000. 30. The applicant lodged an appeal on grounds of nullity and a publiclaw appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht). He argued that a journalist could be convicted of an offence under Article 293 of the Swiss Criminal Code only in exceptional circumstances, namely if the secret published was of unusual importance and publishing it undermined the country’s very foundations. He referred to the public interest in being made aware of the ambassador’s remarks and the role of journalists as watchdogs in a democratic society. 31. The Federal Court dismissed the applicant’s appeals in two judgments dated 5 December 2000 (served on 9 January 2001) in which it upheld the decisions of the lower courts. 32. In examining the appeal on grounds of nullity, the Federal Court firstly outlined some considerations regarding Article 293 of the Criminal Code (unofficial translation): “2.(a) According to the case-law and most commentators, Article 293 of the Criminal Code is aimed at protecting secrets in the formal sense. The sole determining factor is whether the documents, investigations or deliberations are secret by virtue either of the law or of a decision taken by the authority concerned. Whether they have been classified as ‘secret’ or simply ‘confidential’ is of little relevance; it is sufficient for it to be clear that the classification was designed to prevent their publication ... This formal notion of secrecy differs from the substantive notion, to which most of the Articles of the Criminal Code on the disclosure of secret information relate, for instance Article 267 (diplomatic treason) or Article 320 (breach of official secrecy). In the substantive sense, a fact is secret if it is accessible to only a limited number of persons, if the authority in question wishes to keep it secret and if that wish is justified by interests which merit protection ... Many commentators have argued in favour of the wholesale repeal of Article 293, saying that steps should at least be taken to ensure that publication of a secret in the substantive sense is punishable only if the secret is of major importance ... (b) As part of the revision of the criminal and procedural provisions relating to the media, the Federal Council proposed repealing Article 293 of the Criminal Code without replacing it with another provision. In its communication (BBl (Federal Gazette) 1996 IV 525 et seq.), the Federal Council argued in particular that it was unfair to punish the journalist who had published the confidential information, while the official or representative of the authority concerned who had originally made publication possible generally escaped punishment because his or her identity could not be established ... According to the Federal Council, Article 293 of the Criminal Code, which protected secrets in the formal sense ..., placed excessive restrictions on the freedom of action of the media. In its view, the ‘second use’ of a disclosed secret (by someone working in the media, for instance) was less serious in terms of criminal potential and unlawfulness than the initial disclosure of the secret by its holder. In addition, the journalist was by no means always aware that the information he had received was obtained as the result of betrayal of a secret. The actions of the ‘second user’ might be assessed differently in cases where the information disclosed was a genuine State or military secret. However, independently of Article 293 of the Criminal Code, the legislation in force in any case made provision, in relation to diplomatic treason (Article 267 of the Criminal Code) and breach of military secrecy (Article 329 of the Criminal Code), for two layers of protection in such cases, one against disclosure by the holder of the secret and the other against disclosure by the ‘second user’. According to the Federal Council, the proposed repeal of Article 293 of the Criminal Code would not therefore undermine the protection of secrecy under criminal law in important spheres. The objection that Article 293 also protected individual interests was at best indirectly relevant, as individuals’ private and personal lives were protected first and foremost by Articles 179-79 septies of the Criminal Code and the provisions of the Civil Code concerning the protection of personality rights ... In the federal authorities, those in favour of the wholesale repeal of Article 293 of the Criminal Code have also argued that the provision in question is rarely applied and is not effective. They contend that it is unfair, in particular, because it penalises only the journalist, who is the ‘second user’, whereas the identity of the initial perpetrator of the offence, namely the official or representative of the authority concerned, remains unknown ... and he or she cannot therefore be called to account for a breach of official secrecy, for instance. Even if Article 293 were simply repealed, they argue, the disclosure by a journalist of genuinely important secrets would still be punishable, for instance under Article 267 of the Criminal Code (diplomatic treason) or Article 329 (breach of military secrecy). Opponents of the repeal of Article 293 have argued ... that the provision is more necessary than ever, as the disclosure of secret or confidential information can have serious consequences ...” 33. The Federal Court then turned to the circumstances of the present case: “8. The ‘publication of secret official deliberations’ (offence referred to in Article 293 of the Criminal Code) must still be considered to be based on a formal notion of secrecy, in line with the case-law of the Federal Court. The addition of a third paragraph to Article 293 has done nothing to change that. However, in view of the fact that it is now open to the criminal courts not to impose any penalty, they must determine in advance whether the classification as ‘secret’ can be justified in the light of the purpose and content of the disclosed documents. That is the case here. The extracts from the confidential document published by the appellant were, moreover, also secret in the substantive sense. The appellant rightly refrains from arguing that the extracts in question were of minor importance within the meaning of Article 293 § 3 of the Criminal Code. In requesting that the application of Article 293 be confined to cases in which the secrets disclosed are of major importance and their disclosure threatens the very foundations of the State, the appellant is seeking a decision which goes well beyond any interpretation of Article 293 (in line with the Constitution and the case-law of the European Court of Human Rights), which the Federal Court is obliged to apply pursuant to Article 191 of the new Federal Constitution. The same is true of the argument that persons working in the media can be convicted of publishing secret official deliberations under Article 293 of the Criminal Code only if the interest of the State in preserving the confidentiality of the disclosed information outweighs the public interest in receiving the information. This comparison of the interests at stake has no bearing on the essential elements of the offence, although it may possibly have a bearing on the extra-legal justification of protection of legitimate interests. In any event, the circumstances of the present case are not such as to allow the protection of legitimate interests to be relied on as justification for publishing secret official deliberations. 9. This conclusion renders a comparison of the interests at stake in the present case redundant. It is therefore not necessary to respond to the appellant’s criticism of the way in which the cantonal authorities balanced those interests. For the sake of completeness, however, it should nevertheless be pointed out that, for the reasons set forth by the federal authorities, the interest in maintaining the confidentiality of the strategy paper in question carried greater weight than the public interest in being apprised of the extracts published in the newspaper. In order to avoid repetition, the court would refer here to the considerations set forth in the impugned judgment and in the first-instance judgment. It was in the interests not only of the ambassador and the Federal Council, but also of the country, to preserve the confidential nature of the strategy paper. The publication of isolated extracts was liable to interfere with the formation of opinions and the decision-making process within the State bodies in Switzerland, and above all to further complicate the already difficult negotiations being conducted at international level; this was not in the country’s interest. On the other hand, the passing interest in the extracts published out of context in the newspaper which the eye-catching headline aroused among sensation-seeking members of the public is relatively insignificant in legal terms. This is all the more true since the ‘tone’ criticised by the appellant, used in an internal document written in a specific context (and the content of which was, according to the article, an unremarkable assessment of the situation), did not in any event permit the reader to draw clear and indisputable conclusions as to the ‘mentality’ of the ambassador, still less as to his ability to perform the task assigned to him ...” 34. In its judgment following the applicant’s public-law appeal, the Federal Court found as follows (unofficial translation): “3. In his public-law appeal, the appellant requests in particular that the principle of equality in the breach of the law [Gleichbehandlung im Unrecht] be applied to him and raises, among other things, a complaint concerning a violation of the principle of lawfulness ... (b) There is no need to explore in detail here the reasons why the prosecuting authorities decided not to prosecute the other journalists mentioned by the appellant for publication of secret official deliberations on account of the articles which they wrote, or to consider whether those reasons were sufficient. Even if the latter question were to be answered in the negative, it would not benefit the appellant in any way. It is clear from the explanations on this point set forth in the impugned judgment (pp. 5 et seq., Considerations point 4) and in the first-instance judgment (p. 3, Considerations point 4) that the exceptional circumstances in which the Federal Court’s case-law recognises the right to equality in the breach of the law do not apply. The approach taken by the prosecuting authorities in this case does not in itself constitute a ‘consistent’ (possibly unlawful) practice, either in the sense that, in the absence of specific substantive grounds, journalists are only very exceptionally prosecuted for publication of secret official deliberations, not systematically, or in the sense that, where extracts from the same confidential document are published by several journalists in different articles, the journalist who for whatever reason – whether on the basis of the way the article was written or of the extracts selected – appears to be the most culpable is consistently singled out for prosecution. Moreover, there is nothing to suggest that either (possibly unlawful) practice will be adopted in the future ...” 35. Article 293 of the Swiss Criminal Code, entitled “Publication of secret official deliberations”, reads as follows (unofficial translation): “1. Anyone who, without being entitled to do so, makes public all or part of the documents, investigations or deliberations of any authority which are secret by law or by virtue of a decision taken by such an authority acting within its powers shall be punished with imprisonment or a fine. 2. Complicity in such acts shall be punishable. 3. The court may decide not to impose any penalty if the secret concerned is of minor importance.” 36. In a judgment of 27 November 1981 (BGE 107 IV 185), the Federal Court specified that the notion of secrecy on which Article 293 of the Criminal Code was based was a purely formal one. 37. The Swiss legislature recently adopted the Federal Administrative Transparency Act of 17 December 2004, which came into force on 1 July 2006 (Compendium of Federal Law 152.3). The relevant provisions of the Act, which is aimed at improving access to official documents, read as follows (unofficial translation): “Part 1: General provisions The present Act is aimed at fostering transparency as to the tasks, organisation and activities of the authorities. To that end, it shall contribute to informing the public by providing access to official documents. ... Part 2: Right of access to official documents 1. Any person shall have the right to consult official documents and obtain information as to their content from the authorities. 2. The person concerned may consult the official documents in situ or request a copy of them, without prejudice to the copyright legislation. 3. If the official documents have already been published by the Confederation in paper or electronic form, the conditions set out in paragraphs 1 and 2 shall be deemed to have been fulfilled. 1. The right of access shall be restricted, deferred or refused where access to an official document: (a) is liable to interfere significantly with the process of free formation of opinions and intentions within an authority governed by the present Act, another legislative or administrative body or a judicial authority; (b) interferes with the implementation of specific measures taken by an authority in accordance with its objectives; (c) is liable to jeopardise the country’s internal or external security; (d) is liable to jeopardise Swiss interests in the sphere of foreign policy and international relations; ... 2. The right of access shall be restricted, deferred or refused if access to an official document might interfere with the private sphere of a third party, unless the public interest in transparency is judged on an exceptional basis to carry greater weight.” 38. The Order of 10 December 1990 on the classification and processing of civil-authority information (Compendium of Federal Law 172.015), in force at the material time, defines the different levels of classification (unofficial translation): “Part 1: General provisions The present Order lays down the provisions on maintaining secrecy applicable to civil-authority information (hereinafter ‘information’) which, in the higher interests of the State, must not be passed on temporarily to other persons or be disclosed; it does so by means of instructions on the manner in which such information is to be classified and processed. ... Part 2: Classification The body which issues the information (hereinafter ‘the issuing body’) shall classify it on the basis of the level of protection it requires. There shall be only two categories of classification: ‘secret’ and ‘confidential’. The following information is to be classified as ‘secret’: (a) information which, if it became known to unauthorised persons, could seriously damage Switzerland’s external relations or jeopardise the implementation of measures designed to protect the country’s internal and external security and aimed, for instance, at maintaining government activity during an emergency or ensuring vital supplies; (b) information to which only a very small number of persons have access. 1. Information within the meaning of section 6 which is of less significance and to which, normally speaking, a greater number of people have access shall be classified as ‘confidential’. 2. A ‘confidential’ classification shall also be given to information which, if it became known to unauthorised persons, might enable them to: (a) interfere with the activities of the government; (b) frustrate the implementation of important measures by the State; (c) betray manufacturing secrets or important commercial secrets; (d) frustrate the course of criminal proceedings; (e) undermine the security of major infrastructure. Heads of department, the Federal Chancellor, secretaries general, office directors and their deputies shall be responsible for classifying information and amending or removing classification. They may delegate their powers in certain cases.” This Order was subsequently replaced by the Order of 4 July 2007 on the protection of federal information (Compendium of Federal Law 510.411), which came into force on 1 August 2007. 39. On 19 December 2006 the four special representatives on freedom of expression (Mr Ambeyi Ligabo, United Nations Special Rapporteur on Freedom of Opinion and Expression; Mr Miklos Haraszti, OSCE Representative on Freedom of the Media; Mr Ignacio J. Alvarez, Organisation of American States (OAS) Special Rapporteur on Freedom of Expression; and Ms Faith Pansy Tlakula, African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression) adopted a joint declaration. The following is an extract from the declaration: “Journalists should not be held liable for publishing classified or confidential information where they have not themselves committed a wrong in obtaining it. It is up to public authorities to protect the legitimately confidential information they hold.” 40. On 19 April 2007 the Parliamentary Assembly of the Council of Europe adopted a resolution on espionage and divulging State secrets. The paragraphs of relevance to the present case read as follows: “Fair-trial issues in criminal cases concerning espionage or divulging State secrets (Resolution 1551 (2007)) 1. The Parliamentary Assembly finds that the State’s legitimate interest in protecting official secrets must not become a pretext to unduly restrict the freedom of expression and of information, international scientific cooperation and the work of lawyers and other defenders of human rights. 2. It recalls the importance of freedom of expression and of information in a democratic society, in which it must be possible to freely expose corruption, human rights violations, environmental destruction and other abuses of authority. ... 5. The Assembly notes that legislation on official secrecy in many Council of Europe member States is rather vague or otherwise overly broad in that it could be construed in such a way as to cover a wide range of legitimate activities of journalists, scientists, lawyers or other human rights defenders. 6. ... For its part, the European Court of Human Rights found ‘disproportionate’ an injunction against the publication in the United Kingdom of newspaper articles reporting on the contents of a book (Spycatcher) that allegedly contained secret information, as the book was readily available abroad. ... 9. It calls on the judicial authorities of all countries concerned and on the European Court of Human Rights to find an appropriate balance between the State interest in preserving official secrecy on the one hand, and freedom of expression and of the free flow of information on scientific matters, and society’s interest in exposing abuses of power on the other hand. 10. The Assembly notes that criminal trials for breaches of State secrecy are particularly sensitive and prone to abuse for political purposes. It therefore considers the following principles as vital for all those concerned in order to ensure fairness in such trials: 10.1. information that is already in the public domain cannot be considered as a State secret, and divulging such information cannot be punished as espionage, even if the person concerned collects, sums up, analyses or comments on such information. The same applies to participation in international scientific cooperation, and to the exposure of corruption, human rights violations, environmental destruction or other abuses of public authority (whistle-blowing); 10.2. legislation on official secrecy, including lists of secret items serving as a basis for criminal prosecution must be clear and, above all, public. Secret decrees establishing criminal liability cannot be considered compatible with the Council of Europe’s legal standards and should be abolished in all member States; ...” 41. As regards the classification of Council of Europe documents, Committee of Ministers Resolution Res(2001)6 of 12 June 2001 on access to Council of Europe documents articulates a clear principle: that of publishing information, with classification only in exceptional cases. Accordingly, it defines four categories of classification: (1) documents not subject to any particular classification, which are public; (2) documents classified as “restricted”; (3) documents classified as “confidential”; and (4) documents classified as “secret”. No definition exists which would enable documents to be classified according to their content. The principle of transparency promoted by Resolution Res(2001)6 has ultimately resulted in publication becoming the norm. It seems that, since its adoption, no Committee of Ministers document has been classified as “secret”. 42. The United Nations Human Rights Committee, in concluding observations adopted in 2001, criticised the implementation of the Official Secrets Act by the United Kingdom authorities and its impact on the activities of journalists (Concluding Observations, doc. CCPR/CO/73/UK of 6 December 2001): “... 21. The Committee is concerned that powers under the Official Secrets Act 1989 have been exercised to frustrate former employees of the Crown from bringing into the public domain issues of genuine public concern, and to prevent journalists from publishing such matters. The State Party should ensure that its powers to protect information genuinely related to matters of national security are narrowly utilised, and limited to instances where it has been shown to be necessary to suppress release of the information.” 43. In the Claude Reyes et al. v. Chile case before the Inter-American Court of Human Rights (19 September 2006, Series C no. 151), the Inter-American Commission on Human Rights submitted as follows: “58. ... The disclosure of State-held information should play a very important role in a democratic society, because it enables civil society to control the actions of the government to which it has entrusted the protection of its interests. ...” The Inter-American Court of Human Rights found as follows: “84. ... In several resolutions, the OAS General Assembly has considered that access to public information is an essential requisite for the exercise of democracy, greater transparency and responsible public administration and that, in a representative and participative democratic system, the citizenry exercises its constitutional rights through a broad freedom of expression and free access to information. ... 86. In this regard, the State’s actions should be governed by the principles of disclosure and transparency in public administration that enable all persons subject to its jurisdiction to exercise the democratic control of those actions, and so that they can question, investigate and consider whether public functions are being performed adequately. ... 87. Democratic control by society, through public opinion, fosters transparency in State activities and promotes the accountability of State officials in relation to their public activities. ...” 44. Mr Christos Pourgourides, rapporteur on Resolution 1551 (2007) of 19 April 2007 (see paragraph 40 above), carried out a comparative study of legislation concerning State secrets in the member States of the Council of Europe. In his report he stressed that the disclosure of certain types of classified information appeared to be punishable in all countries, but with a wide variety of approaches being adopted. The report also made reference to the methods of classification used. Below are some extracts from the report: “57. Generally speaking, one can identify three basic approaches: the first consists in a short and general definition of the notion of official or State secret (or equivalent), presumably to be filled in on a case-by-case basis. The second involves lengthy and more detailed lists of specific types of classified information. The third approach combines the other two by defining general areas in which information may be classified as secret, and then relying upon subsequent administrative or ministerial decrees to fill in more specifically which types of information are in fact to be considered as secret. ... 59. There are, of course, many other differences among the States’ legislation that I need not dwell on. Some States (Austria and Germany, for example) distinguish between ‘official secrets’ and ‘State secrets’, whose violation is sanctioned more heavily. Most States also distinguish different degrees of secrecy (classified or restricted, secret, top secret, etc.). There are also differences in the harshness of penalties foreseen, which may be limited to fines in less serious cases. Some statutes distinguish between duties of civil servants and those of ordinary citizens. Some expressly penalise disclosure through negligence, others require criminal intent. For our specific purpose, these differences are immaterial. ... 68. To sum up, each of these legislative approaches allows for reasonable responses to the difficult task of specifying in advance the types of information that the State has a legitimate interest in protecting, while nonetheless respecting the freedom of information and the need for legal security. But any administrative or ministerial decrees giving content to more generally worded statutes must at the very least be publicly accessible. Also, in the absence of a vigilant and truly independent judiciary, and of independent media that are ready to expose any abuses of power, all legislative schemes reviewed are liable to abuse.”

dev

001-101584

ENG

RUS

CHAMBER

CASE OF PUGACH AND OTHERS v. RUSSIA

Remainder inadmissible;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

4. The applicants took part in the cleaning-up operation at the Chernobyl nuclear disaster site. They were registered disabled and became entitled to various social benefits, including food allowance. 5. On unspecified dates they sued the competent authorities for adjustment of the monthly food allowance in line with the inflation rate. 6. By two separate judgments of 4 June 2007, one in favour of Mr Pavlenko and another in favour of the remaining applicants, the Mineralniye Vody Town Court of the Stavropol Region upheld their actions in part. The court ordered the local department of the State Treasury to pay 1,283.86 RUB Russian roubles (RUB) to Mr Pavlenko and RUB 1,925.45 to each of the remaining applicants in monthly disability pension payments, to be adjusted in accordance with legal requirements. The court further ordered the local welfare authority to provide monthly the Treasury with the documents necessary to make the payments. It also awarded RUB 67,616.22 to Mr Pavlenko and RUB 104,405.82 to each of the seven other applicants in respect of the outstanding benefits, to be paid by the Ministry of Finance of the Russian Federation. 7. The judgments were not appealed against and became final on 19 June 2007. 8. The enforcement proceedings were opened and the lump sums and the monthly payments were made in accordance with these judgments. Thus, as from July 2007 all the applicants were receiving the monthly payments in good time. On 24 September 2007 the applicants (except for Mr Pavlenko) received RUB 104,405.82 each. On 1 October 2007 Mr Pavlenko received RUB 67,616.22 due to him under the judgment of 4 June 2007. 9. On 10 October 2007 the Ministry of Finance applied to the Stavropol Regional Court requesting to institute supervisory-review proceedings in respect of the judgments in the applicants' favour. 10. On 29 November 2007 the Presidium of the Stavropol Regional Court, by two separate judgments, quashed the awards of 4 June 2007 and remitted the cases for a fresh examination. The Presidium found that the lower court had erred in applying the provisions of the Law No. 1244-1 “On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Nuclear Power Station Explosion” (“the Chernobyl Law”) and, as a result, incorrectly determined the defendant authority in the case. The Presidium had not specified a due defendant. 11. In December 2007 the State Treasury discontinued the monthly payments in respect of food allowance due to the applicants under the quashed judgments. Instead, the authorities started to pay the applicants monthly disability benefits in accordance with the relevant legislation. 12. On 15 February 2008 the Town Court discontinued the proceedings in all cases except for that of Mr Pavlenko, due to the applicants' failure to appear before the first instance court. On 19 February 2008 the proceedings in Mr Pavlenko's case were discontinued by the Town Court on the same ground. 13. In February 2009 the Ministry of Finance of the Russian Federation brought proceedings against all applicants claiming repayment of the lump sums they had received pursuant to the quashed judgments. On 4 March 2009 the Town Court rejected the claim. It appears that the judgment was not appealed against and became final. 14. The relevant domestic law governing the supervisory review procedure at the material time is summed up in the Court's judgment in the case of Kot v. Russia (no. 20887/03, § 17, 18 January 2007).

dev

001-117616

ENG

SVK

CHAMBER

CASE OF VRABEC AND OTHERS v. SLOVAKIA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

5. In 1951 the State authorities took more than three hectares of land from a relative of the applicants. No compensation was paid to the owner. 6. The applicants unsuccessfully claimed restitution of the land under Law no. 503/2003. In particular, in a judgment of 13 December 2006 the Supreme Court held, in a review of the decisions made at lower levels of jurisdiction, that the land had been formally transferred to the State pursuant to Ordinance 15/1959. Section 3 of Law no. 503/2003 did not include such a situation as grounds for restitution of property. The applicants could have claimed restitution of the land earlier, under Law no. 403/1990, but they had not done so. 7. On 23 April 2007 the applicants lodged a complaint with the Constitutional Court. They alleged a breach of Article 6 § 1 of the Convention, and also of their constitutional right to own property. 8. In particular, the applicants argued that the land had been expropriated without compensation. It was therefore liable to restitution under section 3(1)(m) and (n) of Law no. 503/2003, irrespective of the fact that that law contained no reference to Ordinance 15/1959. They referred to the Supreme Court’s judgment 3SžoKS 130/2005 of 9 June 2006, which found that a situation similar to that of the applicants fell under Law no. 503/2003. 9. On 25 October 2007 the Constitutional Court dismissed the complaint (decision III. ÚS 287/07). It held that the Supreme Court had given sufficient reasons for its judgment, which was neither arbitrary nor otherwise contrary to the constitutional principles. It was not for the Constitutional Court to review the way in which ordinary courts interpreted and applied the law unless it resulted in a breach of the Constitution. 10. The decision was served on 18 December 2007. 11. Law no 503/2003 governs restitution of agricultural land and forests. 12. Cases in which land is to be restored to owners or their successors are listed in section 3. In particular, sub-section 1(m) of section 3 refers to situations where land has been expropriated without compensation. Subsection 1(n) refers to nationalisation contrary to the legal rules then in force or without compensation. 13. In its judgment 3SžoKS 130/2005 of 9 June 2006 the Supreme Court held that transfer of property under Ordinance 15/1959 without compensation was to be qualified as a reason for restitution of such property under section 3(1)(m) of Law no. 503/2003. Any other interpretation of that provision would run contrary to the Constitution. 14. The same conclusion was reached in judgment 6 Sžo 240/2008 of 14 October 2009 as rectified by the decision under the same file number of 27 November 2009. 15. In an unspecified number of other decisions the Supreme Court expressed a different view on the matter, namely the same as expressed in the above judgment on the applicant’s case of 13 December 2006. 16. In judgment IV. ÚS 209/2010 of 16 September 2010 the Constitutional Court found, with reference to the Supreme Court judgments 3SžoKS 130/2005 of 9 June 2006 and 6 Sžo 240/2008 of 14 October 2009 (see paragraphs 13 and 14 above), that the varying practice on the part of the Supreme Court when determining whether expropriation of land under Ordinance 15/1959 fell under Law no. 503/2003 ran contrary to the principle of legal certainty. That in itself justified the conclusion that the plaintiff’s constitutional rights had been breached. 17. In the same judgment the Constitutional Court further found that the Supreme Court’s view, that land expropriated under Ordinance 15/1959 could not be restored under Law no. 503/2003, was formalistic and contrary to the purpose of that Law. The explanatory report to Law no. 503/2003 specified that it extended to individuals who could have, but had not, submitted their claim within time-limits set in different pieces of legislation which had been enacted previously. 18. The Constitutional Court quashed the Supreme Court’s judgment in issue and returned the case to the latter. 19. Subsequently, similar views and conclusions were reached in other judgments of the Constitutional Court (III. ÚS 212/2010, III. ÚS 185/2010 or I. ÚS 407/2010).

dev

001-92090

ENG

SWE

CHAMBER

CASE OF MENDEL v. SWEDEN

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

5. The applicant was born in 1944 and lives in Malmö. 6. Since 1992 the applicant has been registered with the Employment Service (Arbetsförmedlingen) in Malmö and, since 2001, she has been taking part in different programmes provided by it. One of these programmes, called activity guarantee (aktivitetsgaranti), was a programme for persons who were, or who were at a risk of becoming, unemployed for a long period as well as for groups of persons who often had difficulties in finding a job. The purpose of the programme was to give the participants greater opportunities to find a job and it involved different activities such as short term education and the possibility to try different kinds of work. Each person who participated in the programme had a personal supervisor from the Employment Service and together they were supposed to set up a plan for the activities in which the participant was taking part. The participant was obliged to attend meetings and to meet his or her supervisor on a regular basis, and he or she also had an obligation to apply for suitable jobs which were advertised through the Employment Service. 7. On 4 July 2005 the Employment Service (apparently on delegation from the County Labour Board (Länsarbetsnämnden)) decided to withdraw its approval for the applicant to take part in the programme in which she was participating. The decision was taken in accordance with Section 37(a) of the Ordinance on Labour Market Policy Programmes (förordningen om arbetsmarknadspolitiska program, SFS 2000:634; hereafter "the 2000 Ordinance"). According to the Employment Service, the applicant had not been acting in a proper manner in relation to the demands laid upon her. The decision was taken on the basis of a report drawn up by the Employment Service. The report stated that the applicant had been called to attend information meetings on several occasions but that she had either announced that she was not able to attend or she had simply not attended. It also stated that the applicant, at an information meeting, had made statements that led to a job interview being cancelled. 8. When the applicant’s permission to participate in the programme was revoked, her subsistence support in the form of activity support (see § 18 below) was also revoked, leaving her without any income. According to the applicant this forced her to pay for living expenses out of her savings for nine months and to take 25% early retirement in September 2005. 9. On 21 July 2005 the applicant appealed against the decision of the Employment Service to the National Labour Market Board (Arbetsmark-nadsstyrelsen –hereafter “the Board”). She claimed that there were several statements in the report which were not true. For instance, she had been ill and hospitalised and therefore had not been able to attend certain meetings and she had informed the Employment Service about the situation. She also alleged that a note in the report which stated that on one occasion she had not attended a meeting was not true. Moreover, she claimed that, at the aforementioned information meeting, she had told an official of the Employment Service that she felt she was not suited for the job in question. Thereafter, the official had told her that she could leave. 10. On 29 March 2006 the Board decided to reject the appeal. It found that the applicant had, on several occasions in August and September 2004, announced that she was not able to attend certain meetings; on one occasion because she had planned to go on vacation. The Board took into account the possibilities to adapt the kind of work the applicant was offered, and the fact that she had not proved her medical problems or shown that they were of a permanent nature, and found that she had not done everything in her power to get a job. Therefore, the Board concluded that there were grounds to withdraw her entitlement to participate in the programme. Consequently, the appeal was rejected. 11. In the Board’s decision, it was expressly stated that there was no possibility in accordance with Section 39 of the 2000 Ordinance to appeal against the decision. 12. On 6 April 2006 the applicant wrote a letter to the Board, expressing her dissatisfaction with its decision. In the letter she referred, inter alia, to the fact that the Board in its decision had noted that no appeal lay against the decision and asked how she could obtain redress. 13. On 11 September 2006 the applicant submitted a complaint to the Chancellor of Justice (Justitiekanslern) where she complained, inter alia, about the authorities’ decisions and their handling of her case. She requested damages, but did not claim that there had been a breach of her rights under Article 6 of the Convention. This complaint seems still to be pending before the Chancellor of Justice. 14. A person who is unemployed may be entitled to subsistence support through the unemployment insurance. The main regulations in this area are given in the Unemployment Insurance Act (lagen om arbetslöshets-försäkring, SFS 1997:238; hereafter "the 1997 Act") and the Unemployment Funds Act (lagen om arbetslöshetskassor, SFS 1997:239). Unemployment benefits are financed through membership contributions made by the members of the unemployment insurance funds and State funding. A person who is not a member of an unemployment insurance fund can still receive some benefit, a so-called basic insurance. Benefits are paid to a person who is unemployed and has fulfilled a qualifying period of employment, that is he or she has worked a certain number of months before becoming unemployed, and who fulfils certain basic qualifying conditions, for example, he or she must actively be looking for work. At the relevant time benefits were provided for a limited number of days. After that, a new qualifying period of employment had to be completed in order to qualify for a new period of benefits. 15. According to Section 45(a) of the 1997 Act, the benefits will be reduced for a certain period if the beneficiary, without acceptable reasons, rejects suitable work or if he or she, without having expressly rejected the work, by his or her actions causes employment not to be realised. The third time this happens the beneficiary will be disqualified from receiving benefits. According to Section 46, the same will happen if a beneficiary without acceptable reasons rejects an assignment to a labour market policy programme (arbetsmarknadspolitiskt program). Decisions regarding the right to the benefits regulated in the 1997 Act can be appealed against to the administrative courts. 16. The activity guarantee scheme was one of several different labour market policy programmes. The scheme ceased to be in force on 2 July 2007. According to Sections 8 and 21 of the 2000 Ordinance, a person could (the word “may” (får) was used in the Ordinance) be assigned to the activity guarantee scheme if he or she was at least 20 years old, was or was at risk of becoming unemployed for a long time and was searching for work through the public employment service. Section 6 of the 2000 Ordinance stated that an assignment to the programme had to be motivated in terms of labour market policy and, thus, an assignment could only be made if it appeared appropriate both for the individual and from an overall labour market policy perspective. Moreover, Section 7 stated that an assignment to the activity guarantee scheme would apply for as long as it was justified in terms of labour market policy. 17. A person who entered into the activity guarantee scheme would no longer be entitled to unemployment benefits. His or her subsistence would instead be paid according to the provisions in the Ordinance on Activity Support (förordning om aktivitetsstöd, SFS 1996:100). Section 23 of the 1997 Act stated that a person who entered into the activity guarantee scheme would lose his or her remaining days of unemployment benefits. In the preparatory works preceding the amendment of Section 23 of the 1997 Act the Government stated that it was not necessary to allow people who left the activity guarantee scheme a possibility to use their remaining days of unemployment benefits, “since the system around the activity guarantee scheme means that no one should have to leave the activity guarantee without having his or her support secured” (Government Bill 2002/03:44 p. 54). 18. The Ordinance on Activity Support stated that a person who took part in, inter alia, the activity guarantee scheme was entitled to economic support. According to Section 5 of the Ordinance, a person who was or would have been entitled to unemployment benefits or who had received unemployment benefits for the longest period for which benefits could be provided, would be given activity support equivalent to the unemployment benefits he or she would have received under the 1997 Act. A person who was not entitled to benefits as described above would still be given a specific amount per day in activity support. When a person who had been taking part in a programme such as the activity guarantee ceased to be part of it, he or she was no longer entitled to the activity support. 19. Section 37(a) of the 2000 Ordinance stated that an assignment to the activity guarantee scheme would be revoked if a person assigned to it refused an offer of suitable work or another measure under the guarantee scheme without an acceptable reason. An assignment to the activity guarantee scheme would also be revoked if the individual did not act in a proper manner or otherwise disrupted the activities. Moreover, an assignment could be revoked if there were other special reasons to do so. 20. According to Section 37(b) of the 2000 Ordinance, if an assignment to the activity guarantee scheme was revoked because the individual had refused an offer of suitable work or another measure under the guarantee scheme, without an acceptable reason, the individual would (the word “shall” (skall) was used in the Ordinance) be reassigned to the activity guarantee scheme after a suspension of 45 days, if certain basic requirements were met. In the Government Bill which preceded the introduction of this provision, the Government noted that the consequences for those who had their assignment to the activity guarantee scheme revoked would be far-reaching unless they had fulfilled a new qualifying period of employment. The Government also observed that the activity guarantee scheme had the character of a last economic protection among the labour market policy measures for those who were, or were at a risk of becoming, unemployed for a long period. Thereafter the Government stated: “The person applying should therefore in principle have a right to participate in the activity guarantee until he or she finds a solution for his or her unemployment situation, on condition that he or she in an active way contributes to such a solution. ... A person who has had his or her assignment to the activity guarantee revoked on the ground that he or she has refused an offer of suitable work or another measure under the guarantee scheme, shall therefore be offered a new assignment to the guarantee.” (Government Bill 2002/03:44 p. 66) 21. Decisions regarding the revocation of an assignment to a labour market policy programme, including the activity guarantee scheme, were taken by the County Labour Board. Appeals against the County Labour Board’s decision could be made to the National Labour Market Board. According to Section 39 of the 2000 Ordinance, no appeal lay against the National Labour Market Board’s decisions. 22. In connection with a reorganisation of the Labour Market Administration into the Employment Service, the issue of whether decisions regarding labour market policy programmes should be subject to appeal was considered by the Government. It first stated that there was a right to be assigned to the labour market policy measure called “new start jobs” (nystartjobb) and then stated, inter alia, the following: “In the case of other labour market policy measures and financial compensation, assignment decisions to them depend to a great extent on the situation in the labour market. There is no right to receive such a measure and there is no right to retain it either. This means that the decisions to be taken by the new agency in these matters, including the revocation of a measure, do not need to be examined by a court. Nor are the decisions suited to an examination by a court.” (Government Bill 2006/07:89 p 79) 23. The handling of matters in the Swedish public administration is regulated by the Administrative Procedure Act (förvaltningslagen, SFS 1986:223; hereafter "the 1986 Act"). Section 3 § 1, of the 1986 Act states that the provisions in the Act are subsidiary if they differ from the provisions in any other act or ordinance. According to Section 22, a decision may be appealed against by any person whom the decision concerns, provided the decision affects him or her adversely and an appeal against the decision is permitted. Section 22(a) states that appeals are to be made to the administrative courts. The preparatory works (Government Bill 1997/98:101 pp 59 and 112) state that one of the purposes of Section 22(a) is to assign a competent court when a prohibition to appeal against a decision has to be set aside because it would be in violation of the Convention. 24. On 1 July 2006 a new second paragraph was added to Section 3 of the 1986 Act which states that the provisions on appeal according to the Act should always apply if it is necessary in order to provide for everyone’s right to a fair trial in the determination of their civil rights or obligations as laid down in Article 6 § 1 of the Convention. According to the preparatory works (Government Bill 2005/06:56 p 10), one of the reasons for amending the 1986 Act was to make it clear that the 1986 Act’s provisions on appeal applied regardless of what was stated in other acts or provisions, if this was necessary in order to satisfy the right to access to court in accordance with the Convention. 25. Section 21 § 2 of the 1986 Act states that an authority has an obligation to inform a party about how to appeal against all decisions that affect the party adversely, if the decision can be appealed against. 26. In a decision of 22 November 1994 (NJA 1994 p. 657) the Swedish Supreme Court (Högsta domstolen) found that a dispute over agricultural subsidies concerned a civil right in the sense of Article 6 of the Convention and found that a trial before a court should be allowed. Therefore, the court set aside the prohibition to appeal against the authority’s decision. Similarly, the Supreme Administrative Court (Regeringsrätten) has set aside prohibitions to appeal against different authorities’ decisions, when the cases concerned civil rights and obligations (see, for example, decision of 25 November 1997 in RÅ 1997 ref. 65 and decision of 30 November 2001 in RÅ 2001 ref. 56). 27. It follows from Chapter 3, Section 2 of the Tort Liability Act (Skadeståndslagen, SFS 1972:207) that the State is liable to pay compensation for, inter alia, financial loss caused by a wrongful act or omission in connection with the exercise of public authority. From Chapter 3, Section 3 of the Act it follows that, under certain circumstances, the State is liable to pay compensation for financial loss caused by an erroneous instruction or advice given by an authority. 28. In a judgment of 9 June 2005 (NJA 2005 p. 462), the Supreme Court found that an individual had a right to bring a civil action against the State before the national courts on the ground that there had been a violation of Article 6 § 1 of the Convention because a criminal case against the individual had not been concluded within a reasonable time. The Supreme Court has subsequently, in a judgment on 21 September 2007 (NJA 2007 p. 584), found that individuals have a right to bring civil suits against the State for violations against any Articles of the Convention when the State, according to the Convention, has an obligation to pay damages for the violation and such obligation cannot be based on national legislation. 29. Anyone who wishes to claim compensation from the State for financial loss, which he or she considers to have been caused by a wrongful decision taken by a court or an administrative State authority, can proceed in two different ways: He or she may either petition the Chancellor of Justice in accordance with Section 3 of the Ordinance on the Administration of Claims for Damages against the State (Förordningen om handläggning av skadeståndsanspråk mot staten, SFS 1995:1301), or bring a civil action against the State in the ordinary courts. No appeal lies against a decision of the Chancellor of Justice. However, if the claim is rejected, the claimant still has the possibility to institute civil proceedings before the courts.

dev

001-4932

ENG

RUS

ADMISSIBILITY

SYRKIN v. RUSSIA

Inadmissible

Matti Pellonpää

The applicant is a Russian citizen, born in 1942 and living in Poltava, Ukraine. In 1990 the applicant's son, an army officer, was sent to serve in the Soviet military unit in Eberswalde, Germany. On 9 October 1991 he informed his parents over the phone that he would be leaving for his home leave in Ukraine by car. Following this announcement he disappeared. On 25 November 1991 the military authorities initiated a criminal investigation into his disappearance on the suspicion of his having deserted his duty station after failing to return at the end of his leave. Since then the applicant has addressed numerous letters to various authorities concerning the fate of his son. On 27 December 1991 the military prosecutor informed the applicant that he had contacted the German authorities with a request for assistance in establishing his son's whereabouts. On 2 March 1992 the military prosecutor announced that the German authorities had not yet reported anything positive and that the applicant's theory of his son possibly being in a city hospital had not been proved to be true. On 29 June 1992 the military prosecutor informed the applicant that the authorities of Poland, Belarus and Ukraine had also been involved in the investigation of his son's whereabouts. In January 1993 the applicant visited his son's military duty station in Germany. During his visit he had the possibility of acquainting himself with his son's case file and of discussing the matter with the investigative authorities as well as with his son's fellow servicemen. On 18 February 1993 the military prosecutor assured the applicant of the continuing active search for his son. On 23 April 1993 the military prosecutor informed the applicant that, based on the reply by the German authorities, his son had not been found in any of the German medical or military establishments. On 30 July 1993 the military prosecutor stated that the physical search for his son in the territory of foreign States could only be carried out by the authorities of those States and that search requests had been sent to the German, Polish, Belarus and Ukrainian authorities. In 1993 the military unit in which the applicant's son had served was withdrawn from Germany and stationed in Russia. It appears that on an unspecified date in 1992 the criminal investigation had been suspended. The investigation, however, recommenced prior to April 1993, apparently after an intervention by the Prosecutor General's office. On 30 December 1993 the Prosecutor General's office stated that the reason for continuing the investigation was the fact that it had been inadequate. On 5 March 1994 the applicant was informed that the basis of the investigation had been changed as the probable cause of his son's disappearance was murder rather than desertion. On 21 May 1994 the criminal investigation was suspended again. Following an intervention by the military prosecutor of the Moscow Military Region, who considered that the investigation had been inadequate, the proceedings recommenced on 20 October 1994. On 4 April 1995 the criminal investigation was once more suspended. On 21 February 1996 the military prosecutor of the Moscow Military Region stated that, despite the suspension of the preliminary investigation, the search for the applicant's son's whereabouts was continuing. However, the efforts of the German and Polish authorities, as well as of the Interpol national offices in Russia and Ukraine, had not led to a positive result. On 10 November 1996 the Chief Military Prosecutor of Russia announced that, as the criminal investigation had been incomplete, the proceedings had recommenced 20 October 1996. On 20 July 1998 the Personnel Division of the Russian Ministry of Defence announced that the applicant's son no longer appeared on its staff list. The applicant has also addressed numerous letters concerning the fate of his son to the Ukrainian authorities. On 25 August 1998 the Ukrainian Ministry of Internal Affairs replied that, according to the German authorities, his son never exited the German border and that it had sent search requests to Interpol offices in 12 European countries.

dev

001-66790

ENG

BGR

CHAMBER

CASE OF MANCHEVA v. BULGARIA

Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Christos Rozakis

8. The applicant is a Bulgarian national, who was born in 1968 and at the relevant time lived in Svoboda, the region of Haskovo. 9. The applicant used to work in the village of Svoboda, with the Home Patronage branch of the Chirpan District Social Care Centre (Домашен социален патронаж, Общински център за социални грижи). At the relevant time, Social Care Centres were State administrative bodies funded by the State and municipal budgets. 10. On 3 December 1992 the applicant suffered an accident at work. Subsequently she underwent surgical operations. She was unfit for work for at least six months and continued experiencing health problems for several years thereafter. 11. On 20 July 1993 the applicant instituted civil proceedings against her former employer, the local Home Patronage, claiming pecuniary and nonpecuniary damages. A representative for Home Patronage took part in the proceedings apparently maintaining that the applicant was responsible for the accident and that the claims were excessive. 12. On 31 March 1995 the Chirpan District Court partially granted the applicant’s claim and awarded her 15,000 Bulgarian levs (“BGL”) in nonpecuniary damages and BGL 4,500 in costs, plus statutory interest. 13. On 20 April 1995 the defendant, the Home Patronage, lodged an appeal with the Stara Zagora Regional Court. 14. According to the Government, on 17 July 1995 the Social Care Centre sent to the applicant a registered letter inviting her “to collect BGL 15,000” but the applicant refused receipt of the letter. 15. According to the applicant, as of 30 September 1995 the proceedings before the Regional Court were still pending. 16. On an unspecified date these proceedings ended and the District Court’s judgment became final and enforceable. 17. Following a conversation between the applicant and employees of the Social Care Centre, on 5 May 1996 the Social Care Centre sent to the applicant a letter inviting her “to collect BGL 15,000”. 18. On 9 May 1996 the applicant submitted a written request to the District Social Care Centre insisting on payment in compliance with the District Court’s judgment, including all interest and costs. She offered her calculation of the interest that had accrued since the relevant starting date, 20 July 1993, and stated that the amount due was BGL 40,620. 19. The applicant, who at that time lived in another town, authorised another person to receive the money. 20. According to “minutes”, drawn up by the accountant and two other employees of the Social Care Centre, on 15 May 1996 they withdrew BGL 15,000 from the Centre’s bank account but the applicant’s representative refused to accept the money. 21. On 3 June 1996 the Social Care Centre wrote to the applicant stating that they “wished to pay the damage sustained, in the amount of BGL 15,000”, and invited her to visit the Centre for that purpose on 7 June 1996. The letter also stated that the Centre was “free from any obligation to pay interest on the amount since the date of the conversation with [the applicant] held in the presence of [the Centre’s] employees”. 22. On 6 June 1996, upon the applicant’s request, the Chirpan District Court issued a writ of execution ordering the Home Patronage to pay to the applicant BGL 15,000 principal, BGL 4,500 in costs, and interest as from 20 July 1993. 23. On 6 June 1996 the applicant submitted a request to the competent enforcement judge seeking the institution of enforcement proceedings. That was refused and the applicant was informed, upon her complaints to the enforcement judge, the Regional Court and the Ministry of Justice, that under Article 399 of the Code of Civil Procedure execution of judgments against state bodies was only possible through submission of the writ of execution directly to the state organ concerned. Enforcement proceedings were not provided for. An attachment of the defendant’s bank account was not possible. 24. The applicant was also informed that the refusal to execute a final judgment could be a punishable criminal offence. 25. On an unspecified date the applicant complained to the Ministry of Labour and Social Care, which invited the mayor of the Chirpan municipality to comment. 26. On 15 October 1996 the mayor wrote the following to the Ministry and to the applicant: “Having studied the [applicant’s] request and having discussed the matter with the management of the municipal Social Care Centre, we reached the conclusion that the problem is under the jurisdiction of the judicial authorities. The municipal Social Care Centre considers that the civil proceedings had been handled wrongly: the [defendant] had been Home Patronage, which has no legal personality and does not have its own bank account. For this reason, the Social Care Centre sees no legal grounds, for purposes of the financial authorities, to effect the payment. Apparently the matter should be examined additionally by the courts. The municipal administration cannot interfere in this matter.” 27. In 1996 the applicant submitted a complaint to the prosecution authorities requesting the punishment of those responsible for the failure to enforce the judicial award. 28. In April or May 1997 she complained of the inactivity of the prosecution authorities. 29. On 19 May 1998 a prosecutor requested information from the Social Care Centre. On 29 May 1998 the Centre replied to the prosecutor, with a copy to the mayor of Chirpan. It stated that Home Patronage was not a separate legal person but formed a part of the Social Care Centre which, in turn, was under the administration and budgetary control of the municipality. Therefore, the applicant could obtain payment by submitting her documents to the municipality of Chirpan. The date on which that information was transmitted to the applicant is unclear. 30. On 6 April 1999 the applicant was heard by a prosecutor. 31. On 17 March 2000 the prosecutor terminated the inquiry noting that the applicant had been informed that she had to submit her writ of execution and a copy of the judgment to the municipality of Chirpan. 32. During the relevant period inflation in Bulgaria was running high and the national currency was depreciating. In particular, on 31 March 1995, the date on which the District Court’s judgment was delivered, BGL 66 were necessary to buy one United States dollar (USD), in May 1996, at the time of the applicant’s attempts to obtain payment, that figure was BGL 92, on 15 October 1996, the date on which the mayor refused to execute the judgment, it was BGL 216 and in May 1998 the exchange rate was BGL 1,782 for USD 1. 33. As of 1 July 1999, BGL 1,000 became 1 new Bulgarian lev (BGN). On 17 March 2000, the date on which the applicant was invited to renew her request for payment before the Chirpan municipality, USD 1 was exchangeable for BGN 1.62 (i.e., for BGL 1,620). 34. For the period May 1996 – March 2000 the statutory interest rate in Bulgaria varied significantly, reaching during a period of several months in the end of 1996 and the beginning of 1997 an average of approximately 200% per annum. That was however insufficient to compensate for the loss of value of the Bulgarian lev during that period. 35. Following the admissibility decision in the present case, on 21 February 2003 the municipality of Chirpan paid BGN 68.69 into a bank account opened by them in the applicant’s name. The amount included BGN 15 in principal, BGN 49.19 in interest for the period 20 July 1993 – 20 February 2003 and BGN 4.50 in costs. The applicant was informed by letter. 36. In accordance with paragraph 2 of Article 399, a person who has an enforceable pecuniary claim against the State or a state body shall receive payment out of funds allocated for that purpose under the institution’s budget. 37. The writ of execution shall be submitted to the financial department of the institution. If there are no funds available under the budget of the state body concerned, the higher administrative organ should undertake the necessary steps to ensure that funds become available under the budget for the following year. 38. Enforcement proceedings and judicial review of the execution of a judgment are not possible where the debtor is a state institution. Until December 1997 paragraph 1 of Article 399 of the Code of Civil Procedure expressly prohibited enforcement proceedings against state institution. Although that provision was repealed in December 1997, the legal regime remained unchanged, as paragraph 2 of Article 399 was not amended. 39. According to Articles 246 and 248 of the Code of Civil Procedure, a writ of execution is issued in a single copy which must be produced for execution. Where the original has been lost, a duplicata may be issued in special proceedings which require summoning the debtor at an oral hearing. 40. According to section 66 of the Obligations and Contracts Act, a creditor is entitled to refuse partial payment. 41. According to section 97 of the Obligations and Contracts Act, if the creditor fails to undertake the measures necessary to receive payment, the debtor may discharge a pecuniary debt by depositing the money in a bank account.

dev

001-58245

ENG

FRA

GRANDCHAMBER

CASE OF LEHIDEUX AND ISORNI v. FRANCE

Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

C. Russo;John Freeland;R. Pekkanen

9. Mr Lehideux, the first applicant, who was born in 1904 and died on 21 June 1998 (see paragraph 8 above), was formerly an administrator and later a director of several companies – including Renault France – and lived in Paris. From September 1940 to April 1942 he was Minister for Industrial Production in the Government of Marshal Pétain and, from 1959 to 1964, a member of the Economic and Social Committee. He was the President of the Association for the Defence of the Memory of Marshal Pétain. The second applicant, Mr Isorni, who was born in 1911 and died on 8 May 1995 (see paragraph 2 above), was formerly a lawyer practising in Paris. As First Secretary of the Conference of Pupil Advocates of the Paris Bar, he was officially appointed to assist the President of the Bar Association in defending Marshal Pétain at his trial before the High Court of Justice. On 15 August 1945 the High Court of Justice sentenced Philippe Pétain to death and forfeiture of his civic rights for collusion with Germany with a view to furthering the designs of the enemy. 10. On 13 July 1984 the daily newspaper Le Monde published a one-page advertisement bearing the title “People of France, you have short memories” in large print, beneath which appeared in small italics, “Philippe Pétain, 17 June 1941”. The text ended with an invitation to readers to write to the Association for the Defence of the Memory of Marshal Pétain and the National Pétain-Verdun Association. 11. The text, which was divided into several sections each beginning with the words “People of France, you have short memories if you have forgotten…” in large capitals, recapitulated, in a series of assertions, the main stages of Philippe Pétain’s life as a public figure from 1916 to 1945, presenting his actions, first as a soldier and later as French Head of State, in a positive light. In respect of the 1940–45 period, the text contained the following passage: “PEOPLE OF FRANCE, YOU HAVE SHORT MEMORIES – IF YOU HAVE FORGOTTEN... – That in 1940 the civil and military authorities had led France to disaster. Those responsible begged him to come to its assistance. By his call to the nation of 17 June 1940 he secured an armistice and prevented the enemy from camping on the shores of the Mediterranean, thereby saving the Allies. Power was then legally conferred on him by the Parliamentary Assemblies, in which the Popular Front had a majority. The grateful French people rightly saw him as their saviour. There were ‘forty million Pétainists’ (Henri Amouroux). How many no longer remember this and how many have disavowed it? – That in the thick of difficulties which no French Head of State had ever known, Nazi atrocities and persecutions, he protected them against German omnipotence and barbarism, thus ensuring that two million prisoners of war were saved. – That he provided daily bread, re-established social justice, defended private schools and protected a pillaged economy. – That, through his supremely skilful policy, he managed to send a personal representative to London on the very same day that he went to Montoire, thereby allowing France, in defeat, to maintain its position between the contradictory demands of the Germans and the Allies and, through his secret agreements with America, to prepare and contribute to its liberation, for which he had formed the army of Africa. – That he preserved for France virtually every part of what people then still dared to call the French Empire. – That he was threatened by Hitler and Ribbentrop for resisting their will, and that on 20 August 1944 German troops carried him off to Germany. PEOPLE OF FRANCE, YOU HAVE SHORT MEMORIES – IF YOU HAVE FORGOTTEN... – That, while he was a prisoner of the enemy, Philippe Pétain was prosecuted on the orders of Charles de Gaulle for betraying his country, whereas he had done all he could to save it. – IF YOU HAVE FORGOTTEN... – That, having escaped from Germany, he returned to France, however great the personal risk to himself, to defend himself against that monstrous accusation and to try to protect, by his presence, those who had obeyed his orders. PEOPLE OF FRANCE, YOU HAVE SHORT MEMORIES – IF YOU HAVE FORGOTTEN... – That the prosecution, with the collusion of persons in the highest authority, used a forgery, as in the Dreyfus case, to secure his conviction and that at ninety years of age he was condemned, in haste, to death...” 12. On 10 October 1984 the National Association of Former Members of the Resistance filed a criminal complaint, together with an application to join the proceedings as a civil party, against a Mr L., the publication manager of Le Monde, for publicly defending the crimes of collaboration with the enemy, and against Mr Lehideux as President of the Association for the Defence of the Memory of Marshal Pétain, Mr Isorni as the author of the text complained of and a Mr M., as President of the National Pétain-Verdun Association, for aiding and abetting a public defence of the crimes of collaboration with the enemy. The civil party argued that the text was an apologia which contravened the criminal law since it tended to justify the policy of Marshal Pétain, who had been found guilty by the High Court of Justice on 15 August 1945 (see paragraph 9 above). 13. The applicants denied that their advertisement constituted a public defence of the crimes of collaboration with the enemy, but acknowledged that the spirit of the text was consistent with their aim of having the judgment of the High Court of Justice overturned and rehabilitating Marshal Pétain. 14. On 29 May 1985 the public prosecutor filed his final submissions recommending that the charges be dropped on the ground that the offence had not been made out. He considered that “the political and historical light” in which the applicants had portrayed Philippe Pétain’s policy during the period 1940 to 1944 was “radically different from the approach adopted by the High Court of Justice”: “far from glorifying the policy of collaboration, the defendants ... [gave] credit to Marshal Pétain – the fact that their historical perception [might] appear incorrect, misguided or partisan being of little consequence – for his endeavours and actions to protect France and its people and his contribution to the country’s liberation...”. He added that, although their aim had been to enhance Philippe Pétain’s image and praise his conduct during the Second World War, this positive assessment could be construed as a public defence of his actions “only by arbitrarily separating the image thus embellished from its supporting text and its link with the purely extrinsic information which, for the most part, was contained in the documents on the High Court’s file”. He concluded that “it might appear strange to commit for trial before the Criminal Court the authors and producers of a text which glorifies an individual, not for the crimes of which he was convicted, but for the beneficial actions which he is deemed to have performed for the good of France, its people and, secretly, the Allies”. 15. The investigating judge did not follow the public prosecutor’s submissions. In an order of 4 June 1985, he committed Mr L., the applicants and Mr M. for trial before the Criminal Court on charges, against the first defendant as principal and the others as accomplices, of making a public defence of the crimes of collaboration with the enemy, defined in section 24(3) of the Freedom of the Press Act of 29 July 1881. The investigating judge observed: “a public defence means a speech or text which tends to defend or vindicate a doctrine or an action”. He noted that the applicants had presented Marshal Pétain’s policy during the period 1940 to 1944 in a favourable light, crediting him with endeavours and actions to protect France and its people, whereas the same events had been the subject of lengthy, detailed reasoning in the judgment of the High Court of Justice convicting Marshal Pétain. He therefore considered that the part of the published text referring to the 1940–45 period incorporated, developed and glorified the grounds of defence submitted by Pétain at his trial before the High Court of Justice and therefore amounted to a “justification of the actions and policies of Marshal Pétain, convicted under Articles 75 and 87 of the Criminal Code” then in force. 16. On 27 June 1986 the Paris Criminal Court, the proceedings before which had been joined by the Resistance Action Committee and the National Federation of Deported and Interned Members of the Resistance and Patriots, as civil parties, acquitted the defendants and ruled that it lacked jurisdiction to deal with the civil parties’ application. The court stated that its task was “not to take sides in the historical controversy which, for more than forty years, has pitted the Resistance associations against Philippe Pétain’s supporters”, but to determine whether the offence had been made out in the instant case. In that connection, the court specified that, “according to the civil parties’ and the public prosecutor’s own submissions, the defendants [were] being prosecuted for their opinions...” and that “no restrictions [could] be imposed on freedom of expression other than those derived from statute, strictly interpreted...”. The court held that only the part of the text referring to the 1940–45 period could be construed as a public defence of the crimes of collaboration with the enemy. It noted that this part of the text was clearly a eulogy of Philippe Pétain, an appeal in his defence designed to create a shift in public opinion favourable to the reopening of his case. It considered, however, that the offence had not been made out, for the following reasons: the text contained “no attempt to justify collaboration with Nazi Germany”, but stated that Marshal Pétain’s aim had been to “facilitate the Allies’ victory”; Marshal Pétain’s collaboration with Nazi Germany was neither acknowledged nor presented in a favourable light; the fact that the judgment of the High Court of Justice constituted res judicata did not in any way prevent the defenders of Marshal Pétain’s memory from criticising it; the text was part of a campaign in which the second applicant had been engaged since 1945 to have the judgment of the High Court of Justice overturned, an objective which was “perfectly legal”. The court emphasised, “for the avoidance of any doubt”, that its judgment “should not be deemed to favour one of the arguments put forward in the historical controversy”. 17. The National Association of Former Members of the Resistance and the Resistance Action Committee appealed. 18. In a judgment of 8 July 1987 the Paris Court of Appeal held, firstly, that the combined effect of Article 2 § 5 of the Code of Criminal Procedure and the Freedom of the Press Act of 29 July 1881 was that the civil parties did not have standing to trigger a public prosecution and, secondly, that the prosecutor’s submissions on their complaint did not satisfy the formal requirements laid down on pain of nullity in the same Act. The court therefore declared the prosecution and subsequent proceedings null and void. 19. The National Association of Former Members of the Resistance and the Resistance Action Committee appealed on points of law against the above judgment. 20. In a judgment of 20 December 1988 the Court of Cassation (Criminal Division) held that the Paris Court of Appeal had erred in law. Accordingly, it quashed the judgment of 8 July 1987 in its entirety and remitted the case to the same Court of Appeal with a differently constituted bench. 21. On 26 January 1990 the Paris Court of Appeal declared the two civil party applications admissible, set aside the acquittals and awarded the civil parties damages of one franc. It also ordered the publication of excerpts from the judgment in Le Monde. In its judgment it held that the three constituent elements of the offence of making a public defence of the crimes of collaboration had been made out. It found, firstly, that the public element had been made out owing to the fact that the text in question had been published in Le Monde. It went on to say that the text contained an “apologia” for the crimes of collaboration, and that the mental element had been made out, for the following reasons: “The glorification of Pétain by the authors of this manifesto is conveyed by the celebration of what they seek to portray as great deeds; thus, equal prominence is given, for example, to the victory at Verdun and the defeat at Abd-el-Krim, attributed to Pétain like the securing of the armistice in 1940 and ‘his policy’, described as ‘supremely skilful’: ‘He managed to send a personal representative to London on the very same day that he went to Montoire, thereby allowing France, in defeat, to maintain its position between the contradictory demands of the Germans and the Allies and, through his secret agreements with America, to prepare and contribute to its liberation, for which he had formed the army of Africa’. Praise of the Montoire policy is thus magnified by reference to its supposed results. This is indeed an unreserved eulogy of a policy which is none other than that of collaboration. The significance of the meeting between Pétain and Hitler at Montoire on 24 October 1940 to which the authors of the advertisement refer were specified as follows in a radio broadcast by Pétain of 30 October 1940: ‘It is in honour and in order to maintain French unity, a ten-centuries-old unity, within the framework of constructive action for a new European order that I today embark upon the path of collaboration.’ The order referred to here was none other than the Hitlerian order based on racism defined in Mein Kampf, to which Pétain had just officially subscribed in advance by signing, on 3 October 1940, the so-called Act relating to aliens of Jewish race, who were later to be interned in camps set up in France for that purpose, in order to facilitate their conveyance to the Nazi concentration camps which were their intended destination. Through the absence from the text of any criticism of these artfully concealed facts or even any attempt to distance its authors from them, this manifesto does indeed, therefore, implicitly but necessarily, contain an apologia for the crimes of collaboration committed, sometimes with the active participation and sometimes with the tacit consent of the Vichy Government, that is of Pétain and his zealots, in the very ‘atrocities’ and ‘Nazi persecutions’ to which the text refers. The court is forced to the above conclusion without taking sides in the historical controversy between those who think that Pétain was really playing a double game supposedly beneficial to the French and those who place reliance only on Pétain’s avowed policies and publicly announced official decisions, regardless of the excuses that he was able to put forward or that his supporters now seek to cloak him in. Accordingly, this court finds that the advertisement in issue did contain the apologetic element of the offence charged. In addition, for the offence to be made out, the mental element must be established. The accused, headed by Jacques Isorni, the author of the manifesto, are seeking revision of the judgment given by the High Court of Justice on 14 August 1945, which sentenced Pétain to death, forfeiture of his civic rights and confiscation of his possessions for collusion with Germany, a power at war with France, with a view to furthering the enemy’s designs, this conduct constituting offences defined by and punishable under Articles 75 and 87 of the Criminal Code. The accused, with the exception of [Mr L.], all claim responsibility for the text in issue and maintain that their object in publishing it was to create a shift in public opinion which, in their view, would increase support for a decision to reopen the case. This goal, pursued unremittingly by Jacques Isorni in particular, Pétain’s former defence counsel before the High Court, who seeks to have a new judicial decision substituted for the High Court’s judgment, is considered by that lawyer to be a sacred duty of the defence. However legitimate on his part and the part of those who expressed their support for his action their intention to have the case reopened may have been, it did not justify the use of unlawful means to further that aim, since they knew that by putting forward an unqualified and unrestricted eulogy of the policy of collaboration they were ipso facto justifying the crimes committed in furtherance of that policy, and therefore cannot have acted in good faith.” 22. The applicants, Mr M. and Mr L. appealed on points of law against the above judgment. In their statement of the grounds of appeal they relied on Article 10 of the Convention and complained that they had been convicted for their opinions. Their aim had been to defend what they considered to be just in the action of a convicted person, without glorifying war crimes or the crimes of collaboration of which he had been convicted in the judgment which they were seeking to have overturned. They asserted that the Court of Appeal had found them guilty of making an “implicit apologia”, constituted more by what they had not said than by the content of the text itself, holding that the manifesto in issue “implicitly but necessarily” contained an apologia for the crimes of collaboration and convicting them for what they had not written and the criticisms they had not made, despite the fact that they had referred in their text to Nazi atrocities and barbarism. 23. On 16 November 1993 the Criminal Division of the Court of Cassation dismissed the appeals on the following grounds: “Having regard [to the] findings [of the Court of Appeal] the Court of Cassation, whose task is to determine whether the text prosecuted under section 24(3) of the Act of 29 July 1881 constitutes a public defence of the crimes contemplated in that Act, is satisfied from its examination of the article in question that the passage referred to by the Court of Appeal falls within the contemplation of the aforementioned Act. In presenting as praiseworthy a person convicted of collusion with the enemy, the text glorified his crime and, in so doing, publicly defended it. The mental element of the offence can be inferred from the deliberate nature of the acts on account of which the defendants were charged. In delivering that judgment, the Court of Appeal did not exceed its powers. Nor did it infringe the right to freedom of expression protected by Article 10, paragraph 1, of the European Convention for the Protection of Human Rights and Fundamental Freedoms, since the exercise of that right may, under paragraph 2 of that Article, be subject to certain restrictions prescribed by law, where these are necessary, as in the instant case, in the interests of national security, territorial integrity or public safety.” 24. In 1984 section 23 of the Freedom of the Press Act of 29 July 1881 read as follows: “Where a crime or major offence is committed, anyone who, by uttering speeches, cries or threats in a public place or assembly, or by means of a written or printed text, drawing, engraving, painting, emblem, image, or any other written, spoken or pictorial item sold or distributed, offered for sale or exhibited in a public place or assembly, or by means of a placard or notice exhibited in a place where it can be seen by the public, has directly and successfully incited another or others to commit the said crime or major offence shall be punished as an accomplice thereto.” 25. At the same time, section 24 provided that “anyone who, by one of the means set out in section 23, has made a public defence of ... the crimes of collaboration with the enemy” was to be liable to one to five years’ imprisonment and a fine of from three hundred to three hundred thousand francs. 26. The French courts have gradually clarified the conditions for the application of the provisions making public defence of a crime a criminal offence. The Court of Cassation has ruled that public defence of the crimes defined in section 24(3) of the Act of 29 July 1881 is a separate offence from unsuccessful incitement to commit one of the crimes listed in sub-sections 1 and 2 of the same section and that the constituent elements of each of those offences must not be confused (Crim. 11 July 1972, Bull. crim. no. 236). As early as 1912 the Criminal Division of the Court of Cassation held that public defence of a criminal amounted to public defence of his crime (Crim. 22 August 1912, Bull. crim. no. 46). That case-law was upheld by a decision to the effect that the glorification of a person on the basis of facts constituting one of the crimes or major offences listed in section 24(3) of the 1881 Act constituted the crime of public defence defined in and punishable under that Act (Crim. 24 October 1967, Bull. crim. no. 263). Publication of a text which is likely to incite any reader to judge favourably the German National Socialist Party leaders convicted of war crimes by the Nuremberg International Tribunal and constitutes an attempt to justify their crimes in part is a public defence of war crimes (Crim. 14 January 1971, Bull. crim. no. 14). A public defence of the crime of theft is made out where an article is published which, far from merely relating a criminal theft, presents it as a praiseworthy exploit and expresses the hope that the perpetrator will escape all punishment (Crim. 2 November 1978, Bull. crim. no. 294). The offence is made out where an apologia is presented in indirect form (Paris, 25 February 1959, D. 1959. 552). Lastly, it is the Court of Cassation’s task to determine whether a text prosecuted under section 24(3) of the Act of 29 July 1881 partakes of the nature of a public defence of crime as defined therein (Crim. 11 July 1972, Bull. crim. no. 236). 27. Law no. 90-615 of 13 July 1990 (“the loi Gayssot”) added to the Freedom of the Press Act a section 24 bis making liable to one year’s imprisonment and a fine of 300,000 French francs, or one of those penalties only, those who “deny the existence of one or more crimes against humanity as defined in Article 6 of the Statute of the International Military Tribunal annexed to the London agreement of 8 August 1945 which have been committed either by the members of an organisation declared criminal pursuant to Article 9 of the Statute or by a person found guilty of such crimes by a French or international court”. Section 48-2 of the Freedom of the Press Act, also inserted by the loi Gayssot, provides: “Any association which has been lawfully registered for at least five years at the relevant time, and whose objects, according to its articles of association, include the defence of the moral interests and honour of the French Resistance or deportees, may exercise the rights conferred on civil parties in connection with public defence of war crimes, crimes against humanity or the crimes of collaboration with the enemy and in connection with the offence defined in section 24 bis.” 28. Articles 75 and 87 of the Criminal Code, applied by the High Court of Justice in its judgment of 15 August 1945 convicting Marshal Pétain, provided at that time: “Any French citizen who colludes with a foreign power with a view to inciting it to engage in hostilities against France, or provides it with the necessary means, either by facilitating the penetration of foreign forces into French territory, or by undermining the loyalty of the army, navy or air force, or in any other manner, shall be guilty of treason and sentenced to death.” “Any attempt to overthrow or change the government ..., or to incite citizens or inhabitants to take up arms against the imperial authority shall be punishable by deportation to a military fortress.”

dev

001-91368

ENG

UKR

CHAMBER

CASE OF SUPTEL v. UKRAINE

Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk

4. The applicant was born in 1963 and lives in Kyiv. 5. On 22 December 1998 the applicant, accompanied by S.N. and V.B., threw a burning torch into a car belonging to O.S. as a retaliatory measure for allegedly unfair business dealings with the applicant. The interior of the car was damaged. The police decided not to initiate criminal proceedings into the incident at the material time for lack of corpus delicti. 6. On 8 May 1999 O.S. was fatally injured in a stabbing. 7. Criminal proceedings into the circumstances of his death were initiated on the same date. 8. According to the applicant, at about 8 p.m. on 8 May 1999 he was arrested on suspicion of incitement to murder and taken to the Vatutinsky District Police Station, where he was severely ill-treated by some ten police officers until he confessed to the offence on 10 May 1999. In particular, he alleged that the police officers had handcuffed and kicked him and fractured his ankle with a crowbar. He had lost consciousness and, on coming round, had found himself suspended from a crowbar with his hands locked under his knees. After he had signed the confession, the officers had contacted his wife and requested her to bring fresh clothes and a coat, on which he was then carried down to a police cell. Afraid that the staff of the Temporary Detention Centre (the “IVS”) would not admit the applicant on account of his injuries, the officers left him in a cell at the police station, unable to walk and without even the most basic care. 9. According to the official record, the applicant was arrested on 10 May 1999 at 3 p.m. in the premises of the Vatutinsky District Police Station. 10. On 10 May 1999 criminal proceedings were instituted against the applicant and two other individuals: M.V., who was suspected of O.S.’s stabbing, and S.N., who was suspected of having hired M.V. to do so. 11. On 19 May 1999 the applicant was admitted to the IVS. The officer on duty noted that he had a leg injury. 12. On 20 May 1999 the IVS paramedic called an ambulance. The ambulance paramedic found that the applicant had suffered a severe chest contusion and arranged for his admission to the Emergency Hospital, where he was treated until 17 June 1999. According to a medical certificate issued by the hospital, the applicant had suffered a closed chest injury, closed fragmental fracture of the right ankle and a haematoma in an ankle joint. He was operated on to drain abscesses on both ankles. 15 ml of puss was recovered from one ankle and 5 ml from the other. 13. On 22 May 1999 the applicant was officially indicted for incitement to murder. 14. On 29 October 1999 the Vatutinsky District Prosecutors’ Office rejected a request by the applicant to initiate criminal proceedings against the police officers on account of his alleged ill-treatment, as it found his complaint unfounded. 15. On 24 April 2000 the case-file concerning the murder charges was sent with the bill of indictment to the Kyiv City Court for examination on the merits. 16. On 10 May 2000 the court held the first hearing. 17. Between May and October 2000 the court held some eleven hearings. At the trial all the defendants retracted their initial confessions. Two witnesses also complained that they had been ill-treated by the police, who had incited them to give evidence against the defendants, who were friends of theirs. The applicant further alleged that the police officers had drafted a confession which they had forced him to sign. 18. On 31 October 2000 the Kyiv City Court found the defendants guilty as charged and sentenced the applicant to fifteen years’ imprisonment. It rejected the defendants’ allegations of ill-treatment, primarily on the strength of the testimony of eight police officers who had denied the allegations while admitting that force had been used to arrest the defendants. The court further referred to the prosecutors’ office’s decision of 29 October 1999, dismissing the applicant’s request to institute criminal proceedings. 19. On 14 January 2001 the applicant filed a new request with the prosecutors’ office for a criminal investigation into his alleged ill-treatment. This was rejected on 9 February 2001. 20. On 19 February 2001, following complaints by the defendants and several witnesses involved in the proceedings of ill-treatment, the Deputy Head of the Parliamentary Committee on Organised Crime and Corruption, R., sent a letter to the Prosecutor General requesting a criminal investigation. 21. In a letter of 2 March 2001 the Deputy General Prosecutor requested the Kyiv City Court to include his letter in the case-file and informed R. that no investigation had been possible at the material time, as the case had been pending before the judicial authorities, which prevented the prosecution from having access to the relevant materials annexed to the case-file. 22. On 27 March 2001 the Vatutinsky District Polyclinic issued the applicant with a certificate stating that, in addition to the injuries recorded in the hospital, in May 1999 he had also suffered injuries to his wrist and coccyx. 23. On 17 May 2001 the Supreme Court quashed the judgment of 31 October 2000 and remitted the case for additional pre-trial investigations. It found it peculiar that the applicant’s confession was dated 8 May 1999, while the official record stated that he had first been questioned and arrested on 10 May 1999. Further, it noted that the trial court should have ordered a medical report on the applicant in order to obtain objective information concerning his injuries and an assessment by a handwriting expert to verify his allegation that his confession had not been drafted by him. 24. On 23 July 2001 the investigators decided to resume the criminal proceedings against the applicant, S.N. and V.B on suspicion of arson in connection with the torching of O.S.’s car in 1998. Subsequently, the applicant was formally charged with arson. 25. On 26 July 2001 the criminal cases concerning both the arson and murder charges were joined. 26. On 31 August 2001 the medical records of the applicant’s injuries were assessed by a medical expert, who confirmed that in May 1999 the applicant had suffered a haematoma to his right ankle joint. At the same time he found that the chest contusion diagnosis was insufficiently substantiated. He did not provide any conclusions concerning the other injuries listed in the applicant’s records. 27. On 7 September 2001 the police instituted criminal proceedings against N.N., the applicant’s wife on the grounds that, while working as a nurse, she had forged, in particular, a certificate that purported to have been issued by the Vatutinsky District Polyclinic on 27 March 2001. On 16 October 2001 she was amnestied. 28. On 30 September 2001 the Vatutinsky District Prosecutors’ Office again refused to institute criminal proceedings in connection with the applicant’s allegation of ill-treatment. It noted, in particular, that the applicant had been arrested on 8 May 1999 and that, as the arresting officers had been aware that the applicant, a former sportsman, was well-built, might have been armed and was implicated in a serious offence, they had had to use force to arrest him. In doing so, they had tripped him up, thrown him against the bonnet of a car, and handcuffed him. The Prosecutor’s Office considered that this was what had caused the applicant to suffer the haematoma. As regards the other injuries noted in the applicant’s medical records, they had not been confirmed by the recent medical expert report. 29. On 29 November 2001 the Kyiv Forensic Experts Institute found it probable that the applicant’s confession had been dictated by a professional, skilled in the preparation of procedural documents, to an individual, who had written the text under stress, possibly on account of physical pain. No assessment was carried out to determine whether the statement had been written by the applicant’s hand. 30. In February 2002 the criminal case concerning the murder and arson charges was sent to the Kyiv City Court of Appeal (the former Kyiv City Court) for trial. 31. On 10 April 2002 the court decided that further pre-trial investigations were necessary. It found, inter alia, that the investigation had not fully complied with the Supreme Court’s instructions. In particular, it had not been established why the applicant’s confession had been dated 8 May 1999, while no other procedural documents had been executed on that date; nor was there any indication as to where the applicant had been held between 8 and 18 May 1999 and why he had arrived in the IVS only on 19 May 1999. The court further noted that the officers manning the premises where the applicant had been kept before 19 May 1999 should have been questioned about his state of health during that period. Finally, the investigation should have established whether it was likely that the applicant’s injuries had been caused in the manner he had described. 32. On 13 June 2002 the Supreme Court of Ukraine upheld the decision to order additional investigations. 33. On 31 October 2002 the case was referred to the Kyiv City Court of Appeal for trial. Between December 2002 and November 2003 that court held some forty hearings. 34. On 6 November 2003 the Kyiv City Court of Appeal remitted the case for a pre-trial investigation in respect of the murder charges. It found, in particular, that the materials relating to the applicant’s first interrogation, in which he had confessed to the murder, were inadmissible as evidence, as he had been questioned as a witness in the absence of a lawyer, whose presence was obligatory in view of the gravity of the alleged offence. Furthermore, the court referred to the failure of the investigation to establish the facts concerning the drafting of the applicant’s confession and the other circumstances of his arrest and initial interrogation, including the date. It noted, in particular, that the investigator had alleged that he had been unaware of the applicant’s detention on 8 May 1999. According to him, the applicant had confessed on 10 May 1999. At the same time, several police officers had submitted that the investigative and prosecuting authorities had been fully aware of the applicant’s arrest on 8 May 1999. The court also noted that the expert who had carried out the applicant’s medical assessment had not made any findings concerning certain of his injuries, including the wrist injury and two abscesses that had been noted in various medical records. Moreover, the assessment had not been carried out by a panel of experts as required, but by a single expert. 35. On 14 November 2003 the court found the applicant, S.N. and V.B. guilty of arson and sentenced the applicant to seven years’ imprisonment. 36. On 15 April 2004 the Supreme Court upheld the Court of Appeal’s decision of 6 November 2003 and judgment of 14 November 2003. 37. On 26 July 2004 the investigators ordered the applicant’s medical assessment by a panel of experts. 38. On 24 December 2004 the Kyiv City Bureau of Forensic Medical Experts found the diagnosis of the closed chest injury unfounded. They confirmed, however, that on 20 May 1999 the applicant had had the following injuries: a haemorrhage of the left ankle and contusion of soft tissue on the left arm, which qualified as light bodily injuries, and a haemorrhage of the right ankle and a closed fracture of the right ankle, which qualified as bodily injuries of “intermediate” gravity. Based on the available documents it was not possible to establish the exact date of the infliction of these injuries, however, their infliction in the period between 8 and 11 May 1999 was not improbable. 39. By 28 December 2006 the proceedings in respect of M.V., the alleged perpetrator of the murder, were terminated for want of evidence of his involvement. As of April 2008 the proceedings in respect of the applicant and S.N. were still pending. 40. The relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6 December 2007).

dev

001-76677

ENG

ESP

CHAMBER

CASE OF OLAECHEA CAHUAS v. SPAIN [Extracts]

No violation of Art. 3;No violation of Art. 5;No violation of Art. 6;Violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

6. The applicant was born in 1944 and currently lives in Peru. 7. On 3 July 2003 the applicant, a suspected member of the Shining Path (Sendero Luminoso) organisation, a terrorist group founded in 1970 whose aim is to transform Peru’s political system by armed force into a communist proletarian regime, was arrested in Almería (Spain) under an international arrest warrant issued by the Peruvian authorities, following a routine police check of the lists of guests registered at hotels in that province. The applicant was taken into custody pending a ruling on his extradition. 8. In a decision of 3 July 2003 central investigating judge no. 6 of the Audiencia Nacional asked the applicant for his views on the extradition, in keeping with Article 17 of the bilateral extradition treaty of 28 June 1989 between the Republic of Peru and the Kingdom of Spain. 9. On 7 July 2003 the extradition hearing requested by central investigating judge no. 6 was held. The applicant agreed to the “simplified extradition” procedure (immediate return to the requesting country) and the application of the “special” rule (under which he could be tried only in respect of the offence for which extradition was requested). The extradition request was based on a terrorist offence. 10. At the hearing of 7 July 2003 the applicant declared that although he had agreed to simplified extradition, the Peruvian Government were required to guarantee his personal safety, his life, his health and his well-being, in conformity with the standards laid down in international conventions on detention conditions and a fair trial in a reasonable time, as he considered the charges against him unfounded. The Peruvian press having launched a campaign against him – which he considered warranted special protection measures – he also asked for guarantees that he would have access to the press. 11. The preliminary hearing provided for in Article 504 bis 2 of the Code of Criminal Procedure was also held on 7 July 2003, following which the applicant was detained with a view to his extradition. 12. In a decision of 9 July 2003 the examining judge, noting that the applicant had agreed to his extradition and that his requests had been granted at the hearing, called for the application of the measures provided for in Article 10 of the bilateral treaty between Peru and Spain and stated that in such cases it was for Spain, through its Ministry of Justice, to obtain the guarantees provided for in that provision from the Peruvian authorities. The extradition would be conditional on the official communication of those guarantees by the ministry, to enable the examining judge to reach a decision in the extradition proceedings. 13. On 10 July 2003 the applicant appealed against the decision of 7 July 2003 ordering his detention. The appeal was dismissed on 17 July 2003. On 23 July 2003 the applicant filed an appeal against that ruling. 14. In a decision of 18 July 2003 the Audiencia Nacional authorised the the applicant’s extradition for trial by the Peruvian judicial authorities on the charge of terrorism. It stressed the content of the diplomatic note from the Peruvian Embassy, which read as follows: “Concerning the guarantee that the accused will not be subjected to punishment causing physical harm, or to inhuman or degrading treatment, we would remind the Spanish authorities that as Peru is party to the American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture, and the International Covenant on Civil and Political Rights, the person concerned will enjoy sufficient guarantees under a treaty based on respect for human dignity, as well as the guarantees of physical, psychological and moral integrity enshrined in the main human rights protection instruments. ... 1. Article 140 of the Peruvian Constitution provides: “The death penalty may be applied only for the crime of treason to the country in time of war, and for acts of terrorism ... According to Legislative Decrees no. 25475 and no. 921, the acts of terrorism with which the accused, Adolfo Olaechea Cahuas, is charged are not punishable by death. 2. However, the crime of terrorism referred to in Article 3 (a) of Legislative Decree no. 25475 is punishable by life imprisonment. In order to facilitate the extradition in accordance with Article 10 § 2 of the extradition treaty, it is guaranteed that even if the accused is found guilty in a fair trial, he will not be sentenced to life imprisonment but to the sentence immediately below that. 3. A fair trial is likewise guaranteed under the judicial safeguards enshrined in the Constitution, international human rights instruments and domestic law.” 15. In the aforementioned decision of 18 July 2003 the examining judge requested that the Spanish Ministries of Justice and Foreign Affairs be informed of the extradition measure and stated that the agreement of the Council of Ministers was not needed for the extradition. 16. On 24 July 2003 the applicant lodged an appeal to have the decision of 18 July 2003 overturned and the ordinary extradition procedure applied, under which the Criminal Division of the Audiencia Nacional would decide on his extradition. 17. In an order of 4 August 2003 the investigating judge dismissed the appeal. He reminded the applicant that he had agreed to the simplified extradition procedure and that that decision was irrevocable. 18. On 6 August 2003 the applicant requested the application of the measures provided for in Rule 39 of the Rules of Court, to have his extradition to Peru suspended. He relied on Articles 3, 5 and 6 of the Convention. 19. On the same day the Vice-President of the Fourth Section of the Court decided to apply Rule 39 of the Rules of Court and invited the Spanish Government not to extradite the applicant before the Chamber had examined the case at its meeting of 26 August 2003. The Government’s Agent and the Permanent Delegation of Spain to the Council of Europe were informed of that decision by telephone at 7 p.m., with subsequent confirmation by fax. 20. On 7 August 2003 the Spanish Government sent the Court a decision of investigating judge no. 6 of the Audiencia Nacional, to whom the Court’s request concerning the temporary suspension of the extradition had been transmitted. In it the judge rejected the request for the application of Rule 39 for the following reasons: “The applicant agreed to the extradition of his own free will, being fully aware of the consequences. That being so, the decision ordering his extradition is final and no appeal lies against it. Furthermore, the Peruvian authorities have provided the guarantees requested by the Spanish courts. Finally, the applicant applied to the European Court of Human Rights without exhausting the remedies available to him in Spanish law.” 21. On 7 August 2003 the applicant was extradited to Peru, where he was incarcerated. 22. On 8 August 2003 the Court asked the Spanish Government, in accordance with Rule 39 § 3 of the Rules of Court, what steps had been taken to ensure the application of the interim measure indicated. 23. Having received no reply from the Spanish Government, on 2 September 2003 the Court communicated the application under Articles 3, 6 and 34 of the Convention. 24. In November 2003 the applicant was granted conditional release by the Peruvian anti-terrorism authorities for lack of sufficient evidence that he was a member of the Shining Path. The applicant’s freedom was restricted by an order prohibiting him from leaving Lima and Peru or changing his place of residence without the authorisation of a judge, and obliging him to report to the judge once a week. The decision of the anti-terrorism authorities also indicated that as the criminal charges against the applicant were maintained, the proceedings against him remained open pending new developments in the investigation. 25. In January 2004 the Peruvian authorities asked the Spanish authorities to extend the extradition charges so that the applicant could be tried in Peru for financing the Shining Path terrorist group from abroad. Following that request a hearing before the Audiencia Nacional was scheduled for 13 February 2004. 26. On 22 January 2004 the applicant once again asked the Court to apply Rule 39 and ask the Spanish Government to suspend the hearing until it had ruled on his application. 27. On 27 January 2004 the Fourth Section of the Court considered that the circumstances underlying the applicant’s request were not of the kind to which, in the Court’s practice, Rule 39 was applied. The request was accordingly dismissed. 28. The hearing went ahead as planned and, by a decision of 25 February 2004, the Audiencia Nacional allowed the requested extension. The applicant lodged an amparo appeal against that judgment which is still pending before the Constitutional Court. 29. Following the judgment handed down by the Grand Chamber on 4 February 2005 in the case of Mamatkulov and Askarov v. Turkey ([GC], nos. 46827/99 and 46951/99, ECHR 2005-I), the applicant requested permission to submit additional pleadings to the Court. The Court agreed and the Government were informed. In April 2005 the parties submitted their observations. ...

dev

001-57566

ENG

AUT

CHAMBER

CASE OF RINGEISEN v. AUSTRIA (ARTICLE 50)

Pecuniary damage - financial award;Non-pecuniary damage - financial award

10. The Court is called upon to rule only on the question of the application of Article 50 (art. 50) in the present case. Thus, as regards the facts the Court will confine itself here to giving a brief outline and for the rest it refers to paragraphs 12 to 80 of its judgment of 16 July 1971. 11. That judgment concerned, inter alia, the detention of Ringeisen while on remand from 5 August to 23 December 1963, that is four months and eighteen days, and from 15 March 1965 to 20 March 1967, that is two years and five days. 12. Ringeisen’s lawyer wrote, on 23 July 1971, to the Austrian Federal Minister of Justice requesting him, with reference to the judgment of 16 July and to Articles 5 § 5 and 50 (art. 5-5, art. 50) of the Convention, to make proposals for the reparation of the damage allegedly sustained by the applicant. It was claimed that the applicant had, "as a result of his unjustified detention", suffered over and above the loss of his fortune irremediable damage to his health which reduced his life expectancy and made constant medical care necessary. The applicant’s lawyer therefore requested the Minister to advance on account the sum of 50,000 German marks (DM). In a reminder dated 2 August, he insisted that the matter should be dealt with promptly, having regard, in particular, to Ringeisen’s state of health. On 10 September 1971, the Minister replied that in view of his Ministry’s competence under the Constitution it was not in a position to deal with the matter. 13. Meanwhile, Ringeisen had addressed his request to the Commission on 18 August 1971. He laid emphasis on the fact that he was still in very difficult circumstances due to his poor state of health and he asked the Commission "to apply to the ... Court ... on (his) behalf and to have a decision taken in accordance with Article 50 (art. 50) of the Convention ...". The applicant has set out more particulars of his claims in letters which he and his wife sent to the Commission on 24 November 1971, 10 December 1971, 21 January 1972 and 8 February 1972. He alleges that he has sustained considerable material damage resulting, inter alia, from interference with the conduct of his business and from loss of property and rents in Austria and for this he claims some 100 million Schillings. Furthermore, he states that he is entitled to compensation, in an amount which he leaves the Court to assess: for personal injury, for damage to his reputation and "for detention".

dev

001-101283

ENG

RUS

CHAMBER

CASE OF GAFOROV v. RUSSIA

Preliminary objections joined to merits and dismissed (six month period;non-exhaustion of domestic remedies);Violation of Art. 3 (in case of extradition to Tajikistan);Violation of Art. 5-4;Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

5. The applicant was born in 1973 and lived before his arrest in the town of Khudzhand, Tajikistan. He is currently residing in Moscow. 6. In 2005 the applicant lost his job at a telephone exchange in Khudzhand and started earning his living by printing various texts for people on his computer, including theses and extracts from the Koran. 7. In 2005 several persons were arrested in Khudzhand on suspicion of membership of Hizb ut-Tahrir (“HT”), a transnational Islamic organisation, banned in Russia, Germany and some Central Asian republics. Subsequently, the applicant learnt that some of the arrestees had testified before the prosecuting authorities that he was a member of HT and had printed various materials for it from the Internet. The applicant denies being a member of HT. 8. On 16 February 2006 the prosecutor's office of the Sogdiyskiy Region of Tajikistan (“the Sogdiyskiy prosecutor's office”) instituted criminal proceedings against the applicant on suspicion of membership of an extremist organisation (Article 307 § 2 of the Tajikistani Criminal Code (“TCC”)). In particular, the applicant was suspected of having actively worked with HT by printing out leaflets and religious literature for that organisation with a view to their dissemination. The case was assigned the number 9615. 9. On 19 February 2006 the Sogdiyskiy prosecutor's office ordered the applicant's placement in custody. Shortly thereafter the applicant was arrested and placed in the basement of the Ministry of National Security (MNS). According to the applicant, he was held there for about three months. He was systematically beaten up and was tortured at least six times with electricity. He was held in premises with nothing to rest on, was refused access to the toilet for lengthy periods of time and received no food. 10. On 6 May 2006 the prosecutor's office of the BobodzhonGafurovskiy District (“the Bobodzhon-Gafurovskiy prosecutor's office”) opened a further criminal case against the applicant in connection with his alleged activities within HT. In particular, the applicant was suspected of: having secretly studied extremist literature provided by other members of HT; having worked for the organisation as an IT specialist; having printed out the organisation's leaflets and other literature and secretly distributed it among non-members of the organisation; having paid membership fees to the organisation and trained another member to work with the PC. On the same day the applicant was charged with membership of a criminal organisation banned owing to its extremist activities (Articles 187 § 2 and 307.2-3), incitement to religious and other hatred (Article 189 § 3) and public appeals to overthrow the constitutional order and to engage in extremist activities (Articles 307 and 307.1). The criminal case was joined with case no. 9615 and given the number 9431. 11. According to the applicant, in May 2006 he and other detainees were taken to a construction site for a recreation zone for officers of the MNS, where they were ordered to dig, working in a bending position. When they tried to straighten up, the guards beat them severely. 12. On 24 May 2006, fearing further beatings, the applicant escaped. 13. According to the applicant, his relatives told him that after his escape law enforcement officials had tortured his co-accused to find out where he had gone and whether they had helped him to make good his escape. 14. On 25 May 2006 the Bobodzhon-Gafurovskiy prosecutor's office instituted criminal proceedings against the applicant for escaping from custody. The decision stated that on 24 May 2006, “while in custody at a summer cottage [дачный участок] belonging to the MNS”, the applicant had fled to an unknown destination. 15. On an unspecified date the criminal case against the applicant in connection with his alleged activities within HT was transferred for examination to the Bobodzhon-Gafurovskiy District Court of the Sogdiyskiy Region 16. By a decision of 6 June 2006 the Bobodzhon-Gafurovskiy District Court put the applicant's name on a wanted list and suspended the examination of the criminal case against him pending his arrest. 17. On 9 June 2006 the Bobodzhon-Gafurovskiy prosecutor's office charged the applicant with escape from custody. 18. It appears that the applicant was hiding in Tajikistan until December 2006, when he moved to Kyrgyzstan. On an unspecified date in May 2007 the applicant arrived in Russia. 19. On 5 August 2008 the applicant was arrested in Moscow as a person wanted by the Tajikistani authorities. 20. On 6 August 2008 the Nagatinskiy deputy prosecutor questioned the applicant about the circumstances of his arrival in Russia. According to the applicant's written explanation [объяснение] of the same date, in 2006 the Tajikistani authorities had opened a criminal case against him on suspicion of membership of an extremist organisation. For about three months in 2006 he had been held in custody. During that period he had been taken on a daily basis to work at a construction site, from where he had escaped. In 2007 the applicant had come to Russia to avoid criminal prosecution and to earn a living. He had not applied for Russian citizenship, refugee status or political asylum. The transcript bore the applicant's signature. In the applicant's submission, the explanation was compiled by the Russian authorities on the basis of material from his criminal case produced by the Tajikistani law enforcement authorities. 21. On 11 September 2008 the Tajikistani Prosecutor General's Office (“the TPGO“) sent to the Russian Prosecutor General's Office a request for the applicant's extradition to Tajikistan in connection with the charges concerning his membership of HT. The letter stated that the applicant would be tried only on the charges for which his extradition was being sought, and that he would not be extradited to a third country without the consent of the Russian authorities. 22. On 5 December 2008 the TPGO sent their Russian counterpart an additional request for the applicant's extradition on the charge of escaping from custody. 23. By a letter of 19 December 2008 the applicant's lawyer informed the Russian Prosecutor General's Office that the applicant intended to challenge before the courts the refusal to grant him refugee status (see below) and requested them to take that fact into account when examining the extradition issue. 24. On 30 December 2008 the deputy Prosecutor General of the Russian Federation ordered the applicant's extradition to Tajikistan. The decision, in its relevant parts, read as follows: “... [Mr] Gaforov is charged with having actively participated in 2002-2006 in the activities of a criminal organisation “Hizb-ut-Tahrir al-Islam”, aimed at the violent seizure of state power and the overthrow of the constitutional order and banned on the territory of Tajikistan by a court decision ... ... The [applicant's] actions are punishable under Russian criminal law and correspond to Article 210 of the Russian Criminal Code (membership of a criminal organisation); Article 278 (acts aimed at violent overthrowing of the constitutional order); Article 280 (public appeals in the media to engage in extremist activities); Article 282 § 2 (c) (incitement to hatred and degrading treatment via the mass media, carried out by an organised group); Article 282 § 2 (membership of an extremist organisation); Article 282 § 2 (membership of an organisation banned by a court decision because of its extremist activities); Article 205 § 1 (financing terrorism). The above-mentioned offences carry penalties of over one year's imprisonment. The time-limits for [the applicant's] prosecution under Russian and Tajikistani legislation have not expired. ... [The applicant] is charged with having absconded from custody ... on 24 May 2006 ... The [applicant's] actions are punishable under Article 313 § 1 of the Russian Criminal Code (escape from custody of a person detained on remand) and carry a penalty of over one year's imprisonment. The time-limits for [the applicant's] criminal prosecution under Russian and Tajikistani legislation have not expired.” 25. Lastly, the decision stated that, according to the Federal Migration Service (“the FMS”), the applicant had not obtained Russian citizenship, and concluded that there were no other grounds for not extraditing him to Tajikistan. 26. On 21 January 2009 the applicant appealed against the decision of 30 December 2008, alleging that, if extradited, he would be subjected to torture in breach of Article 3 of the Convention. He averred, in particular, that he had described in detail the treatment to which he had been subjected while in custody in Tajikistan and that the Russian Prosecutor General's Office had disregarded those submissions and the relevant materials from international NGOs showing that the Tajikistani law enforcement authorities systematically tortured detainees. The applicant also submitted that the Tajikistani authorities were not able to provide effective guarantees against the risk of ill-treatment and unfair criminal proceedings. Lastly, he stated that the decision to extradite him had been taken despite the fact that his asylum application was pending. 27. By a letter of 10 February 2009 the TPGO guaranteed to their Russian counterpart that, if extradited, the applicant would not be persecuted on political, ethnic, linguistic, racial or religious grounds and that he would not be subjected to torture or inhuman or degrading treatment or punishment. The letter also noted that on 11 March 2008 the Supreme Court of Tajikistan had declared HT a terrorist organisation and had banned its activities on the territory of Tajikistan. 28. At a hearing on 16 February 2009 the Moscow City Court (“the City Court”) examined the applicant's complaint about the decision to extradite him to Tajikistan. 29. According to the hearing transcript, the applicant submitted to the court that after his arrest in 2006 in Tajikistan he had been severely beaten and on six occasions tortured with electricity with a view to extracting a confession that he was a member of HT. He had been held in the MNS basement for about three months. During his detention there he had been systematically beaten and insulted and had been allowed access to the toilet only twice a day. While still in detention, he had been taken to a construction site for an MNS recreation zone. There he and other detainees had worked laying the foundation for a sports centre; they had also been ordered to mow grass. The applicant and other detainees had been systematically subjected to beatings. Unable to stand the beatings and the lack of food, the applicant had escaped. The applicant further stressed that he feared returning to Tajikistan because after his escape several MNS officials had threatened his family. They had allegedly told his family members that if the applicant was caught, they would not leave him alive. An MNS officer who had beaten the applicant and who had been on duty on the day of his escape had allegedly told the applicant's sister that if he went to jail because of the applicant, he would kill the applicant's whole family, once released. 30. At the hearing the applicant's lawyer also stated that his client's detention was unlawful because the authorities had failed to extend it properly, in breach of the Code of Criminal Procedure (“CCrP”) and the decisions of the Constitutional Court. 31. Having heard the applicant and his lawyer and granted their request to include in the case file reports from various NGOs and international organisations on the situation in Tajikistan in relation to torture, the City Court adjourned the examination of the complaint pending the outcome of the asylum proceedings. 32. By a faxed letter of 25 February 2009 the City Court informed the Russian Ministry of Foreign Affairs (“the MID”) about the applicant's case and his allegations of the risk of torture were he to be extradited to Tajikistan. The City Court asked the MID to present their position and to assist the court in obtaining information from the Tajikistani Ministry of Foreign Affairs on the issues raised by the applicant. 33. By a letter of the same date the City Court asked the Tajikistani Ministry of Foreign Affairs to submit its position and any relevant information on the applicant's allegations concerning the risk of torture and inhuman and degrading treatment should he be extradited to Tajikistan, and to verify those allegations via the relevant State authorities. 34. On 13 March 2009 the MID replied to the City Court that Tajikistan had become party to almost all the international instruments on the protection of human rights and that it had thereby confirmed its intention to build a democratic and secular state based on respect for the rule of law. A post of ombudsman had been created. The MID did not have any information to indicate that “the applicant's civil rights would be violated if he was extradited”. It does not appear that the Tajikistani Ministry of Foreign Affairs replied to the City Court's request. 35. On 20 April 2009 the City Court examined the applicant's complaint about the decision of 30 December 2008. The applicant and his lawyer attended the hearing 36. According to the hearing transcript, the applicant reiterated before the court his submissions concerning his alleged torture while in custody in Tajikistan. He submitted that the fact of his previous torture and the threats to his family members proved that he ran a risk of being subjected to such treatment again, should the extradition decision be upheld. The applicant's lawyer asked the court to release the applicant, stressing that he had been detained for a long period of time and that his detention had not been extended despite clear instructions from the Constitutional Court in that respect. 37. The City Court dismissed the applicant's complaint. The decision, in so far as relevant, read as follows: “ [Mr] Gaforov is charged with having, in the period from August 2002 to February 2006 in the Sogdiyskiy Region of the Republic of Tajikistan, been an active member of the criminal organisation “Hizb ut-Tahrir al-Islami”, founded with the aim of violent seizure of power and overthrowing the constitutional order, which [organisation] had been banned by a court from the territory of the Republic of Tajikistan because of its extremist activities; [the applicant] is also charged with having financed the above organisation. During the relevant time period, being a member of that organised group and using the mass media, [the applicant] disseminated materials containing public appeals for the violent overthrow of the existing state regime to take control of the territory of the Republic of Tajikistan and seize power there. [The applicant] recruited citizens to the extremist organisation with a view to disrupting the constitutional order of the Republic of Tajikistan; made public appeals to engage in extremist activities; disseminated leaflets and other printed materials aimed at incitement to ethnic, racial, ..., religious hatred, degrading treatment, propaganda proclaiming the superiority of certain citizens based on their religious ... convictions, and the founding of an Islamic state “Caliphate” on the territory of the Republic of Tajikistan. The [applicant's] actions are punishable under Russian criminal law and correspond to Article 210 § 2 [of the Russian Criminal Code] (participation in a criminal organisation); Article 278 (acts aimed at violent overthrow of the constitutional order); Article 280 § 2 (public appeals via the mass media to engage in extremist activities); Article 282 § 2 (c) (incitement to hatred and degrading treatment committed by an organised group through the mass media); Article 282-1 § 2 (membership of an extremist organisation); Article 282-2 § 2 (membership of an organisation banned by a final court decision because of its extremist activities); and Article 205-1 § 1 (financing terrorism). The above-mentioned offences carry penalties of over one year's imprisonment. The time-limits for [the applicant's] prosecution under Russian and Tajikistani law have not expired. ... Moreover ... [the applicant] is charged with having absconded from custody ... on 24 May 2006 ... The above-mentioned actions of [the applicant] are punishable under Article 313 § 1 of the Russian Criminal Code (escape from custody of a person detained on remand) and carry a penalty of over one year's imprisonment. The time-limits for [the applicant's] criminal prosecution under Russian and Tajikistani law have not expired ... The decision of the Prosecutor General of the Russian Federation of 30 December 2008 is lawful and well-founded. From the information submitted by the Russian FMS [Federal Migration Service] and its Moscow branch it follows that [the applicant] had not obtained Russian citizenship or applied for it in accordance with the law At the court hearing [the applicant] explained that he had not applied for Russian citizenship; he had been arrested in Russia as a person whose name had been put on an international wanted list...; [he] had not applied for refugee status before his arrest because he thought that he would not be granted it as a wanted person; he was not a refugee, he had not been and was not being persecuted in the territory of the Republic of Tajikistan on political or any other grounds, except for his criminal prosecution; he had left his place of residence voluntarily, having fled from custody – [a fact] which proves that [the applicant] was deliberately hiding in the territory of the Russian Federation from the Tajikistani law enforcement bodies. Thus, there are no grounds stipulated in international agreements or the legislation of the Russian Federation to prevent [the applicant's] extradition ... ... The court has examined and dismissed [the applicant's] arguments, supported by his lawyer ... with reference to the opinion [заключение] of 13 March 2009 by specialist Ms Ryabinina and materials confirming, in their opinion, that he should not be extradited to Tajikistan on account of his possible persecution there. However, having applied to the FMS after his arrest pursuant to an international warrant, [the applicant] himself had explained that he feared extradition to Tajikistan because of the possibility of his conviction leading to a long term of imprisonment. Hence, the court considers that there is no well-founded fear of [the applicant] becoming a victim of persecution in Tajikistan under Article 1 § 1-1 of the Refugees Act. Consequently, he does not satisfy the criteria to be granted refugee status because only a person who is not a Russian national and who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to avail himself of the protection of that country as a result of such events, can be recognised as a refugee. Furthermore, the receiving country furnished an assurance that [the applicant] would be prosecuted only for the crimes with which he had been charged. Moreover, the Republic of Tajikistan is party to almost all international legal instruments on human rights, and has thereby reaffirmed its intention to build a secular democratic state based on the rule of law; a post of Ombudsman had been created there. The issue of whether [the applicant] is guilty of the crimes in respect of which [the Tajikistani authorities] have requested his extradition can only be assessed by a court in the requesting country examining the merits of the criminal case against him. Hence, [the applicant's] and his lawyer's arguments that he is not guilty and that the charges against him are fabricated are not subject to this court's examination.” 38. The City Court decision was silent on the issue of the applicant's detention. 39. On 21 April 2009 the applicant appealed to the Supreme Court of the Russian Federation (“the Supreme Court”), submitting that the City Court had failed to take into account his arguments, supported by materials from various NGOs, that he would be subjected to torture in the event of extradition. He also averred that the City Court had disregarded that at the time of its examination of the case appeal proceedings against the FMS decision to refuse him refugee status had been pending. 40. On 8 June 2009 the applicant lodged an additional appeal statement with the Supreme Court submitting that the City Court had failed to assess Ms Ryabinina's opinion and materials from various NGOs attesting to the existence of systematic problems with torture in Tajikistan and had limited its assessment to the MID letter stating merely that “there was no indication that [the applicant's] civil rights would be violated in the event of his extradition”. He stressed that the City Court had confused the risk of torture with the risk of criminal prosecution, although the applicant's position in that respect was unequivocal: he feared his extradition to Tajikistan because he had already been subjected to torture there and he had fled to Russia for that reason. The City Court's conclusion that he had voluntarily left Tajikistan was at odds with the fact that the applicant had fled from custody. Lastly, the City Court had exceeded its jurisdiction in finding that the applicant did not satisfy the criteria to be granted refugee status, as it was for the civil courts to rule on that matter. 41. On 8 June 2009 the Supreme Court of the Russian Federation (“the Supreme Court”) examined the applicant's appeal against the City Court decision. The applicant's lawyer was present at the hearing, but the applicant did not attend. At the hearing the applicant's lawyer filed a written request for release with the Supreme Court. He submitted that his detention in the absence of a judicial decision had exceeded the two-month limit set in Article 109 of the CCrP. In that connection he referred to Article 466 of the CCrP, the Constitutional Court's decisions nos. 101-0 and 333-O-P (see below) and the fact that the latest court decision to place him in custody had been taken on 16 September 2008. He also complained that the Babushkinskiy District Court and the Moscow City Court had refused to examine his complaints about his detention. 42. By a decision of the same date the Supreme Court dismissed the complaint, reproducing verbatim the text of the decision of 20 April 2009. The Supreme Court decision was silent on the matter of the applicant's detention. 43. On 23 October 2008 the applicant filed an application for asylum with the Moscow Department of the Federal Migration Service (“the Moscow FMS”), stating that he could not return to Tajikistan, where he had been subjected to ill-treatment. In particular, he submitted that in February 2006 he had been arrested by law enforcement officials who had tortured him with electricity and severely beaten him. Two days later he had been transferred to the MNS, where he had been kept in a damp basement together with eight other persons. He had not been fed and had been allowed access to the toilet only twice a day. The applicant and other detainees were systematically beaten up with a view to extracting confessions about their involvement with HT, to which they had finally had to confess because of the beatings. The MNS officers had forced the applicant and his fellow detainees to work on their construction site and had beaten them if they did not work properly. In May 2006, while at a construction site, he had escaped because he could no longer endure the violence. 44. In an interview with an official of the Moscow FMS on 28 November 2008, the applicant reiterated and confirmed his earlier submissions 45. On 15 December 2008 the Moscow FMS refused to grant the applicant asylum, finding that the reason for his request was his fear of being sentenced to a lengthy term of imprisonment if extradited. It further noted that when questioned by FMS officials, the applicant submitted that he had been unlawfully arrested by the Tajikistani law enforcement officials and that he had fled from custody because he had been severely ill-treated. The FMS concluded that the grounds referred to by the applicant did not constitute well-founded fear of being persecuted in his home country. 46. On 13 January 2009 the applicant appealed to the Zamoskvoretskiy District Court of Moscow (“the Zamoskvoretskiy District Court”) against the decision of 15 December 2008, submitting that the Tajik authorities were persecuting him on religious grounds in connection with his alleged membership of HT, a banned religious organisation. Referring to Article 3 of the Convention, he stressed that the migration authority had disregarded his consistent and convincing submissions in respect of the ill-treatment to which he had been subjected. Knowing that the Code of Civil Procedure made no provision for a detainee's transportation to court hearings concerning their civil claims, the applicant did not request the Zamoskvoretskiy District Court to secure his presence. 47. On 7 April 2009 the Zamoskvoretskiy District Court examined the applicant's complaint in the presence of his lawyer and dismissed it. The applicant was not brought to the hearing. The court found that in examining the applicant's application the Moscow FMS had obtained from the Russian Prosecutor General's Office and their Tajikistani counterpart materials concerning his criminal prosecution in Tajikistan. Those State bodies had not confirmed that the Tajikistani authorities were persecuting Tajikistani nationals because of their religious beliefs, or torturing them or treating them inhumanely in connection with criminal proceedings against them. Although the applicant had arrived in Russia in May 2007, he had applied for asylum only after his arrest with a view to extradition. In sum, the applicant had failed to adduce convincing reasons showing that he had well-founded fears of being persecuted in Tajikistan on political, racial, religious, national or ethnic grounds or because of his membership of a particular social group, and had only applied to the migration authorities because of his criminal prosecution. 48. On 20 April 2009 the applicant appealed against the decision of 7 April 2009, submitting that the Zamoskvoretskiy District Court had disregarded his detailed and consistent submissions concerning the illtreatment to which he had been subjected while in custody in Tajikistan and his persecution on religious grounds. He also averred that the district court had disregarded a number of reports of UN bodies and NGOs attesting to the widespread practice of ill-treatment of detainees by law enforcement authorities in Tajikistan. 49. On 25 June 2009 the Moscow City Court set aside the decision of 7 April 2009 and remitted the case at first instance for fresh examination. 50. On 10 September 2009 the Zamoskvoretstkiy District Court upheld the migration authority's refusal to grant the applicant asylum, reproducing almost verbatim the reasoning of its decision of 7 April 2009. The court also noted that as the applicant only feared criminal prosecution and thus did not qualify for asylum it would not attach any weight to his submissions concerning the risk of ill-treatment in Tajikistan in the event of extradition and the general human rights situation in that country. 51. The applicant appealed against the decision. Referring to reports of various NGOs, he stressed that the problem of ill-treatment of detainees persisted in Tajikistan and that he feared his extradition not only because of the general situation in the country but also because of his own experience of ill-treatment at the hands of the Tajikistani State officials, who were persecuting him on religious grounds. However, the District Court had refused to take that information into account and limited its assessment to the information provided by the Russian State authorities. 52. On 26 January 2010 officers of the United Nations High Commissioner for Refugees (“the UNHCR”) interviewed the applicant in the remand facility in connection with his application for international protection. 53. On 28 January 2010 the City Court upheld the decision of 10 September 2009 in the presence of the applicant's lawyer. The City Court decision, in its relevant part, stated: “On 28 November 2008 [Mr] Gaforov, a national of the Republic of Tajikistan, held in IZ-77/4 in Moscow, applied for refugee status. In his questionnaire [анкета] and report form [опросный лист] [the applicant] stated that there was a real risk of his persecution by law enforcement officials who had arrested him in 2006 in Khudzhand and charged him with being a member of HT. Moreover, [the applicant] stated that he feared criminal prosecution and had been subjected to ill-treatment while in detention [in Tajikistan]. In arriving at its conclusions the [Moscow FMS] examined information submitted by the Russian Prosecutor General's Office and concerning [the applicant's] prosecution by the Tajikistani prosecutor's office on various charges under Articles of the Tajikistani Criminal Code. There is no indication of [the applicant's] persecution on religious grounds in the Bobodzhon-Gafurovskiy prosecutor's office's decision of 6 May 2006 to charge the applicant [with his activities within HT]. From the impugned decision [of the Moscow FMS] it transpires that in arriving at its conclusions the authority took into account information from the [Russian] Prosecutor General's Office and their Tajikistani counterpart. In examining [the applicant's] complaint, the [District] court correctly established that the applicant had not referred to any humanitarian reasons to be granted temporary asylum in the Russian Federation, such as precise details of his personal persecution by the Tajikistani authorities, [or stated] that in the event of his return there existed a real risk to his personal safety from the [Tajikistani] authorities. He had not justified his application for temporary asylum by his state of health or the need for medical assistance. He also failed to submit any evidence that there were obstacles to his returning to Tajikistan.” 54. On 8 February 2010 the applicant applied to the Moscow FMS for temporary asylum. The outcome of those proceedings is unclear. 55. On 10 March 2010 the UNHCR office informed the applicant's lawyer that it had examined her client's application for international protection. The examination established that the applicant was “outside his country of nationality due to well-founded fear of being persecuted by the authorities of his country for reasons of imputed political opinions”, that he was “unable to return to the Republic of Tajikistan” and thus “eligible for international protection under the UNHCR mandate”. 56. On 7 August 2008 the Nagatinskiy District Court of Moscow ordered the applicant's placement in custody pending extradition, with reference to Articles 97, 99, 101 and 108 of the Russian CCrP and Article 61 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention” – see the Relevant Domestic Law below). The court stated, in particular, that the applicant was charged under the Tajikistani Criminal Code with a crime carrying a sentence of imprisonment, that he had fled from custody, did not have a permanent place of residence or registration in Russia and might, consequently, again abscond to avoid prosecution. It further stated that the need to place the applicant in custody was also justified by his eventual extradition to Tajikistan, and that the related proceedings had been instituted following the Tajik authorities' petition under Article 61 of the Minsk Convention. The decision did not specify the term of the applicant's detention and stated that it was open to appeal before the Moscow City Court within three days after its delivery. There is no indication that the applicant challenged the decision on appeal. 57. On 16 September 2008, the Simonovskiy District Court of Moscow ordered the applicant's placement in custody pending extradition, referring to Article 466 § 1 of the CCrP and Article 60 of the Minsk Convention. The court stated that the Russian Prosecutor General's Office was verifying the materials in respect of the applicant's extradition and that no grounds preventing it had been established. On 7 August 2008 the Nagatinskiy District Court had ordered the applicant's placement in custody pending receipt of the formal request for his extradition under Article 61 of the Minsk Convention. By the time of the examination of the case by the Simonovskiy District Court, that request had been received. The applicant was charged with having escaped from custody which, under the Tajikistani Criminal Code, was punishable with over two years' imprisonment. Furthermore, the applicant had absconded, he did not have a permanent place of residence or a permanent job in Russia and his name was on the international list of wanted persons. Hence, the applicant's requests for application of a non-custodial preventive measure were unfounded and he was to be remanded in custody. The decision did not set a time-limit for the applicant's detention and stated that it was open to appeal before the Moscow City Court within three days after its delivery. There is no indication that the applicant challenged the decision on appeal. 58. On 21 January 2009 the applicant complained to the Babushkinsky District Court of Moscow that his detention in the absence of a judicial decision had exceeded the two-month term set in Article 109 of the CCrP. He referred to Article 466 of the CCrP, Constitutional Court decisions nos. 101-0 and 333-O-P (see the section on Relevant Domestic Law below) and the fact that the latest court decision to place him in custody had been taken on 16 September 2008. He requested his immediate release. 59. On 27 January 2009 the Babushkinskiy District Court disallowed the applicant's complaint, finding that he had failed to comply with the formal requirements for lodging a civil claim, laid down in the Code of Civil Procedure. The applicant was invited to rectify the shortcomings and informed of his right to appeal against the decision. 60. On 14 September 2009 the applicant complained about his detention to the Nagatinskiy District Court. In particular, he averred that the latest detention order authorising his placement in custody was dated 16 September 2008 and that neither that decision nor the previous one dated 7 August 2008 specified the term of his detention. In any event, since 16 September 2008 the Nagatinskiy prosecutor's office had not requested the courts to extend his detention pursuant to Article 109, so it had become unlawful after the expiry of the two initially authorised two-month terms; that is to say that out of the thirteen months the applicant had spent in custody, nine months of that detention had been unlawful. Furthermore, the Babushkinskiy District Court had refused to examine the applicant's complaint about detention and the City Court had likewise disregarded his request for release submitted at the hearing of 20 April 2009. Relying on Articles 5 §§1 and 4 of the Convention, the Court's case-law, Articles 109 and 110 of the CCrP and the practice of the Constitutional Court, the applicant insisted that his detention had been unlawful, that he had not been provided with an effective remedy to complain about it and that the applicable legislation did not meet the requisite standards of quality of the law. Lastly, he argued that the extradition check against him had been finalised on 30 December 2008 and that after that date no action was taken with a view to extraditing him. 61. On 21 September 2009 the Nagatinskiy District Court refused to examine the applicant's complaint. It held firstly that the applicant had failed to appeal against the decision of 7 August 2008 within the required time-limits. As to the alleged inaction of the prosecutor's office, it was open to the applicant to complain about it under Article 125 of the CCrP to the Simonovskiy District Court, which had territorial jurisdiction over the matter. 62. On 21 October 2009 the applicant appealed against that decision to the Moscow City Court. 63. On the same date the applicant complained to the Simonovskiy District Court, reiterating his submissions made in the complaint of 14 September 2009. 64. By a letter of 29 October 2009 the Simonovskiy District Court returned the applicant's complaint of 21 October 2009, stating that in the Russian Federation criminal proceedings were conducted in accordance with the provisions of the CCrP and that the applicant had failed to refer to any provisions of the CCrP in his submissions. 65. On 8 December 2009 the applicant complained to the Prosecutor General's Office about his detention, averring that he had been held in custody for sixteen months and that twelve months of that detention had been unlawful because the prosecutor's office had failed to request the courts to extend it. He also stressed that the decision to extradite him had become final in June 2009, after which date no action had been taken with a view to extraditing him. 66. On 21 December 2009 the Moscow City Court dismissed the applicant's appeal against the decision of 21 September 2009. It held, in particular, that it was open to the applicant to complain about his detention to a court having territorial jurisdiction or to an appeal court. 67. On 30 December 2009 the Prosecutor General's Office replied to the applicant that his detention had been authorised first by the Nagatinskiy and then by the Simonovskiy District Court, pursuant to Article 466 § 1 of the CCrP. According to Article 109 of the CCrP, the maximum term of detention of persons charged with particularly serious crimes was up to eighteen months. The Prosecutor General's Office had decided on the applicant's extradition on 30 December 2008, that is within the required time-limit. The applicant's ensuing detention was prompted by his appeals to the courts against the extradition order and by the decision of the European Court of Human Rights to apply Rule 39 of the Rules of Court. As to the Supreme Court Ruling of 29 October 2009 (see below), it was applicable only to persons in respect of whom the Russian authorities were carrying out an extradition check, and not to those in respect of whom the Prosecutor General's Office had already issued an extradition order. In the applicant's case the Prosecutor General's Office had decided on 30 December 2008 to extradite him and that decision was to be enforced. 68. On 22 January 2010 the Ombudsman to the President of the Russian Federation (“the ombudsman”) wrote to the Prosecutor General of the Russian Federation stating, in particular, that the European Court of Human Rights had recently found a breach of Article 5 of the Convention on account of the unsatisfying quality of the law in several cases involving persons detained pending extradition. Yet the practice continued, in breach of the applicable Russian legislation, of keeping in custody foreign nationals whose detention on remand had not been extended. The ombudsman opined that the problem lay in the domestic authorities' inconsistent practice in applying the relevant legislation, and had persisted even after the Constitutional Court's Ruling no. 101-O and the Supreme Court's Ruling no. 22 (see Relevant Domestic Law below). The ombudsman referred to the Yuldashev, Isakov, Khaydarov and Sultanov cases, which were pending before the Court, in which the term of the applicants' detention pending extradition had exceeded the eighteen-month maximum term laid down in Article 109 of the CCrP. 69. The ombudsman further stressed that on 5 February 2010 the eighteen-month maximum detention term was about to expire for the applicant in the present case and that the domestic courts had twice authorised his remand in custody without setting any time-limit for his detention. He also stated that the Government were justifying the detention on remand of the applicants in the above-mentioned cases by the fact that the Strasbourg Court had indicated to them under Rule 39 to suspend their extradition. However, nothing in the Strasbourg Court's Rules provided for the respondent State's obligation to hold detainees whose extradition was suspended in custody in breach of the Russian legislation. Lastly, the ombudsman asked the Prosecutor General to carefully examine the situation of the persons mentioned in his letter, in particular with regard to the extension of their detention for an unlimited period of time, and to further improvement of the legislation and its correct application in order to prevent possible violations of the Convention. 70. By a letter of 8 February 2010 the Deputy Prosecutor General of the Russian Federation replied to the ombudsman. The letter, in so far as relevant, read as follows: “... ...the decisions to extradite the applicants in the cases mentioned [in your letter] were taken within the time-limits established by Article 109 of the CCrP, the lawfulness of those decisions was verified by the courts and those decisions are bound to be executed. To release the above-mentioned persons from custody would entail breach by the Russian Federation of its international obligations concerning extradition. The possibility to apply the provisions of the CCrP in respect of the time-limits for the detention of persons held in custody pending extradition was first mentioned in Constitutional Court Ruling no. 101-O ... In its Ruling... no. 158-O the Constitutional Court stated that in its previous Ruling no. 101-O it had not, and could not have, established what particular provisions of the CCrP were to regulate the procedures and time-limits for the detention of persons in custody pending extradition ... as it had no jurisdiction in the matter ... The Supreme Court, in its replies of 9 August and 6 October 2008 to the Prosecutor General's requests for clarification, explained that in deciding on procedures and time-limits for the detention of persons detained pending extradition, the authorities were to apply the provisions of the CCrP. However, this issue had never been examined by the Plenary of the Supreme Court and the practice of the domestic authorities in this respect had not been studied or summarised. Until 29 October 2009 there was no uniform judicial practice on this category of cases in different regions of the Russian Federation. Some judges requested that the time-limits for detention be extended, others refused to extend those time-limits, considering it unnecessary. On 26 November 2009, following the Supreme Court's Ruling no. 22 ..., the Prosecutor General's office sent out to prosecutors in all regions of the Russian Federation an information letter explaining the order on extending the time-limits for the detention of persons in respect of whom the extradition check was pending and the decision to extradite was not yet final... Further time-limits for the detention of a person pending extradition are regulated by Article 467 of the CCrP. The lengthy detention of Mr Yuldashev, Mr Isakov, Mr Khaydarov, Mr Sultanov and [the applicant] Mr A.Gaforov ... is at the present moment a consequence of the European Court's application of Rule 39 of the Rules of Court pending the examination of their cases [by the Strasbourg Court].” 71. On 23 April 2010 the Babushkinskiy district prosecutor ordered the applicant's release from custody, finding that the time-limits for his detention under Article 109 of the CCrP had expired and that there was no reason to extend his detention. 72. On the same date the Babushkinskiy District Court dismissed the prosecutor's request to confine the applicant to the detention centre for foreign nationals [центр содержания иностранных граждан ГУВД по г. Москве]. The court held that only persons charged with administrative offences could be held in the above-mentioned centre and that, in any event, the maximum time-limits for the applicant's detention had expired pursuant to Articles 107-109 of the CCrP. 73. It appears that the applicant was released shortly thereafter. 74. Chapter 13 of the CCrP governs the application of preventive measures. Preventive measures may be applied to a suspect or a person charged with an offence where it is probable that the person in question might abscond, continue to engage in criminal activities, threaten witnesses or hinder the investigation (Article 97). When deciding on the necessity to apply a preventive measure, it is necessary to take into account the gravity of the charges and the various personal details of the person concerned (Article 99). Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with at least two years' imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A request for placement in custody should be lodged by a prosecutor (or an investigator or inquirer with a prosecutor's prior approval) (Article 108 § 3). The request should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge's decision on placement in custody may be challenged before an appeal court within three days (Article 108 § 11). The period of detention pending investigation of a crime cannot exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level, further to a request lodged by a prosecutor (or an investigator or inquirer with a prosecutor's prior approval) (Article 109 § 2). Further extensions up to twelve months may be granted at the request of an investigator, with the approval of a prosecutor of the Russian Federation, only if the person is charged with a serious or particularly serious criminal offence or offences (Article 109 § 3). 75. Chapter 16 of the CCrP lays down the procedure by which acts or decisions of a court or public official in criminal proceedings may be challenged. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons' interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article 124). Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual's access to court” may be subject to judicial review (Article 125). 76. Under Article 466 § 1, upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his or her deputy is to decide on the preventive measure in respect of the person whose extradition is sought “in accordance with the established procedure”. If a foreign court's decision to place a person in custody is appended to the extradition request, a prosecutor is entitled to place that person under house arrest or remand him or her in custody without the Russian courts validating his decision (Article 466 § 2). 77. The Custody Act (Law no. 103-FZ of 15 July 1995) lays down the procedure and conditions for the detention of persons arrested under the CCrP on suspicion of criminal offences; it also applies to persons suspected or accused of criminal offences who are remanded in custody (Article 1). Persons suspected or accused of criminal offences have a right to lodge complaints with a court or another authority concerning the lawfulness and reasonableness of their detention (Article 17(7)). 78. The Constitutional Court examined the compatibility of Article 466 § 1 of the CCrP with the Russian Constitution and reiterated its constant case-law that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 79. In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms of Chapter 13 of the CCrP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCrP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCrP, or in excess of the time-limits fixed therein. 80. The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with a view to extradition. 81. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That was a matter for the courts of general jurisdiction. 82. In this decision the Constitutional Court reiterated that Article 466 of the CCrP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure. 83. By a decision (решение) of 14 February 2003 the Supreme Court of the Russian Federation granted the Prosecutor General's request and classified a number of international and regional organisations as terrorist organisations, including HT (also known as the Party of Islamist Liberation), and prohibited their activities on Russian soil. It held that HT aimed to overthrow non-Islamist governments and to establish “Islamist governance on an international scale by reviving a Worldwide Islamist Caliphate”, in the first place in the regions with predominantly Muslim populations, including Russia and other members of the Commonwealth of Independent States. 84. By a Directive Decision No.1 adopted by the Plenary Session of the Supreme Court of the Russian Federation on 10 February 2009, (“Directive Decision of 10 February 2009”) the Plenary Session issued several instructions to the courts on the application of Article 125 of the CCrP. The Plenary reiterated that any party to criminal proceedings or other person whose rights and freedoms were affected by actions or the inaction of the investigating or prosecuting authorities in criminal proceedings could invoke Article 125 of the CCrP to challenge a refusal to institute criminal proceedings or a decision to terminate them. The Plenary stated that whilst the bulk of decisions amenable to judicial review under Article 125 also included decisions to institute criminal proceedings, refusals to admit a defence counsel or to grant victim status, a person could not rely on Article 125 to challenge a court's decision to apply bail or house arrest or to remand a person in custody. It was further stressed that in declaring a specific action or inaction of a law enforcement authority unlawful or unjustified, a judge was not entitled to annul the impugned decision or to oblige the official responsible to annul it but could only request him or her to rectify the indicated shortcomings. Should the authority concerned fail to comply with the court's instructions, an interested party could complain to a court about the authority's inaction and the latter body could issue a special decision [частное определение], drawing the authority's attention to the situation. Lastly, the decision stated that a prosecutor's decision to place a person under house arrest or to remand him or her in custody with a view to extradition could be appealed against to a court under Article 125 of the CCrP. 85. In a Directive Decision No. 22, adopted by the Plenary Session of the Supreme Court of the Russian Federation on 29 October 2009 (“Directive Decision of 29 October 2009”), it was stated that, pursuant to Article 466 § 1 of the CCrP, only a court could order placement in custody of a person in respect of whom an extradition check was pending and the authorities of the country requesting extradition had not submitted a court decision to place him or her in custody. The judicial authorisation of placement in custody in that situation was to be carried out in accordance with Article 108 of the CCrP and following a prosecutor's petition to place that person in custody. In deciding to remand a person in custody a court was to examine if there existed factual and legal grounds for applying the preventive measure. If the extradition request was accompanied by a detention order of a foreign court, a prosecutor was entitled to remand the person in custody without a Russian court's authorisation (Article 466 § 2 of the CCrP) for a period not exceeding two months, and the prosecutor's decision could be challenged in the courts under Article 125 of the CCrP. In extending a person's detention with a view to extradition a court was to apply Article 109 of the CCrP. 86. Recommendation No. R (98) 13 of the Council of Europe Committee of Ministers to Member States on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights reads as follows: “The Committee of Ministers... Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request, as recommended, among others, in Council of Europe Recommendation No. R (81) 16 of the Committee of Ministers, Recommends that governments of member states, while applying their own procedural rules, ensure that the following guarantees are complied with in their legislation or practice: 1. An effective remedy before a national authority should be provided for any asylum seeker whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment. 2. In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when: ... 2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief; ... 2.4. the execution of the expulsion order is suspended until a decision under 2.2 is taken.” 87. The Council of Europe Commissioner for Human Rights issued a Recommendation (CommDH(2001)19) on 19 September 2001 concerning the rights of aliens wishing to enter a Council of Europe Member State and the enforcement of expulsion orders, part of which reads as follows: “11. It is essential that the right of judicial remedy within the meaning of Article 13 of the ECHR be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the ECHR is alleged.” 88. For other relevant documents, see the Court's judgment in the case of Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§ 36-38, ECHR 2007 V. 89. When performing actions requested under the Minsk Convention, to which Russia and Tajikistan are parties, a requested official body applies its country's domestic laws (Article 8 § 1). 90. Upon receipt of a request for extradition, the requested country should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60). 91. The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3). 92. A person detained pending extradition pursuant to Article 61 § 1 of the Minsk Convention must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within forty days from the date of placement in custody (Article 62 § 1). 93. The “Conclusions and Recommendations: Tajikistan”, issued by the UN Committee against Torture on 7 December 2006 (CAT/C/TJK/CO/1), pointed out the following areas of concern regarding the human rights situation in the country: “The definition of torture provided in domestic law ... is not fully in conformity with the definition in article 1 of the Convention, particularly regarding purposes of torture and its applicability to all public officials and others acting in an official capacity. ... There are numerous allegations concerning the widespread routine use of torture and ill-treatment by law enforcement and investigative personnel, particularly to extract confessions to be used in criminal proceedings. Further, there is an absence of preventive measures to ensure effective protection of all members of society from torture and ill-treatment. ... The Committee is also concerned at: (a) The lack of a legal obligation to register detainees immediately upon loss of liberty, including before their formal arrest and arraignment on charges, the absence of adequate records regarding the arrest and detention of persons, and the lack of regular independent medical examinations; (b) Numerous and continuing reports of hampered access to legal counsel, independent medical expertise and contacts with relatives in the period immediately following arrest, due to current legislation and actual practice allowing a delay before registration of an arrest and conditioning access on the permission or request of officials; (c) Reports that unlawful restrictions of access to lawyers, doctors and family by State agents are not investigated or perpetrators duly punished; (d) The lack of fundamental guarantees to ensure judicial supervision of detentions, as the Procuracy is also empowered to exercise such oversight; (e) The extensive resort to pretrial detention that may last up to 15 months; and (f) The high number of deaths in custody. ... There are continuing and reliable allegations concerning the frequent use of interrogation methods that are prohibited by the Convention by both law enforcement officials and investigative bodies. ... There are reports that there is no systematic review of all places of detention, by national or international monitors, and that regular and unannounced access to such places is not permitted.” 94. The report by Amnesty International entitled “The State of The World's Human Rights”, released in 2007, in so far as relevant, reads as follows: “... There were continuing reports of unlawful arrests and widespread and routine torture or other ill-treatment by law enforcement officers, several of whom were sentenced to prison terms. ... Sadullo Marufov, a member of the Islamic Renaissance Party (IRP), died in police custody in May after he was detained for questioning by law enforcement officers in Isfara. Initially the officers claimed that he had committed suicide by jumping from a third floor window. The IRP claimed that an autopsy report indicated that he had been beaten and ill-treated, and alleged that he had been pushed from the window. The general prosecutor's office subsequently announced that following an investigation three officers had been detained.” 95. In its “World Report 2008 – Tajikistan” of 31 January 2008 the Human Rights Watch stated as follows: “Tajikistan's human rights situation continues to be characterized by lack of access to justice, due process violations, incommunicado detention, and ill-treatment in custody. The government interferes with opposition political parties. Government harassment of non-traditional religious groups and Muslim groups that are independent of state-controlled religious bodies has intensified. ... Torture and Ill-treatment in Custody Human rights organizations and lawyers continue to receive reports of arbitrary arrests, violations of detention procedures and fair trial standards, and credible, serious allegations of ill-treatment and torture in detention. Defense lawyers themselves are subject to threats and harassment if they insist on effective assistance of counsel. Tajikistan has not amended its law on torture to comply fully with the UN Committee Against Torture's recommendations to the country in December 2006. Law enforcement officials can be charged with "abuse of professional competency" (criminal code article 314), but not with torture. National legislation does not prohibit torture evidence from being admitted at trial. Impunity for ill-treatment in detention continues to be widespread. There were, however, at least two cases in 2007 in which law enforcement officers were prosecuted for ill-treatment. In April police lieutenant Nurullo Abdulloev was sentenced to seven years' imprisonment by a court in Kulyab for the unlawful detention and ill-treatment of two detainees. In another case in April, two police officers were each sentenced to two years' imprisonment for beating and torturing with electrical shock a 15-year-old boy in the capital, Dushanbe. All three men were convicted under article 314. ... Actions in the Name of Countering Terrorism and Extremism In 2007 law enforcement bodies continued to arrest individuals simply because they were accused of possessing leaflets of Hizb ut-Tahrir, a banned Islamic organization, and at least three alleged Hizb ut-Tahrir members were sentenced to more than 10 years' imprisonment each for "incitement of ethnic and religious hatred" and "membership in extremist organizations." In the first case of a child being imprisoned for membership in Hizb ut-Tahrir, Muminbek Mamedov, a 17-year-old boy, was sentenced to eight years' imprisonment. In January the Supreme Court banned another 10 organizations, including the Islamic Movement of Turkestan, as "extremist." In August a small Islamist group, Mavlavi, was banned on the grounds that it holds "unsanctioned gatherings." Uzbek and Tajik citizens continue to be arrested for alleged membership in the Islamic Movement of Uzbekistan. In these highly political cases involving terrorism charges, the suspects are frequently denied procedural protection and the right to a fair trial, and routinely suffer from inhumane treatment in detention. ... Visiting Tajikistan in April, United Nations High Commissioner for Human Rights Louise Arbour called on the government to ensure better access to justice and to allow local and international monitors, including the International Committee of the Red Cross, to visit detention places. Asma Jahangir, the UN special rapporteur on freedom of religion or belief, visited Tajikistan in February, concluding that religious communities and individuals faced "challenges," and underscoring the importance of the government's ensuring that "especially vulnerable individuals" be protected "from harassment by non-State actors in the name of religion." In March the UN Human Rights Committee issued two decisions on applications alleging abuses by Tajik authorities. It found that in both Ashurov v. Tajikistan, and Karimov and Nursatov v. Tajikistan the victims had been subjected to torture and unfair trial. The decisions urge Tajik authorities to ensure effective remedy to the applicants, including compensation, and in the Ashurov case to immediately release the victim. At this writing the government has not implemented the decisions.” 96. In its monthly report of November 2008 the Bureau on Human Rights and the Rule of Law, an NGO established in Tajikistan, provided the following information on the situation regarding torture in detention in that country: “In Tajikistan only 2% of victims of torture are able to prove that fact and have the perpetrators punished... This conclusion is based on the findings of the research of practice of ill-treatment by law enforcement officials at arrest and during the preliminary investigation carried out by the League of lawyers and the public foundation “Panorama”. Having interviewed the victims, the researchers came to the following conclusions. The detainees stated that they had been subjected to the following methods of illtreatment: psychological pressure – 24%; being hit, kicked and beaten with truncheon on different parts of the body – 32,5%; threats of physical violence – 12,5%. 32% of victims stated that they had been simultaneously subjected to various forms of torture, in particular, torture with electricity, threats and beatings. 57% of victims of torture and ill-treatment suffered from psychological disorder, one third of the interviewed had bodily injuries. 3% of victims of torture or illtreatment had grave bodily injuries. There were also fatal cases [among those examined by the researchers]. There were suspiciously many cases of suicides committed in custody. The research showed that the perpetrators were mostly unpunished. The main reason for this was that the majority of victims of torture were not complaining to law enforcement bodies. Only 24% [of the interviewed] submitted such complaints. The main reasons for failure to complain were fear of reprisals (44,5%), lack of trust towards the law enforcement officials (29%), lack of knowledge of the relevant procedures (6,7%)....” 97. The World Report chapter on Tajikistan by Human Rights Watch released in January 2009, in so far as relevant, reads as follows: “Actions in the Name of Countering Terrorism and Extremism Following a recommendation by the prosecutor general, the Supreme Court of Tajikistan designated Hizb ut-Tahrir, a group that supports the reestablishment of the Caliphate, or Islamic state, by peaceful means, an "extremist" organization. The government continued to arrest alleged Hizb ut-Tahrir members and convict them either of sedition or incitement to racial, ethnic, or religious hatred, often simply for possessing the organization's leaflets. ... Torture and Deaths in Custody Tajikistan's definition of torture does not comply fully with the UN Committee Against Torture's recommendations to the country in December 2006. In a positive move, in March 2008 the Criminal Procedure Code was amended to make evidence obtained under torture inadmissible in court proceedings. Experts agree that in most cases there is impunity for rampant torture in Tajikistan. In one of the few cases that reached the courts, two policemen in Khatlon province were convicted in August 2008 for ill-treating minors; one of the two received a fouryear prison sentence, and the other a suspended sentence. NGOs and local media reported at least three deaths in custody in 2008, including the death from cancer of the ex-deputy chair of the Party of Islamic Revival Shamsiddin Shamsiddinov. The party alleged his arrest in 2003 was politically motivated and claimed that his life could have been saved had he been allowed to undergo surgery. In an April 1, 2008 decision (Rakhmatov et al. v. Tajikistan) the UN Human Rights Committee found that Tajikistan violated the rights, including freedom from torture, of five applicants, two of them minors when they were arrested. Tajikistan failed to cooperate with the committee's consideration of the complaint. Similar violations were established in an October 30, 2008 decision (Khuseynov and Butaev v. Tajikistan)”. 98. In January 2010 the Human Rights Watch released its World Report 2010, where the chapter on Tajikistan, in so far as relevant, states: “Torture is routinely used by law enforcement officials, and the Tajik government continues to deny human rights groups access to places of detention. ... Torture Torture is practiced by law enforcement officers and within the penitentiary system in a culture of near-impunity. It is often used to extract confessions from defendants, who during initial detention are often denied access to family and legal counsel. To date the Tajik government has refused all requests from human rights groups to visit detention sites, interrogation rooms and prisons. Tajikistan's definition of torture does not fully comply with recommendations made to the country by the United Nations Committee against Torture in November 2006. In a small sign of a progress, local and international human rights groups recently completed a campaign to document instances of torture in Tajikistan, as part of a twoyear project funded by the European Union. That project, which was run in Tajikistan by the Bureau on Human Rights and the Rule of Law, determined that over the past two years there had been more than 90 cases of torture. Freedom of Religion ... There continued to be reports of the Tajik authorities prosecuting alleged members of Hizb ut-Tahrir, an international Islamic organization that is banned in several countries in the region, and sentencing them to long prison terms on questionable evidence.” 99. The 2009 US Department of State Country Report on Human Rights Practices, released on 11 March 2010, in so far as relevant, reads as follows: “The government's human rights record remained poor, and corruption continued to hamper democratic and social reform. The following human rights problems were reported: ... torture and abuse of detainees and other persons by security forces; impunity of security forces; denial of right to fair trial; harsh and life-threatening prison conditions; prohibition of international monitor access to prisons; ... The law prohibits [cruel, inhumane or degrading treatment or punishment], but some security officials used beatings or other forms of coercion to extract confessions during interrogations, although the practice was not systematic. Officials did not grant sufficient access to information to allow human rights organizations to investigate claims of torture. In Sughd region, four suspects arrested in a murder case claimed investigators tortured them seeking to extract confessions. One suspect claimed an investigator threatened to 'ruin' his daughter if he did not confess to a crime. The same individual stated he lost toenails as a result of torture while in custody. The courts dismissed the individual's claim of torture, and he was convicted of murder and other crimes and sentenced to 30 years in prison. Several individuals held in Dushanbe city jails also claimed they were beaten while in custody. Articles in the criminal code do not specifically define torture, and the country's law enforcement agencies have not developed effective methods to investigate allegations of torture. According to a report during the year by Human Rights Watch, 'Experts agreed that in most cases there is impunity for rampant torture in Tajikistan'. In an April 2008 court decision (Rakhmatov et al. v. Tajikistan) the UN Human Rights Committee found that the government violated the human rights, including freedom from torture, of three adults and two minors. The committee also noted that the government failed to cooperate with the committee and that similar allegations were substantiated in an October 2008 court decision (Khuseynov and Butaev v. Tajikistan). Denial of access to detention centres impeded efforts to determine if any improvements had occurred since then. ... The Ministry of Justice (MOJ) continued to deny access to prisons or detention facilities to representatives of the international community and civil society seeking to investigate claims of harsh treatment or conditions. Some foreign diplomatic missions and NGOs were given access to implement assistance programs or carry out consular functions, but their representatives were limited to administrative or medical sections, and MOJ personnel accompanied them. The government did not sign an agreement with the International Committee of the Red Cross (ICRC) to allow free and unhindered access to prisons and detention centres, and the ICRC's international monitoring staff has not returned to the country since 2007. Detainees and inmates described harsh and life-threatening prison conditions, including extreme overcrowding and unsanitary conditions. Disease and hunger were serious problems, but outside observers were unable to assess accurately the extent of the problems because authorities did not allow access to prisons. Organizations such as the UN Human Rights Council reported that infection rates of tuberculosis and HIV were significant and that the quality of medical treatment was poor. ... The government placed few checks on the power of prosecutors and police to make arrests. The criminal justice system operated under the criminal procedure code based on a 1961 Soviet law. Individuals reported that some prosecutors and courts pressed questionable criminal charges and that some officials influenced judges inappropriately to get convictions. In December the government approved a new criminal procedure code to replace the existing code in April 2010. ... Victims of police abuse may submit a formal complaint in writing to the officer's superior or the Office of the Ombudsman. Most victims chose to remain silent rather than risking retaliation by the authorities. ... By law prosecutors are empowered to issue arrest warrants, and there is no requirement for judicial approval of an order for pre-trial detention. Police may detain a suspect without a warrant in certain circumstances, but a prosecutor must be notified within 24 hours of arrest. After a warrant is issued, the police may hold a suspect 72 hours before arraignment. Defence advocates alleged that prosecutors often held suspects for longer periods and only registered the initial arrest when the suspect was ready to confess. Pre-trial detention may last as long as 15 months in exceptional circumstances. ... Prosecutors oversee pre-trial investigation and have the right to initiate criminal proceedings. Individuals have the right to an attorney upon arrest and the government must appoint lawyers for those who cannot otherwise afford one. In practice the government provided few attorneys for public defence, and these attorneys were generally ineffective. There is no bail system, although criminal detainees may be released conditionally and restricted to their place of residence pending trial. The typical length of pre-trial detention was two to three months. According to the law, family members are allowed access to prisoners only after indictment; officials occasionally denied attorneys and family members access to detainees. Authorities held detainees charged in crimes related to national security incommunicado for long periods without formally charging them. In January, after relatives of former citizen Muhammadi Salimzoda sought his whereabouts for five months, the SCNS admitted that Salimzoda had been in state custody the entire period. Salimzoda was sentenced to 29 years' imprisonment for espionage and attempting to overthrow the government, but he claimed security personnel obtained his confession to the crimes under physical and psychological duress. The government generally provided a rationale for arrests, although some detainees claimed that authorities falsified charges or inflated minor problems to make politically motivated arrests. Some police and judicial officials regularly accepted bribes in exchange for lenient sentencing or release. ... Authorities claimed that there were no political prisoners and that they did not make any politically motivated arrests. Opposition parties and local observers claimed the government selectively prosecuted political opponents. There was no reliable estimate of the number of political prisoners, but former opposition leaders claimed there were several hundred such prisoners held in the country, including former fighters of the UTO. In February Rustam Fayziev, deputy chairman of the unregistered Party of Progress, died in prison after four years of confinement for insulting and defaming President Rahmon in a 2005 unsent, unpublished letter. The government claimed his death was the result of natural causes. Muhammadruzi Iskandarov, head of the Democratic Party of Tajikistan and former chairman of Tojikgaz, the country's state-run gas monopoly, remained in prison following his unlawful extradition from Russia and 2005 conviction for corruption. Former interior minister Yakub Salimov remained in prison serving a 15-year sentence for crimes against the state and high treason following his 2005 closed trial.” 100. The chapter “Tajikistan” in the Amnesty International report “The State of the World's Human Rights”, released in May 2010, states, in so far as relevant: “The Government continued to exert tight control over the exercise of religion. Reports of torture and other ill-treatment by law enforcement officers continued. ... Torture and ill-treatment Report of torture and ill-treatment by law enforcement officials continued, in particular, to extract confessions during the first 72 hours, the maximum period suspects could be held without charge. On 27 June, Khurshed Bobokalonov, a specialist in the Tajikistani Oncology Centre, dies after being arrested by the police. He had been walking along the street when the police stopped him and accused him of being drunk. He protested, and some 15 policemen bundled him into a police car. The Ministry of the Interior claimed that he died of a heart attack on the way to the police station. His mother reported injuries on her son's face and body, and on 22 July the Minister of the Interior announced an investigation into possible “death through negligence”. There was no public information about the progress of the investigation by the end of the year.”

dev

001-4795

ENG

FIN

ADMISSIBILITY

TH-TEKNIIKKA OY:N KONKURSSIPESÄ v. FINLAND

Inadmissible

Georg Ress

The applicant is a Finnish bankrupt’s estate, whose domicile is Tampere. It is represented before the Court by Mr Mika Ala-Uotila, a lawyer practising in Nokia. A. In February 1995 the applicant brought an action for recovery against a company T before the Tampere District Court (käräjäoikeus, tingsrätt). On 5 May 1995 the District Court partly rejected and partly accepted the applicant’s claims. Both the applicant and the company T appealed to the Turku Court of Appeal (hovioikeus, hovrätt). The applicant also submitted a new piece of evidence. After the time for appeal had expired, the applicant filed another submission requesting an oral hearing. The company T had requested a hearing in its appeal. On 3 May 1996 the Court of Appeal, in written proceedings, reversed the District Court’s decision and dismissed the applicant’s action. Under Chapter 25, Section 14, Subsection 2, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk On 16 October 1996 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal. B. Relevant domestic law The relevant domestic law as in force at the relevant time may be summarised as follows: Under Chapter 25, Section 14, Subsection 2, of the Code of Judicial Procedure, no new evidence, which had not been submitted to the District Court, was allowed before the Court of Appeal, unless the appellant could prove that he had been unable to submit the evidence before the District Court or that he had had a valid reason for not doing so. According to Chapter 26, Section 7, Subsection 1, of the Code of Judicial Procedure, a Court of Appeal could hold, when necessary, an oral hearing, where parties, witnesses and experts could be heard, and other evidence could be taken.

dev

001-95201

ENG

TUR

CHAMBER

CASE OF ÜRPER AND OTHERS v. TURKEY

Violation of Art. 10;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award

Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky

5. At the material time the applicants were the owners, executive directors, editors-in-chief, news directors and journalists of four daily newspapers published in Turkey: Ülkede Özgür Gündem, Gündem, Güncel and Gerçek Demokrasi. The publication of all four newspapers was regularly suspended, pursuant to section 6(5) of Law no. 3713 (the Prevention of Terrorism Act), by various Chambers of the Istanbul Assize Court, between 16 November 2006 and 25 October 2007, for periods ranging from 15 days to a month in respect of various news reports and articles. The impugned publications were deemed to be propaganda in favour of a terrorist organisation, the PKK/KONGRA-GEL, as well as the approval of crimes committed by that organisation and its members. 6. In the first case against Ülkede Özgür Gündem on 16 November 2006, the trial judge considered that the content of certain reports and articles contained elements of propaganda, the approval of terrorist crimes and had identified officials who risked terrorist attack, contrary to section 6(5) of Law no. 3713. Their content thus exceeded the permissible limits of Article 10 of the Convention. Moreover, the offences had not been limited to a single issue of the newspaper, but had been continuous. Consequently, he was authorised by section 6(5) to suspend the publication and distribution of the periodical for a period of fifteen days to a month. 7. In the case against Güncel on 16 July 2007, the newspaper was suspended for 15 days, not by virtue of section 6(5) of Law no. 3713, but because its owners, journalists and content were the same as those of Gündem, whose publication and distribution had been suspended for 15 days by a court decision of 12 July 2007. 8. Neither the applicants nor their representative participated in these ex parte procedures, and their written objections to the suspension orders were dismissed. Consequently, the orders were executed. 9. The applicant Ali Gürbüz, the owner of Ülkede Özgür Gündem, was prosecuted under sections 6(1) and (2) and 7(2) of Law no. 3713, as well as Article 215 of the Criminal Code, for disseminating propaganda in favour of the aforementioned organisation, approving crimes committed by that organisation and its members, and identifying officials with anti-terrorist duties as targets, in respect of various articles published in their newspaper (case no. 2007/367). Ali Gürbüz was convicted and fined 380,000 new Turkish liras (TRY) (approximately 217,000 euros (EUR)). 10. The applicant Özlem Aktan, the executive director of Ülkede Özgür Gündem and Gündem, was similarly prosecuted. Her first case concerning the former newspaper was disjoined from that of Ali Gürbüz. Her second case (no. 2007/197) involved another applicant, Lütfi Ürper, the owner of Gündem and Güncel. They were charged under sections 5, 6(2) and (4) and 7(2) of Law no. 3713, as well as Articles 215 and 218 of the Criminal Code. Lütfi Ürper was prosecuted on three other occasions on similar charges (case nos. 2007/419, 2007/343 and 2007/482). Another applicant, Hüseyin Bektaş, the owner and executive director of Gerçek Demokrasi, was prosecuted for the same offences under sections 6(2) and 7(2) of Law no. 3713 and Article 215 of the Criminal Code. 11. According to the information in the case file, all these prosecutions are still pending at first instance, except for that against Ali Gürbüz, which is apparently still pending before the Court of Cassation. 12. Article 28 of the Constitution of Turkey reads as follows: “The press is free and shall not be censored. The establishment of a publishing company shall not be subject to prior permission or the deposit of a financial guarantee. The State shall take the necessary measures to ensure freedom of the press and freedom of information. As regards restrictions on freedom of the press, Articles 26 and 27 of the Constitution are applicable. Anyone who writes or prints any news or articles which threaten the internal or external security of the State or the indivisible integrity of the State with its territory and nation, which are aimed at inciting offences, riot or insurrection, or which refer to classified State secrets, and anyone who prints or transmits such news or articles to others for the above purposes, shall be held responsible under the law governing these offences. Distribution may be suspended as a preventive measure by the decision of a judge or, in the event that delay is deemed prejudicial, by the competent authority designated by law. The authority suspending distribution shall notify a competent judge of its decision within twenty-four hours. The order suspending distribution shall become null and void unless upheld by a competent judge within forty-eight hours. No ban shall be placed on the reporting of events except by a judge's decision designed to ensure the proper functioning of the judiciary, within the limits specified by law. Periodical and non-periodical publications may be seized by the decision of a judge in the event of an ongoing investigation into or prosecution of offences prescribed by law and, in situations where a delay could endanger the indivisible integrity of the State with its territory and nation, national security, public order or public morals, and for the prevention of an offence, by order of the competent authority designated by law. The authority issuing the order to confiscate shall notify a competent judge of its decision within twenty-four hours. The order to confiscate shall become null and void unless upheld by the competent court within forty-eight hours. The general common provisions shall apply to the seizure and confiscation of periodicals and non-periodicals for the purposes of criminal investigation and prosecution. Publication of periodicals published in Turkey may be temporarily suspended by order of the courts in the event of a criminal conviction on account of their containing material which undermines the indivisible integrity of the State with its territory and nation, the fundamental principles of the Republic, national security and public morals. Any publication which is clearly a continuation of a suspended periodical shall be prohibited and shall be seized following a decision by a competent judge.” 13. The relevant provisions of the Prevention of Terrorism Act (Law no. 3713), amended by Law no. 5532, which entered into force on 18 July 2006, read as follows: “1. It shall be an offence, punishable by a term of imprisonment of one to three years, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person's ... identity is divulged, provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target. 2. It shall be an offence, punishable by a term of imprisonment of one to three years, to print or publish declarations or leaflets emanating from terrorist organisations. ... 4. If any of the offences defined in the paragraphs above are committed through the press or the media, the owners and editors-in-chief of the press and media organs concerned who did not participate in the commission of the offence shall also be liable to a judicial fine equivalent to between a thousand and ten thousand days' imprisonment. However, the maximum limit of this punishment shall be the equivalent of five thousand days for editors-in-chief. 5. Periodicals whose content openly encourages the commission of offences within the framework of the activities of a terrorist organisation, approves of the offences committed by a terrorist organisation or its members or constitutes propaganda in favour of the terrorist organisation may be suspended for a period of fifteen days to one month as a preventive measure by decision of a judge or, if a delay is detrimental, on an instruction from a public prosecutor. The public prosecutor shall notify the judge of such instruction within twenty-four hours. If the judge does not approve the decision within forty-eight hours, the instruction to suspend publication shall become null and void.” On 3 March 2006 the former President of Turkey lodged a case with the Constitutional Court (case no. 2006/121) challenging the validity of section 6(5) of Law no. 3713. It had been argued, inter alia, that this section had created an unconstitutional penalty. On 18 June 2009 the Constitutional Court dismissed the case (decision no. 2009/90). “Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of one to five years. Where this offence is committed through the press or the media, the sentence shall be increased by half. Moreover, the owners and editors-in-chief of the press and media organs concerned who did not participate in the commission of the offence shall also be liable to a judicial fine equivalent to between one thousand and ten thousand days' imprisonment. However, the maximum limit of this punishment shall be the equivalent of five thousand days for editors-in-chief.” 14. The relevant provisions of the Criminal Code (Law no. 5237) read as follows: “(1) A person who abets commission of an offence shall be liable to a term of imprisonment of fifteen to twenty years if the offence is punishable by an aggravated life sentence and ten to fifteen years where the offence is punishable by a life sentence. Punishment is reduced by half in all other circumstances. However, in the latter case the punishment cannot exceed eight years. (2) A person is deemed to have abetted commission of an offence in the following circumstances: (a) Encouragement to commit an offence...” “Any person who approves of an offence committed, or praises a person on account of an offence he or she has committed, shall be liable to a term of imprisonment of up to two years.” “Where one of the offences proscribed by Articles 213-217 is committed through the press or the media, the sentence shall be increased by half.”

dev

001-97924

ENG

MKD

CHAMBER

CASE OF MITRESKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

5. The applicant was born in 1982 and lives in Kicevo. 6. At 11.30 a.m. on 12 February 2009 the applicant was arrested and taken into police custody. On 13 February 2009 an investigating judge from the Gostivar Court of First Instance (“the trial court”) questioned the applicant, who was assisted by counsel. An investigation was opened on the grounds of reasonable suspicion of extortion of money from a minor. The investigating judge refused a request by the public prosecutor for the applicant to be detained in prison, but ordered, instead, thirty days' house arrest (куќен притвор). That measure required the applicant to remain at home and to refrain from using any means of communication for the duration of the order. His passport was also seized and the police were ordered to check his presence in the house twice a day. The judge considered that there were reasonable grounds for suspecting the applicant of having committed the offence, but that in the light of his clean record and family circumstances, a non-custodial measure, such as house arrest, was preferable. The applicant's house arrest was ordered on all the grounds specified in section 199 of the Criminal Proceedings Act (see paragraph 14 below). This decision was served on the applicant and his lawyer at 5 p.m. 7. At 7 p.m. the same day, the public prosecutor appealed on the ground that the investigating judge had not provided sufficient reasons for refusing to detain the applicant in prison and had not examined whether house arrest could be supervised effectively. The applicant did not appeal. 8. On 14 February 2009 a three-judge panel of the trial court (“the panel”), sitting in private, allowed the appeal and replaced the order for the applicant's house arrest with an order for his detention in prison. It further quashed the order for the confiscation of the applicant's passport. The panel found that there was a danger that the applicant would interfere with the investigation, in particular by putting pressure on witnesses who had not been heard yet and on the victim, who, being a minor, was vulnerable. Having regard to the gravity of the offence and the way in which it had been committed, the panel ruled that house arrest was an inadequate measure in the applicant's case. This decision was served on the applicant at noon. No appeal lay against the panel's decision. 9. On 26 February 2009 the investigating judge terminated the panels' order for the applicant's detention in prison and ordered thirty days' house arrest accompanied by the same security measures described above (see paragraph 6 above). The judge found no justification for the applicant's continued detention in prison since the investigation had been completed. In this connection, he noted that evidence had been taken from the victim and witnesses proposed by both parties. Given the accompanying measures ordered, there was no likelihood of reoffending or obstructing the course of justice by influencing other witnesses, if any. 10. On 27 February 2009 the panel dismissed the public prosecutor's appeal, finding the house arrest and accompanying measures adequate to ensure the applicant's attendance at the trial. 11. The panel, sitting in first instance, extended the applicant's house arrest on two occasions, namely, on 26 March and 24 April 2009, with the stated aim of ensuring his attendance at trial. In doing so, it relied on the gravity of the charges and potential penalty. The applicant unsuccessfully appealed against both orders. The Gostivar Court of Appeal's decisions dismissing the applicant's appeals dated 23 April and 20 May 2009 respectively. 12. On 21 May 2009 the trial court convicted the applicant of extortion and sentenced him to one and a half years' imprisonment. It further extended the house arrest order until the criminal proceedings are completed. The proceedings are underway. 13. Section 22(6) of the Criminal Proceedings Act (“the Act”) provides that a three-judge panel of the trial court decides, inter alia, appeals against decisions of the investigating judge. 14. Under section 199(1), paragraphs 1-3, of the Act, pre-trial detention can be ordered on reasonable suspicion that the person concerned has committed an offence if there is a risk of his or her absconding, interfering with the investigation or reoffending. 15. Under section 200(1), (6) and (8) of the Act, an investigating judge has jurisdiction to order pre-trial detention. The detainee may challenge the detention order before the panel within 24 hours. The appeal does not suspend the execution of the detention order. The panel must decide the appeal within 48 hours. The detainee, through his or her lawyer, can request to be notified of the date of the hearing before the panel in order to be able to present his or her arguments orally. 16. Section 205(2) and (6) of the Act provides that the panel, set up under section 22(6), may extend the period of detention by up to 60 days at the request of the investigating judge. Such an order can be challenged before the next level of jurisdiction.

dev

001-87232

ENG

TUR

ADMISSIBILITY

MANITARAS AND OTHERS v. TURKEY

Inadmissible

David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

1. The applicants (first applicant: Mr Andreas Manitaras; second applicant: Mr Elias Elia; third applicant: Mr Panayiotis Elia; fourth applicant: Mrs Anna Manitara; fifth applicant: Mrs Evangelia Manitara; sixth applicant: John Manitaras) are six Cypriot nationals of Greek Cypriot origin who were born in 1939, 1955, 1956, 1957, 1959 and 1964 respectively. The second applicant is living in Meneou and the third, fourth and fifth applicants are living in Paralimni. The first and sixth applicants have dual Cypriot and British nationality and live in the United Kingdom. 2. The applicants brought their application on their own behalf and on behalf of Ioannis Manitaras, a Cypriot national of Greek Cypriot origin who was born in 1914 and died on 4 April 1999. The first, second, third, fourth and fifth applicants are the children of Ioannis Manitaras, and the sixth applicant is his grandson. 3. The applicants are represented before the Court by Mr Z. Koulias, a lawyer practising in Larnaca. The Turkish Government (“the Government”) are represented by their Agent, Mr Z.M. Necatigil. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. Ioannis Manitaras was born and raised in the village of Rizokarpaso in the Karpas peninsula, district of Famagusta, in northern Cyprus. He worked there as a farmer and owned a house with some land. 6. Following the Turkish intervention of 1974, Ioannis Manitaras remained in Rizokarpaso as one of the “enclaved”, that is, a small remaining group of Greek Cypriot residents of the Karpas peninsula who continue to live there under Turkish occupation. In February 1998 he gave evidence to the delegation of the European Commission of Human Rights in the course of the Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001-IV) proceedings at a hearing held at the Ledra Palace Hotel in Nicosia. 7. On 4 April 1999 Ioannis Manitaras was found dead in his house in Rizokarpaso. 8. On 5 April 1999 a post-mortem examination was carried out by Dr Horoz, a general practitioner authorised by the local authorities. He concluded that Ioannis Manitaras had died of a myocardial infection. Consequently, a press statement was issued by the Ministry of Foreign Affairs of the Turkish Republic of Northern Cyprus (“the TRNC”) confirming the findings of this report. A medical officer from the United Nations Peacekeeping Forces in Cyprus (UNFICYP) was present at the post-mortem examination. He also prepared a brief report, without referring to the cause of death. 9. The applicants allege that they were unable to bury the deceased in his home village because of restrictions on freedom of worship and repeated vandalism of Greek Cypriot graves. Thus they arranged for him to be buried in the southern part of Cyprus. They allege that the body was handed over to them in a particularly distressing and disrespectful manner and that the Turkish authorities showed a total lack of regard for the grieving family. In particular, they state that when it was delivered to them, the deceased’s body was partially covered in an old sheet and was not in a temporary coffin or body bag. Further, the sixth applicant, the grandson of the deceased, was refused permission to accompany the first, second and third applicants (that is, his father and two uncles) to Rizokarpaso village on 5 April 1999 for a brief visit to retrieve the clothes of Ioannis Manitaras and other things necessary for the funeral and burial. 10. On 7 April 1999 a second post-mortem examination was conducted in the General Hospital in Nicosia by two specialists, Dr Sofocleous and Dr Matsakis (one appointed by the family of Ioannis Manitaras and one by the Government of the Republic of Cyprus), in the presence of United Nations observers. A video and photographs were taken during the autopsy. The conclusions of these examinations were that there was “no evidence of coronary artery thrombosis, myocardial infarction or significant previous ischemic episodes” and that the cause of death was “severe trauma in the cervical vertebra due to the application of excessive force”. 11. At the request of the Attorney General of the Republic of Cyprus, the reports of both post-mortem examinations were reviewed by Professor Jorgen L. Thomsen, State Forensic Pathologist at the Institute of Forensic Medicine at the University of Southern Denmark. He agreed with the conclusions of the second post-mortem report and criticised the first as not living up to international standards. 12. On 20 May 1999 the file was referred to the “TRNC” Attorney-General, who recommended a coroner’s inquest. The coroner examined the file and came to the conclusion that the deceased had died a natural death due to myocardial infarction and that there was no indication that he had been the victim of an act of violence. In view of the above, the coroner decided that it was not necessary to carry out an inquest. 13. Before the Court, the Government produced a report from Dr M.T. Cassidy, Deputy State Pathologist and Senior Lecturer at the Forensic Medicine Department of Dublin Trinity College. At the request of the UNFICYP, Dr Cassidy examined various documents, scientific reports, videos and photographs concerning the death of Ioannis Manitaras. She also interviewed all persons who could give information about the case, including the members of the deceased’s family. 14. Paragraphs 3, 4 and 5 of Dr Cassidy’s report read as follows: “3. Summary 3.1 Mr Ioannis Manitaras was an elderly Greek Cypriot, residing alone in the Turkish region. 3.2 He was receiving treatment for heart disease and had been hospitalised for a “heart attack” and for treatment of an arrhythmia. 3.3 He was at his neighbour’s home on the night of 3rd April 1999 and was said to have been seen and spoken to early on Sunday 4th April 1999. 3.4 In the mid Sunday morning Mr Manitaras was found dead lying on the floor of his bedroom. 3.5 He was fully clothed, including jacket, apart from his shoes. He was lying face down and on his right side. There was a pool of fluid and blood at his head. There were a few injuries on the right side of head. 3.6 His body was removed to the local hospital and a post-mortem examination was carried out on 5th April. This was limited to removal of the cerebral hemispheres, the lungs and the heart. The latter only was dissected. 3.7 External examination showed bruising around both eyes and two injuries to the right side of the head. Post mortem staining was noted over the back and multiple “bruises” over the upper chest. 3.8 An area of discoloration on the heart was interpreted as an infarct, and the cause of death was determined as due to a heart attack. 3.9 The body was transported to the Greek region and a second post-mortem examination was carried out. 3.10 This described additional injuries including superficial flapped injury to the left side of the scalp, marks on the cheeks and lips as well as minor injuries on the hands. Petechial haemorrhage was noted in the eyes. 3.11 Internally the most significant finding was of bruising in the soft tissues of the neck and a fracture of the spine. 3.12 These injuries were interpreted as indicating an assault, death being due to a broken neck, caused in an arm lock, which was thought to have caused asphyxia. Other explanations were dismissed. 3.13 The photographs of the scene and the body pre-autopsy, after the first autopsy and during the second autopsy were taken. 3.14 The body is seen fully clothed, apart from shoes lying on his right side, face down on a stone floor. A few minor injuries were noted on the right side of the head and there was fluid and blood under the head apparently from the injuries. 3.15 Photographs after the first post mortem confirm the paucity of injuries. 3.16 Photographs of the second post mortem now show well developed bruising of the eyes and petechiae are now prominent around the eyes, the neck and over the upper chest. A post mortem injury is now apparent on the left side of the scalp and some other indistinct marks are shown. There was definite bruising under the injuries on the right side of the scalp but no skull or brain injury. 3.17 Internally a fracture of the cervical vertebra is demonstrated. 4. Interpretation 4.1 This elderly man was found dead in his home. 4.2 The position of the body at the scene is consistent with slumping forward onto the ground from a sitting position on the bed, no attempt being made to save himself, as determined by the position of the hands. 4.3 The injuries apparent were to the right side of face and head, consistent with impact with the stone ground. 4.4 Despite lying in this position after death, when the body is examined later, at the second post-mortem, lividity is on the back of the body, therefore he had not been lying long after death. This would be consistent with him dying on Sunday morning and therefore he could have been seen alive at 6.50 a.m. that morning. 4.5 The position of the body also suggests sudden collapse. 4.6 Petechial haemorrhage are seen around the eyes, on the face, neck and upper chest. The presence of petechial haemorrhages indicates hypoxia/asphyxia, and obvious causes of mechanical asphyxia must be excluded, particularly strangulation. However, petechial haemorrhage around the eyes are commonly seen in deaths from natural causes, particularly if due to heart disease which causes hypoxia. Petechial/purpuric haemorrhage are also commonly found within areas of post-mortem lividity and as Mr Manitaras was found lying “face down” this is one possibility which must be considered. The pattern of distribution of the haemorrhage may give some indication of their cause. In strangulation the haemorrhages are above the level of compression of the neck. As the distribution of the haemorrhages continues below the neck, a cause other than compression of the neck must be considered. In cases of suspected neck compression, the neck is always examined last, first draining the area of blood by opening and removing the organs from the cranial and chest and abdominal cavities. This is done as artefactual haemorrhages can be produced in the neck area during manipulation and dissection of the neck organs. Therefore the interpretation of bruising in the anterior compartment of the neck, on the surface of the strap muscles, is fraught with potential difficulties. A post-mortem examination had been performed, the blood vessels in that area are seen to be congested, the neck was said to have been manipulated before the second post mortem and at the second post mortem the neck was dissected with the chest organs in situ. In view of this the bruising cannot be unequivocally attributed to pre-mortem compression of the neck. 4.7 The injuries to the face are concentrated on the right side, as illustrated in photograph 5. This was the side of the face in contact with the ground, and therefore all of these injuries could be caused by one impact with the ground. The soft tissues of the face were not dissected and therefore the other injuries described were not proven to be associated with subcutaneous bruising. The pattern of bruising under the eye is of bruising related to the injury below the outer corner, which is an abrasion injury, more likely due to contact with the ground rather than a punch. While one can never totally exclude that each and every injury is due to a separate impact, the pattern of injuries is the key factor. 4.8 One positive finding was fracture of the first cervical vertebra. There was haemorrhage over the front of the upper cervical spine indicating bleeding from this injury. Bodies can bruise and bleed after death, while the blood is still fluid within the vessels. This injury can therefore be interpreted as a pre or peri-mortem injury. This type of injury is due to compression of the head on the neck splitting the vertebra, +/- hyperextension. The mechanism of causation is a force transmitted through the head to the neck. It is unlikely to be caused by a force from the front of the neck as such a force would be expected to be associated with more severe injury to the structures at the front of the neck. If such an injury was the cause of death, damage to the upper cervical cord/brain stem would be expected. Firstly this area was damaged during the first post-mortem. Secondly there is no evidence of bleeding around the site in the photographs and no demonstrable damage. Microscopy may show haemorrhage into the tissue, which must be differentiated from congested vessels which can be misinterpreted as petechial haemorrhage. There is no evidence that the spine fracture had caused damage to the spinal cord nor that it caused his death. 4.9 The injuries to the hands are minor injuries, described as, and with the appearance in the photographs of, abrasions and lacerations. There are quite different injuries to those on the head area. These injuries are caused by contact with something rough or sharp, and while from their position they could be interpreted as defence injuries, as they are different and caused in a different manner from other injuries, they are not defence injuries caused by attempting to ward off blows of his head. One explanation is that these injuries could be inflicted by handling branches with rough or sharp edges. 4.10 Examination of the heart was incomplete at both post-mortems. Weighing the heart would have given an indication as to whether or not the heart was enlarged. However Mr Maniataras had a well documented history of heart problems including arithymia and cardiac failure, and was prescribed treatment for this. Whether or not he was taking his medication, he was still at risk from collapsing and dying from his heart disease, despite no obstruction of the vessels being found at the second post-mortem. Again the post-mortem findings must be interpreted in light of his medical history. Again histological examination of the tissues may show myocyte damage and fibrosis not obvious with the naked eye. In particular the area of discoloration described at the first post-mortem could have been proved or disproved as an infarct. The lack of acute findings in the heart does not negate the conclusion that death was due to heart disease. 4.11 Although he may have collapsed suddenly, Mr Manitaras may not have died instantly and may have survived unconscious for a few minutes. 5. Summary After examination of the statements, reports, photographs and post-mortem reports I am of the opinion that Mr Manitaras appears to have been sitting on the edge of his bed when he suddenly keeled over, with a “heart attack”, falling heavily to the floor, the impact site, to the head and right side of the face. The force from the impact was transmitted across the head to the top of the spine, crushing and splitting the first cervical vertebra. He appears to have made no attempt to save himself as implied by the position of the hands and arms, suggesting that he was either dead or unconscious when he pitched forward to the ground. The injuries to the hands could have occurred separately during the course of his work. Death appears to be due to natural causes.” 15. In a letter of 8 August 1999, Inspector Liam Hogan from the United Nations Civilian Police (UNCIVPOL) forwarded Dr Cassidy’s report to the competent authorities. This letter reads as follows: “Please find enclosed a copy of the report prepared for UNFICYP by an independent Forensic Pathologist. We are in agreement with the conclusions reached by Dr Cassidy.”

dev

001-5175

ENG

TUR

ADMISSIBILITY

AKAN v. TURKEY

Inadmissible

The applicant is a Turkish national, born in 1975 and currently detained in Kahramanmaraş Prison. He is represented before the Court by Mr Ahmet Odabaş, a lawyer practising in İzmir. On 8 September 1996 a naked female body was found dead on the seashore in Mersin, a city on the Mediterranean coast. The same day an autopsy was conducted on the body from which hair and blood samples were taken. On 12 September 1996 the body was identified as A.Ö., the wife of a retired colonel. The police was informed that she had been staying at the military officers’ guesthouse in Mersin. The ensuing investigation led to the arrest of the applicant and his two friends (C. and Z.), who were carrying out their military service as receptionists at the officers’ guesthouse. In his police statement, dated 13 September 1996, the applicant confessed that he had been involved in the killing of A.Ö., and gave a detailed account of the events. He stated that together with his friend C., they had raped the victim, who had been staying alone in the guesthouse. He further stated that they had killed her, when she threatened to file a complaint against them. On 14 September 1996 the police conducted a survey on the scene of the crime together with the applicant and the other accused persons, and the applicant showed where they had hidden the victim’s personal belongings. A knife was found in the basement, on which there was a thread of hair. The applicant also indicated a piece of cloth stuck on the barbed wire surrounding the guesthouse, which had been torn from the victim’s dress as they carried her to the shore. The hair on the knife was later found to be identical to that of the victim. This survey was recorded on videotape. On 15 September 1996 the applicant repeated before the public prosecutor the statement he had given to the police. The attorney of the other co-accused, C., was present during the interrogation by the public prosecutor. The same day, the applicant was placed in detention on remand. On 18 September 1996 after the identification of the victim’s body, the Mersin Public Prosecutor destroyed the blood and hair samples taken from her body. He further declared lack of jurisdiction and transferred the case file to the Military Court Public Prosecutor, as the applicant was a soldier in the Turkish Army. On 1 October 1996 the Adana Military Court Public Prosecutor initiated criminal proceedings in the Adana Military Court against the applicant and the other two co-accused and charged them with rape and murder. The prosecution requested that the applicant be sentenced to death pursuant to Sections 416, 417, 495 and 497 of the Turkish Criminal Code. Before the court, the applicant gave a different account of the events and blamed the other co-accused, C., for the alleged offences. According to the applicant’s defence, on the night of the incident, the applicant’s friend C. told him that he wanted to have sexual intercourse with the victim, who had been staying alone in the guesthouse for a couple of days. Together they entered the victim’s room from the balcony window, where C. attempted to rape her. Frightened of being caught by the police, C. told the applicant that they should kill the victim. According to the applicant, at that point, the victim lost consciousness. The applicant and C. carried the victim from her room to the shore, where she regained consciousness and started to struggle with the attackers. C. stabbed her in the back and the applicant also stabbed her. According to the applicant’s statement, when they returned to the guesthouse, C. collected the victim’s personal belongings, including her jewellery, from her room. The applicant further confessed before the court that he had taken a bracelet and a necklace belonging to the victim. Moreover, the applicant denied his statement taken by the police and alleged that he had been subjected to ill-treatment during police custody. He further maintained that during his interrogation by the public prosecutor, he had been told to repeat his police statement. The court further took oral evidence from the other two defendants, and they also confessed being involved in the alleged offences. In his statement, Z. maintained that he had been working at the reception at the time of the incident. He stated that, a day before the incident, he had heard the applicant say that he wanted to rape A.Ö. In his statement Z. further explained that he had not seen the other two defendants entering the victim’s room, but had seen them carrying the victim from the guesthouse to the seashore. He confessed that he had helped them carry the victim out of the guesthouse, and that the other two had then carried her to the shore. Z. stated to the court that when they came back after forty minutes later, their clothes were wet and the applicant was holding a screwdriver and a knife. He further stated that, as he was scared, he did not talk about this incident with anyone. The applicant requested the court to take oral evidence from the victim’s husband. On 11 November 1996 the court refused the applicant’s request on the ground that the victim’s husband was not an eye witness to the crime in question and that his testimony would not in any way have an effect on the elucidation of the case. On 25 November 1996 a survey of the crime area was conducted by order of the military court. On 5 December 1996 the Adana Military Court, in view of the defendants’ confessions, the autopsy report, the survey of the crime scene, the blood sample tests and the incident reports, established the facts as follows. The applicant and his friend C., who had planned to rape the victim, entered the victim’s room from an open balcony window, leaving Z. in the reception to watch out. When they entered the room, they found the victim asleep and put a pillow over her head to prevent her from screaming, and then they raped her. When the victim started shouting, the two friends decided to kill her to prevent her from filing a complaint. They first tried to strangle A.Ö with a bathrobe belt, at which point she lost consciousness. Then they took her to the seaside, trying to drown her in the sea. However, the victim gained consciousness and tried to run away. Consequently, they started punching and hit her on the face with a stone. The applicant also stabbed the victim in her back with a screwdriver, whereas C. stabbed her with a knife in the stomach. Then C. tried to kill the victim by cutting her aorta. When A.Ö died, C. slashed the victim’s face in order to prevent the identification of the body. Then, leaving the body on the shore, they returned to the guesthouse. They packed the victim’s personal belongings, took her jewellery and hid them in the basement of the building. Accordingly, the court found it established that the applicant had acted with premeditation in order to rape A.Ö and had then killed her to avoid being caught by the police. The Adana Military Court also held that the applicant’s allegations of ill-treatment in police detention were unsubstantiated, as there was no evidence in support of these allegations. The court further stated that the applicant had repeated his confession before the public prosecutor in the presence of a lawyer and had not complained about ill-treatment. Consequently, the Adana Military Court convicted the applicant as charged and sentenced him to death. The applicant appealed and the Military Court of Cassation held a hearing and examined the case once again. On 20 May 1997 the Military Court of Cassation dismissed the applicant’s appeal, finding the first-instance court’s establishment of the facts and evaluation of evidence in line with the domestic and general principles of law.

dev

001-58797

ENG

NOR

CHAMBER

CASE OF BERGENS TIDENDE AND OTHERS v. NORWAY

Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings

Nicolas Bratza

9. The first applicant, Bergens Tidende, is a daily newspaper published in Bergen and is the largest regional newspaper of the Norwegian west coast. The second applicant, Mr Einar Eriksen, is its former editorinchief and the third applicant, Mrs Berit Kvalheim, is a journalist employed by the newspaper. They were born in 1933 and 1945 respectively and both live in Bergen. 10. Dr R. is a specialist in cosmetic surgery and received his training at Haukeland Hospital in Bergen in the 1970s. As from 1975 he worked in this field from his privately owned practice in Bergen. 11. On 5 March 1986, following the opening of a new clinic by Dr R., Bergens Tidende published an article, prepared by the third applicant, which described Dr R.'s work and the advantages of cosmetic surgery. Subsequently, the newspaper was contacted by a number of women who had undergone such operations by Dr R. and who were dissatisfied with the treatment received. 12. On 2 May 1986, Bergens Tidende published on its front page a text entitled “Beautification resulted in disfigurement”, which included the following passage: “ 'We paid thousands of [Norwegian] kroner [NOK] and the only thing we've achieved is to be disfigured and ruined for life.' Bergens Tidende has spoken with three women who have an almost identical story to tell about their experiences at a cosmetic surgery clinic in Bergen. All three underwent breast surgery at the clinic, and the results were extremely bad. They are warning other women.” The caption under a photograph of a woman's bust read: “This woman was tormented by her large breasts. Surgery resulted in disfiguring scars and a disproportionate bust.” The inside of the paper contained, together with a large colour photograph showing a woman's breasts with disfiguring scars, the following article: “Women ruined for life after 'cosmetic surgery' 'I paid NOK 6,000 and all I achieved was disfigurement.' 'To say that I bitterly regret it is an understatement. I've been ruined for life and I'll never be “my old self” again.' 'The pain was unbearable. I was transformed into an anxious, trembling nervous wreck in the course of a few days, and I thought I was going to die.' These are the statements of three different women interviewed by Bergens Tidende. All of them, aged between 25 and 40 and resident in Bergen, share in common the fact that they have undergone cosmetic breast surgery, performed by Dr R., one of two specialists in plastic surgery with a private practice in Bergen. The three women – who wish to remain anonymous – describe their ordeal as nightmarish. They all have internal and external scarring which they will have to live with for the rest of their lives. 'I was operated on in May 1984, following a long period of great psychological problems due to a small and sagging bust after I had had several children', said one of the women, who is 29 years old. Swollen bust 'Immediately after the operation, I noticed there was something quite wrong. One of my breasts had swollen up and become hard and painful. When I consulted Dr R., he trivialised the whole matter, saying that it was nothing to worry about. It would pass. And I was told that under no circumstances should I contact another doctor. For a whole week I lay at home in a dazed state of pain, swallowing Paralgin Forte tablets as though they were sweets. I have never in my life taken anything stronger than Dispril on the odd occasion. My bust swelled to grotesque proportions and was so sore that the slightest touch was unbearable. It was impossible to get hold of Dr R. He had gone to Paris, and I didn't dare contact another doctor. It's only now that I realise how foolish I was.' Squirting prosthesis The doctor's receptionist finally managed to get in touch with Dr R. on the telephone in Paris, explained the gravity of the situation and made him travel directly from the airport to his office the night he returned home. 'By this stage the pain was unbearable, and both then and later on I reacted strongly to the hard-handed treatment I was subjected to', says the woman. 'As I lay on the operating table, he ripped open the stitches and tore out the implant without any form of anaesthetic, so the contents of the prosthesis squirted over him, his assistant and myself.' The woman's husband sat in the waiting-room, listening to her cries of pain. The whole treatment took thirteen minutes, and there was no talk of a rest afterwards. It was just a case of getting up from the operating table and walking out. Three months' sick-leave 'He gave us the feeling the whole time that we were an inconvenience and were taking up his precious time.' It took a long while for the woman to recover from her traumatic experience. She had to report sick and was away from work for three months. Her husband, too, was obliged to apply for leave from his job to stay at home with her for a period of time. During this time she had a prosthesis in only one breast, and despite the daunting experiences she had been through, she contacted Dr R. again to have a silicon implant inserted in the empty breast. This was repeatedly postponed, and she finally decided to terminate her relationship as a client of Dr R. and contact another plastic surgeon. In doing so, she demanded her money back for the unsuccessful operation, and after some discussion he agreed to reimburse half of the costs. No receipt He did so with the following comment: 'I hope now that we are finished with one another for good. You have never been a patient here, and I have never seen you.' Since then the woman has also reacted to the financial side of Dr R.'s activities. She had been informed beforehand that she would have to present the money – NOK 6,000 – in cash, on the day of the operation. Even a cheque would be unacceptable, and she was not given a receipt. Painful infection A 37-year-old woman tells a similar story. 'I wanted an operation because I have great problems with a disproportionately large, heavy bust that has caused shoulder and back pains. I checked first to see whether it was possible to get this type of operation done at the hospital, but was told that at best it would mean waiting a year. I therefore ended up at Dr R.'s. The result was four-five months of continuous, painful infection and a bust that looked much uglier than it had done earlier. I paid NOK 6,000 and the only thing I achieved was to do damage to myself', says the woman. Disfiguring scars The infection that occurred immediately after the operation caused the stitches to open, and septic sores developed. Once the wounds had healed, she was left with abnormally large, disfiguring scars, which prompted her to contact Dr R. again and ask for the damage to be repaired. He agreed to do so, and a new operation was scheduled. The woman, who had asked for three days off work in connection with the surgery, arrived at the agreed time but found the doors to the clinic locked. She returned home with the matter unresolved. When she called him privately later that day he was impertinent and threatened her directly, and the conversation ended with him slamming down the receiver, the woman said. After this she gave up and she has not had any contact with the doctor since. Waste 'But it was a bitter feeling when I realised that I had invested a lot of time, money and mental energy in something that turned out to be not only a complete waste, but also did more harm than good.' This woman, too, says that she was asked to pay cash and was not given any form of receipt. Deformed The third woman interviewed by Bergens Tidende had a similar experience. The woman, 31, says: 'I had a breast augmentation done and the very first day after the operation I discovered that something was wrong with one of my breasts. It was uneven, pointed to the right, and was rock-hard and sore. It's still hard and uneven almost two years later. I feel completely deformed, and I dare not even think of showing myself on a beach, for example.' Complications This woman, too, experienced complications after surgery, chiefly in the form of constantly recurring so-called 'capsules', i.e. part of the prosthesis hardened and had to be broken up again. 'After a few weeks I just couldn't take any more. By then I had lost confidence in Dr R. and his methods of treatment', says the woman, who, like the two other women, reacted to his demand that she pay cash without being given a receipt. She is also deeply shocked about what she feels is the offhand and nonchalant way in which she was treated on her first visit to the doctor's. 'I had an appointment at 12.30 p.m., but was told that he didn't have time to see me. Would I rather come back another day? But I was so mentally prepared that it would be done that day – and I simply refused to go. It was now or never.' Bitter regrets 'After three or four hours' wait I finally lay on the operating table, and if there is anything I now regret, then it's precisely that. The operation was unsuccessful, I understood that immediately. After two or three weeks of repeated “treatment” and half-hearted attempts by the doctor to remedy the blunder, however, I couldn't stand it any more and I gave up.' Unbearable The woman has made no effort to get back the money she paid. 'I couldn't bear the thought of fighting – because I knew it would be a struggle.' Almost two years have passed since the calamitous surgery, but she has not yet been able to collect herself sufficiently after the frightening experience and contact another doctor to have her breasts operated on again. 'I have to do it – because I can't live with this. However, the bad experiences are so ingrained that I haven't collected myself enough to do anything about it', she says.” 13. Articles similar to the one of 2 May 1986 quoted above, accompanied by large colour photographs, were published on 3, 5, 7 and 9 May 1986, describing in detail how women had experienced their situation after allegedly failed operations and a lack of care and follow-up by Dr R. Some of the articles invited women to complain to the health authorities and to institute proceedings against the doctor. One article stated that the Health Directorate (Helsedirektoratet) would commence an investigation, that Dr R. might lose his licence to practise and that the question of a police investigation had been raised. Brief summaries of the contents of the articles may be found in the judgment of 23 March 1994 of the Norwegian Supreme Court (Høyesterett) quoted in paragraph 24 below. 14. In an editorial of 12 May 1986, entitled “Medical power”, Bergens Tidende stated: “It is of course with satisfaction that we see health authorities now carry out a thorough investigation of the activities which the Bergen breast doctor has been performing for many years. This is the least that one could expect. It must be in the interest of all – the patient's, the authorities' and also the doctor's – to have clarified whether the methods of treatment applied meet professional standards. The fact that the case has serious implications also because it has aesthetic, moral, but also basically down-to-earth economic consequences, serves to underline the need for a thorough investigation. It is nevertheless a puzzle that it took a whole series of newspaper articles, powerful notices and assertive journalism to make the medical health bureaucracy react. Complaints to the doctors' own professional association have not produced results and neither the regional nor the municipal health authorities have taken any initiative before the patients, in despair, came out with their stories of suffering to Bergens Tidende. Again one wonders what is required in order to break down the strong professional ties within the medical profession and to preserve the interests of patients. In any event, it justifies the reflection that patients, over many years, feel threatened by fear of 'reprisals'. Irrespective of whether this fear is imaginary or real, it is telling of the relationship of power which still exists between doctors and patients. Breaking down the myths and building confidence are crucial conditions for the process of healing. Therefore it is important to have a full clarification of the case in all its dimensions. Unfortunately the initiative for this investigation does not originate from the medical milieu, but from the weakest party: the patient.” 15. On 2 May 1986 Bergens Tidende had also produced, at the bottom of the page containing the impugned article mentioned in paragraph 12 above, an article containing an interview with Dr Gunnar Johnsen, plastic surgeon at a Bergen hospital, entitled “Demanding form of surgery – Small margins between success and failure”. It stated: “ 'There are borderline cases, but generally speaking aesthetic/psychological surgery, what is commonly referred to as “cosmetic surgery”, does not fall within the public health-care authorities' responsibility.' ... – 'Do many have unrealistic expectations and believe that all their problems will be solved if their imperfections are straightened out?' 'It happens and then their problems are more on the psychological than the physical level.' Information is important 'Not least for this reason it is important that the patients – or the clients ... rather – are properly informed in advance. Frequently, information must be provided in order to reduce the expectations – so that the person concerned does not feel disappointed with the result. But having said this, most people are satisfied with their new appearance ... You have the same problems, primarily with respect to the dangers of bleeding and infection, in this field as in any other field of surgery, and the general requirements as to precautionary measures and medical safety are as strict.' Technically demanding 'Aesthetic surgery can be technically demanding and there are often small margins between success and failure. Not least for this reason it is important to possess wide experience of plastic surgery from ordinary hospitals before one starts one's own private business as a specialist. But the transfer of experience may be occurring in both directions.' ...” The issue of 2 May 1986 also contained an interview with Dr R. entitled “There will always be dissatisfied patients”, which read: “ 'I cannot comment on these particular cases, in part because I am bound by the general obligation of confidentiality, in part because I do not know the details of the cases. All I can say is that within plastic surgery, like in any other field of surgery, there is a certain margin of error and there will always be dissatisfied patients.' It is Dr R. who states this to Bergens Tidende in his comments to the complaints from the three women. 'Complications in the form of hardened breasts ... occur in about 15 to 20% of all breast operations and the risks of bleeding and infection are the same in plastic surgery as in any other form of operation. But I should like to emphasise that all patients are informed in advance of the possible dangers and of the fact that the result of the operation is not always as successful as one might expect', says Dr R., who moreover underlines that three dissatisfied patients is a relatively small number when compared to the great size of his business which he has been running over the past few years ...” According to the third applicant's statement to the High Court in the proceedings mentioned below, when approaching Dr R. in connection with the above interview, she had invited him to comment on the three women's allegations and had informed him that they had given their consent to release him from his duty of confidentiality. He had replied that he was bound by his general duty of medical confidentiality, which applied irrespective of whether the patient had given such consent. Dr R., in those proceedings, denied the third applicant's version of the facts, stating that he was absolutely sure that she had not informed him that the patients had lifted his duty of secrecy. 16. On 14 May 1986 Bergens Tidende published two articles commenting on the critical articles published earlier that month. In the first article, entitled “The press – the pillory of today”, Ms K. Thue recalled the history of witch-hunts during the Middle Ages and described Bergens Tidende's coverage of the accounts by Dr R.'s dissatisfied patients as a modern form of witch-hunt conducted by the press. She stated that the doctor was unable to reply; being prevented by his duty of secrecy he could not refer to the large group of patients who were satisfied and could not substantiate that they constituted the vast majority of patients. The second article, written by Mr R. Steinsvik and entitled “There are always two sides to a case”, stated: “We are concerned with the recent focusing on Dr R.'s business. We are a group of thirty persons who all have in common that we are or have been patients of Dr R. We are satisfied with the treatment received, not least the service and care provided during post-surgery treatment and follow-up. A case always has two sides and by these words we hope that we have conveyed our views on and experiences of this doctor.” 17. Following the publication of the articles by Bergens Tidende, seventeen former patients submitted complaints against Dr R. to the health authorities. On 8 October 1986 Mr Eskeland, the medical expert appointed to evaluate the situation, concluded that there was no reason to criticise Dr R.'s surgical treatment of the patients. Mr Eskeland stated that the complications complained of were common in surgery and were bound to occur from time to time, but were not due to shortcomings in Dr R.'s surgery. In one case, he criticised Dr R. for having travelled abroad without informing a relatively newly operated patient. Mr Eskeland observed that, in the light of the large number of patients treated by Dr R. – approximately 8,000 between 1975 and 1986 – the number of complaints had been moderate. Bearing in mind that the articles published by Bergens Tidende had invited Dr R.'s former patients to complain, it was surprising that not more patients had done so. 18. On 3 November 1986 the Health Directorate decided not to take any further action, finding that Dr R. had not performed improper surgery. 19. After the publication of the newspaper articles, Dr R. received fewer patients and experienced financial difficulties. He had to close down his business in April 1989. 20. In the meantime, on 22 June 1987, Dr R. instituted defamation proceedings against the applicants, claiming damages. By judgment of 12 April 1989 the Bergen City Court ordered the applicants to pay Dr R. a total of NOK 1,359,500 in respect of pecuniary and non-pecuniary damages and costs. The court considered that Dr R.'s economic loss would amount to several million kroner and that an assessment had to be made on a discretionary basis. It observed that, while the criticism against Dr R. had been made in an unjustified manner, destroying the public's confidence in him as a surgeon, the criticism had been caused mainly by his own conduct. The court deemed it appropriate to make an award corresponding to 75% less than the amounts claimed. 21. The applicants and Dr R. appealed against the judgment to the Gulating High Court (lagmannsrett), which found for the applicants, stating, inter alia: “After hearing the evidence, the High Court finds that the articles give an essentially correct rendering of the women's experiences as they themselves lived through them. As witnesses, they gave the impression to some extent that the newspapers had moderated their accounts. The High Court finds them credible and finds no reason to believe that their subjective experiences are not commensurate with what objectively took place – in other words they had reasonable grounds for feeling the way they did and as described by the newspaper. The High Court does not exclusively base itself on these three women's statements. It finds it also proven that the newspaper was contacted by a number of other women giving similar stories. Subsequently, after the article of 3 May [1986] had been published together with an appeal by N.H. to women to join in filing an action, many more women got in touch. The High Court finds it established that the number of women [who did so] was more than one hundred. This is based mainly on statements taken from [the second and third applicants] and N.H., and some of these women have also appeared as witnesses before the High Court and have given statements. These constitute only a minor part of all the women who contacted Bergens Tidende and N.H. A total of fourteen dissatisfied women have given statements, as has the husband of one woman. However, it is largely the same story that is repeated again and again in the statements: complications did occur or the result was bad and the follow-up treatment provided by Dr R. was felt to be unsatisfactory and seemed rushed with little interest, some irritation and unwillingness. Several women told how Dr R. seemed insensitive to their mental as well as physical pain and discomfort. Some had the feeling that Dr R. would rather be finished with them after he had operated and had not organised post-operative treatment properly. Some of the women were worried that Dr R. might not have given them proper post-operative treatment. What is also being repeated by many of the women is that they were struck by the fact that Dr R. was keen when it came to the financial side; he wanted payment in advance, was unwilling to take cheques, and gave no receipt unless especially asked to do so ... On the basis of the above the High Court finds it proven that Dr R. ran his practice in such a way that many of the women who suffered complications had experiences that gave them reasonable grounds to feel themselves exposed to poor care and to feel anxiety about the treatment they were given, and in several instances had reason to feel offended by Dr R.'s behaviour. Moreover, the High Court finds that the experiences described in the article of 2 May [1986] are representative of those made by many other women. Thus the High Court finds that the three women referred to in the article of 2 May [1986] had not been especially sensitive and had not had exaggerated expectations, but that their stories were sober and reasonably subjective accounts of what had happened. Having regard to the information at hand about complaints made by other women, the High Court also finds that this is not simply a case of one or two odd exceptions. As far as Dr R. is concerned, it can reasonably be established that it is a question of unsatisfactory behaviour, which occurred quite often in the cases where something happened to necessitate an extra effort after the operations. That is not to say that he behaved in an unsatisfactory way in most cases or in a particularly large number of them. It is hardly a question of more than a minority of the cases. And it must be stressed that nothing has been said to prove that there really was a failure as regards R.'s surgical competence. But the fact that the unsatisfactory behaviour occurred in a number of cases must provide a basis for allowing criticism of Dr R. to come to light in the newspaper. Reference is made to what has been said above about the right of the general public and the consumer to be kept informed and their right to react by staying away to be on the safe side. It should be pointed out that the people who contacted the newspaper at the outset did so as a reaction to Bergens Tidende's article on 5 March [1986], an article which presented a picture of R.'s business without mentioning the drawbacks. Bergens Tidende claims that, in view of the article of 5 March, it felt obliged to let their criticism be heard, which the High Court finds very understandable. On 3 May [1986], Bergens Tidende ran an article in which N.H. described her own experience of treatment at Dr R.'s clinic and urged women in a similar situation to join forces in suing the doctor. The High Court finds it proven, in the same way as for the three women who were described on 2 May, that N.H.'s experiences were recounted correctly and that her subjective feelings were reasonably grounded on what had occurred. The same applies to what was stated on 5 May about the experience of a '26-year-old Bergen lady'. The High Court is also satisfied that what was stated on the same day about telephone calls to N.H. ('Storm of telephone calls') is correct ... As far as the rendering of the women's experiences is concerned, what was stated in Bergens Tidende is thus in all essentials correct. And their subjective experiences were liable to give a picture of how treatment by Dr R. could turn out, not only in rare exceptional cases ... The striking part about the statements that Dr R. has challenged is that they report in strong language on the results of treatment provided by Dr R.: 'disfigurement', 'ruined for life', 'mutilated' and the like. It is sufficiently clear that the statements are here describing the result of Dr R.'s treatment. But there is nothing in the statements suggesting a lack of surgical ability on Dr R.'s part. And one must assume that newspaper readers were aware that a poor result of an operation need not be due to a lack of surgical skill. It has been submitted that the use of expressions like 'ruined', 'was disfigured', etc., brings to mind actions that are aimed at ruining and disfiguring and that the reader is therefore immediately made to believe that some person – i.e. Dr R. – is guilty of such conduct. The High Court does not find that, from a linguistic point of view, the statements apply to anything other than the purely objective result. Another question is whether the statements are misleading, because they give the impression that the consequences were more serious than they actually were. The High Court cannot see that this is the case – especially when bearing in mind that it is the manner of reporting of the women's subjective opinions which is at stake. 'Disfigured' means having an ugly mark of some significance on one's body, and in the opinion of the High Court the women who use this expression according to Bergens Tidende had good reason for doing so. Much the same can be said about 'mutilated'. Presumably, 'ruined' must be understood as bearing a somewhat stronger expression, but must be justified in the case of women whose breasts have large scars or have become lopsided, hard, different, or tender to touch, in view of the effect this must have had, not only on the woman's relationship with her husband but also in many other respects – one can imagine what it must mean not to be able to give one's child or grandchild a hug because of tender or hard breasts. According to what the Court finds established on the witness evidence, it was, amongst other elements, against the background of such results that the newspaper had used the expressions. While the statements thus could not be said to amount to a direct allegation that Dr R. lacked surgical abilities, Bergens Tidende did not make it clear either that there was no lack of ability. And both the individual statements and the articles in their entirety give the impression that it is being questioned whether Dr R. always provided treatment which was medically up to standard. In the light of the women's information, however, this was a natural question to ask; several of the women mentioned it, and anyone who reads the accounts alone would be inclined to ask that question. It can therefore not be unlawful for Bergens Tidende to air this question. Dr R. also complains that Bergens Tidende conducted a veritable campaign and persecution against him. The High Court does not consider this to be the case. In particular, the newspaper should have the right to believe that women should think twice about consulting Dr R. and to write articles with this in mind ... In brief, the opinion of the High Court can be summarised as follows: In Dr R.'s practice there were a not inconsiderable number of cases of poor followup and behaviour and the like, which gave many women reasonable grounds for feeling disappointed and badly treated. The High Court bases this assessment of evidence essentially on the women's statements and comportment in court. Bergens Tidende was entitled to write about this and to repeat the women's subjective experiences of the treatment. The newspaper did this in a manner which in all essentials was correct. In so far as the newspaper articles might have given the impression that there could be reason to question Dr R.'s professional ability, this was no more than a suspicion for which his behaviour gave reasonable grounds, and which it must therefore have been right to report on. If this led to financial losses for Dr R., it was because of the extremely sensitive nature of the activities he was engaged in. [The applicants] are therefore discharged from liability to pay damages, and the High Court will not go into the question of the extent of Dr R.'s financial losses. Moreover, the High Court does not find it possible to allow the claim for non-pecuniary damage and, referring to what has been stated above, does not find that any of the coverage of Dr R. by Bergens Tidende was unlawful.” 22. Dr R. appealed against the above judgment to the Supreme Court. In his submission, the City Court's judgment was in principle correct, except that no reduction should have been made of the award on grounds of shortcomings on his part. In his opinion, even if the High Court's assessment of the evidence concerning lack of care and follow-up were to be accepted, this could only have a marginal effect on the amount of compensation. He maintained, inter alia, that the newspaper articles had amounted to a public execution of him as a plastic surgeon, by their strong emphasis on unsuccessful operations and by giving the readers the impression that he was incompetent. Furthermore, he had not been given a proper opportunity to reply to the criticism before the publications were printed. In his view, the defendants' conduct had been grossly negligent. The applicants emphasised that the impugned news coverage concerned above all the situation of quite a large number of women with whom the newspaper had been in contact, directly or indirectly, and who had complained about lack of care and follow-up after unsuccessful operations. They had also complained about a lack of information before the operations. The articles conveyed the women's feelings and frustrations as expressed in their own words. Whether Dr R. was a good or a bad surgeon had not been decisive. 23. On 22 December 1992 the Appeals Selection Committee (kjæremålsutvalget) of the Supreme Court dismissed the appeal in so far as it concerned the High Court's assessment of the evidence relating to the issue of Dr R.'s lack of care and follow-up of his patients, and allowed the appeal for the remainder to proceed. 24. In a judgment of 23 March 1994 the Supreme Court found in favour of Dr R. and awarded him amounts totalling NOK 4,709,861 in respect of damages and costs. Mr Justice Backer stated, inter alia, on behalf of a unanimous court: “By way of introduction I note that newspapers, of course, have a right to emphasise questionable aspects of cosmetic surgery and to illustrate their presentation with information about unfortunate incidents. They should also be able to pinpoint critical aspects of an individual surgeon's business and here the journalist in question must be granted a wide leeway for subjective considerations. But outright incorrect factual information of a negative character must be considered defamatory. The fact that the newspaper just repeats the accusations made by others will, according to established case-law, not in principle constitute a defence. Accordingly, it will be necessary to consider the individual articles in order to establish their contents in relation to the rules on defamation. In interpreting the articles one should take as a starting-point the impression which they, as a whole, will make on the ordinary reader, while attaching greater weight to the headlines and the introductions than to the text presented in normal characters. The High Court considered that the particularly interested reader would read the entire news report meticulously and thereby obtain a more balanced view than the reader who only takes a cursory look at the news report. I find it difficult to attach particular importance to this consideration. Even those who read the news report as a whole would easily be influenced by value judgments in headlines etc. Furthermore, the news report addresses the general public and will thus affect the doctor's reputation as such. Unlike the High Court, I cannot see that one can generally assume that readers would be aware that a bad result of an operation is not necessarily due to a lack of surgical skills ... The news report of 2 May 1986 was based on the positive articles of 5 March and the comments [the newspaper] had received from dissatisfied patients. It describes the situation of three women who had undergone a breast operation involving silicon implants and who had subsequently experienced problems. On page one there is a two-column headline 'Beautification resulted in disfigurement' followed by a picture of a woman's breasts disfigured by scars. In quotation marks it reads: 'We paid thousands of kroner and the only thing we've achieved is to be disfigured and ruined for life.' Inside the newspaper an entire page is reserved for the news report. There is a headline covering seven columns 'Women ruined for life after cosmetic surgery'. The same picture as on the front page is printed over five columns. Below the picture it is written: 'Enormous scars, wrinkled breasts and a long painful inflammation were the consequences of the cosmetic surgery on this woman'. The article commences with three points in bold print, which read: 'I paid NOK 6,000 and all I achieved was disfigurement.' 'To say that I bitterly regret it is an understatement. I've been ruined for life and I'll never be “my old self” again.' 'The pain was unbearable. I was transformed into an anxious, trembling nervous wreck in the course of a few days, and I thought I was going to die.' In the article it appears from the women's statements that they contacted Dr R. following an inflammation and other complications and that they were unhappy with the treatment they received. I understand this to relate both to the service and the result of the treatment. At the bottom of the page there is an interview with Dr R. with the headline 'There will always be dissatisfied patients'. In the course of the proceedings, it has been submitted that [the third applicant] had contacted Dr R. on 30 April and had asked him to comment, stating that the three women had told her that they had released Dr R. from his obligation to observe professional secrecy. However, referring to this obligation, Dr R. had refused to comment on specific cases. At the bottom of the page there is furthermore an interview with another specialist in cosmetic surgery ... with the headline 'Demanding form of surgery – Small margins between success and failure'. The following day, on 3 May [1986], a new article appeared. On the front page a headline covering two columns reads 'Action against the breast doctor'. Inside the newspaper there is a headline covering five columns 'Institute proceedings against the doctor'. It is the former patient [N.H.] who appears and explains about experiences similar to the three women from the articles published the day before. She invites everybody in the same situation to get together in a case against Dr R. There is also an interview with the Chief County Physician [Fylkeslegen] who states that dissatisfied patients may complain to him. Furthermore, there is an article covering five columns with the headline 'The doctor must provide receipts'. Here the complaint is made that Dr R. allegedly requested payment without providing receipts therefor. It is indicated that this might interest both the tax authorities and the social authorities. In the article of 5 May [1986] the front page contains a one-column headline 'NOK 12,000 – breasts ruined'. The headline is repeated over seven columns inside the newspaper with a small amendment without importance to its contents. Here a woman explains how she underwent two breast operations by Dr R. with a bad result. Further, there is a headline covering four columns 'Control virtually impossible' followed by an article in which the Chief County Tax Inspector [Fylkesskattesjefen] is interviewed. Covering two columns there is a framed article with the headline 'Telephone storm: to the extent I could not sleep'. It is N.H. who recalls how she received telephone calls from a number of women who recounted very 'strong' stories about their experiences with Dr R. In the articles of 7 May [1986] this is followed up. The front page shows a headline covering four columns 'Telephone storm from the persons operated on'. Furthermore there is a picture covering two columns of one of the breasts of a former patient, G.S., where the point is that the stitches were not removed, in addition to disfiguring scars. Inside the newspaper there is a headline covering five columns 'Telephone storm following criticism against fashion doctor. Had no idea we were so many'. N.H. recalls in an interview that she has talked to at least fifty persons who all have frightening experiences to contribute. Three of these cases are explained. Further, there is a threecolumn picture of G.S.'s breasts. Connected thereto is a four-column headline 'G.S. (28) was operated on in 1984. The stitches are still there'. The article explains that she contacted Dr R.'s office after the operation in order to have the stitches removed but was told to do this herself, as a pair of appropriate pincers was not available. Further, there is an article with the headline covering three columns 'Probably no investigation', in which the State Prosecutor is interviewed. In the last articles of 9 May the front page contains a headline covering four columns 'Breast doctor is being investigated'. It is stated that, according to the acting health director, the Health Directorate would immediately contact the Chief County Physician in order to carry out a thorough investigation of Dr R. and his practice, and the newspaper draws attention to the question whether the doctor may lose his licence. Inside the newspaper there is a four-column headline related to the same operation. Furthermore, there is a similar headline 'Cannot do anything': Advokat Å.H. of the Norwegian Doctors' Association tells the newspaper that the association cannot examine complaints about the doctor's medical practice but only complaints which relate to the doctor's behavioural and humane treatment of patients. The first question, which arises when evaluating the series of articles, is whether the criticism of Dr R. may be characterised as an accusation and what its contents may be. On the one hand, Dr R. maintains that he is accused of malpractice and that insufficiencies in respect of his work as a surgeon will be of central importance. The defendants maintain on the other hand that the criticism does not concern this but relates to a lack of information, care and follow-up treatment which is a part of the medical treatment. The High Court found that evidence had been submitted proving that deficiencies in care and follow-up treatment had occurred. Since the appeal concerning the evaluation of evidence on this point has been refused, the Supreme Court is bound by the evaluation made by the High Court. The articles concern the situation of women who have experienced complications after an operation or when the original operation failed. They are in despair due to the result of the treatment and complain about the reluctance and carelessness on the part of Dr R. as regards rectifying what went wrong. In my opinion the articles in [the newspaper] appear at the same time to be a strong attack on Dr R.'s qualifications as a cosmetic surgeon without taking sufficiently into account the usual risk of unsuccessful operations. The statements that the women were disfigured and ruined for life and the many other strong statements, in particular in the articles of 2 May 1986, which set the tone for the other articles, can hardly be understood otherwise than as referring to a great extent to the result of the treatment where the surgical element is essential. This is also how the Chief County Physician, the Health Directorate and Professor E. understood the articles. Initially it appears that [the newspaper] was of the same opinion. In an editorial of 12 May 1986 satisfaction is accordingly expressed with the fact that the health authorities would now make a thorough examination of a 'breast doctor from Bergen' in order to 'clarify whether the methods of treatment which are used comply with professional standards'. Since it must have been apparent that the articles would completely destroy his business, it may also be questioned whether [the newspaper's] series of articles concerning Dr R. could be explained in any other way than that they reflected [the newspaper's] opinion that the circumstances involved reckless surgical activity which ought to be brought to the attention of the public. In these circumstances – contrary to the findings of the High Court – I have reached the conclusion that the articles contain an accusation against Dr R. that he performed his surgical activities in a reckless way – an accusation which I must hold to be incorrect. The next question is whether the resulting defamation should, for special reasons, not be considered to be unlawful. Among other things the newspaper has referred to its particular duty to attend to the interests of consumers and to the fact that the accusation against Dr R. as a whole concerning improper treatment was nevertheless to a great extent correct. However, Dr R. has criticised the newspaper's handling of the case and has furthermore referred to Article 249 § 2 of the Penal Code. When a newspaper makes such strong criticism as in this case I consider that Dr R. ought to have had the possibilities of a proper defence. No time element prevented this. When approached on 30 April, Dr R. could not make any statements about the concrete cases without being released by the patients themselves from his duty to maintain professional secrecy, and he did not have a duty to contact the patients himself for that purpose. I also find that [the third applicant] – and the newspaper – must be criticised for a lack of balance in the articles and for using unnecessarily strong and, to some extent, misleading expressions. That [the third applicant] was quoting the interviewees is no excuse for completely disregarding Dr R.'s right to the protection of privacy. That the women had a subjective and strong emotional point of view to what they had experienced is understandable. But it is another matter to publish their statements to a large group of readers who would expect that these, at least in their essentials, covered the objective truth. Even though there is reason to give a wide scope to freedom of expression in order to enable newspapers to fulfil their function in society, I cannot but reach the conclusion that the line has been overstepped. ... I see no reason to go into the issue of Article 249 § 2. The submission that the main content of the accusation has been proven is based on the High Court's assessment of the evidence as far as lack of care and follow-up are concerned. The High Court's assessment of the evidence on this point can be seen from remarks spread over several pages of its judgment, especially at pp. 11 to 14. On p. 12 it stated: 'On the basis of the above the High Court finds it proven that Dr R. ran his practice in such a way that many of the women who suffered complications had experiences that gave them reasonable grounds to feel themselves exposed to poor care and to feel anxiety about the treatment they were given, and in several instances had reason to feel offended by Dr R.'s behaviour.' Furthermore, at p. 13 it held: 'As far as Dr R. is concerned, it can reasonably be established that it is a question of unsatisfactory behaviour, which occurred quite often in the cases where something happened to necessitate an extra effort after the operations. That is not to say that he behaved in an unsatisfactory way in most cases or in a particularly large number of them. It is hardly a question of more than a minority of the cases. And it must be stressed that nothing has been said to prove that there really was a failure as regards R.'s surgical competence.' In these circumstances I must conclude that the essential elements of the accusations to be found in the articles concerning Dr R. have not been proven, since the alleged deficiencies as regards the surgical activities, as set out in the articles, clearly overshadow the deficiencies concerning care and follow-up treatment. Furthermore, the accusations are unlawful. In my opinion there can be no doubt that the articles have caused considerable financial losses, in addition to non-pecuniary damage, for Dr R. It would have been strange if [his clinic] had survived the very negative comments in the articles of [the newspaper]. From a commercial point of view cosmetic surgery is very sensitive to anything which might shatter the potential patients' faith in the operating doctor. The defendants must have been aware of this. The calculation of Dr R.'s loss involves many elements of uncertainty. In no circumstances could he automatically rely on continuing a thriving and profitable business as a private cosmetic surgeon for the rest of his life until reaching the age of retirement. Even a neutral, objective and, from any point of view, appropriate criticism would have been very damaging to him ... Dr R. shall be granted compensation under section 3-6 of the Damage Compensation Act 1969 [Skadeserstatningsloven – Law no. 26 of 13 June 1969] from [the first applicant] in respect of damage, loss of future income and suffering. As regards the two last points, the Court has a wide discretion according to [the applicable legislation]. But also as regards the first point, Dr R.'s own conduct may be taken into consideration ... ... I have reached the conclusion that the compensation for the damage done, i.e. loss of income plus interest from 1986 until this judgment, ought to be fixed at NOK 2,000,000. As regards the other requests for damages submitted by Dr R. ... I consider that this should be fixed on an equitable basis at NOK 200,000. Compensation in respect of loss of future income is fixed at NOK 500,000. Further, the non-pecuniary damage to be paid by [the first applicant] is fixed at NOK 1,000,000. When fixing reparation, regard has been had to the exceptional pressure which Dr R. has endured over a long period of time due to the series of articles. The non-pecuniary damage to be paid by [the second and third applicants] is fixed at NOK 25,000 each.” Finally, the Supreme Court ordered that the first applicant pay Dr R. NOK 929,861 and that the second and third applicants each pay him NOK 15,000 for his costs in the domestic proceedings, plus certain interest with respect to Dr R.'s costs in the City Court. In accordance with the latter, the first applicant paid an additional NOK 218,728, and the second and third applicants each paid NOK 4,383 in interest. 25. Under Norwegian defamation law, there are three kinds of responses to unlawful defamation, namely the imposition of a penalty under the provisions of the Penal Code, an order under Article 253 of that Code declaring the defamatory allegation null and void (mortifikasjon) and an order under the Damage Compensation Act 1969 (Skadeserstatningsloven – Law no. 26 of 13 June 1969) to pay compensation to the aggrieved party. Only the latter was at issue in the present case. 26. Section 3-6 of the aforementioned Act reads: “A person who has injured the honour or infringed the privacy of another person shall, if he has displayed negligence or if the conditions for imposing a penalty are fulfilled, pay compensation for the damage sustained and such compensation for loss of future earnings as the court deems reasonable, having regard to the degree of negligence and other circumstances. He may also be ordered to pay such compensation for non-pecuniary damage as the court deems reasonable. If the infringement has occurred in the form of printed matter, and the person who has acted in the service of the owner or the publisher thereof is responsible under the first subsection, the owner and publisher are also liable to pay compensation. The same applies to any redress imposed under the first subsection unless the court finds that there are special grounds for dispensation ...” 27. Conditions for holding a defendant liable for defamation are further set out in Chapter 23 of the Penal Code, Articles 246 and 247 of which provide: “Article 246. Any person who by word or deed unlawfully defames another person, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding six months. Article 247. Any person who, by word or deed, behaves in a manner that is likely to harm another person's good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting, or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.” 28. A limitation to the applicability of Article 247 follows from the requirement that the expression must be unlawful (rettstridig). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement. In a civil case concerning pre-trial reporting by a newspaper, the Supreme Court found for the newspaper, relying on the reservation of lawfulness (rettsstridsreservasjonen), even though the impugned expressions had been deemed defamatory. It held that, in determining the scope of this limitation, particular weight should be attached to whether the case was of public interest, having regard to the nature of the issues and to the kind of parties involved. Regard should be had to the context in which, and the background against which, the statements had been made. Moreover, it was of great importance whether the news item had presented the case in a sober and balanced manner and had been aimed at highlighting the subject matter and the object of the case (Norsk Retstidende 1990, p. 640). 29. Further limitations on the application of Article 247 are contained in Article 249, the relevant part of which reads: “1. Punishment may not be imposed under Articles 246 and 247 if evidence proving the truth of the accusations is adduced ...”

dev

001-60610

ENG

GBR

CHAMBER

CASE OF P., C. AND S. v. THE UNITED KINGDOM

Violation of Art. 6-1;Violation of Art. 8 in respect of removal of child at birth;Violation of Art. 8 in respect of procedures concerning care and freeing for adoption orders

Gaukur Jörundsson;Jean-Paul Costa;Nicolas Bratza

9. P., born in 1958, is a citizen of the United States of America; C., the husband of P., was born in 1962 and is a United Kingdom citizen; S., their daughter was born in 1998 and is a United Kingdom and American citizen. They are all resident in the United Kingdom. 10. In January 1976 P., then living in the United States of America, gave birth to a son A. shortly before her eighteenth birthday. In 1980 P. married her first husband and had a second son B. in February 1985. In 1992 she and her husband separated. Both parents contested custody of B. 11. Between December 1990 and January 1994 B. was referred to his general practitioner for some forty-seven complaints. 12. In March/April 1993 B. was taken for examination to hospital on numerous occasions for complaints of diarrhoea and fever, and on each occasion he was found to be in a normal condition. When on 18 April 1994 B. was admitted to hospital, a laboratory stools test indicated the presence of phenolphthalein (a laxative). The doctor was satisfied that P. had been responsible for laxative poisoning and reported the matter. 13. On the same date the Californian authorities took B. into protective custody, alleging that P. was harming her son, then aged 9, by administering laxatives to him inappropriately. He was suspected of being a victim of induced-illness abuse, the syndrome known variously as Munchhausen syndrome by proxy (“MSBP”), fabricated or induced illness, illness-induction syndrome or paediatric falsified condition. MSBP is a label sometimes used to describe a form of psychiatric illness, mainly found in women, who seek attention by inducing illness in their children or inventing accounts of illness in their children, and by repeatedly presenting their children to the medical authorities for investigation and treatment. 14. On 23 August 1994 a Californian court ordered that B. live with his father. Following this placement, B. did not suffer from any acute or abnormal diarrhoea. At a hearing in September 1995, the court approved supervised contact between P. and her son B. once a month for two to four hours for the following three years. P. was informed that, if she wished increased contact, it could be envisaged in a supervised, therapeutic context. 15. P. was charged with cruelty towards B. and endangering B.'s health, a felony offence under section 273A(a) of the Californian Penal Code. A report prepared by Dr Schreier stated that P. suffered from MSBP and that she had victimised B. over several years, causing him severe diarrhoea, possibly vomiting, weight loss and multiple non-trivial procedures and hospitalisations. On 4 October 1995, after a five-week trial before a jury in the Superior Court of California, she was convicted of a misdemeanour under section 273A(b), a lesser offence, and acquitted of the felony. On 17 November 1995 she was sentenced to three years' probation and three months in custody, subsequently suspended. She was also ordered to enter and complete a “psychological and psychiatric treatment programme”. 16. During the divorce proceedings, P. was required to have therapy as a condition for getting custody of B. and saw a therapist from 1992 until the end of 1993. From late 1992 she was prescribed an antidepressant by a psychiatrist whom she saw regularly to review the medication. She also consulted with psychiatrists during the criminal trial. From about April to December 1995, she saw a psychologist twice a month for therapy. 17. On 2 May 1996 the Californian family court reduced contact to one supervised occasion per month. It was ordered that any additional contact visits would have to occur in a therapeutic setting with a doctor present. Her appeal against this was dismissed. 18. During 1996 P. met her present husband, C., a qualified social worker who was studying for a doctorate in philosophy and researching into cases of women wrongly accused of MSBP. 19. In November 1996, in breach of the probation order, P. came to visit C. in the United Kingdom. P. and C. were married in September 1997 in the United Kingdom. P. discovered shortly afterwards that she was pregnant. 20. Rochdale Metropolitan Borough Council (“the local authority”) became aware of the pregnancy after P. had taken steps with a view to obtaining an annulment of her previous marriage and her ex-husband had informed the district attorney in California who in turn made contact with the authorities in the United Kingdom, giving information about P.'s conviction for harming her son B. The local authority was informed of the pregnancy by P.'s doctor and commenced an investigation. 21. Social workers were in contact with P. and C. from January 1998. A letter was sent to arrange a meeting. Prior to the proposed meeting, there were several exchanges on the telephone. C. considered that the social services should provide more detailed information before a meeting took place and made a list of requirements regarding access to files and copies of documents. Tension arose when the social worker requested that P. give her date of birth in order to confirm that she was the person concerned in the information from the United States. P. initially refused to give this information. The proposed meeting was cancelled. 22. On 21 January 1998 the applicants' solicitors wrote to the social services requesting that they provide information to both themselves and P. directly, concerning, inter alia, the reason for the proposed meeting, details of any information in their possession, forms for applying for access to social-work files, specific details of child protection concerns in the case and a list of every person with whom P. had been discussed. 23. On 28 January 1998 a meeting took place attended by P. and C., social workers and the police. 24. There was further correspondence between the local authority and the applicants' solicitors concerning the appointment of an expert to assess the risk to the unborn child, pursuant to section 47 of the Children Act 1989 (“the section 47 assessment”). By letter dated 17 February 1998, the local authority's solicitors noted that the applicants were not happy with the proposed expert, Dr Bentovim, and requested further details of any objections. They pointed out that the person suggested by the applicants was not an expert in MSBP and requested details of the other proposed experts. 25. On 18 February 1998 the local authority made contact with Dr Eminson, a consultant child and adolescent psychiatrist who had been proposed by the applicants, with a view to her undertaking an assessment. 26. By letter dated 13 March 1998, the local authority's solicitor referred to a letter of 11 March 1998 by the applicants' solicitors. It was pointed out that, as there were no care proceedings in train, there was no obligation on the local authority to agree a letter of instruction for the expert with the applicants. At that stage, all that was required was P.'s agreement to see the expert. The view was expressed that it was for the local authority to decide what documents to submit to the expert, although they would have no objection to the applicants' providing extra documentation. Although they wished to work in cooperation with P., they could not allow her to dictate the course and conduct of the section 47 assessment. 27. On 2 March 1998 a case conference was held by the local authority attended, inter alia, by social workers, P.'s general practitioner, a health visitor, a midwife, P. and C., P.'s solicitor and the paternal grandmother of the unborn child. The minutes of the meeting state that the reason for the conference was that P. had a conviction which led to concern that her child might be at risk of induced illness/injury after it was born. It was noted that P. disputed details of the background to her conviction, claiming, inter alia, that there was evidence of her son B. having had diarrhoea as she alleged. C. was noted as accepting that the existence of a conviction could give rise for concern but not that it automatically meant his wife suffered from MSBP, alleging that there was no direct evidence of any harm having been inflicted by her. Due to the concern that P. suffered from MSBP, it was decided to place the child on the Child Protection Register at birth and to undertake a full risk assessment. 28. On about 16 March 1998 Dr Eminson agreed to act as expert in the assessment to take place. 29. On 18 March 1998 the applicants' solicitors wrote to the local authority, pointing out that their request for an agreed letter of instruction and the list of documents given to the expert was based on good practice and procedure and that, although there were no care proceedings, they had assumed the same principles would be applied. They stated that P. could not be expected to go into a meeting blind to the specific points the doctor had been asked to address and that they needed a list of documents in order to assess whether they wished to provide the expert with anything further. 30. By reply of the same date, the local authority's solicitor stated that a section 47 assessment procedure was at the entire discretion of the local authority and that different principles applied than in care proceedings. However, they were prepared to disclose the list of documents sent to Dr Eminson and set out the questions which they would ask her to address. 31. On 25 March 1998, in discussions between the applicants' solicitors and the local authority, it was indicated that the applicants were no longer happy with Dr Eminson. 32. On 1 April 1998 the local authority held a case conference to review the situation. It was found that the parents had not cooperated with the local authority assessment, or that their cooperation was superficial. A combination of excuses and evasiveness had made it impossible to hold more than one meeting. There still appeared to be a complete denial about events in the United States. The local authority's solicitor had spoken with the district attorney involved in the case in California and reported a number of allegations, including the concern that P. suffered from MSBP as shown by her own medical history, that C. had impersonated a therapist in trying to convince P.'s probation officer that she was complying with an order and that P. had harassed Dr Shreier and the district attorney by telephone calls. It was noted that P. and C. were unwilling to see the expert proposed by the local authority. It was decided to take out an emergency protection order at the child's birth as there was “reason to believe that the baby would be at risk of significant harm if left in the care of his/her parents; there has been no genuine cooperation from the parents and it would be impossible for the Social Services... to manage the risk without legal jurisdiction which includes removal in the first instance. An application for interim care proceedings would require notice and [there were] reasons to believe that the parents would evade the authorities”. The address of the foster placement was to be kept secret to avoid harassment or an attempt to remove the child. The parents were to be told about the intention to take legal action in general terms. 33. On 7 April 1998 the applicants' solicitors confirmed that P. and C. would see Dr Eminson. They attended an appointment on 28 April 1998. 34. On 8 April 1998 Dr Schreier wrote to the local authority, expressing grave concern and recommending the removal of the baby at birth and strict supervision of contact as there was a high level of risk of harm from P. 35. On 30 April 1998 the local authority was approached by C.'s mother, asking whether the child could be placed with her. The local authority decided to raise the matter with Dr Eminson as part of her assessment. 36. Notes dated 6 May 1998 of a discussion between the assistant director (social services) and Dr Eminson included the doctor's view that the basis upon which to work with the parents was extremely limited given the absence of acceptance/agreement about concerns over the unborn baby or the past history in America. She had found that the parents were not prepared to discuss the real issues with her, that C. was mainly interested in the battle with the authorities and that the couple showed little concern for or awareness of the key issue, that of the safety of the unborn baby. Although a definitive conclusion was difficult, the risk factors were not in her view sufficiently worrying to justify not telling the parents about the proposed application for an emergency protection order at birth. While the possibility of further assessment with the couple and newborn baby at a residential facility was not ruled out, this was not possible at that time due to the limited degree of cooperation and commitment of the parents. 37. By 30 April 1998 it was becoming likely that, due to the lie of the baby, P. would have to have a Caesarean section instead of the planned delivery at home. The midwife reported that the consultant Dr Maresh wanted P. to be admitted on 6 May 1998 for an elective Caesarean, but that P. had refused and gone home. The midwife was noted in the social-work records as having become very angry with P. and C. for resisting medical advice and, later, for having claimed that they had been lucky to get a live baby. 38. On 7 May 1998, at 4.42 a.m., S. was born by Caesarean surgery. C. had brought P. to the hospital when her waters broke at home. 39. The local authority applied for an emergency protection order at about 10.30 a.m. They contacted the hospital concerning the possibility of staff supervising the baby at the hospital. After discussions, it was confirmed to the local authority by the hospital management that, even with security measures, they could not guarantee the baby's safety. The Government stated that the hospital was concerned by the difficult behaviour of a friend of P.'s who demanded to be present during the operation and had to be threatened with removal by security guards, and the aggressive attitude of P.'s friends and family towards staff after the birth. The applicants have stated that there is no evidence for these allegations in the records. Notes in the hospital records indicated that at 3.30 p.m. Dr Maresh had stated that he would prefer the visit of the social workers to be deferred, as the news might upset P. and cause a rise in blood pressure. 40. At about 4 p.m. it was decided to serve the emergency protection order on the applicants with a view to removing S. to foster care. According to the Government, C.'s mother refused to allow S. to be removed and C.'s father threatened to follow the social workers and the baby. Safe departure from the hospital was only achieved with the assistance of the hospital staff. The applicants stated that there was no evidence for this in the records, although they accepted that the family were very upset when S. was removed, and C.'s mother pleaded with the social workers not to let S. go to strangers. 41. A contact visit was arranged on 8 May 1998, attended by C. and his parents. While social services had considered taking S. back to the hospital for visits while P. was an inpatient, it was felt that it was not in the interests of S. as a newborn baby to be transported on a trip of some twenty-five to thirty miles. 42. P. remained in the delivery unit due to concerns about her blood pressure. It was noted by her consultant that she was very clearly distraught about events. She was prescribed drugs to suppress lactation and anti-hypertensive medication. She was discharged on 10 May 1998. 43. The local authority meanwhile applied to the court for a care order under the Children Act 1989. 44. P. and C. were allowed supervised contact with S., initially three times a week. The first visit occurred on 11 May 1998. P. and C. applied for more access and were supported by the guardian ad litem appointed by the court to represent S. Contact increased to four times a week from 15 June 1998. S. also had contact with her maternal and paternal grandparents. 45. P. and C. developed an excellent relationship with their baby daughter S. The notes made by the supervising officials were positive and complimentary. The paternal grandparents were also observed to have a caring and attentive relationship with her. 46. On 13 May 1998 the local authority suspended the assessment of the paternal grandparents which had commenced after their approach to the local authority on 30 April 1998. This was to await the directions of the court, as advised by their counsel. The grandparents were advised of this on 14 May 1998. 47. On 14 May 1998 the case was transferred from the county court to the High Court on grounds of complexity. 48. Dr Eminson issued her report on 29 June 1998, stating that in order to assess the risk to S. it would be necessary to obtain, inter alia, a psychiatric assessment of P. and her capacity to change and a comprehensive social work assessment of each family member, including the grandparents, as regards their capacity to care for and protect S. 49. On 31 July 1998 the timetable for the proceedings was set by a circuit judge and the hearing date fixed for February 1999. It was directed that the assessment of the grandparents should be undertaken by an expert but that the local authority should provide the factual background. 50. In a report dated 21 September 1998, a social worker recorded the factual investigation into the paternal grandparents. 51. In his report dated 28 September 1998 for the guardian ad litem appointed by the court to represent S., Dr Davis, a consultant paediatrician, found, inter alia, a clear and chronic pattern including unexplained symptoms suggesting that P. suffered from a severe illness; a definitive episode of poisoning; non-appearance of symptoms when the child was supervised by others and resolution of the health problems in the child after separation from the mother; extensive inaccuracies and inconsistencies by P. when repeating her history to different doctors; and exceptionally frequent medical attendance by mother and children. His opinion was that B., and to lesser extent A., had been victims of child abuse on the fabricated illness spectrum. The tendency to fabricate appeared to be ongoing (references were made to P.'s conduct during her pregnancy with S.: she had, for example, complained of ulcer symptoms but no ulcer was found, and she had referred to a stomach tumour which was presumably a besore [A condition caused by the swallowing of hair and the biting of hair and nails] removed in 1994). His view, strongly expressed, was that the risks to S. of rehabilitation with P. outweighed the advantages. 52. On 17 and 18 November 1998, the local authority informed P. and C. of their intention to apply for a freeing for adoption order under the Adoption Act 1976. 53. On 26 November 1998 Dr Maresh, P.'s obstetrics consultant, gave a statement indicating that it was clear to him that P. was aware that there was a strong possibility that her baby would be taken away from her at birth and that this made it difficult for her to stay at the hospital. He noted that during her pregnancy the number of assessments that P. was undergoing had sometimes interfered with the making of ante-natal appointments. 54. On 10 December 1998 Dr Bentovim issued his psychiatric report. (i) It was noted that, during his meetings with P., she had been superficially cooperative. She had considered that the test which found a laxative in B.'s stools could have been a false positive. She accepted that B. had been hospitalised too often and that she had allowed emotional harm to come to him. Her explanation was that she had been a victim of the divorce process and suffered considerable financial stress. The only statement by P. in which she appeared to take responsibility for exaggerating B.'s illness was when she said that she had exaggerated the number of loose stools that he had had. There was a sense of evasiveness and minimisation, even a degree of trivialisation of what was discussed. It was difficult to tell whether some events referred to by P. were a constructed reality or had really happened. (ii) As regards C., his research attempted to show that health practitioners sometimes developed a perspective where they created the notion that the parent was inducing illness in a child, thus demonstrating the misuse and fallibility of medical authority. C. had stated that there was nothing to suggest that P. would harm S. He was prepared to look after S. alone if necessary. Together, P. and C. had stated that they would undertake any therapeutic work with a view to obtaining care of S. without, however, acknowledging that there was a problem as far as P. was concerned. (iii) As regards the paternal grandparents, they tended to agree with the parents' analysis of the situation and found it hard to face up to the fact that P.'s actions had given rise to major concerns about her potential to harm. There were positive factors in their favour (such as their commitment and desire to protect S.). However, the main problem if S. were placed with them would be their age when S. reached her adolescent phase of development. (iv) The report found that P. had a personality disorder, including a factitious disorder, as disclosed by her gross exaggeration of having had ovarian cancer and statements about miscarriages as well as the fabrication and exaggeration of B.'s symptoms. While P. had indicated a willingness to accept therapeutic work, which would have to be prolonged and required considerable motivation to change, she had not accepted how extensive such change needed to be. As regarded a possible referral to the Cassell Hospital, it was noted that this would require considerable commitment on the part of both parents. Although the couple had indicated a willingness to enter such a therapeutic setting, P.'s level of motivation was limited. It might, however, be advantageous for P. to be admitted to a special clinic for a further detailed assessment of whether a referral to Cassell Hospital would be appropriate. (v) The report concluded that C. was not himself a direct risk to S. but was so indirectly. He embraced his wife's views and had a limited understanding of the local authority's concerns. Similarly, the grandparents would be protective of S. if she were placed in their care but, as they would be in their 70s when S. was 14 years old, they would have increasing difficulties in meeting her growing emotional needs. It was therefore difficult to consider them as possible long- or short-term carers because S. needed to be in a secure long-term placement by her first birthday. As regards contact, the fact that the fabrication of symptoms was not life-threatening meant that contact would need less rigorous supervision than in the case of more life-threatening abuse. 55. On 16 December 1998 the local authority made an application to free S. for adoption. 56. The local authority care plan dated 13 January 1999 stated that placement of S. with both parents would pose a serious risk to her. As the circumstances in which C. intended to offer to care for S. on his own were unclear, the concerns about her protection remained. Regarding the paternal grandparents, it was noted that they had not shared the concerns in respect of the risk to S. if she were placed with her parents, and that Dr Bentovim did not support placement with them, particularly because of their age. The local authority's view was that the care plan for S. should be permanent, secured by adoption, and that she needed to be placed with an adoptive family as soon as possible. 57. At a hearing, which began on 2 February 1999 and ended on 1 March 1999, the High Court heard the local authority's application for a care order in respect of S. The local authority informed the judge that there were nine families available and wanting to adopt S. P. and C. were parties, as were S.'s paternal grandparents, while S. was represented by a professional guardian ad litem, solicitors and both senior and junior counsel. 58. On 4 February 1999 C. applied for leave to withdraw from the proceedings, on the ground that he saw no prospect of success in obtaining custody of S. and that the stress of the proceedings was likely to lead to a breakdown in his health. On 5 February 1999 the judge granted him leave to withdraw. C.'s parents also withdrew from the proceedings. 59. On the same date P.'s legal representatives (leading counsel and solicitors) withdrew from the case, informing the judge that her legal aid had been withdrawn. It was later stated by the judge that they had withdrawn because P. was asking them to conduct the case unreasonably. In fact, her legal aid had not withdrawn, as the judge made clear in his judgment. The legal-aid certificate could not be formally discharged until P. had been given the opportunity to show why that should not happen. 60. P. asked for an adjournment until 9 February 1999, which was granted. On that date P. asked for a further adjournment in order to apply for the reinstatement of her legal-aid certificate. 61. The judge refused the adjournment. As a result of this decision, P. conducted her own case, assisted by a “McKenzie friend”, Mrs H. The applicant stated that she found conducting her own case immensely difficult. At one stage, she told the judge that she simply could not continue because she was so distressed. That was after cross-examining her own husband C., which she found very painful. However, the judge said that she should carry on. The solicitor for the guardian ad litem and a social worker visited P. that evening to persuade her to carry on. 62. In his judgment, the judge explained his refusal of an adjournment: “In the first place I was satisfied that the mother had a very clear grasp of the voluminous documentation, at least as good and if not better a grasp than the lawyers in the case. Secondly, it was clear to me from the documents that the mother, who is an intelligent woman, was fully able to put her case in a clear and coherent way, an assessment that has been amply borne out by the hearing itself. Thirdly, I was confident that the Bar, in the form of leading and junior counsel for the local authority and the guardian ad litem, would not only treat the mother fairly but in the tradition of the Bar would assist her in the presentation of any points she wished to advance, in so far as it would be professionally proper for them to do so. Once again that assessment has been fully justified by the conduct of counsel during the hearing. As examples, the local authority both facilitated and paid for the attendance of Dr Toseland, consultant toxicologist, to attend as part of the mother's case. Junior counsel for the local authority ... struggled manfully to ensure that the mother had a complete set of the ever growing documentation. There were other examples. Fourthly, the outcome of the case seemed to me to hinge or be likely to hinge substantially on the mother's cross-examination, an area of the case in which the ability of lawyers to protect her was limited. Finally, and most importantly, I was concerned about the prejudice to [S.] of what would have had to have been a very lengthy adjournment. Section 1(2) of the Children Act expresses the general principle that delay in resolving a child's future is prejudicial to that child's welfare. In this particular case intensive preparation for the hearing had been going on effectively since [S.'s] birth in May 1998 and up until the outset of the hearing before me the mother had had the benefit of advice from her lawyers, latterly of course from leading counsel. An adjournment would have involved a very substantial delay in resolving [S.'s] future. The hearing was estimated to last, and did indeed, last something in the order of twenty working days. A fresh legal team, assuming legal aid was restored, would have needed a substantial amount of time to master the voluminous documentation and to take instructions. Twenty days of court time simply cannot be conjured out of thin air. Furthermore the evidence of Dr ... Bentovim, the consultant child psychiatrist jointly instructed to advise me, amongst other things, on [S.'s] placement, was that a decision on her long-term future needed to be both made and if possible implemented before her first birthday. The consequence of the events I have described was that the mother has been obliged to conduct her case in person with the assistance of a McKenzie friend, Mrs [H.]. In their closing submissions Mr David Harris QC and Miss Roddy for the guardian ad litem paid tribute to the manner in which the mother had conducted her case. They described her as fighting bravely, resourcefully and skilfully for the return of her daughter. I would like to echo that tribute. I would also like to express my gratitude to the mother's McKenzie friend ... who was clearly a considerable support to the mother throughout the case. If the mother had been represented by counsel her case would, I think, have been conducted differently, but I am entirely satisfied that the result would have been the same. As so often happens the mother was given a latitude which would not be given to a litigant who was legally represented. For example, I allowed her to call a witness, Professor Robinson, who had not provided a statement prior to the hearing. I was also prepared for her to call a consultant psychologist who had given evidence in the American proceedings, Dr [P.], who in the event was unable to attend. I also allowed the mother to cross-examine witnesses twice ... I have throughout the hearing endeavoured to ensure that the mother was treated fairly. .... I am the first to acknowledge that the courtroom is not a friendly environment and ... that those who are not used to it find it difficult. However much experience the mother may have had of the legal system in the United States of America, I accept ... that she is not a lawyer. Further, the hearing has had in [S.'s] interests to delve into matters which were highly distressing to the parents and which are normally intensely private and would have remained private. It is my judgment that the mother's case has been fully heard and that the hearing has been fair ... I reject any suggestion that had the mother been legally represented the result would have been different.” 63. On 8 March 1999 the judge made a care order. In reaching his decision, he did not consider himself bound by the American conviction and reached his own findings of fact on the available material, which included a substantial volume of documents from the United States and expert reports. He concluded beyond reasonable doubt that B.'s diarrhoea had been caused by laxative abuse on the part of P. on one occasion and, on a balance of probabilities, that abuse was the most likely cause of B.'s diarrhoea on two further occasions. He went on: “I am therefore in no doubt and so find that [B.] did suffer harm in the care of his mother. In my judgment that harm was not limited to his physical health. I accept the argument of the local authority that he also suffered serious psychological harm. ...” 64. While the judge accepted that P. had not put S. at risk during her pregnancy and that the parents' treatment of S. during contact sessions had been exemplary, he found that P. suffered from a personality disorder, and that such people were very difficult to treat and did not change easily. He considered that P. was in a state of deep denial about what had happened to her son B. and the potential risk that she posed to her daughter S. He referred to the expert evidence “that to receive help P. would need to accept that she remains a potentially dangerous person to S.” and “that is impossible even to start where the mother is in denial to the extent that this mother plainly is”. He noted that Dr Bentovim had found a small acknowledgment about her role in B.'s illness, but that P. had challenged the accuracy of his report on this point and embarked on a high-risk strategy of launching an outright attack on the American evidence. “At the end of a very careful and thorough cross-examination by the guardian ad litem, Dr Bentovim agreed ... that given the depth and longevity of the mother's state of denial, and given that the father had embraced it fully, the time scale for any therapeutic work with the mother designed to bring her to a state of understanding of and ability to address the risk posed to S. was way outside the time scale during which S. could be kept waiting for a permanent placement. Dr Bentovim's conclusion, reached I think with some regret, was that in the circumstances there could be no question of reunification of S. with her mother.” 65. The judge found that C. was incapable of altering his emotional perception of P. or of accepting that she was responsible for harming her son B., although with a different woman as a partner he would have been able to bring up and care for a child. The direction of the case could have been altered if C. had acknowledged that there was a serious risk to be guarded against. C. was dominated by the mother and unable to put S.'s interests and the need to protect her first. The judge concluded that S.'s moral or physical health would be endangered by leaving her with her parents. 66. On 15 March 1999 the same High Court judge heard the application to free S. for adoption. The transcript of his previous judgment was not yet available. The final order of 15 March 1999 listed P., C. and S. as respondents. According to the applicants, C. was present throughout and was specifically asked in court if he consented to a freeing for adoption order being made, and C. indicated that he was not. 67. At the commencement of the hearing, P. informed the court that without legal representation she was significantly disadvantaged and was being deprived of a proper opportunity to advance her case. Both P. and C. had valid legal-aid certificates. The judge declined to defer the proceedings, finding that P. was capable of representing her interests and that she would have been put on notice by her lawyers at an earlier stage that the freeing for adoption application would follow the care order. Although he noted that there might appear to be “an element of railroading”, on balancing the parents' interests against the need for S. to have her future decided at the earliest possible opportunity, he considered that S.'s interests prevailed. On the issue of the freeing for adoption application, the judge concluded that the parents were withholding their consent to adoption unreasonably as they should have accepted, in the light of the previous proceedings, that there was no realistic prospect of the rehabilitation of S. to their care. He therefore issued an order freeing S. for adoption. That permanently severed legal ties between S. and her parents. As regards contact, he stated: “I'm assured by [the local authority] that there will be conventional letter-box contact. But it will in due course (if an adoption order is made) be essentially a matter for the adoptive parents as to precisely what contact [S.] has with her natural family.” 68. The judge refused P. leave to appeal against the order. Her renewed application before the Court of Appeal was refused after a hearing on 5 July 1999, where she and C. appeared in person. Although the Court of Appeal noted that C. was not a party to the appeal, it referred to the fact that C. had addressed the court at some length on the issues. It noted that that the trial was of exceptional complexity, with enormous documentation, much expert evidence and lasting twenty days. It found, however, that the judge had carefully and thoroughly weighed all the issues of fact and that he had been meticulous throughout in ensuring fairness. No error of law or any failure of procedural fairness had been demonstrated. 69. The last contact visit by P. and C. with S. was on 21 July 1999. 70. On 2 September 1999 S. was placed for adoption with a family. On 13 October 1999 the local authority informed P. and C. that S. had been placed with adopters. 71. S. was adopted by an order made on 27 March 2000. P. and C. were informed on 27 April 2000. 72. The adoption order made no provision for future direct contact between S. and her parents. Any such contact was now at the discretion of the adoptive parents. By letter dated 6 July 2000, the local authority informed P. and C. that they could have limited indirect contact with S., namely, through Christmas and birthday cards, and presents. By letter dated 17 November 2000, the local authority informed them that contact was reduced at the request of the adopters to a letter from the parents once a year. 73. Section 47 of the Children Act 1989 provides: “(1) Where a local authority ... (b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare.” 74. Whenever a court determines any matter in relation to the upbringing of a child, it must have regard to the provisions of the Children Act 1989, section 1, which requires that the court's paramount consideration must be the welfare of the child. The court is empowered to make care orders or supervision orders where it is satisfied that (a) the child concerned is suffering, or is likely to suffer, significant harm; (b) the harm, or likelihood of harm, is attributable to the care given to the child, or likely to be given to him/her if the order were not made; and (c) that care is not what it would be reasonable to expect a parent to give to him/her (section 31). 75. Where an application is made for a care order, the local authority which is to take over the care of a child must set out the plan by which it intends to meet the welfare needs of the child (including details of contact) – the “care plan”. Government guidance at the time emphasised: “Where a child is in the care of a local authority, the Children Act 1989 places a duty on them to make all reasonable efforts to rehabilitate the child with his or her family whenever possible unless it is clear that the child can no longer live with his family or that the authority has sufficient evidence to suggest that further attempts at rehabilitation are unlikely to succeed.” (LAC(98)20 Appendix 4) 76. The courts' approach was similar: “The principle has to be that the local authority works to support, and eventually to reunite, the family, unless the risks are so high that the child's welfare requires alternative family care” (Lady Justice Hale in Re C and B (Children) (Care Order: Future Harm) [2000] 1 Family Law Reports 611) 77. Adoption is the primary avenue in the United Kingdom by which permanent alternative care is provided for children who cannot be brought up within their own family. An adoption order, which is effectively irrevocable, gives parental responsibility to the adopters and extinguishes the pre-existing parental responsibility. 78. By virtue of section 16, an adoption order may not be made unless the child is free for adoption, or both parents have consented or their consent had been dispensed with on specified grounds. 79. Before a local authority can apply for an application to free a child for adoption, the plan for adoption must be placed before an adoption panel. In the absence of parental consent, a local authority may apply for a freeing for adoption order where the child is in the care of the local authority. The test to be applied by the courts in determining whether or not to dispense with parental consent includes the ground that the parent is withholding agreement unreasonably (section 16(2)(b)). A recent judicial approach to that test suggested that the judge should consider whether, having regard to the evidence and applying the current values of society, the advantages of adoption for the welfare of the child appeared sufficiently strong to justify overriding the views and interests of the objecting parent (Re C (A Minor) (Adoption: Parental Agreement: Contact) [1993] 2 Family Law Reports 260).

dev

001-71216

ENG

UKR

CHAMBER

CASE OF KOZHANOVA v. UKRAINE

Violation of Art. 6-1 (non-enforcement of one judgment);Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage, costs and expenses - financial award (global)

4. The applicant was born in 1958 and lives in the village of Ivanivka, the Lugansk region of Ukraine. 5. On 6 September 2000 the Krasnolutchsk City Court ordered the Krasnolutchska State Mine to supply the applicant with 8,850 kg of coal. 6. On 6 October 2000 the Krasnolutchsk City Bailiffs’ Service instituted enforcement proceedings in respect of that judgment. 7. On 5 May 2003 the Bailiffs’ Service informed the applicant that the judgment could not be enforced due to the large number of enforcement proceedings against the debtor and the fact that the procedure for the forced sale of assets belonging to the debtor had been suspended because of the moratorium on the forced sale of property belonging to State enterprises introduced by the Law of 29 November 2001. 8. On 21 October 2004 the judgment was enforced in full. 9. On 30 July 2003 the same court ordered the Mine to supply the applicant with another 8,850 kg of coal. 10. On 1 September 2003 the Krasnolutchsk City Bailiffs’ Service instituted enforcement proceedings in respect of the judgment of 30 July 2003. 11. On 19 October 2004 that judgment was also enforced in full. 12. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).

dev

001-58115

ENG

TUR

GRANDCHAMBER

CASE OF ZANA v. TURKEY

Violation of Art. 6-1;Violation of Art. 6-3-c;No violation of Art. 10;Preliminary objection rejected (ratione temporis);Preliminary objection rejected (estoppel);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

John Freeland

9. Mr Mehdi Zana, a Turkish citizen born in 1940, is a former mayor of Diyarbakır, where he currently lives. 10. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces. 11. At the time of the Court’s consideration of the case, ten of the eleven provinces of south-east Turkey had since 1987 been subjected to emergency rule. 12. In August 1987, while serving several sentences in Diyarbakır military prison, the applicant made the following remarks in an interview with journalists: “I support the PKK national liberation movement; on the other hand, I am not in favour of massacres. Anyone can make mistakes, and the PKK kill women and children by mistake …” “... PKK'nın ulusal kurtuluş hareketini destekliyorum. Katliamlardan yana değiliz, yanlış şeyler her yerde olur. Kadın ve çocukları yanlışlıkla öldürüyorlar …” That statement was published in the national daily newspaper Cumhuriyet on 30 August 1987. 13. On 30 August 1987 the “press offences” department of the Istanbul public prosecutor’s office began a preliminary investigation in respect of the applicant among others, on the ground that he had “defended an act punishable by law as a serious crime”, an offence under Article 312 of the Criminal Code (see paragraph 31 below). 14. On 28 September 1987 the Istanbul public prosecutor’s office ruled that there was no case to answer in respect of the journalists and that it had no jurisdiction ratione loci to deal with Mr Zana’s case. It sent the file to the Diyarbakır public prosecutor. 15. In an order of 22 October 1987 the Diyarbakır public prosecutor ruled that he had no jurisdiction, on the ground that the offence committed by the applicant was governed by Article 142 §§ 3–6 of the Criminal Code (a provision which makes it an offence to disseminate propaganda that is racist or calculated to weaken national sentiment). He forwarded the file to the public prosecutor at the Diyarbakır National Security Court. 16. On 4 November 1987 the latter likewise ruled that he had no jurisdiction, on the ground that when the applicant had made his statement to the journalists he was in custody in a military prison and therefore had military status in law. He forwarded the file to the Diyarbakır military prosecutor’s office. 17. By means of an indictment dated 19 November 1987, the Diyarbakır military prosecutor’s office instituted proceedings in the Diyarbakır Military Court against Mr Zana (among others) under Article 312 of the Criminal Code. The applicant was charged with supporting the activities of an armed organisation, the PKK, whose aim was to break up Turkey’s national territory. 18. At a hearing before the Diyarbakır Military Court on 15 December 1987 the applicant argued that the court had no jurisdiction to hear his case and refused to put forward a defence on the merits. 19. At a hearing on 1 March 1988 counsel for Mr Zana asked the Military Court to rule that it had no jurisdiction as the offence with which his client was charged was not a military one and a military prison could not be regarded as military premises. The court dismissed that application on the same day. 20. On 28 July 1988 the applicant was transferred from Diyarbakır military prison to Eskişehir civilian prison. 21. The Eskişehir Air Force Court, acting under powers delegated to it by the Diyarbakır Military Court, summoned the applicant to submit his defence. The applicant, who was on hunger strike, did not appear at the hearing on 2 November 1988. He did appear at one held on 7 December 1988 but refused to address the court, as he considered that it had no jurisdiction to try him. 22. In a decision of 18 April 1989 the Diyarbakır Military Court held that it had no jurisdiction in the case and sent the file to the Diyarbakır National Security Court. 23. On 2 August 1989 Mr Zana was transferred to the high-security civilian prison at Aydın. 24. At a hearing held on 20 June 1990 by the Aydın Assize Court, acting under powers delegated by the Diyarbakır National Security Court, the applicant refused to speak Turkish and said in Kurdish that he wished to defend himself in his mother tongue. The Assize Court pointed out to him that, if he persisted in his refusal to defend himself, he would be deemed to have waived his right to do so. Since Mr Zana continued to speak in Kurdish, the court noted in the record of the hearing that he had not put forward a defence. 25. The proceedings then continued before the Diyarbakır National Security Court, where the applicant was represented by his lawyers. 26. In a judgment of 26 March 1991 the Diyarbakır National Security Court sentenced the applicant to twelve months’ imprisonment for having “defended an act punishable by law as a serious crime” and “endangering public safety”. In accordance with the Act of 12 April 1991, he would have to serve one-fifth of the sentence (two months and twelve days) in custody and four-fifths on parole. 27. The National Security Court held that the PKK qualified as an “armed organisation” under Article 168 of the Criminal Code, that its aim was to bring about the secession of part of Turkey’s territory and that it committed acts of violence such as murder, kidnapping and armed robbery. The court also held that Mr Zana’s statement to the journalists, the exact terms of which had been established during the judicial investigation, amounted to an offence under Article 312 of the Criminal Code. 28. The applicant appealed on points of law on 3 April 1991. In a judgment of 19 June 1991, served on the applicant’s representative on 18 July 1991, the Court of Cassation upheld the National Security Court’s judgment. 29. In the meantime, on 16 April 1991, Mr Zana, who had just served the sentences imposed on him earlier, had been released. 30. On 26 February 1992 the Diyarbakır public prosecutor requested the applicant to report to Diyarbakır Prison in order to serve his latest sentence – one-fifth of the prison term, for the remainder of which he would be on parole. 31. The relevant provisions of the Criminal Code at the material time provided: Article 168 “It shall be an offence punishable by at least fifteen years’ imprisonment to form an armed gang or organisation or to assume control or special responsibility within such a gang or organisation with the intention of committing any of the offences referred to in Articles 125 ... It shall be an offence punishable by five to fifteen years’ imprisonment to belong to such an organisation.” Article 312 “It shall be an offence, punishable by six months’ to two years’ imprisonment and a ‘heavy’ [ağır] fine of 6,000 to 30,000 liras publicly to praise or defend an act punishable by law as a serious crime or to urge the people to disobey the law. It shall be an offence, punishable by one year’s to three years’ imprisonment and by a heavy fine of 9,000 to 36,000 liras, publicly to incite hatred or hostility between the different classes in society, thereby creating discrimination based on membership of a social class, race, religion, sect or region. Where such incitement endangers public safety, the sentence shall be increased by one-third to one-half. ...” 32. Article 226 § 4 of the Code of Criminal Procedure at the material time provided: “A person in custody in a prison situated outside the jurisdiction of the court which is to try him may be examined by other courts.” 33. On 22 January 1990 the Turkish Minister for Foreign Affairs deposited with the Secretary General of the Council of Europe the following declaration under Article 46 of the Convention: “On behalf of the Government of the Republic of Turkey and acting in accordance with Article 46 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, I hereby declare as follows: The Government of the Republic of Turkey acting in accordance with Article 46 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, hereby recognises as compulsory ipso facto and without special agreement the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention which relate to the exercise of jurisdiction within the meaning of Article 1 of the Convention, performed within the boundaries of the national territory of the Republic of Turkey, and provided further that such matters have previously been examined by the Commission within the power conferred upon it by Turkey. This Declaration is made on condition of reciprocity, including reciprocity of obligations assumed under the Convention. It is valid for a period of 3 years as from the date of its deposit and extends to matters raised in respect of facts, including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present Declaration.” That declaration was renewed on 22 January 1993 for a period of three years and again on 22 January 1996, in slightly different terms, for two years.

dev

001-58279

ENG

TUR

GRANDCHAMBER

CASE OF SÜREK v. TURKEY (No. 1)

No violation of Art. 10;Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

John Freeland;Luzius Wildhaber;Paul Mahoney

8. The applicant is a Turkish citizen who was born in 1957 and lives in Istanbul. 9. At the material time, the applicant was the major shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish limited liability company which owns a weekly review entitled Haberde Yorumda Gerçek (“The Truth of News and Comments”), published in Istanbul. 10. In issue no. 23 dated 30 August 1992, two readers’ letters, entitled “Silahlar Özgürlüğü Engelleyemez” (“Weapons cannot win against freedom”) and “Suç Bizim” (“It is our fault”), were published. 11. The letters read as follows (translation): (a) “Weapons cannot win against freedom In the face of the escalating war of national liberation in Kurdistan, the fascist Turkish army continues to carry out bombings. The ‘Şırnak massacre’ which Gerçek journalists revealed at the cost of great self-sacrifice has been another concrete example this week. The brutalities in Kurdistan are in fact the worst that have been experienced there in the past few years. The massacre carried out in Halepçe in southern Kurdistan by the reactionary BAAS administration is now taking place in northern Kurdistan. Şırnak is concrete proof of it. By causing provocation in Kurdistan, the Turkish Republic was heading for a massacre. Many people were killed. In a three-day attack with tanks, shells and bombs, Şırnak was razed to the ground. And the bourgeois press, en masse, wrote about the slaughter. And as the bourgeois press has said, there are indeed scores of ‘unanswered’ questions to be asked. As to Şırnak, the attack on Şırnak is the most effective form of the campaign that is being waged throughout Turkey to eradicate the Kurds. Fascism will follow it up with many more Şırnaks. But the struggle of our people for national freedom in Kurdistan has reached a point where it can no longer be thwarted by bloodshed, tanks and shells. Every attack launched by the Turkish Republic to wipe out the Kurds intensifies the struggle for freedom. The bourgeoisie and its toadying press, which draw attention every day to the brutalities in Bosnia-Herzegovina, fail to see the brutalities committed in Kurdistan. Of course, one can hardly expect reactionary fascists who call for a halt in the brutalities in Bosnia-Herzegovina to call for a halt in the brutalities in Kurdistan. The Kurdish people, who are being torn from their homes and their fatherland, have nothing to lose. But they have much to gain.” (b) “It is our fault The TC[] murder gang is continuing its murders ... on the grounds of ‘protecting the Republic of Turkey’. But as people wake up to what is happening and become more aware, as they gradually learn to stand up for their rights and the idea that ‘if they won’t give, then we’ll take by force’ gradually germinates in people’s minds and grows stronger day by day – as long as this continues, the murders will obviously also continue ... Beginning of course with those who planted the seed in people’s minds – according to the generals, imperialism’s hired killers, and according to the double-chinned, pot-bellied, stiff-necked Turguts, Süleymans and Bülents ... Hence the events of 12 March, hence the events of 12 September ... Hence the gallows, hence the prisons, hence the people sentenced to 300 or 400 years. Hence the people murdered in the torture rooms ‘in order to protect the Republic of Turkey’. Hence the Mazlum Doğans exterminated in Diyarbakır Prison ... Hence the Revolutionaries recently officially assassinated ... The TC murder gang is continuing – and will continue – to commit its murders. Because the awakening of the people is like a flood of enthusiasm ... Hence Zonguldak, hence the municipal workers, hence the public service employees ... Hence Kurdistan. Can the ‘murder gangs’ stop that flood? There may be some who see the title of this letter and wonder what on earth it has to do with the text. The ‘hired killers’ of imperialism, i.e. the authors of the 12 September coup d’état, and their successors of yesterday and today, those who are still looking for ‘democracy’, who in the past participated in one way or another in the struggle for democracy and freedom, who now covertly or openly criticise their past actions, who confuse the masses and present the parliamentary system and the rule of law as the means of salvation, give the green light to the killings of the TC murder gang. I am addressing the ‘faithful servants’ of imperialism and its hardened spokesman (men), the one(s) who said some time ago ‘You won’t get me to say that the nationalists commit crimes’[], who say(s) today ‘Those are not what we call journalists’, who say(s) ‘Who’s against demonstrations? Who’s against claiming one’s rights? Of course they can hold a march ... They’re my workers, my peasants, my public employees’, but then has (have) the public employees who march to Ankara beaten up in the very heart of the city and say(s) afterwards ‘The police did the right thing’, and who postpone(s) strikes for months on end. I am addressing the blabbers, the deserters and the charlatans who are stirring up the reactionary consciousness of the masses, who try to judge these people by their attitude towards Kurdistan and try to work out how ‘democratic’ they are. The guilt of the murder gang is proven. It is through flesh-and-blood experience that people are beginning to see it and realise it. But what about the guilt of the charlatans, the ones who are thwarting the struggle for democracy and freedom ... Yes, what about their guilt ... They have their share in the killings by the murder gang ... May their ‘union’ be a happy one!” 12. In an indictment dated 21 September 1992, the public prosecutor at the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi) charged the applicant in his capacity as the owner of the review, as well as the review’s editor, with disseminating propaganda against the indivisibility of the State and provoking enmity and hatred among the people. The charges were brought under Article 312 of the Criminal Code and section 8 of the Prevention of Terrorism Act 1991 (“the 1991 Act” – see paragraphs 22 and 24 below). 13. In the proceedings before the Istanbul National Security Court, the applicant denied the charges. He asserted that the expression of an opinion could not constitute an offence. He further stated that the letters in issue had been written by the readers of the review and for that reason could not engage his responsibility. 14. In a judgment dated 12 April 1993, the court found the applicant guilty of an offence under the first paragraph of section 8 of the 1991 Act. It found no grounds for convicting him under Article 312 of the Criminal Code. The court initially sentenced the applicant to a fine of 200,000,000 Turkish liras (TRL). However, having regard to the applicant’s good conduct during the trial, it reduced the fine to TRL 166,666,666. The editor of the review was for his part sentenced to five months’ imprisonment and to a fine of TRL 83,333,333. 15. In its judgment, the court held that the incriminated letters contravened section 8 of the 1991 Act. The court concluded that the letters referred to eight districts in the south-east of Turkey as an independent State, “Kurdistan”, described the PKK (Workers’ party of Kurdistan) as a national liberation movement involved in a “national independence war” against the Turkish State and amounted to propaganda aimed at the destruction of the territorial integrity of the Turkish State. In addition the court found that the letters contained discriminatory statements on grounds of race. 16. The applicant appealed against his conviction to the Court of Cassation, contending that his trial and conviction contravened Articles 6 and 10 of the Convention. He asserted that section 8 of the 1991 Act was contrary to the Constitution and denied that the letters in question disseminated separatist propaganda. He also maintained that he had not been able to be present at the hearing at which the decision on his conviction had been given. He pleaded that the decision given in his absence and without his final statement having been taken was contrary to law. 17. On 26 November 1993 the Court of Cassation ruled that the amount of the fine imposed by the National Security Court was excessive and set aside the applicant’s conviction and sentence on that account. The court remitted the case to the Istanbul National Security Court. 18. In its judgment of 12 April 1994, the Istanbul National Security Court sentenced the applicant to a fine of TRL 100,000,000 but subsequently reduced the fine to TRL 83,333,333. As to the grounds for conviction, the court, inter alia, reiterated the reasoning used in its judgment of 12 April 1993. 19. The applicant appealed. He relied on the defence grounds which he had invoked at his first trial. He also maintained that the National Security Court had convicted him without having duly heard his defence. 20. On 30 September 1994 the Court of Cassation dismissed his appeal, upholding the National Security Court’s reasoning and its assessment of the evidence. 21. Following the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act (see paragraph 25 below), the Istanbul National Security Court ex officio re-examined the applicant’s case. On 8 March 1996 the court confirmed the sentence which it had initially imposed on him. 22. The relevant provisions of the Criminal Code read as follows: “Where the legislative provisions in force at the time when a crime is committed are different from those of a later law, the provisions most favourable to the offender shall be applied.” “The term ‘heavy fine’ shall mean payment to the Treasury of from twenty thousand to one hundred million Turkish liras, as the judge shall decide ...” “In the event of conviction, the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence …” “Harmful propaganda 1. A person who by any means whatsoever spreads propaganda with a view to establishing the domination of one social class over the others, annihilating a social class, overturning the fundamental social or economic order established in Turkey or the political or legal order of the State shall, on conviction, be liable to a term of imprisonment of from five to ten years. 2. A person who by any means whatsoever spreads propaganda in favour of the State’s being governed by a single person or social group to the detriment of the underlying principles of the Republic and democracy shall, on conviction, be liable to a term of imprisonment of from five to ten years. 3. A person who, prompted by racial considerations, by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public-law rights guaranteed by the Constitution or undermining or destroying patriotic sentiment shall, on conviction, be liable to a term of imprisonment of from five to ten years. …” “Public incitement to commit an offence … Where incitement to commit an offence is done by means of mass communication, of whatever type – whether by tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled …” “Non-public incitement to commit an offence A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras. A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years’ imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half. The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.” 23. The relevant provisions of the Press Act 1950 read as follows: “For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals. ‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it. An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.” “Where distribution of the printed matter whose distribution constitutes the offence is prevented … by a court injunction or, in an emergency, by order of the Principal Public Prosecutor … the penalty imposed shall be reduced to one-third of that laid down by law for the offence concerned.” 24. The relevant provisions of the Prevention of Terrorism Act 1991 read as follows: “It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person’s ... identity is divulged provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target. It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to print or publish declarations or leaflets emanating from terrorist organisations. … Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the sales of the previous issue if the periodical appears monthly or less frequently, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched[]. However, the fine may not be less than fifty million Turkish liras. The editor of the periodical shall be ordered to pay a sum equal to half the fine imposed on the publisher.” “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras. Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched[2]. However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.” “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine. Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment. Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras … …” “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.” “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve. However, the provisions of this section shall not apply to convictions pursuant to section 8[].” “Persons convicted of the offences contemplated in the present Law who ... have been punished with a custodial sentence shall be granted automatic parole when they have served three-quarters of their sentence, provided they have been of good conduct. … The first and second paragraphs of section 19[] … of the Execution of Sentence Act (Law no. 647) shall not apply to the convicted persons mentioned above.” 25. The following amendments were made to the Prevention of Terrorism Act 1991 following the enactment of Law no. 4126 of 27 October 1995: “In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment ... to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4[] and 6[] of Law no. 647 of 13 July 1965.” 26. The following provisions are relevant to sentences in respect of offences under the Press Act: “The execution of sentences passed on those who were convicted under the Press Act (Law no. 5680) or other laws as editors for offences committed before 12 July 1997 shall be deferred. The provision in the first paragraph shall also apply to editors who are already serving their sentences. The institution of criminal proceedings or delivery of final judgments shall be deferred where proceedings against the editor have not yet been brought, or where a preliminary investigation has been commenced but criminal proceedings have not been instituted, or where the final judicial investigation has been commenced but judgment has not yet been delivered, or where the judgment has still not become final.” “If an editor who has benefited under the provisions of the first paragraph of section 1 is convicted as an editor for committing an intentional offence within three years of the date of deferment, he must serve the entirety of the suspended sentence. … Where there has been a deferment, criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within three years of the date of deferment. Any conviction as an editor for an offence committed before 12 July 1997 shall be deemed a nullity if the aforesaid period of three years expires without any further conviction for an intentional offence. Similarly, if no criminal proceedings have been instituted, it shall no longer be possible to bring any, and, if any have been instituted, they shall be discontinued.” 27. The Execution of Sentences Act 1965 provides, inter alia: “The term ‘fine’ shall mean payment to the Treasury of a sum fixed within the statutory limits. … If, after service of the order to pay, the convicted person does not pay the fine within the time-limit, he shall be committed to prison for a term of one day for every ten thousand Turkish liras owed, by a decision of the public prosecutor. … The sentence of imprisonment thus substituted for the fine may not exceed three years …” “… persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served half of their sentence, provided they have been of good conduct ...” 28. The Code of Criminal Procedure contains the following provisions: “An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment. Non-application or erroneous application of a legal rule shall constitute unlawfulness[].” “Unlawfulness is deemed to be manifest in the following cases: 1- where the court is not established in accordance with the law; 2- where one of the judges who have taken the decision was barred by statute from participating; …” 29. The Government supplied copies of several decisions given by the prosecutor attached to the Ankara National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 24 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decision included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence. Other grounds included the fact that the publications in issue had not been distributed, that there had been no unlawful intent, that no offence had been committed or that those responsible could not be identified. 30. Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty. These were the following judgments: 1991/23–75–132–177–100; 1992/33–62–73–89–143; 1993/29–30–38–39–82–94–114; 1994/3–6–12–14–68–108–131–141–155–171–172; 1995/1–25–29–37–48–64–67–84–88–92–96–101–120–124–134–135; 1996/2–8–18–21–34–38–42–43–49–54–73–86–91–103–119–353; 1997/11–19–32–33–82–89–113–118–130–140–148–152–153–154–187–191–200–606; 1998/6–8–50–51–56–85–162. 31. As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases reached their decisions on the ground that there had been no dissemination of “propaganda”, one of the constituent elements of the offence, or on account of the objective nature of the words used. 32. The constitutional provisions governing judicial organisation of the National Security Courts are worded as follows: “In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law. No organ, authority, ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.” “Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution …” “National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security. National Security Courts shall be composed of a president, two other regular members, two substitute members, a prosecutor and a sufficient number of assistant prosecutors. The president, one of the regular members, one of the substitutes and the prosecutor shall be appointed from among judges and public prosecutors of the first rank, according to procedures laid down in special legislation; one regular member and one substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges. Presidents, regular members and substitute members ... of National Security Courts shall be appointed for a renewable period of four years. Appeals against decisions of National Security Courts shall lie to the Court of Cassation. ...” “Military legal proceedings The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve in the performance of their non-judicial duties shall also be regulated by law ...” 33. Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide as follows: “In the capitals of the provinces of … National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.” “The National Security Courts shall be composed of a president, two other regular members and two substitute members.” “The president of a National Security Court, one of the [two] regular members and one of the [two] substitutes ... shall be civilian … judges, the other members, whether regular or substitute, military judges of the first rank …” “The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the Military Legal Service Act. Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years … … If, after an investigation concerning the president or a regular or substitute member of a National Security Court conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of the person concerned, the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation.” “National Security Courts shall have jurisdiction to try persons charged with (a) the offences contemplated in Article 312 § 2 … of the Turkish Criminal Code, … (d) offences having a connection with the events which made it necessary to declare a state of emergency, in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution, (e) offences committed against the Republic, whose constituent qualities are enunciated in the Constitution, against the indivisible unity of the State – meaning both the national territory and its people – or against the free democratic system of government, and offences which directly affect the State’s internal or external security. …” “The Court of Cassation shall hear appeals against the judgments of the National Security Courts.” “The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession … The observations of the Court of Cassation on military judges, the assessment reports on them drawn up by Ministry of Justice assessors … and the files on any investigations conducted in respect of them … shall be transmitted to the Ministry of Justice.” “A National Security Court may be transformed into a Martial-Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court …” 34. The relevant provisions of the Military Legal Service Act are worded as follows: “The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Law and the Turkish Armed Forces Personnel Act (Law no. 926). (a) The first superior competent to carry out assessment and draw up assessment reports for military judges, whether regular or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence. …” “Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence …” “Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces … … The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the superiors …” “The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.” “The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions: A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties. … B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy. … The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file …” “When military judges … sit in court they shall wear the special dress of their civilian counterparts …” 35. Article 112 of the Military Criminal Code of 22 May 1930 provides: “It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a civil servant in order to influence the military courts.” 36. Under section 22 of Law 1602 the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their professional advancement.

dev

001-78982

ENG

RUS

CHAMBER

CASE OF KUZNETSOV AND OTHERS v. RUSSIA

Violation of Art. 9;Violation of Art. 6;Non-pecuniary damage - award

Christos Rozakis

7. The applicants are Jehovah's Witnesses. The applicant Mr Konstantin Nikanorovich Kuznetsov is a representative of the Administrative Centre of Jehovah's Witnesses in Russia. The other applicants are members of the Chelyabinsk community of Jehovah's Witnesses. 8. Between 1997 and 2001 the Chelyabinsk community of Jehovah's Witnesses filed twelve applications for State registration with the regional Department of the Ministry of Justice. Their applications were refused on 17 May 1996, 20 June and 3 November 1997, 21 January, 30 April, 28 June, 15 July and 16 December 1999, 30 June and 17 August 2000, 11 May and 24 September 2001. Each refusal was justified by reference to alleged formal defects in the registration documents. 9. The applicants complained to a court. On 24 July 2002 the Tsentralniy District Court of Chelyabinsk ruled that the refusal of 24 September 2001 had been unlawful. On 28 October 2002 the Chelyabinsk Regional Court upheld this decision and ordered the registration of the Chelyabinsk community of Jehovah's Witnesses. On 31 March 2003 the community was officially registered by the Chief Directorate of the Ministry of Justice for the Chelyabinsk Region. 10. In the applicants' submission, Ms Yekaterina Gorina, appointed by the Chelyabinsk Regional Governor as Chairwoman of the regional Human Rights Commission (“the Commissioner”), had attempted on several occasions to initiate criminal proceedings against the Chelyabinsk community of Jehovah's Witnesses on the ground that the community had “lured” young children into their “sect”. 11. On 25 May 1999 a senior investigator with the Chelyabinsk town prosecutor's office found no indications of a criminal offence and decided not to open a criminal investigation into the activities of the members of the Jehovah's Witnesses' community. 12. Following the Commissioner's intervention, the decision of 25 May 1999 was reversed and an additional inquiry was ordered. 13. On 3 March 2000 the deputy Chelyabinsk town prosecutor again dismissed the allegations against the members of the Jehovah's Witnesses' community on the ground that no evidence pointing towards a criminal offence could be found. 14. On 6 February 1999 Mr Z., a member of the local community of Jehovah's Witnesses, acting on behalf of the Administrative Centre of the Religious Organisation of Jehovah's Witnesses, negotiated a lease agreement with Mr U., principal of vocational training college no. 85 in Chelyabinsk, in respect of the college auditorium and associated facilities. According to Article 1.1 of the lease agreement, the premises were rented for the purpose of holding religious meetings on Tuesdays between 7 a.m. and 9 p.m. and on Sundays between 10 a.m. and 4 p.m., outside the normal college teaching hours. 15. The lease agreement was intended to run from 7 February to 31 December 1999. It also contained a provision that it would be automatically renewed on the same terms and conditions and for the same period unless either side gave one month's advance notice of its intent to terminate the agreement. No such notice appears to have been given by either party. Thereafter the agreement continued to run for the extended one-year period, but with the lessees only authorised to terminate it subject to two months' notice in writing. There was no reciprocal power for the college to terminate the agreement during the extended period. 16. By April 2000 the applicants had been using the college facilities for fourteen months and had paid their rent on time and in accordance with the terms and conditions. As a means of raising additional revenue for the college, its principal entered into similar lease agreements with four other organisations. 17. On 31 March 2000 the Chief Directorate for Vocational Training and Science of the Chelyabinsk Regional Administration issued an order prohibiting all educational establishments in the Chelyabinsk Region from renting out their premises for religious services, meetings, and so forth. 18. On 12 April 2000 the Commissioner, together with an unidentified senior police officer, visited Mr U., principal of college no. 85, and attempted to persuade him to terminate the lease agreement with the applicants. The principal refused the request. The Commissioner demanded to see the agreement and took a photocopy of it. She then asked a number of detailed questions about the days and times of the Jehovah's Witnesses' meetings. The principal provided the information. 19. On Sunday 16 April 2000, in accordance with the lease agreement, the Jehovah's Witnesses used the college facilities. Two consecutive meetings were on the agenda. The first meeting ended without incident. 20. The second meeting, from 1.30 to 3.30 p.m., was of a group with special needs; most of the participants were profoundly deaf. Many of those in attendance were elderly and also had impaired vision. A person trained in sign language provided interpretation at the meeting, the purpose of which was to study the Bible and join in public worship. The meeting was open to the general public: attendants were positioned near the entrance to the meeting place to greet newcomers and assist with seating. 21. The first part of the meeting was a talk given from the platform by Mr Kuznetsov, who had a mastery of sign language. There were 159 persons present, including all the applicants. 22. At some time between approximately 2.10 and 2.15 p.m. the Commissioner entered the foyer which gives access from the street to the meeting place, holding a child by the hand. The applicant Mr Setdarberdi Oregeldiev, who is profoundly deaf but has no speech impairment, was the attendant on duty. He went out into the foyer to greet the Commissioner and the child and show them to a seat. Realising that the visitor was not deaf, another applicant, Mr Dmitri Gashkov, who did not have impaired speech or hearing, went to assist. He invited the Commissioner into the meeting hall and offered her a chair; she refused and said that the police were about to arrive. 23. After this brief exchange the Commissioner left the foyer. The speaker went on with his talk, which ended at approximately 2.25 p.m. 24. The second part of the meeting was conducted in sign language. This part was in progress, with about 15 minutes left and 45 minutes to go before the end of the contracted rental time of 4 p.m., when the Commissioner again entered the foyer, this time without the child. She was now accompanied by Mr Tomskiy, managing director of the Commissioner-affiliated commercial company Man. Law. Power, and by two senior police officers, Mr Vildanov, deputy head of the District Inspectors' Service of the Traktorozavodskiy Police Department of Chelyabinsk, and Mr Lozovyagin, a senior district inspector with the same department. Mr Tomskiy was holding and using a camcorder to film. 25. The Commissioner led the way forward and walked to the threshold of the door into the meeting hall. Mr Tomskiy was a short distance behind, filming with the camcorder. One of the applicants, Ms Lappo, who was not hearing-impaired and was sitting close to the door in a position to observe the events, later testified before the District Court as follows: “On 16 April 2000 a woman accompanied by two police officers and a man in plain clothes came to the meeting. They stood in the entrance so that I couldn't see the programme. The Commissioner said to one of the men 'Stop the meeting', but he hesitated and said 'But they are deaf mutes'. I told one of the congregation to go and get Konstantin [Kuznetsov]. When Konstantin came out to them there was a conversation with raised voices. The Commissioner asked if there were children in the hall and whether they were all with their parents. Then they asked Konstantin for his passport in an unpleasant manner... ...When I found out who the Commissioner was I was very displeased. I demand that you fire her from her position in the Human Rights Commission...” When asked by the judge what the Commissioner had said to the police officer, Ms Lappo responded: “She said: 'You – go up on to the stage and say that the congregation has to disperse'.” 26. Mr Kuznetsov approached the Commissioner and the police officers. As he was standing in the doorway with his back to the meeting hall, the police officer Mr Lozovyagin asked him for his identity papers. He also asked Mr Kuznetsov whether he had a registered residence in Chelyabinsk. Mr Lozovyagin testified before the District Court as follows: “So I asked him [Kuznetsov] to show me his passport. It showed that he was registered in the Krasnodar Region. I told him that he did not have the right to conduct arrangements without documents”. Mr Kuznetsov submitted that that statement had been incorrect; it was true that his registered place of birth was in the Krasnodar Region, but he also had a properly and lawfully registered temporary residence in Chelyabinsk. 27. In his testimony before the District Court, Mr Lozovyagin continued as follows: “I told Kuznetsov that their organisation did not have the right to conduct its activities without the appropriate documents. He promised to bring the documents to the police station. I asked him to produce the documents. He said 'They exist and are elsewhere', but which documents and where he did not say. I asked him for a document confirming his relationship to the organisation...” Responding to the judge's question about the violations of law and order that he had observed, Mr Lozovyagin said: “Yes, to start with a meeting of an organisation whose activities could not be confirmed by any documents... By law I had to stop the activities until the documents were produced.” This was confirmed by the police officer Mr Vildanov who spoke as follows before the District Court: “Lozovyagin said that the meeting should no longer be conducted and that documents should be prepared giving permission [for services of worship in educational establishments].” In their written submissions on the admissibility and merits of the case, the Government indicated that Mr Lozovyagin had invited Mr Kuznetsov to cancel all events until such time as the appropriate documents had been produced. 28. Mr Kuznetsov submitted that he had been faced with authoritarian demands and the intimidating behaviour of the Commissioner and the police and had thought it best to comply. He described the situation in the following manner: “I believe that we were conducting the meetings on a lawful basis. Pressure was being put on me. Tomskiy gave me an official warning. I was afraid they would start removing those present at the meeting by force. Vildanov and Lozovyagin were in uniform. I understood that they were in a position of authority and must be obeyed...” 29. Mr Kuznetsov went to the platform, interrupted the Bible discussion and made an announcement in sign language: “Police. We have to submit”. The attendees offered no resistance. They gathered their personal belongings and filed out of the meeting place and the foyer. The Commissioner and the police officers stood outside the building and watched; Mr Tomskiy was no longer filming. 30. According to the applicants, the Commissioner came up with several conflicting and mutually exclusive versions of her role in the events. Initially she maintained that the visit had been purely for the purpose of fact-finding; that neither she nor the police had done anything to cause the meeting to be stopped; and that Mr Kuznetsov had stopped the meeting entirely of his own free will. As the case progressed and more evidence was heard from eyewitnesses who testified to the part played by her and the police, the Commissioner eventually admitted that steps had indeed been taken to stop the meeting; however, she blamed the police. She insisted that she had made no demands to Mr Kuznetsov as the operation had been organised and carried out by the police officials. At the trial, however, she was pressed to say that she had agreed with and supported the police decision. Finally, in explaining her agreement with the police decision and when pressed as to why, as Chairwoman of the Human Rights Commission, she had given her agreement, she gave the following answer: “I still consider these actions to be lawful – I was defending the rights of all the children who study at college no. 85. [Question:] In which documents is information about the danger of Jehovah's Witnesses to the neighbourhood contained? [The Commissioner:] As far as I'm concerned, the reports in the press are sufficient.” 31. On 17 April 2000, the day after the disruption of the religious meeting, the principal of college no. 85 informed Mr Z. that the lease agreement between the college and the community of Jehovah's Witnesses would be terminated as of 1 May 2000 “because of certain irregularities committed by the college administration at the time of its signing”. 32. On an unspecified date the applicants complained to the Chelyabinsk town prosecutor about the actions of the Commissioner and the police officers. They requested a criminal investigation into the officials' actions. 33. The prosecutor's office put questions to the Commissioner, Mr Lozovyagin and Mr Vildanov. In their written statements of 3 May 2000 the officials claimed that they had investigated a complaint by a 15-year-old girl who had been “lured” into the Jehovah's Witnesses “sect”. The Commissioner stated that “Lozovyagin and Vildanov [had] decided to halt the event, which was being held by an unknown organisation in sign language”. Mr Lozovyagin did not deny that he had asked Mr Kuznetsov for documents and told him that the event would be halted until such time as they had been produced. Mr Vildanov testified in the same vein. As to the lawfulness of their actions, all three officials claimed that, as it was not registered with the State as a legal entity, the Chelyabinsk community of Jehovah's Witnesses had no right to hold religious services and that the lease agreement with the college principal had been null and void. 34. On an unspecified date the prosecutor's office decided not to institute criminal proceedings against the Commissioner and the police officers. 35. On 11 July 2000 the applicants filed a civil complaint with the Sovietskiy District Court of Chelyabinsk alleging unlawful actions on the part of the Commissioner. 36. On 13 November 2000 the applicants amended their complaint and joined Mr Tomskiy, Mr Lozovyagin, Mr Vildanov and Mr Kuryshkin, deputy head of the Traktorozavodskiy police department, as co-defendants. The applicants alleged violations of their rights to freedom of religion and freedom of association, as guaranteed both by the Russian Constitution and the Convention. 37. During the trial the presiding judge did not consent to the use of audio-recording equipment provided by the applicants' lawyers. However, this injunction applied only to advocates and one of the applicants was able to record the trial on a personal audio recorder. 38. On 25 January 2001 the Sovietskiy District Court of Chelyabinsk gave judgment. It found it established that the Commissioner, Mr Tomskiy, Mr Lozovyagin and Mr Vildanov had arrived at college no. 85 on 16 April on a fact-finding mission to check whether a religious meeting had been taking place there. However, as it had been Mr Kuznetsov who had got up on the stage and announced, in sign language, that the meeting was to end, the District Court found that the applicants had failed to show that the religious meeting had been terminated on the defendants' orders. As regards the assessment of the evidence given by the applicants, the District Court held as follows: “Assessing the statements given by certain plaintiffs, and in particular by Ms Lappo and Ms Kadyrova, who claimed that they had heard Ms Gorina giving the police officers the instruction to halt the meeting and that they, in turn, had relayed it to Mr Kuznetsov... the court takes into account the fact that these individuals are interested in the outcome of the proceedings and, for that reason, the court views their submissions critically ... During the trial, none of the State officials... admitted to taking action to halt the meeting; their position concurs with the witness statements given by many of the plaintiffs, who confirmed that they had not entered the hall but remained in the foyer”. The District Court dismissed the applicants' complaint for their failure to prove that the early termination of the meeting had been brought about by the Commissioner and her aides. 39. The applicants filed a statement of appeal. They pointed to multiple admissions by the Commissioner and the police officers, before the District Court and in their statements to the prosecutor dated 3 May 2000, that they had instructed Mr Kuznetsov to terminate the meeting. They also submitted that the concordant statements of fifteen applicants could not be rejected as those of “interested witnesses” and that the District Court had not specified what the applicants' “interest” had been, given that no claim for damages had been filed. 40. On 28 June 2001 the Chelyabinsk Regional Court, ruling on an appeal by the applicants, upheld the judgment of 25 January 2001. The Regional Court repeated verbatim the reasoning of the District Court. It did not address the arguments set out in the statement of appeal. 41. The applicants also complained about the actions of the regional Commissioner to Mr Mironov, Ombudsman of the Russian Federation. 42. On 1 December 2000 the Ombudsman sent a letter to Mr Ustinov, the Prosecutor General of the Russian Federation. The Ombudsman strongly condemned the use of derogatory terms such as “sect” and “totalitarian sect” in the documents issued by State officials. In its relevant part the letter read as follows: “...In particular, the letter from the deputy Prosecutor General, Ye.G.Chuganov, to the Chairwoman of the Governor's Commission for Human Rights in the Chelyabinsk Region, Ye.V.Gorina, was widely distributed... It recommended using as reference material on the activity of the Jehovah's Witnesses the book An Introduction to Sectarianism by A. Dworkin, and the handbook New Destructive and Occult-Related Religious Organisations in Russia, prepared by the Missionary Department of the Moscow Patriarchate [of the Russian Orthodox Church]... The publication referred to in the letter is highly condemnatory in respect of certain faiths. It reflects the judgment of one religious organisation about others and its contents serve to prove the 'authenticity' of one religion and the 'falseness' of the other(s)... The situation is further aggravated by the fact that Chuganov's letter was used in trials where it was portrayed as reflecting the official stance taken by the Prosecutor General's Office of Russia. For example, in Chelyabinsk, in the course of examination of a complaint by the local community of Jehovah's Witnesses against the Chairwoman of the regional Commission for Human Rights Ms Gorina, the latter constantly referred to Dworkin's book as a handbook recommended by the Prosecutor General's Office that contained reliable information on the activity of so-called destructive sects, including the community of Jehovah's Witnesses. This was used to justify the extremely heavy-handed conduct of the municipal authorities towards the Jehovah's Witnesses, in particular their breaking-up, with the aid of the police, of the believers' prayer meeting being held on the premises which they had been renting for an extended period of time.” 43. Article 29 guarantees freedom of religion, including the right to profess either alone or in community with others any religion or to profess no religion at all, to freely choose, have and share religious and other beliefs and to manifest them in practice. 44. The State may not interfere with the activities of religious associations provided that they comply with the law (section 4 § 2). State and other public officials may not use their position to foster any specific attitude towards a religion (section 4 § 4). 45. Religious associations may take the form of either a religious group or a religious organisation (section 6 § 2). A religious group carries on its activities without State registration and without obtaining legal entity status (section 7 § 1). The right to use rented property for religious purposes is conferred only on registered religious organisations; religious groups may only use premises provided by participants (section 22). 46. Services of worship and other religious rites and ceremonies may be performed without interference in buildings and structures intended for worship and their adjacent areas, and in other premises made available to religious organisations for these purposes (section 16 § 2). 47. A court of general jurisdiction may hear complaints about actions or decisions of State and public officials which infringe citizens' rights or freedoms or prevent citizens from exercising their rights and freedoms. It is incumbent on the officials concerned to demonstrate the lawfulness of their actions or decisions (section 2). 48. The Education Act prohibits structural units of political parties, political and religious movements and organisations from being set up and operated in State and municipal educational establishments and education management bodies (section 1 § 5). 49. An educational establishment may lease and rent out property. Rental income must be used for educational needs (section 39 § 11). 50. On 30 July 1999 a deputy President of the Supreme Court ruled on the complaint brought by the local authorities of Kaluga against an elder of the local community of Jehovah's Witnesses who had allegedly failed to give notice of a religious meeting to the local authorities: “...according to the Russian Law on freedom of conscience and religious associations, the phrase 'without obstruction' means that no permission from, or clearing of the matter with, the secular authorities is required for performing religious ceremonies on premises provided [for that purpose].” 51. On 14 August 2001 a deputy President of the Supreme Court ruled on a similar complaint brought by the authorities of Kislovodsk against a Jehovah's Witness in connection with an allegedly unauthorised religious gathering: “According to Article 16 of the Russian Federation Law on freedom of conscience and religious associations, religious services and other religious rites and ceremonies can take place without any interference... in other places made available to religious organisation for that purpose... Therefore, the local religious organisation was not required to inform the State authority of its gathering.”

dev

001-23198

ENG

FIN

ADMISSIBILITY

NESSA and OTHERS v. FINLAND

Inadmissible

Nicolas Bratza

Mrs Moshammet Nessa, is a Bangaladeshi national, who was born in 1953 and lives in Helsinki, Finland. She is complaining on behalf of her daughter, Mrs Sahera Sultana, and her grand-daughter, Ms Razia Sultana. They were born in 1972 and 1997, respectively, and live in Bangladesh. Mrs Nessa and Sahera and Razia Sultana are hereafter referred to as “the applicants”. They are represented before the Court by Ms Kristiina Bhuiyan. The facts of the case, as submitted by the parties, may be summarised as follows. Sahera Sultana arrived in Finland on 18 February 1997, under a temporary residence permit granted for the period from 2 January 1997 until 31 July 1997. The residence permit was issued for the purpose of university studies. She immediately, on 26 March 1997, applied for a permanent residence permit for business activities and studies. Sahera Sultana’s daughter, Razia, was born on 1 April 1997 in Finland. The Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) issued a temporary residence permit for the period from 1 December 1997 until 1 December 1999 for the purpose of studies. Sahera Sultana was no longer registered with the university for the term of 1999-2000. The applications of Sahera and Razia to be granted a residence permit were refused by the Directorate of Immigration on 29 May 2000. It noted that Sahera, who had been granted a residence permit in Finland for the period of 1996-2000 on the basis of her studies in Finland, had returned to Bangladesh after having attended only a few courses at the University of Technology. Sahera argued that she had been unable to study because of her pregnancy. The Directorate considered that Sahera, who had however not been hindered by her pregnancy from founding a business together with one of her brothers, did not have such family ties in Finland that she would be entitled to stay there. Taking into account that Sahera’s husband lived in Bangladesh and that Sahera could continue her business from there (the business idea was to import goods from Bangladesh to Finland), her request was refused. Accordingly, Razia was not granted a residence permit either. Sahera and Razia travelled to Bangladesh in September 2000. On 9 August 2000 Sahera’s parents arrived in Finland as visitors with a sixty-day tourist visa. They were later granted a residence permit on a humanitarian basis as two of their sons had already stayed in Finland for over twelve years and had been granted Finnish citizenship. The parents were both also diagnosed with severe chronic illnesses (the father with cancer and the mother with kidney failure) which could not be treated effectively in their country of origin. Sahera and Razia appealed to the Administrative Court of Helsinki, arguing that most of their family lived in Finland and that Sahera wished to continue her studies which she had not yet finished. Their appeal was refused by the Administrative Court on 25 September 2001. The court noted that Sahera Sultana had originally arrived in Finland because of her studies but that the reason for her visit had changed into business and family ties during her stay. Taking into account that Razia was only four years old, the Administrative Court did not find that the interests of the child rendered the refusal of the residence permit unreasonable. Sahera and Razia applied for leave to appeal from the Supreme Administrative Court on the basis of new circumstances as Sahera’s mother, Mrs Nessa, had fallen seriously ill in Finland, suffering from kidney failure, requiring dialysis three times a week. On 15 May 2002 the Supreme Administrative Court refused Sahera and Razia leave to appeal. Sahera Sultana gave birth to her second daughter in Bangladesh in December 2001. In September 2001 Sahera and her family applied for visas to enter Finland. The requests were refused on 18 September 2001, with reference to section 11 of the Aliens Act (ulkomaalaislaki, utlänningslagen). The visa application indicated that visas were not sought for “travel or other comparable short-term stay in the country” but rather for long-term stay for which a residence permit should be applied for instead. On 12 November 2001 the Embassy advised Sahera and her family to apply for residence permits, if their purpose was not to stay in the country for a short time only. On 8 June 2002 Sahera submitted to the Embassy applications for a residence permit for herself and her family. The family was interviewed at the Finnish Embassy on 9 July 2002 and the difference between a residence permit application and a visa application was explained to them. On 10 July 2002 Sahera informed the Embassy that they wished to withdraw the residence permit applications and apply instead for a short-term visa. Subsequently, the fees they had paid (amounting to USD 236) for the residence permit applications were returned by the Embassy. Sahera and her family filed new visa applications on 10 July 2002. These applications were also refused and the decisions on refusal were mailed to the persons concerned on 23 July 2002. The reasons for the refusals were the same as in respect of the first visa applications. However, having received several petitions, the Embassy reviewed the visa applications and sent Sahera a letter on 16 August 2002, offering her and her younger child a possibility to have a thirty-day tourist visa for Finland for the purpose of travelling to see their sick mother/grandmother. Razia was not offered a visa. Since then Sahera has not been in contact with the Embassy and nor has she replied to the letter or filed a visa application as suggested. On 22 September 2002 Sahera’s brother sent the Embassy an e-mail message, according to which his family was not able to accept that visas should be issued only to her sister and her younger child, since in their opinion the whole family should travel together. Since Sahera’s and her family’s earlier applications for visas had been refused by appropriate decisions, and she had herself withdrawn the residence permit applications, they have at present no residence permit or visa applications pending. According to Section 11 of the Aliens Act (639/1993), a visa means a permit or a decision issued for tourist travel or comparable short-term visit on the basis of which an alien may enter Finland, provided that he fulfils the other entry conditions. Under Section 13 of the Aliens Act, a visa must be issued by a Finnish diplomatic representation or consulate abroad. Section 18b (537/1999) of the Aliens Act defines the family members to whom a residence permit may be issued. Such family members include the spouse of the alien residing in Finland as well as his or her children under the age of 18 for whose custody he is responsible. Should the alien residing in Finland be under the age of 18, his custodian is considered a family member to whom a residence permit may be issued on the basis of family ties. Section 18c (537/1999) of the Aliens Act provides for a possibility to issue a residence permit on the basis of family ties. According to Section 19, subsection 2 (537/1999) of the Aliens Act, residence permits on the basis of family ties shall be issued by the Directorate of Immigration. According to Section 58 of the Aliens Act, an appeal may be lodged within 14 days to the Supreme Administrative Court against the Directorate of Immigration’s decision not to grant a residence permit. According to Section 60 of the Aliens Act, there is no appeal against decisions which are not mentioned in Sections 55, 57 or 58 of the Aliens Act. Accordingly, there is no right of appeal against the decision not to grant a tourist visa.

dev

001-90296

ENG

UKR

ADMISSIBILITY

SERGEYEV v. UKRAINE

Inadmissible

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant, Mr Nikolay Panteleyevich Sergeyev, is a Ukrainian national who was born in 1927 and lives in Gorlovka, Donetsk region, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 August 1999 the Tsentralno-Gorodskoy District Court of Gorlovka awarded the applicant 1,438 Ukrainian hryvnias in compensation for damage caused to his property by a privately owned company, “Z.”. That judgment became final and the State Bailiffs’ Service instituted proceedings to enforce it. On 10 June 2003 the Donetsk Commercial Court instituted liquidation proceedings against the debtor company. In this regard on 4 November 2003 the State Bailiffs’ Service terminated the enforcement proceedings against the debtor company and transferred the applicant’s writ of enforcement to the liquidation commission for further processing. The applicant complained to various State authorities about lengthy non-enforcement of the judgment in his favour, but to no avail. However, he did not sue the State Bailiffs’ Service for its alleged inactivity or omissions. The judgment of 21 August 1999 remains unenforced. The relevant provisions of the State Bailiffs’ Service Act of 24 March 1998 and the Enforcement Proceedings Act of 21 April 1999 are summarised in the case of Dzizin v. Ukraine ((dec.), no. 1086/02, 24 June 2003).

dev

001-120068

ENG

RUS

CHAMBER

CASE OF MASKHADOVA AND OTHERS v. RUSSIA

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

6. The applicants were born in 1950, 1983 and 1975, respectively, and live in Azerbaijan, Norway and Sweden. 7. The first applicant is the widow of Aslan (also spelled Oslan) Aliyevich Maskhadov. The second and third applicants are their children. 8. Aslan Maskhadov, born in 1951, was one of the military and political leaders of the Chechen separatist movement during and after the armed conflict of 1994-96. 9. For some time after the elections held in Chechnya on 27 January 1997 he was President of the so-called Chechen Republic of Ichkeriya. 10. In 1999 Chechen armed groups began a military incursion into Dagestan. 11. On 18 February 2000 a criminal investigation was initiated by the Russian authorities on suspicion of military revolt and sedition in this connection. 12. On 2 March 2000 Aslan Maskhadov acquired the status of accused in this case. 13. On the same date the investigator decided to detain him. Since the whereabouts of Aslan Maskhadov could not be established, the investigator placed his name on the national and international lists of wanted persons. 14. On an unspecified date the authorities also opened a criminal investigation into terrorist activity in the Nadterechnyy District of the Chechen Republic in 2000. 15. On 1 September 2004, the day of the terrorist attack on a school in the town of Beslan, the authorities instituted criminal investigations in connection with this event on suspicion of hostage-taking, murder, illegal arms trafficking and terrorist acts. 16. On 8 September 2004, having collected various items of evidence indicating the involvement of Aslan Maskhadov in masterminding the attack, which left some 334 people, including 86 children dead, the investigator formally identified him as an accused. 17. On the same date Aslan Maskhadov’s name was again put on the national and international wanted lists. 18. The applicants alleged that repeated attempts on Aslan Maskhadov’s life had taken place in 1996, 1998 and 2000 and that these attacks had been “conducted by or with the connivance of State agents”. 19. According to the applicants, on 9 September 2004 the Russian Federal Security Service (Федеральная Служба Безопасности РФ – “the FSB”) offered 300 million Russian roubles for information leading to his arrest. 20. It appears that prior to 8 March 2005 Aslan Maskhadov lived in hiding as a fugitive in various unspecified locations in Chechnya. 21. On 8 March 2005 between 9 and 10 a.m. the FSB conducted a special operation aimed at tracking down and arresting members of unlawful military formations at 1 Suvorov Street in Tolstoy-Yurt, a village in the Groznenskiy Selskiy District of the Chechen Republic. 22. According to the authorities, the operation resulted in the discovery of a concealed underground shelter and the arrest of four individuals, including V.U. Khadzhimuradov and V.L. Murdashev, who were Aslan Maskhadov’s bodyguard and press officer, respectively. 23. The authorities also discovered the corpse of an “unidentified person” bearing traces of injuries. On the same date the four detained individuals identified the person as Aslan Maskhadov. 24. In the afternoon of 8 March 2005 investigator Sh. from the Investigative Unit of the Directorate of the FSB in the Chechen Republic (следователь следственного отдела Управления ФСБ России по Чеченской Республике) arrived on the scene and, in the presence of two witnesses and with the assistance of a military mining specialist, conducted an inspection of the house and grounds. 25. The resulting report, containing numerous colour photographs, described the property in detail, including the location of the house, the adjacent structures and the concealed underground shelter. 26. It further described the corpse in the following manner: “... In the middle of the aforementioned concrete platform, under the canopy, was the corpse of an unidentified man, apparently resembling Aslan Maskhadov. The corpse was lying on its back with arms and legs spread wide. There were socks on the corpse’s feet. The corpse was shoeless. The person was wearing dark-grey trousers heavily stained with dirt. The left trouser leg was rolled up. Grey pants with black vertical stripes were visible. The upper part of the body was naked, and no visible signs of injuries were detected. There were some remnants of rolled-up clothes (blue T-shirt and dark-blue jacket) on the right forearm and left wrist. The corpse’s eyes were closed; the person had a moustache and beard of medium length. There was an entry hole in the area of the right temple, bordered by dried blood of a dark-brown colour. There was dried blood on the left outside ear. ...” 27. The report also described various items which had been found at the scene, apparently piled up in the yard of the property. Among these items were a number of arms and ammunitions, including four AK-74 automatic rifles, two Stechkin machine pistols, one PM semi-automatic pistol, six grenades and an explosive belt. In addition, there were a few laptop computers and portable radio transceivers with accessories. 28. With regard to the concealed underground shelter, the report noted its location and mentioned that it was three metres deep and was equipped with a metal ladder with five steps. The floor of the shelter was covered with rubble due to the fact that the entrance had been broken down using mechanical force. No detailed inspection of the shelter was conducted because of the “justified fear that the shelter may have been booby-trapped”. The report contained two photographs of the entrance to the shelter. 29. It appears that on the same date the corpse was transported to the military base in the village of Khankala. 30. According to the applicants, on 13 March 2005 the authorities blew up the house and its cellar. 31. The respondent Government submitted that the case file did not contain any information about the alleged destruction of the house in question on that date. 32. It appears that the circumstances of the death of Aslan Maskhadov were investigated by the authorities of the Prosecutor General’s Office in the context of the criminal investigation in case no. 20/849 (the Beslan school massacre, see paragraphs 15-17 above). 33. On 9 and 10 March 2005 investigator K. from the Prosecutor General’s Office (следователь Генеральной прокуратуры РФ) examined the corpse and other items found at the scene and decided that a number of expert examinations should be carried out. On 9 March 2005 the corpse of Aslan Maskhadov was identified by his bodyguard V.U. Khadzhimuradov and R.S. Maskhadov, apparently one of Aslan Maskhadov’s relatives. 34. On 9 March 2005 investigator K. conducted an examination of the corpse in the presence of two witnesses and with the participation of Deputy Prosecutor General Sh., two medical experts Mal. and Mat., and prosecutor S. It appears that both video and photographic records of the examination were made. The report contained the following description of the injuries found on the corpse: “... In the right temple area, two centimetres above the right eyebrow and five centimetres towards the outer edge of the right eye there is a round-shaped wound one centimetre in diameter. On the edges of the wound are grazes one and a half to two millimetres wide. The wound is gaping. There is an irregular oval-shaped bruise surrounding the wound measuring three and a half to four centimetres. ... ... In the left cheekbone area, four centimetres towards the outside of the bridge and half a centimetre below the lower edge of the left eye socket there is a wound of an irregular star-like shape measuring between 1.2 and 1.7 cm. The wound has six rays pointing at twelve, three, five, six, eight and nine o’clock, assuming that the body is placed in a straight vertical position. ... ... In both eye-sockets there are crimson-violet bruises measuring 3.5 to 4 cm on the right side and 1.8 to 4.5 cm on the left side. ... ... In the parietal region there is a wound of an irregular round shape with six rays at one, three, five, seven, eight, and eleven o’clock. The wound measures between 1.4 and 1.10 cm. ... ... In the right scapular area along the central scapular line, in the area of the fifth intercostal space and 131 cm from the soles of the feet, there is a round-shaped wound with its longitudinal axis pointing at four and ten o’clock. The right edge has grazes of up to four millimetres with a sloped wall. The opposing left edge has grazes of up to two millimetres with a sapped wall, the wound is open ...” 35. On 10 March 2005 investigator K. ordered a forensic medical examination of the corpse, having put fourteen questions to the expert (see the list of questions and answers below). On the same date between 2 and 4 p.m. a medical expert, NK, carried out the examination of the body. The resulting report, dated 24 March 2005,’s conclusions, together with the answers to the fourteen questions put by investigator K. 36. The forensic diagnosis was the following: “Firearm injury. Multiple (five) gunshot perforating wounds to the head (four) and one blind multi-trauma penetrating wound to the chest and the upper extremity: – on the head: four perforating wounds penetrating the cavity of the skull with a onesided buttonhole fracture to the left temporal, left parietal and cervical bones and a multi-fragment fracture to the frontal bone, with damage to brain tissue, haemorrhaging in its ventricles and above and beneath the hard and soft brain tunic, a perforating fracture to the big wing of the main bone on the left, a fracture to the left cheekbone and haemorrhaging into the soft tissue of the head; – on the chest and the upper extremity: one blind multiple wound to the chest perforating the pleural cavities, with a fracture of the seventh right rib and damage to the lungs, a double-sided buttonhole fracture to the main part of the seventh thoracic vertebra, damage to the soft tissue of the left half of the sternum and the soft tissue of the back surface of the upper part of the left shoulder, with the presence of a bullet at the end of the wound tract. Double haemothorax (550 ml).” 37. The report gave the following answers to the fourteen questions: “1. Answer to question no. 1: ‘What are the injuries to the presented corpse, what is their location, what was the method used and from what distance were they inflicted?’ Maskhadov had five gunshot wounds to the head, chest and the left upper extremity: – on the head: four perforating wounds penetrating the cavity of the skull with a onesided buttonhole fracture to the left temporal, left parietal and cervical bones and a multi-fragment fracture to the frontal bone, with damage to brain tissue, haemorrhaging in its ventricles and above and beneath the hard and soft brain tunic, a perforating fracture to the big wing of the main bone on the left, a fracture to the left cheekbone and haemorrhaging into the soft tissue of the head; – on the chest and the upper extremity: one blind multiple wound to the chest perforating the pleural cavities, with a fracture of the seventh right rib and damage to the lungs, a double-sided buttonhole fracture to the main part of the seventh thoracic vertebra, damage to the soft tissue of the left half of the sternum and the soft tissue of the back surface of the upper part of the left shoulder, with a bullet at the end of the wound tract. No other injuries or marks have been found on the body of Maskhadov. The following proves that the wounds were inflicted by gunfire: the perforating and multiple character of the injuries; the presence of the bullet at the end of the wound tract ...; bleeding in a cylindrical pattern along the line of the wound tracts; the oval shape and small size of the wounds; the slightly irregular, tucked-in edges of the wounds; the tissue damage in the centre of the wounds and the contusion collar on the edges of the wounds. The gunshot entry wounds are situated: – no. 1: in the left postotic area; – no. 2: two and a half centimetres towards the back and two centimetres lower than wound no. 1; – no. 3: 3.3 cm to the right of wound no. 2; – no. 4: in the left parietal area, one centimetre to the left of the midline of the head; – no. 8: in the projection of the sixth intercostal space on the right, along the midline of the scapula. The following features indicate that these are entry wounds: the oval shape, the relatively small size, the presence of damaged skin in the centre, the slightly irregular edges, the presence of a contusion collar on the edges and the circular haemorrhage in the subjacent tissues. The exit wounds are situated: – no. 5: on the front to the left; – no. 6: on the front to the right; – no. 7: in the left cheekbone area. The following features indicate that these are exit wounds: the irregular star-like and slot-like shape of the wounds; the irregular, ragged edges. ... The entry wounds (nos. 1-3) on the head were inflicted as a result of a burst of fire from a hand firearm, which could have been an APS (Stechkin automatic) or a PM (Makarov) pistol, as suggested by the following indications: (a) the presence of a few entry holes situated on the same body surface; (b) the similar morphology of the entry wounds, which suggests that they were inflicted almost simultaneously, by the same type of arm and from the same or almost the same range. Entry wound no. 8 on the back of the corpse of Maskhadov could have been inflicted as the result of a burst of automatic fire or as the result of a single shot from a manual gun of the type described above. Entry wound no. 4 was inflicted as the result of a single shot from a gun. The diameter of the shell was no less than 0.9 cm, as confirmed by the size of the wound and the perforating fracture of the left parietal bone. Most probably the shell exited through the open mouth. ... The shots which wounded Maskhadov were not fired from close range (с неблизкой дистанции), a finding confirmed by the absence in the area of the entry gunshot wounds of any traces of impact from the by-products of shooting (gunpowder gases, soot, gunpowder particles, metal particles). The way in which the injuries are formed ... suggests that they were probably inflicted from a distance of one metre. All injuries were inflicted shortly before death, as confirmed by: – the character of the wounds – perforating wounds with massive destruction of the brain tissue as well as damage to the internal organs in the chest; – slight haemorrhaging coupled with pronounced bone fractures; – the lack of indication of healing of the injuries. 2. Answer to question no. 2: ‘In what sequence were the injuries inflicted?’ On the head the first to be inflicted was wound no. 1, then wound no. 2 and wound no. 3, then wound no. 4; this is confirmed by the smaller space between wounds no. 1 and no. 2 in comparison to the space between wounds no. 2 and no. 3 and the location of wound no. 4. It is impossible to answer the question concerning the sequence in which the wounds on the head and the wound on the chest were inflicted because of the absence of objective signs indicating the sequence. 3. Answer to questions nos. 3, 4, 5 and 12: ‘Which injury exactly was the cause of death?’, ‘Did death occur immediately or within a certain period of time?’, ‘Would [Maskhadov] have been capable of performing any actions after receiving the injuries?’, ‘What was the cause of death?’ The cause of death of Maskhadov was bullet injuries to the head with damage to (destruction of) the cerebral hemispheres and membranes. The death of Maskhadov occurred immediately on infliction of the gunshot wounds to the head (in a period of time ranging from a few seconds to a few minutes). This is confirmed by: – the character of the injuries (perforating wounds with massive destruction of brain tissue); – the slight haemorrhaging coupled with the presence of pronounced injuries to the bones; – the absence of indications of healing of the said injuries. After infliction of the said injuries Maskhadov could have performed actions (for a period ranging from a few seconds to a few minutes) during the stage of compensatory reaction of the organism. 4. Answer to question no. 6: ‘What was the body’s position when the injuries were being inflicted?’ The direction of the wound tracts in the head was (on the assumption that the body is in a straight vertical position): (a) from right to left; (b) from bottom to top as regards wound tracts nos. 1-3, and from top to bottom as regards channel no. 4; (c) slightly from back to front. The direction of the wound tract in the area of the chest was (on the assumption that the body is in a straight vertical position): (a) from left to right; (b) slightly from bottom to top; (c) slightly from back to front. Hence, during the shooting the perpetrator’s weapon was situated behind, to the right and slightly below the level of the wounds to the head and the chest of Maskhadov, his head being turned to the left. 5. Answer to question no. 7: ‘Was the corpse’s position changed?’ The corpse’s position could have been changed as a result of its retrieval, inspection and transport. 6. Answer to question no. 8: ‘Are there any signs indicating the possibility that the injuries were inflicted by the victim himself?’ None of the injuries found on Maskhadov could have been self-inflicted. This is confirmed by the range from which the shots were fired, the location of the entry gunshot wounds in places inaccessible to the individual himself and the direction of the wound tracts. 7. Answer to question no. 9: ‘What is the victim’s blood group?’ Report no. 148 on the forensic biological examination shows that Maskhadov belonged to blood group Aβ (II). 8. Answer to question no. 10: ‘Had the victim consumed alcohol or narcotic substances shortly before death and in what quantities?’ During forensic chemical examination of the biological samples taken from the corpse of Maskhadov, no ethyl alcohol or narcotic substances were detected. 9. Answer to question no. 11: ‘Did the victim take any food shortly prior to death and, if so, what did he eat?’ Maskhadov did not consume any food prior to death, as evidenced by the lack of food in the stomach. 10. Answer to question no. 13: ‘How long ago did death occur?’ The timing of death of Maskhadov does not contradict the timing indicated in the order [of 10 March 2005], namely 8 March 2005. 11. Answer to question no. 14: ‘Is there a causal link between the injuries received and death?” There is a direct causal link between the injuries received by Maskhadov in the form of gunshot wounds to the head and his death.” 38. On 10 March 2005 the investigator ordered a forensic medical examination of samples of the corpse’s blood, muscle tissue and nail plate and samples taken from Aslan Maskhadov’s two nephews once removed. The expert, Ko., was asked to establish whether the body in question was that of Aslan Maskhadov. 39. On 11 March 2005 Ko. received the order of 10 March 2005 and on the same date started the examination. The expert finalised the examination on 14 March 2005. The resulting report was completed on 17 March 2005 and contained a detailed description of the scientific methods used. The expert’s conclusion was that a combination of genetic features found in the samples taken from the corpse and from the dead man’s nephews confirmed the blood relationship between them with a probability of 99.92 percent. 40. On 29 March 2005 the investigator issued a decision recapitulating the events of 1 September 2004 and the nature of the charges against Aslan Maskhadov, and noted that the investigation had collected evidence of the latter’s involvement in masterminding the attack. The decision went on to state that on 8 March 2005 the authorities had found the body of an unidentified man who was later identified as Maskhadov. The decision then concluded that the criminal case against him should be closed owing to his death. 41. On an unspecified date between 10 and 28 March the investigator ordered a ballistic examination of the bullet found in the corpse and of the two Stechkin pistols and the PM pistol, found at the scene on 8 March 2005 (see paragraph 27 above). An expert was requested to identify the gun which had fired the bullet in question. As a result of this examination, the expert concluded that the bullet had been fired from the PM pistol. It appears, however, that the report contained contradictions concerning the methods of comparative examination, and on 28 March 2005 the investigator ordered a fresh report. 42. Between 28 March and 4 April 2005 ballistics experts R. and Yu. carried out a fresh examination of the bullet and the guns. They also came to the conclusion that the bullet had been fired from the PM pistol. 43. The case file materials submitted by the Government contain records of interviews with three persons arrested on 8 March 2005 and, in particular, V.U. Khadzhimuradov, V.L. Murdashev and S.S. Yusupov. In the case of Khadzhimuradov, the authorities also carried out a psychiatric examination. 44. The relevant parts of the interview records and the psychiatric report are reproduced in chronological order. 45. On 10 March 2005 between 7.30 and 9.50 p.m. an investigator from the Prosecutor General’s Office conducted an interview with Skandarbek Sultanovich Yusupov, who had the status of suspect in criminal case no. 20/849. The interview was conducted in the presence of his lawyer, L.L. Dzardanova. The suspect was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal investigations. 46. During the interview Yusupov explained that on 8 or 9 November 2004 he had been asked by his cousin to shelter Aslan Maskhadov in his house in the village of Tolstoy-Yurt. The suspect described the circumstances of the arrival of Aslan Maskhadov, his stay in the house and the cellar and the latter’s subsequent meeting with Shamil Basayev (a wellknown militant Islamist and one of the leaders of Chechen separatism), who reportedly died in July 2006 on 12 or 13 November 2004. 47. As regards the events of 8 March 2005, Yusupov gave the following statement: “... On 8 March 2005 at around 9 o’clock I was sitting with my wife and daughter in the kitchen when armed men entered by the yard and started shouting: ‘Come out with raised hands one by one’. My wife and daughter and I came out and they asked me whether there were any strangers in the house. I told them that my cousin Ilyas was there, whereupon he came out. Then I was asked whether the building had any cellars, and I showed them the cellar situated under the new house, which is accessed through the new house. They then started a search and in the old house they found the entrance to the cellar in which Aslan Maskhadov, Vakhid and Viskhan were staying. The servicemen blew up the entrance to the cellar and, as a result, the entrance became obstructed. They then started digging underneath and one of them shouted: ‘I see a corpse!’. They started shouting through the hole they had made to see whether there was anyone alive in there and some time later I saw them taking Vakhid and Viskhan out of the old house.” 48. On 18 March 2005 between 5.05 and 6.55 p.m. an investigator from the Prosecutor General’s Office, in the presence of the lawyer A. Elkanov, interviewed Viskhan Umarovich Khadzhimuradov, who had the status of suspect in criminal case no. 20/849. 49. He was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal proceedings and that he had decided to give evidence in the case voluntarily. 50. Khadzhimuradov explained that he was Aslan Maskhadov’s nephew and had also been his personal bodyguard and assistant. He described various episodes from their work together. 51. He also stated as follows: “On 8 March 2005 at 9 o’clock I was with my uncle Aslan and Vakhid Murdashev in the bunker under the private house situated in the village of Tolstoy-Yurt; I cannot remember the exact address. At that moment the sound of blows rang out. Then there was an explosion near the cellar’s hatch leading to the bunker. Uncle Aslan took his Stechkin pistol and fired a shot at his head. After that moment I can hardly remember what happened. I only recall that the servicemen dragged me and Vakhid out of the cellar. I would like to clarify that Uncle Aslan, Vakhid and I had lived in the house in question in the village of Tolstoy-Yurt since the beginning of December 2004. Before that, Uncle Aslan and I had been living in the forest near the mountain village of Avturi in the Kurchaloyevskiy District of the Chechen Republic.” 52. On 18 March 2005 between 3.40 and 5.25 p.m. an investigator from the Prosecutor General’s Office interviewed Vakhid Lakayevich Murdashev, who had the status of suspect in criminal case no. 20/849, in the presence of the lawyer A.A. Pliev. V.L. Murdashev was suspected of having been a member of the armed group and of being in possession of firearms. The suspect was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal proceedings and that he had decided to give evidence in the case voluntarily. 53. It appears that the suspect had been questioned previously on at least one occasion, as the record stated that it was an “additional interview” and that he had “fully endorsed his earlier statements”. 54. Murdashev explained that he had been Aslan Maskhadov’s political assistant, and described various episodes from their work together. 55. As regards the events of 8 March 2005, Murdashev gave the following statement: “On 8 March 2005 Maskhadov and Viskhan Khadzhimuradov and I were in the bunker under the house of Mr Yusupov. At around 9.30 a.m. we heard heavy footsteps on the ground above and thought that there were many people up there. We switched the light off. After about an hour the entrance was discovered, as there was a glimmer of light coming through the cover blocking access to the bunker. In a few minutes a few shots were fired at the cover from the outside. At this point I was on the floor (at the place marked ‘C’ on the sketch map I drew earlier). Maskhadov was on the trestle bed (at the place marked ‘A’ on the map). V. Khadzhimuradov was on the trestle bed facing Maskhadov (at the place marked ‘B’ on the map). After the shots were fired I moved to the trestle bed and sat near V. Khadzhimuradov (at the place marked ‘1’ on the map). At that point I had in my right hand my APS-Stechkin pistol which was at half-cock and was not loaded, although it had a cartridge full of bullets. Maskhadov stayed where he was and held his APS-Stechkin gun. I don’t know whether it was loaded with bullets. At that moment Maskhadov said, in particular, ‘While I am alive, the enemy won’t touch me’, so I understood that he wanted to commit suicide. Also, there was an explosive device next to him, for personal self-destruction, which he did not use so as not to hurt me and V. Khadzhimuradov. Then V. Khadzhimuradov asked Maskhadov, in particular ‘What are we to do[?]’ to which the latter responded ‘You should not do it’, meaning that we should not kill ourselves. Then there was an explosion, as a result of which I lost consciousness. When I came round I was lying on the floor (at the place marked ‘2’ on the map). There was dust in the bunker and nothing could be seen. There was no gun in my hand at that moment. I called V. Khadzhimuradov and asked him, in particular: ‘How is Aslan?’ to which he responded in Chechen: ‘He is no more’. I moved to the place where I had been sitting (at the place marked ‘1’ on the sketch). The body of Maskhadov was in the same place as before and was obstructed by a foam-rubber mattress, but I could not see it. Then ... I remember the fumes started to appear and V. Khadzhimuradov and I started choking. I shouted in the direction of the passage ‘There are people alive!’ and started climbing upwards, with V. Khadzhimuradov following. There were people in military uniform upstairs who escorted me and V. Khadzhimuradov to the yard.” 56. In response to the investigator’s question whether the suspect had heard any shots being fired inside the bunker, the suspect replied as follows: “I myself did not shoot and did not see or hear Maskhadov or V. Khadzhimuradov shooting while in the bunker.” 57. Responding to the investigator’s question concerning the cause of death of Aslan Maskhadov, the suspect stated as follows: “I think that Maskhadov shot himself with his APS-Stechkin pistol. But I don’t know how this actually happened, as I lost consciousness after the explosion.” 58. On 18 March 2005 between 5.05 and 6.55 p.m. an investigator from the Prosecutor General’s Office again interviewed V.U. Khadzhimuradov, this time in the presence of the lawyer E. Dzhioyeva. 59. The suspect was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal proceedings and that he had decided to give evidence in the case voluntarily. 60. Khadzhimuradov explained that he was Aslan Maskhadov’s nephew and had also been his personal bodyguard and assistant. He described various episodes from their work together. 61. As regards the events of 8 March 2005, the suspect made the following statement: “On 8 March 2005 at around 9 a.m., Uncle Aslan, Vakhid and I were in the cellar. At that moment, we heard some knocks and understood that someone was trying to break down the door leading to the cellar. In response, Uncle Aslan, using his right hand, put the pistol to the temple area of his head. At that moment there was an explosion. At the moment of the explosion Uncle Aslan was kneeling in front of me, facing me, and Vakhid was sitting half a metre to the left. As result of the explosion, I lost consciousness. After some time, a couple of seconds as I understood, I started gradually to come round. I saw that Uncle Aslan’s head was lying on my right leg, I felt warmth and realised that the blood was oozing out of my uncle’s wounded head down my right leg. Then Vakhid and I started shouting that we were coming out. We came out and the Spetznaz soldiers told me to go downstairs to the cellar and tie Uncle Aslan’s chest and legs so that it would be more comfortable to lift him up from the cellar. I carried out the instruction, after which Vakhid and I were arrested by the Spetznaz soldiers. I would like to explain that at the moment when the Spetznaz soldiers were breaking down the doors leading to the cellar, Uncle Aslan told me and Vakhid: ‘If I am still alive, shoot me in the heart’.” 62. During the interview which took place on 19 March 2005 between 3.25 and 4.05 p.m., V.U. Khadzhimuradov gave the following statement: “I wish to amend my previous statements. According to my previous statements, on 8 March 2005 at 9 o’clock, the Spetznaz servicemen started breaking down the door leading to the cellar where I was staying with my uncle, Aslan Alievich Maskhadov, and my uncle’s assistant, Murdashev Vakhid. We were in the cellar, under the one-storey private house situated in the village of Tolstoy-Yurt in the Chechen Republic. After we heard the knocks in the cellar, Uncle Aslan told me and Vakhid: ‘Be prepared! Don’t think about yourselves, think about me! If I am still alive, shoot me in the heart!’ After hearing these words I cocked my PM pistol. At that moment Uncle Aslan was sitting in front of me, at a distance of half a metre; Vakhid was sitting near me, to the left. Then the explosion happened. I felt bad, my head felt like it was being squeezed. At that moment Aslan Maskhadov fell on me so that his head was on my right leg. At that very second, without taking aim, I fired two shots in a row at Uncle Aslan. I don’t know where the bullets went. Then in a few seconds I lost consciousness. Afterwards I came round and along with Vakhid surrendered to the Spetznaz fighters. I would like to clarify that I took Uncle Aslan’s words as an order; according to Chechen custom, I cannot disobey and fail to execute an order given by Aslan Maskhadov.” 63. On 7 June 2005 between 12.55 and 3.30 p.m. an investigator from the Prosecutor General’s Office interviewed V.U. Khadzhimuradov, who by then had the status of accused. The interview took place in the presence of the lawyer A.B. Elkanov. The record noted that Khadzhimuradov was giving evidence in the case voluntarily. 64. The accused described his relationship with Aslan Maskhadov as well as various instances of collaboration between them, and meetings between Aslan Maskhadov and Shamil Basayev. 65. As regards the events of 8 March 2005 Khadzhimuradov gave the following statement: “Around one month after the departure of Shamil Basayev, on 8 March 2005, Maskhadov, Vakhid Murdashev and I were in the cellar. Ilyas Iriskhanov was in the house. We were all asleep, and were woken up because we heard some people walking in the yard, talking and looking for an entrance to the cellar. Then they started knocking on the hatch covering the entrance to the cellar. At that moment I was sitting on the bed, with Maskhadov sitting in front of me and V. Murdashev sitting beside him on the mattress. Maskhadov told me and V. Murdashev that they were coming after him, but that he would not surrender and that if he remained alive I should shoot him in the heart. After saying these words, he put a gun to his right temple. I held my PM pistol in my right hand, it was loaded and cocked, and at that moment the explosion happened. I was thrown back by the blast, I struck my head against the wall and lost consciousness. Some time later I came round, my head was aching badly, as if it were being squeezed. I could hardly see anything, there was a mist in my eyes, I had no idea what was going on at that moment. At the moment of the explosion I could hear the shots but I cannot say who was shooting and where. I cannot exclude the possibility that at the moment of the explosion, when I was thrown back, my pistol might have gone off, but I cannot say what direction the shot went in. After the explosion when I came round I felt that someone was lying on my right leg, then it occurred to me that it was Maskhadov and that his head was bleeding. Then Vakhid Murdashev and I started shouting to the people above that we were coming out. Murdashev Vakhid was the first to come out of the cellar. I followed straight behind, then went back into the cellar again and tied up the body of Maskhadov so that it could be taken out of the cellar.” 66. On 3 June 2005 the investigator ordered a psychiatric expert examination of V.U. Khadzhimuradov, in view of the seriousness of the charges against him and the cerebrocranial injury he had received on 8 March 2005. The investigator put the following questions to the board, consisting of four experts in psychiatry and psychology, Doctors S., T., Kh. and B.: 2. Does V.U. Khadzhimuradov display any indications of increased propensity towards exaggeration of the events he describes? 3. Does V.U. Khadzhimuradov display any indications of increased suggestibility and submissiveness? 4. Did V.U. Khadzhimuradov, or does he, suffer from a mental illness and, if so, which one? 5. If so, how long has he been suffering from the illness and is it temporary or permanent? 6. Is he suffering from any temporary mental disorder or the presence of a particular mental condition which could have influenced his proper perception of the events which took place on 8 March 2005? 7. If so, what is the nature of this temporary disorder and would V.U. Khadzhimuradov have been aware of his actions and able to control them? 8. Would he have been aware of his actions and able to control them before 8 March 2005? 9. What is the mental state of V.U. Khadzhimuradov at present and is he aware of his actions and capable of controlling them? 10. Is V.U. Khadzhimuradov in need of medical treatment?” 67. The board of experts was given access to the evidence in criminal case no. 20/849 and also examined the accused in person. 68. The examination apparently took place on 8 June 2005. 69. “... On 8 March 2005, during the investigation of the present criminal case, in the course of carrying out measures aimed at detaining persons suspected of having organised and carried out illegal acts in school no. 1, V.U. Khadzhimuradov was arrested. Immediately before his arrest there was an explosion at the entrance to the cellar during which, as made clear by the interview records, he lost consciousness for an indefinite period of time. During the interview he gave evidence to the effect that he was the grandson of the sister of Maskhadov, and that since 2003 he had been constantly in his company. He was in charge of protecting Maskhadov, supervised the cooking and kept an eye on the state of his wardrobe and firearms. Since October 2003 they had been living in the village of Tolstoy-Yurt. For the last two weeks they had been hiding in the cellar of the house. On 8 March 2005 at around 9 o’clock they were in the cellar with Maskhadov and his advisor V.L. Murdashev. Having heard the talk and commotion in the yard they realised that they had been located. Maskhadov told them that he would not give in alive and that if he should remain alive, V.U. Khadzhimuradov would have to shoot him in the heart. After these words, he put a cocked pistol to his temple. At that moment the explosion occurred and V.U. Khadzhimuradov struck his head against the wall and lost consciousness. He had difficulty remembering what happened next. ...” 70. The report then summarised various statements that the accused had given earlier in connection with the events following the explosion: “At one of the interviews he stated that Maskhadov had shot himself in the head. He did not remember clearly the events which took place after that moment; the servicemen had dragged him and Murdashev out of the cellar (10.03.05). Subsequently he gave contradictory statements. Hence, during the interview dated 18.03.05 he stated that ‘having gradually come round’, he had seen Maskhadov’s head on his leg, felt the warmth and realised that blood was spilling out of his uncle’s injured head. During the interview of 19.03.05 he stated that when the explosion occurred his head felt as if it were being squeezed. Maskhadov had fallen on him and ‘at that moment, without taking aim’, he had fired two consecutive shots, after which he lost consciousness. At the interview on 07.06.05 he confirmed his previous statements to the effect that Maskhadov, before the explosion in the cellar, had told him to shoot him in the heart if he should remain alive. At the same time Maskhadov himself had put a pistol to his temple. The accused had held his cocked gun in his hand. When the explosion occurred, he was thrown back by the blast, struck his head against the wall and lost consciousness. When he came round some time later, his head was aching badly as if it were being squeezed and he could hardly see anything. His mind was in a ‘fog’, and at that moment he could not perceive the events around him. At the moment of the explosion he heard the shots but could not say who was shooting and where. He could not rule out that his gun might have gone off when the blast threw him back, but could not say what direction the shots went in. When he came round, he felt that someone was lying on his leg. Later he realised that it was Maskhadov, whose head was bleeding. After that he and Murdashev started shouting upstairs that they were coming out. Murdashev was the first to come out, followed by him. On the orders of the Spetznaz soldiers he returned to the cellar, where he tied up the body of Maskhadov so that it could be taken out (data from the interview record of 07.06.05).” 71. The board of experts examined the accused’s physical and mental condition and talked to him about his memories of 8 March 2005. The report described the perception of the events by the accused immediately after the explosion in the following manner: “As regards his condition immediately following the explosion in the cellar [the accused] speaks vaguely and inconsistently, saying that he has trouble remembering that period of time. He remembers the moment of the explosion, seeing a flame and hearing shots, after which he struck his head against the wall and lost consciousness, ‘blacking out’. When he regained consciousness he was unable to hear, felt like vomiting and suffered from dizziness. His head felt like it was being squeezed, he could hear a ringing in his head, a humming noise. There was a ‘mist’ before his eyes, and everything was fading. He could not understand what had happened. He felt that someone was lying on his leg, something warm was leaking. He does not remember how exactly he took the decision to come out of the cellar, he only heard the voice of Murdashev calling ‘Let us come out!’. He vaguely remembers crawling up through the trapdoor. He cannot say how much time passed from the moment of the explosion until he came out: ‘Maybe an hour, maybe half an hour’.” 72. The board of experts came to the following conclusions as regards the state of mind of Khadzhimuradov before 8 March 2005: “... the person 73. These are the conclusions of the experts as regards the psychological condition of the accused on 8 March 2005: “On 8 March 2005 V.U. Khadzhimuradov received a closed craniocerebral injury (brain contusion), which was accompanied by loss of consciousness and later manifested itself in acute loss of hearing, with symptoms affecting the entire brain (severe headache, vertigo, nausea, ringing and buzzing in the head), the aforementioned state of being stunned and, as a result, distorted perception of the surrounding circumstances (‘could hardly see’, ‘there was a mist before [his] eyes’, ‘fading’, ‘could not understand what had happened’, ‘could not understand anything about what was happening’ – extracts from the interview records and the clinical consultation with Mr Khadzhimuradov). This is also confirmed by the fragmentary character of his memories and contradictions in his statements concerning the period of time in question and the fact that he currently displays symptoms of moderate posttraumatic cerebral asthenia. The said disorders deprived V.U. Khadzhimuradov of the capacity adequately to perceive the surrounding circumstances and relevant events of the case and to control his actions at the moment of and immediately following the craniocerebral injury sustained on 8 March 2005. No indication exists for compulsory medical treatment.” 74. On 9 June 2005 between 12.37 and 4.19 p.m. an investigator from the Prosecutor General’s Office again interviewed Vakhid Lakayevich Murdashev, who by then had the status of accused in criminal case no. 20/849. The interview took place in the presence of the lawyer I.T. Ostayeva. 75. The accused recounted various episodes from his work with Aslan Maskhadov. 76. As regards the events of 8 March 2005 Murdashev stated as follows: “About two weeks before we were found, information reached us that Yusupov’s nephew was being looked for. Allegedly the military authorities were looking for him. Out of fear that he would be looked for in Yusupov’s house, Maskhadov ordered us to stay in the cellar during the daytime. We kept awake during the night, and after morning prayer we entered the cellar and slept. Even in the cellar Maskhadov worked on the computer. Maskhadov and Khadzhimuradov slept on the couch. I slept on the mattress on the floor. The size of the cellar was 2.5 m by 2.5 m. The walls were made of concrete and brick, the floor was made of concrete, and there was electric wiring in the cellar. We lived a monotonous life. During those two weeks Iriskhanov started living in Yusupov’s house. On 8 March 2005 between five and six o’clock three of us went down to the cellar and went to sleep. We woke up because of the noise upstairs. It was clear that people were moving upstairs. I think I looked at my watch, it was around 9 o’clock. The entrance to the cellar could be locked by a wooden hatch, there was linoleum on it ... which could be covered by a carpet. Every morning we were locked into the cellar by Yusupov and Iriskhanov. If it was necessary we could knock and they would open it for us. It happened only once. Before that our knocks could not be heard. Maskhadov took his weapon. He had previously mentioned that he would not surrender. On that day he literally said that ‘the enemy would not touch him while he was alive’. The light in the cellar was switched on. Maskhadov was sleeping in his sleeping bag. He started looking for his explosive belt. Maskhadov himself asked Khadzhimuradov where his explosive device was. Then it became apparent that our location had been discovered; a gap appeared in the hatch. Maskhadov was holding his gun in his hand. Khadzhimuradov asked him what we were supposed to do. Maskhadov replied that we should not do it. Some time after that shots rang out; they seemed to be coming from the hatch. The size of the hatch was 60 cm by 60 cm. I moved sideways, away from the hatch. After that at some point I lost consciousness, and when I came round I was on the floor. Before losing consciousness I had taken out my gun and held it in front of me near the belt. After I came round I discovered that everything was full of smoke. My first thought was that Maskhadov had detonated the explosive device. When I came round I was wondering why I was not injured. I called to Khadzhimuradov and asked him what had happened to Aslan. He replied that Aslan was no more, so I understood that he was already dead. Then I went upstairs and Khadzhimuradov came out following me. I saw Maskhadov lying covered with a mattress. After we came out I did not speak to Khadzhimuradov. Some time after that they took Maskhadov out of the cellar. As soon as I got upstairs I realised that the explosion had occurred when they tried to open up the hatch.” 77. On 2 June 2005 the head of the civil registry of the Groznenskiy District of the Chechen Republic, A., issued a death certificate in respect of Oslan Aliyevich Maskhadov, born on 21 September 1951. The certificate stated that death had occurred in the village of TolstoyYurt on 8 March 2005. 78. On 14 July 2005 the investigator examined the evidence in criminal case no. 20/849. He noted that Aslan Maskhadov had been sought on charges relating to his alleged involvement in the terrorist attack on the school in the town of Beslan on 1 September 2004. The decision further stated: “In the course of carrying out special measures aimed at discovering the location of Maskhadov it was established that he had been hiding in the property belonging to S.S. Yusupov ... On 8 March 2005 in the cellar of the said property the corpse of Maskhadov, bearing traces of multiple gunshot injuries, was found. At the same time V.L. Murdashev and V.U. Khadzhimuradov, who had been in the same cellar, as well as I.G. Iriskhanov and S.S. Yusupov, who were in charge of outside protection, were arrested and found to be in possession of ammunition and firearms. According to the conclusions of forensic medical report no. 13-e of 24 March 2005, the death of Maskhadov occurred as a result of gunshot wounds to the head with damage (destruction) to the brain hemispheres and its membranes. The victim had: – four perforating wounds penetrating the cavity of the skull with a onesided buttonhole fracture to the left temporal, left parietal and cervical bones and a multifragment fracture to the frontal bone, with damage to brain tissue, haemorrhaging in its ventricles and above and beneath the hard and soft brain tunic, a perforating fracture to the big wing of the main bone on the left, a fracture to the left cheekbone and haemorrhaging in the soft tissue of the head; – one blind multiple wound to the chest perforating the pleural cavities, with a fracture of the seventh right rib and damage to the lungs, a double-sided buttonhole fracture to the main part of the seventh thoracic vertebra and damage to the soft tissue of the left half of the sternum and to the soft tissue on the back of the upper part of the left shoulder, with a bullet at the end of the wound tract. The entry gunshot wounds were situated in the occipitoparietal areas and in the projection of the sixth intercostal space on the right, along the middle scapular line. The entry wounds on the head were inflicted within moments of each other, not from close range, from the same type of weapon, and from the same or almost the same range. At the moment of shooting the weapon was situated behind the victim, towards the right side, slightly below the level of the wounds to the head and chest of Maskhadov, the victim’s head having been turned to the left. The resulting injuries could not have been self-inflicted. On 8 March 2005 during examination of the place where the corpse was discovered and the persons located in the cellar of the house were arrested ... an APS pistol no. VP 1918 I and an APS pistol no. GN 2020 I, belonging to Maskhadov and V.L. Murdashev, and a PM pistol no. MA 7863, belonging to V.U. Khadzhimuradov, were recovered from V.L. Murdashev and V.U. Khadzhimuradov. According to the [ballistics] examination of the recovered weapon and the bullet, as detailed in the [ballistics] experts’ report no. 3-k dated 4 April 2005, the bullet removed from the corpse of Maskhadov was fired from a Makarov (PM) pistol no. MA 7863, that is from the pistol belonging to V.U. Khadzhimuradov. In the course of the examination which was carried out, it was established that on 8 March 2005, in the course of the search of the property of S.S. Yusupov, the latter categorically denied the presence of any strangers on the property and the presence of other cellar rooms equipped for a long-term stay in which fugitives from the lawenforcement bodies could be located. In the course of measures aimed at examining the ... location due to be demolished, a secret passageway was located leading to the underground shelter, with a hatch blocking access from the outside. With a view to enabling the underground bunker to be examined unhindered, an explosive device of small capacity was used, providing free access to the cellar. V.L. Murdashev, V.U. Khadzhimuradov and the corpse of Maskhadov were then located. V.U. Khadzhimuradov, when questioned concerning the circumstances of what happened, stated that he, Maskhadov and V.L. Murdashev had been hiding for a long time in an underground bunker situated in Mr Yusupov’s house. On 8 March 2005 he, Maskhadov and V.L. Murdashev had been in the cellar. They were awoken by the sound of people talking while looking for the entrance to the cellar. At that moment, Khadzhimuradov was sitting on the couch and Maskhadov, who said that they were coming after him but that he would not surrender alive, was sitting in front of him. Maskhadov then put a gun to his temple, having said that if he was still alive, then Khadzhimuradov, who was holding a cocked gun in his right hand, should shoot him in the heart. After the explosion occurred [Khadzhimuradov] was thrown back and struck his head against the wall. For some time he lost consciousness. He did not know what happened next: his head was aching and he felt as if there was a mist in his head. At the moment of the explosion he heard shots, but could not say who was shooting or from where: he thought the shots could have been from his gun. Then he discovered that Maskhadov, whose head was bleeding, was lying on his right leg. According to the statements of the accused V.L. Murdashev, on 8 March 2005 at around 9 o’clock, after Maskhadov realised that their shelter had been discovered, he said that ‘while he was alive the enemy would not touch him’. [V.L. Murdashev] understood this to mean that Maskhadov wanted to commit suicide. Khadzhimuradov asked what he should do. Maskhadov replied: ‘You should not kill yourself’. Then the explosion occurred and he, Murdashev, lost consciousness. When he came round, he discovered that he was on the floor. He asked Khadzhimuradov about Maskhadov and heard that Maskhadov was no more. According to the report of psychiatric examination ... no. 241 dated 8 June 2005 V.U. Khadzhimuradov received a closed craniocerebral injury (brain contusion) during the explosion, accompanied by a loss of consciousness and later manifesting itself in an acute loss of hearing, with symptoms affecting the entire brain (severe headache, vertigo, nausea, ringing and buzzing in the head), the state of being stunned, as referred to, and, as a result, distorted perception of the surrounding circumstances. This is also confirmed by the fragmentary character of his memories and contradictions in his statements concerning the period of time in question and the fact that he currently displays symptoms of moderate post-traumatic cerebral asthenia. The said disorders deprived V.U. Khadzhimuradov of the capacity adequately to perceive the surrounding circumstances and relevant events of the case and to control his actions at the moment of and immediately following the craniocerebral injury sustained on 8 March 2005. Following analysis of the circumstances established during the investigation – the statements of V.U. Khadzhimuradov and V.L. Murdashev and the conclusions of the [ballistics] expert’s examination indicating that the bullet extracted from the corpse of Maskhadov had been fired from the pistol of V.U. Khadzhimuradov – it can be stated that the death of Maskhadov occurred as a result of shots fired by V.U. Khadzhimuradov. The data received in the course of the [psychiatric] examination of V.U. Khadzhimuradov confirms that Khadzhimuradov did not kill Maskhadov intentionally. The fact that he was suffering from a specific condition caused by the explosion, which prevented him from accurately perceiving his environment, being aware of the nature of his actions and controlling them, indicates that V.U. Khadzhimuradov, when he killed Maskhadov, was in a state of insanity [состояние невменяемости]. Accordingly, his actions do not constitute corpus delicti as defined in part 1 of Article 105 of the Criminal Code.” 79. The investigator accordingly concluded that there were grounds for a decision not to initiate a criminal prosecution against V.U. Khadzhimuradov for the killing of Aslan Maskhadov. 80. The decision of 14 July 2005 did not state whether the family or any of the relatives of Aslan Maskhadov were to be notified. 81. Since Aslan Maskhadov’s family had previously gone into hiding and were living abroad, it is also unclear whether the authorities were in a position to notify them. 82. By letters of 29 March 2005, 13 November 2005 and various dates in 2006, the applicants requested, among other things, that they be granted access to the medical documents stating the cause of their relative’s death, that they be provided with copies of the decisions relating to the procedural status of the deceased in the criminal proceedings against him and that a criminal case be opened in connection with his death. 83. On 10 February 2006 I.V. Tkachev, head of department in the Directorate General of the Prosecutor General’s Office with responsibility for the Southern Federal District, responding to the applicants’ request to see the medical documents showing the cause of death of Aslan Maskhadov, stated that the possibility existed in principle but that there were no grounds for providing the applicants with a copy of the relevant medical documents at that time. 84. In another letter dated 10 February 2006 I.V. Tkachev further stated as follows in response to the request to initiate criminal proceedings in connection with the death of Aslan Maskhadov: “... It has been established that during the investigation of case no. 20/849 into the terrorist act committed in the town of Beslan in the Republic of Northern OssetiaAlaniya, the circumstances surrounding the death of Maskhadov were examined. The evidence in the criminal case indicates that the death of Maskhadov occurred as a result of the use of firearms by V.U. Khadzhimuradov, who happened to be in the same secret shelter. According to the conclusions of the psychological/psychiatric examination, ... at the time of the explosion V.U. Khadzhimuradov sustained a closed craniocerebral injury coupled with loss of consciousness, general cerebral symptoms (severe headache, dizziness, nausea, ringing and buzzing in the head), pronounced obnubilation and, as a consequence, distorted perception of surrounding events. This is confirmed by the fragmentary nature of his memories and the incoherent character of his statements concerning that period of time and the presence of symptoms of mild post-traumatic cerebral asthenia. In view of the above, a decision was taken not to initiate criminal proceedings in respect of V.U. Khadzhimuradov for the murder of Maskhadov, in accordance with Article 24-1 (2) of the Code of Criminal Procedure. Under Article 148 of the Code, a copy of the decision not to initiate criminal proceedings is sent to an applicant. Since the prosecution never received any crime report [from anyone in this connection], no copy of [the decision] was sent to the [widow of Aslan Maskhadov]. At present, the prosecution has no reason to furnish a copy of [the decision] to anyone. A decision to recognise an individual as a victim in connection with the damage sustained ... is taken only within the framework of criminal proceedings already initiated. Since it was decided not to initiate criminal proceedings in respect of V.U. Khadzhimuradov in relation to the murder of Maskhadov, there are no legal grounds for recognising you as victims.” 85. As regards the applicants’ request that they be given copies of documents relating to Aslan Maskhadov and his procedural status as an accused in the criminal case concerning the terrorist act committed in the town of Beslan in the Republic of Northern Ossetia-Alaniya, the same prosecutor noted as follows: “... Under Article 172 of the Code of Criminal Procedure, a copy of the decision to charge an individual [with commission of a crime] is served by an investigator on the accused, his counsel and the competent prosecutor. The [relevant] law does not list any other person as having the right to receive a copy of [that decision]. Article 108 of the Code contains an exhaustive list of persons who have the right to receive copies of decisions on the application of a preventive measure (detention) in respect of the suspect or the accused. Under ... Decree no. 164 of the Government of the Russian Federation dated 20 March 2003, the official in charge of the investigation must notify the relatives of a person [whose criminal prosecution for terrorist activity was discontinued because of his or her death] of the location of the civil registry office that is to issue them with the death certificate. [The official also has discretion as to whether to provide the relatives with a copy of the autopsy report]. At present, there are no grounds for providing the relatives with a copy of the medical forensic report on the corpse of Maskhadov. [In view of the above, the applicant’s requests are rejected.]” 86. It does not appear that the applicants were provided with a copy of the decision of 14 July 2005 not to initiate criminal proceedings in respect of the death of Aslan Maskhadov. 87. The Government produced information notes dated 19 February 2007 from Moscow City Court, Rostov Regional Court and Stavropol Regional Court, certifying that the applicants had never applied to any of the courts in the Moscow, Rostov or Stavropol regions in connection with the decision not to initiate criminal proceedings in respect of the death of Aslan Maskhadov. 88. It appears that Aslan Maskhadov’s alleged terrorist activities were investigated by the authorities in the context of criminal cases nos. 20/849 and 14/17, referred to above. 89. On 26 August 2002 the investigation questioned a former driver of Aslan Maskhadov, Aslan Bitiyev, who, in the presence of his lawyer, gave a statement to the effect that in August 2000 Aslan Maskhadov had appointed him as commander in charge of the Nadterechnyy District of Chechnya and had given him a direct order to organise attacks against Russian servicemen with a view to destabilising the situation and intimidating the population. A. Bitiyev also described the organisational structure of his military units and the method of financing their operations and acquiring weapons and ammunition. According to him, money was provided by Aslan Maskhadov on a regular basis. A. Bitiyev also described in detail all the activities in which he had been involved and gave the names of all those who had taken part in such activities, and those of his contacts in other regions. 90. On 6 September 2004 Nurpash Kulayev, apparently the only surviving participant in the terrorist attack in the town of Beslan, gave a statement during questioning to the effect that one of the men in charge of the attack, nicknamed “the Colonel”, had told him that the order to attack the school in Beslan had come directly from “Maskhadov and Basayev”. The statement was given in the presence of a lawyer named Sikoyev and in the context of an interview concerning the circumstances of the attack. 91. N. Kulayev confirmed this statement during another interview on 10 September 2004. 92. On 14 September 2004 Ruslan Sultanovich Aushev, former President of the Republic of Ingushetia and one of the principal negotiators during the terrorist attack in the town of Beslan on 1 September 2004, gave a witness statement to the effect that the terrorists had explained to him during the negotiations that they had been acting on the orders of Shamil Basayev, but that the list of demands to be satisfied had been formulated by and was to be discussed with Aslan Maskhadov rather than with Shamil Basayev. 93. The negotiations between “the Colonel” and R. Aushev were videotaped. The transcript of the video recording demonstrates that the terrorists indeed named Aslan Maskhadov as the person with whom the authorities were to conduct negotiations. 94. On 8 December 2004 the investigator took a decision to formally identify Shamil Basayev as an accused in case no. 20/849, having described in detail the events of 1 September 2004 as established by the investigation and having also stated that Shamil Basayev and Aslan Maskhadov had been behind the attack and had been acting in concert. 95. During an interview on 10 March 2005 S.S. Yusupov mentioned that Aslan Maskhadov had had contact with and had received visits from Shamil Basayev in November-December 2004. 96. On the same day V.U. Khadzhimuradov stated during an interview that he had personally seen plans for the terrorist attack in the town of Beslan on the personal computer of Aslan Maskhadov. He said that the plans had been discussed by Aslan Maskhadov and Basayev in December 2004. 97. During an interview of 18 March 2005 V.L. Murdashev stated that Aslan Maskhadov’s activities had consisted of two components, a military one involving the organisation of attacks and a political one involving talks and negotiations. According to Murdashev, the military operations were usually devised by Aslan Maskhadov with the assistance of other guerrilla leaders such as Shamil Basayev, A. Avdarkhanov, someone by the name of Aslanbek and someone by the name of Mussa. 98. On the same date Khadzhimuradov said during an interview that he and his uncle had been travelling around Chechnya and living in different secret military bases run by guerrilla leaders. 99. On 7 June 2005 Khadzhimuradov mentioned during an interview that there had been a meeting between Shamil Basayev and Aslan Maskhadov shortly before the events of 8 March 2005. 100. During an interview of 9 June 2005 Murdashev described the staging of an attack on the village of Avtury and the visit by Shamil Basayev in December 2004. 101. On 25 March 2005 investigator K. examined the evidence in case no. 20/849 and, having briefly described the circumstances of the terrorist attack of 1 September 2004, stated that according to the data collected by the investigation there had been four persons behind the attack: Shamil Basayev, Aslan Maskhadov, M.Kh. Khashiyev and TaufikalDjedani, also called Abu-Dzeit, a Saudi Arabian national. 102. The decision further noted that on 8 March 2005 the corpse of a man had been found in the cellar of one of the houses in the village of Tolstoy-Yurt and that the corpse had been identified as Aslan Maskhadov. At the same location various objects (home-made explosive devices, firearms and ammunition), as well as documents, were found confirming the active involvement of Aslan Maskhadov in terrorist activities, which had been interrupted as a result of his death. The decision went on to state that all the forensic examinations had already been carried out and that it was necessary to bury the corpse. 103. Referring to Article 3 of Decree no. 164 of the Government of the Russian Federation, dated 20 March 2003, and section 16(1) of the Suppression of Terrorism Act, the investigator decided to bury the corpse of “the terrorist Aslan Maskhadov”, to delegate the task of burial to the Government of the Chechen Republic and to notify a Deputy Prosecutor General of the decision. 104. The applicants alleged that they had received a copy of this decision for the first time in May 2007, along with the respondent Government’s observations on the admissibility of the case. 105. By letters of 29 March and 13 November 2005 as well as various dates in 2006 the applicants requested, among other things, the return of Aslan Maskhadov’s body. 106. On 4 April 2005 N.Ts. Khazikov, acting head of the department in charge of the Northern Caucasus at the Prosecutor General’s office, rejected the request for return of the body. He referred to the fact that Aslan Maskhadov had been accused in a few criminal cases of having committed terrorist crimes and that a decision had been taken to subject him to a preventive measure in the form of deprivation of liberty. With reference to the Federal Suppression of Terrorism Act and Decree no. 164 of the Government of the Russian Federation, dated 20 March 2003, the official noted that the burial of terrorists who had died as a result of the suppression of their terrorist actions was to be carried out in accordance with the procedure established by the Government of Russia. Their bodies were not to be returned and the location of burial could not be disclosed (see paragraphs 122-124 below). 107. It appears that the applicants received this letter on 15 April 2005. 108. The Government produced information notes dated 19 February 2007 from the Moscow City Court, the Rostov Regional Court and the Stavropol Regional Court certifying that the applicants had never applied to any of the courts in the Moscow, Rostov or Stavropol regions in connection with the decision not to return the body of the person in question to his relatives for burial. 109. It appears that the events of 8 March 2005 were widely reported in the Russian media, with photos of the deceased’s body with a naked torso taken shortly after the incident being broadcast by some TV channels. 110. On 4 December 2005 the Supreme Court of the Chechen Republic convicted V.L. Murdashev, V.U. Khadzhimuradov and S.S. Yusupov on charges of active participation in military sedition with a view to breaching the territorial integrity of the Russian Federation, participation in unlawful military formations and illegal possession of arms and explosives. They were sentenced to various terms of imprisonment. 111. The court reported the trial statements of Murdashev as follows: “... The accused Murdashev explained during the court hearing that [he was loyal to the idea of Chechen independence and that he had collaborated with Aslan Maskhadov on various occasions since 1999. He then described various instances of such collaboration.] ... As regards the role played by Khadzhimuradov, he stated that the latter was a personal assistant of Maskhadov and accompanied him each time he went out into the yard, carrying his ‘PM’ gun with bullets. He, Murdashev, was also in a sense the bodyguard of the president of the Chechen Republic of Ichkeriya and had an APS [automatic pistol Stechkin] gun with bullets. ... Early in the morning of 8 March 2005 he, Maskhadov and Khadzhimuradov entered the cellar as usual and went to bed. They were awoken at around 9 o’clock by a noise outside. They realised that someone was looking for an entrance to the cellar and that the persons looking for it were obviously not friendly. Maskhadov told them that he would not surrender alive and that he had the permission of religious experts to do that. He also told [Murdashev] and Khadzhimuradov that they did not have such permission. At some point a powerful explosion occurred, following which [Murdashev] lost consciousness. Having regained consciousness, he asked Khadzhimuradov what had happened to Maskhadov and from the response he understood that the latter was dead. There was no light in the cellar, there was dust and fumes, and there was no fresh air. Someone outside called them to come out and he and Khadzhimuradov went out. Once outside, they were detained and then transported to the village of Khankala. From Khankala they were transported by helicopter on 10 March 2005 to the airport of the town of Beslan and then to RUBOP [the department of the Ministry of Interior in charge of fighting organised crime] in the town of Vladikavkaz. There, for the first month and a half, they were beaten up by unknown officials whose faces [the accused] could not see as they had put a plastic bag over his head. He was beaten because of his suspected involvement in the attack on the school in Beslan, to which they demanded that he confess. Having established that he was innocent in that respect, they stopped the beatings. There were no marks from the beatings, but serious problems remained with his liver and kidneys. ...” 112. The trial statements of Khadzhimuradov, as reported by the court, were as follows: “[V.U. Khadzhimuradov mentioned various instances when he had worked with Aslan Maskhadov and meetings with Shamil Basayev ... He then said that] when they were arrested, two Stechkin pistols and one PM pistol were seized. The Stechkin pistols were attributed to Maskhadov and Murdashev and the PM pistol to him, although he had nothing to do with that pistol or any other weapon. During the early period after their arrest, while being held in Vladikavkaz, they were suspected of involvement in the hostage-taking in the town of Beslan and were beaten up and told to confess. The beatings stopped when [the authorities] became convinced that they had not been involved. ...” 113. As regards Yusupov, the court judgment referred to the following statement made by him during the trial: “On the morning of 8 March 2005 ... he went out of the house and was arrested. In the afternoon of that day they were transported to the village of Khankala, and on 10 March 2005 were taken by helicopter to the airport of the town of Beslan and from there immediately to the town of Vladikavkaz, where for a month and a half they were beaten and told to confess to the attack on the school in Beslan. The beatings stopped only when it became clear that these suspicions were unfounded. ...” 114. The court noted the following with regard to the complaints made by the accused concerning beatings during the pre-trial stage of the investigation: “At the court hearing, the arguments of the accused ... were carefully checked. In respect of these arguments the Directorate General of the Prosecutor General’s Office with responsibility for the Southern Federal District carried out an inquiry, as a result of which it was decided on 8 November 2005 not to initiate criminal proceedings in that connection. The said decision was not appealed against by the defence ... In connection with the complaints ... a forensic examination was carried out which [did not detect any injuries or traces] ... . The court also takes note of the fact that, according to the accused, they had been beaten to make them confess to [the attack on the school in Beslan] and had not been required to [admit] anything else. They did not make any confessions in that connection and are not accused on account of those acts. They were questioned at the pre-trial stage of the investigation in the presence of their counsel; this also excluded the possibility of violence being used against them. Regard being had to the above circumstances, the court rejects the arguments of the accused alleging the use of inadmissible means of investigation as unfounded and unsubstantiated ...” 115. It is unclear whether any further appeal proceedings were brought against this judgment. 116. The Interment and Burial Act (no. 8-FZ, dated 12 January 1996) contains the following provisions: “The present Federal Law defines interment as the ritual actions of burying a body (or its remains) of a person after his or her death in accordance with customs and traditions which are not contrary to sanitary or other requirements. The interment may be carried out by way of placing the body (or its remains) in the earth (burial in a grave or in a vault), in fire (cremation with subsequent burial of the urn with ashes), in water (burial at sea). ...” “1. The locations of interment are specially designated [in accordance with relevant rules] areas with ... cemeteries for burial of bodies (remains) of the dead, walls of sorrow for storage of urns with ashes of the dead ..., crematoriums ... as well as other buildings ... designed for carrying out burials of the dead. ...” “1. The statement of wishes of a person concerning the dignified treatment of his or her body after death (the will of the dead) is a wish expressed in oral form in the presence of witnesses or in writing: - about consent or lack of consent to undergo an autopsy; - about consent or lack of consent to have parts or tissues of the body removed; - to be buried in a specific location, in accordance with a specific set of customs and traditions, next to specific people who died previously; - to be cremated; - entrusting the fulfilment of these wishes to a specific person. 2. Actions in respect of the dignified treatment of the body of a dead person should be carried out in accordance with [his or her] wishes, unless there are circumstances that render impossible the fulfilment thereof or if the [national] legislation provides for different rules. 3. Where a deceased made no statement of wishes, the right to authorise actions specified in part 1 of this section shall belong to a spouse, close family members (children, parents, adopted children and adoptive parents, brothers and sisters, grandchildren and grandparents), other relatives or the legal representative of the dead, and in the absence of such persons, other persons who have assumed responsibility for burying the dead person.” “The executors of a deceased person’s statement of wishes shall be persons as nominated in the statement, if they agree to act accordingly. Where there is no specific indication regarding the executors of the statement of wishes or if the nominated persons do not agree to act accordingly, the directions in the statement shall be executed by the surviving spouse, close family members or other relatives or legal representatives of the deceased. In the event of a reasoned refusal by the nominated persons to execute the directions of the deceased’s statement of wishes, he or she may be buried by another person who has agreed to assume this obligation, or by a specialised funeral service.” “1. On the territory of the Russian Federation every human being shall be guaranteed that after his or her death interment will be carried out regard being had to his or her wishes, with the provision for free of a plot of land for burial of a body (remains) or ashes in accordance with the present Federal Act. ...” “A spouse, close family members, other relatives, legal representatives of a deceased person or another person who has assumed the obligation to bury the deceased, shall all enjoy the following guarantees: (1) the issuance of documents necessary for interment of a deceased within one day from the time when the cause of death is established; in cases where there were reasons to place the deceased in a mortuary for an autopsy, the delivery of the body of the deceased at the request of a spouse, close family members, other relatives, legal representative or another person who has assumed the obligation to bury the deceased cannot be delayed for more than two days from the time when the cause of death is established; ...” 117. Section 3 of Russian Federation Law No. 130-FZ (the Suppression of Terrorism Act) defines terrorism as follows: “... violence or the threat of its use against physical persons or organisations, and also destruction of (or damage to) or the threat of destruction of (or damage to) property and other material objects which creates a danger for people’s lives, causes significant loss of property or entails other socially dangerous consequences, perpetrated with the aim of undermining public safety, intimidating the population or exerting pressure on State bodies to take decisions favourable to terrorists or to satisfy their unlawful property and/or other interests; an attempt on the life of a State or public figure, committed with the aim of halting his or her State or other political activity or in revenge for such activity; or an attack on a representative of a foreign State or an official of an international organisation who is under international protection, or on the official premises or means of transport of persons under international protection, if this act is committed with the aim of provoking war or of straining international relations.” 118. Terrorist activity within the meaning of the Act encompasses: “(1) organisation, planning, preparation and commission of a terrorist act; (2) incitement to commit a terrorist act or violence against physical persons or organisations, or to destroy material objects for terrorist purposes; (3) organisation of an illegal armed formation, a criminal association (criminal organisation) or an organised group for the commission of a terrorist act, or participation therein; (4) recruitment, arming, training and deployment of terrorists; (5) intentional financing of a terrorist organisation or terrorist group or other assistance provided thereto.” 119. Section 3 defines a terrorist act as: “... the direct commission of a crime of a terrorist nature in the form of an explosion, an act of arson, the use or threat of the use of nuclear explosive devices or of radioactive, chemical, biological, explosive, toxic, or strong-acting poisonous substances; destruction of, damage to or seizure of means of transport or of other objects; attempts on the life of State or public figures or of representatives of national, ethnic, religious or other population groups; seizure of hostages or abduction of persons; causing of danger to the life, health or property of an indefinite number of persons by creating the conditions for accidents or disasters of a technogenic character or a real threat of such danger; the spreading of threats in any form or by any means; other actions that endanger people’s lives, cause significant loss of property or entail other socially dangerous consequences.” 120. In the same section a terrorist is defined as: “... a person who takes part in carrying out terrorist activity in any form.” 121. On 26 October 2002 a terrorist attack took place in the Nord-Ost Theatre in the city of Moscow, resulting in a hostage incident which produced heavy casualties, including the death of several dozen hostages (see Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, §§ 8-14, ECHR 2011 (extracts)). 122. Shortly after the attack, on 11 December 2002, Russia adopted changes to the Suppression of Terrorism Act by adding section 16(1), which reads as follows: “[The] interment of terrorists who die as a result of the interception of a terrorist act shall be carried out in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall remain undisclosed.” 123. On the same date Russia also adopted changes (FZ-No. 170) to the Interment and Burial Act (see paragraph 116 above) by adding section 14(1): “[The] interment of persons against whom a criminal investigation in connection with their terrorist activities has been closed because of their death following interception of the said terrorist act shall take place in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall not be revealed.” 124. Decree no. 164 of the Government of the Russian Federation dated 20 March 2003, adopted in accordance with section 16(1) of the Suppression of Terrorism Act, defines the procedure for the interment of persons whose death was caused by the interception of terrorist acts committed by them: “... 3. Interment of [these] persons shall take place in the locality where the death occurred and shall be carried out by agencies specialising in funeral arrangements, set up by organs of the executive branch of the subjects of the Russian Federation or by organs of local government ... 4. Services provided by the specialist funeral agency in connection with the interment of [these] persons shall include: processing of documents necessary for interment; clothing of the body; provision of a grave; transfer of body (remains) to the place of burial (cremation); burial. The transfer of the body (remains) to the place of burial (cremation) by rail or air shall be carried out on the basis of a transfer permit issued under an established procedure. The place of burial shall be determined with reference to the limitations laid down by the Interment and Burial Act. 5. For the purposes of the burial the official carrying out the preliminary investigation shall send the necessary documents to the specialist funeral agency, including a copy of the decision to close the criminal case and the criminal investigation with regard to [these] persons; he or she shall also send a statement confirming the death to the civilian registry office in the person’s last place of permanent residence. 6. The relatives of the persons [concerned] shall be notified by the official conducting the preliminary investigation of the location of the registry office from which they can obtain a death certificate. 7. At the discretion of the official carrying out the preliminary investigation, the relatives of [these] persons may be provided with copies of the medical documents concerning the death, produced by a medical organisation, and the report on the autopsy (if conducted); personal belongings shall also be returned if they are not subject to confiscation. 8. The specialist funeral agency shall produce a report on the completed burial, which shall be sent to the official conducting the preliminary investigation; the document shall become part of the criminal case file.” 125. On 28 June 2007 the Constitutional Court of the Russian Federation examined and, in essence, rejected the complaints of a number of individuals alleging that section 14(1) of the Interment and Burial Act and Decree no. 164 of the Government of the Russian Federation dated 20 March 2003 were unconstitutional, see Sabanchiyeva and Others v. Russia (dec.), no. 38450/05, 6 November 2008. The ruling stated, in particular, that the impugned legal provisions were, in the circumstances, necessary and justified. The court reached the following conclusions regarding the legitimate aims and necessity of the legislation in question: “... At the same time the interest in fighting terrorism, and in preventing terrorism in general and specific terms and providing redress for the effects of terrorist acts, coupled with the risk of mass disorder, clashes between different ethnic groups and aggression by the next of kin of those involved in terrorist activity against the population at large and law-enforcement officials, and lastly the threat to human life and limb, may, in a given historical context, justify the establishment of a particular legal regime, such as that provided for by section 14(1) of the Federal Act, governing the burial of persons who escape prosecution in connection with terrorist activity because of their death as a result of the interception of a terrorist act ... Those provisions are logically connected to the provisions of paragraph 4 of Recommendation 1687 (2004) of the Parliamentary Assembly of the Council of Europe on combating terrorism through culture, dated 23 November 2005, in which it was stressed that extremist interpretations of elements of a particular culture or religion, such as heroic martyrdom, self-sacrifice, apocalypse or holy war, as well as secular ideologies (nationalist or revolutionary) could also be used for the justification of terrorist acts. 3.2. Action to minimise the informational and psychological impact of the terrorist act on the population, including the weakening of its propaganda effect, is one of the means necessary to protect public security and the morals, health, rights and legal interests of citizens. It therefore pursues exactly those aims for which the Constitution of the Russian Federation and international legal instruments permit restrictions on the relevant rights and freedoms. The burial of those who have taken part in a terrorist act, in close proximity to the graves of the victims of their acts, and the observance of rites of burial and remembrance with the paying of respects, as a symbolic act of worship, serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question, creating the preconditions for increasing inter-ethnic and religious tension. In the conditions which have arisen in the Russian Federation as a result of the commission of a series of terrorist acts which produced numerous human victims, resulted in widespread negative social reaction and had a major impact on the collective consciousness, the return of the body to the relatives ... may create a threat to social order and peace and to the rights and legal interests of other persons and their security, including incitement to hatred and incitement to engage in acts of vandalism, violence, mass disorder and clashes which may produce further victims. Meanwhile, the burial places of participants in terrorist acts may become a shrine for some extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity. In such circumstances, the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part. ...” 126. The ruling further noted that the application of the measures prescribed in the legislation concerned could be regarded as justified if proper procedural safeguards, such as effective judicial review, were in place to protect individuals from arbitrariness. The court noted that Articles 123-127 of the Code of Criminal Procedure provided for such review (see paragraph 142 below). 127. In sum, the court upheld the impugned provisions as being in conformity with the Constitution but at the same time interpreted them as requiring that the authorities not bury bodies unless a court confirmed the competent authority’s decision. It reasoned as follows: “... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue, on account of the deaths of the suspects, a criminal case against or prosecution of participants in a terrorist act. Accordingly, they also presuppose an obligation on the court’s part to examine the substance of the complaint, that is, to verify the lawfulness and well-foundedness of the decision and the conclusions therein as regards the participation of the persons concerned in a terrorist act, and to establish the absence of grounds for rehabilitating [the suspects] and discontinuing the criminal case. They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures. Until the entry into force of the court judgment the deceased’s remains cannot be buried; the relevant State bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition, in particular through the burial of the remains in the ground ... or by [cremation], individually, if possible, and to ensure compliance prior thereto with the requirements concerning the identification of the deceased ... the time, location and cause of death. ...” 128. Judge G.A. Gadzhiyev issued a separate opinion in which he agreed that the impugned provisions were in conformity with the Constitution but held a different view as to how they should be interpreted. The opinion stated as follows: “... if the relevant law-enforcement agencies find, as a result of a preliminary investigation, that a terrorist act has been committed and that a given person was involved, but the criminal proceedings against that person ... are discontinued on account of his or her death following interception of the terrorist act, and if they then conclude that the decision to return the body to the family for burial is capable of threatening public order and peace and the health, morals, rights, lawful interests and safety of others, they have the right to take a decision refusing to hand over the body and applying special arrangements for burial. At the same time, in the event of a refusal to return the body of an individual whose death occurred as the result of the interception of a terrorist act committed by him, the authorities competent to take a decision concerning the burial must secure compliance with all the requirements concerning the establishment of the deceased’s identity, the time and place of death, the cause of death, the place of burial and the data necessary for the proper identification of the grave (a given location and number). The burial must take place with the participation of the relatives, in accordance with custom and tradition and with humanitarian respect for the dead. The administrative authorities of a State governed by the rule of law must respect the cultural values of a multiethnic society transmitted from generation to generation. ...” 129. Judge A.L. Kononov issued a dissenting opinion in which he described the legislation in question as incompatible with the Constitution. In particular, he noted: “... The impugned norms, banning the return of the deceased’s bodies to their relatives and providing for their anonymous burial, are, in our view, absolutely immoral and reflect the most uncivilised, barbaric and base views of previous generations. ... The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law. This right is clearly self-evident and stems from human nature as, perhaps, no other natural right. Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them, to have an opportunity to perform one’s moral duty and display one’s human qualities, to bid farewell, to grieve, mourn and commemorate the deceased, however he may be regarded by society and the state, to have the right to a grave, which in all civilisations represents a sacred value and the symbol of memory. ...” 130. On 14 July 2011 the Constitutional Court of the Russian Federation examined a complaint lodged by two individuals challenging the constitutionality of sub-part 4 of the first part of Article 24 (Grounds for a decision refusing to institute or to discontinue criminal proceedings) and the first part of Article 254 (Discontinuance of criminal proceedings in a court hearing) of the Code of Criminal Procedure. The court concluded that the above-mentioned statutory provisions were unconstitutional, in so far as they provided for a possibility of terminating a criminal case owing to the death of a suspect (or an accused person) without obtaining the consent of that person’s close relatives. The court noted, in particular, as follows: “... the respect for fundamental procedural guarantees of individual rights, including the presumption of innocence, must be secured also in resolving the question concerning the termination of a criminal case with reference to non-rehabilitating circumstances. In taking their decision to refuse the institution of a criminal case or to terminate the criminal case at the pre-trial stages of the criminal proceedings, the competent bodies should take it as a point of departure that persons in respect of whom the criminal proceedings have been discontinued [were not pronounced guilty of an offence] and cannot be viewed as such – in the constitutional sense these persons can only be regarded as having been involved in criminal proceedings at the said stage owing to the relevant suspicions or accusations ... At the same time, by discontinuing a criminal case owing to the death of a suspect (or an accused) [the authority] also stops the process of proving his or her guilt, but with this the accusation or suspicion is not being lifted, quite the contrary; in reality [the authority] reaches a conclusion as to the commission of the criminal act by ... a specific person and the impossibility of criminal prosecution owing to the said person’s death. By this logic, the person in question, without the adoption or entry into force of any verdict, is declared guilty, and this constitutes a breach by the State of its duty to secure the judicial protection of that person’s honour, dignity and good name protected by [various provisions of] ... the Constitution, and as regards the persons whose interests may be affected by this decision – it constitutes a breach of their right of access to a court ... ... [in other words,] the termination of a criminal case with reference to nonrehabilitating circumstances in general is possible only if the rights of the participants in the criminal proceedings are respected, which means, in particular, that there is a need to secure the consent of the suspect (or the accused person) to take [such decision] ... ... If, however, the person in question objects to [such a decision], he must be entitled to have the case against him proceed to the stage of its examination by the trial court ... [The court, having analysed the applicable domestic provisions, concludes that] the Code of Criminal Procedure does not provide that [the relatives of the deceased person in respect of whom the criminal case was discontinued] have any rights which would allow them to protect the rights of their deceased formerly accused relative. Since the interested persons, and first of all the close relatives of the deceased, are not allowed to take part in the proceedings, the [relevant] procedural decisions ... are taken by an investigator or a court – without participation of the defence ... Such limitations do not have an objective or reasonable justification and entail a breach of [the constitutional rights of the persons in question] ... [The court further decides that] the protection of the rights and legal interests of the close relatives of the deceased person ... aimed at his or her rehabilitation should take place by the provision to them of the necessary legal status and the resulting legal rights within the framework of the criminal proceedings ... [The court concludes that the rights provided for by Article 125 of the Code of Criminal Procedure were insufficient to guarantee an adequate level of judicial protection to the interested persons ...] [Thus, in cases where] the close relatives object to the discontinuance of the proceedings owing to the death of the formerly suspected or accused person, the competent investigative body or the court should proceed with the examination of the case. At the same time, the interested persons should enjoy the same rights as the deceased person [himself or herself] would have enjoyed. ...” 131. Article 105 (“Murder”) of the Criminal Code, as in force at the relevant time, read as follows: “1. Murder, that is an intentional infliction of death on another person, shall be punishable by deprivation of liberty for a term of six to fifteen years.” 132. Article 205 (“Terrorism”) of the Criminal Code, as in force at the relevant time, read as follows: “1. Terrorism, that is the commission of an explosion, arson or other action, creating a danger for people’s lives, or causing considerable pecuniary damage or other socially dangerous consequences, if such actions were committed with the aim of undermining public safety, threatening the population or influencing decisionmaking by the authorities, or the threat of committing such actions with the same aims, shall be punishable by deprivation of liberty for a term of eight to twelve years.” 133. Article 5 of the Code of Criminal Procedure defines close relatives as spouses, parents, children, adoptive parents, adopted children, brothers and sisters, grandparents and grandchildren. 134. Part 1 of Article 11 of the Code provides that: “... a court, a prosecutor and an investigator shall be obliged to inform a suspect, an accused, a victim, a civil claimant and other participants in criminal proceedings of their respective rights, duties and liability and to provide them with the possibility of enforcing such rights.” 135. Articles 20 and 21 of the Code and Chapter 16 of the Criminal Code of Russia provide that cases resulting in the death of a person are cases of public prosecution which are investigated and prosecuted irrespective of the will of the victim of the crime. In all cases displaying signs of the commission of a crime the relevant officials take the measures set out in the Code of Criminal Procedure aimed at an investigation into the event, and the identification of the person responsible or the persons guilty of the criminal offence in question. 136. Article 22 of the Code describes the status of victim in the criminal proceedings: “The victim, his legal representative and (or) legal counsel shall have the right to take part in the criminal prosecution of the accused ...” 137. Article 24 of the Code lists possible grounds for a decision refusing to institute a criminal case or discontinuing the proceedings: “1. A criminal case cannot be instituted and an instituted criminal case should be discontinued on one of the following grounds: ... (4) the death of an accused or a suspect, except for cases where the continuation of the proceedings is necessary for rehabilitation of the deceased person. ...” 138. Article 27 of the Code also states that: “1. Criminal prosecution in respect of a suspect or an accused shall be discontinued with reference to one of the following grounds: ... (2) discontinuance of a criminal case with reference to [one of the grounds mentioned in part 1 of Article 24, including sub-part 4] ...” 139. Part 2 of Article 27 lists the situations in which it is necessary for the relevant official to obtain the consent of a suspect or an accused to discontinue a criminal prosecution. There is no need to obtain anyone’s consent in the event of this person’s death. 140. Article 42 of the Code defines the victim as a “physical person, who has sustained physical, pecuniary or non-pecuniary damage” as a result of the criminal offence, the decision on recognising someone as a victim being taken by an investigator or a court. It further states that: “... 2. The victim shall have the right: ... (4) to submit evidence; (5) to make challenges and applications; ... (8) to appoint a representative; (9) to take part, with leave from an [investigator] in investigative actions which take place at his or her request ...; ... (12) upon termination of the preliminary investigation, to study all the materials of the criminal case ...; (13) to receive copies of decisions instituting a criminal case, recognising him or her as a victim or refusing to do so, on discontinuance of a criminal case ...; ... (22) to avail himself or herself of other rights set out in this Code.” Part 8 of this provision states as follows: “In criminal cases concerning offences which resulted in the death of a person, the rights of the victim, as set out in the present provision, shall be transferred to one of his close relatives.” 141. Article 45 of the Code states as follows: “1. A victim ... may be represented by counsel ... 4. Personal participation in a criminal case by the victim ... does not preclude him or her from enjoying the right to be represented [by counsel in that criminal case].” 142. Article 19 of the Code provides for the possibility of appeal against the decisions of various authorities, in accordance with the procedure set out in the Code and in particular Articles 123-127 thereof: “The actions (or inaction) and decisions of the body of inquiry, the inquiring officer, the investigator, the public prosecutor or the court shall be amenable to appeal in accordance with the procedure established in the present Code, by the participants in the criminal court proceedings and by other persons in so far as the procedural actions in question and the procedural decisions adopted affect their interests.” “1. The public prosecutor shall consider the complaint within three days of the date of its receipt. In exceptional cases, where it is necessary to request that additional materials be supplied or other measures be taken for checking the complaint, it shall be admissible to consider it within a period of up to ten days; the applicant shall be duly informed. 2. Following consideration of the complaint, the public prosecutor shall take a decision allowing it in whole or in part or rejecting it. 3. The applicant shall be immediately notified of the decision taken on the complaint and of the further procedure for lodging an appeal against it. 4. In the cases stipulated by the present Code the inquiring officer, the investigator or the public prosecutor shall have the right to lodge an appeal with a higher-ranking prosecutor against the actions (inactions) and decisions of the public prosecutor.” “1. Decisions by the inquiring officer, the investigator and the public prosecutor concerning a refusal to institute a criminal case or the termination of the criminal case, and other decisions and actions (or lack of action) on their part which are liable to inflict damage on the constitutional rights and freedoms of the participants in the criminal court proceedings or interfere with citizens’ access to the administration of justice, may be appealed against before the district court at the place where the preliminary inquiry is conducted. 2. The complaint may be lodged with the court by the applicant or his or her defence counsel, legal representative or representative, either directly or through the inquiring officer, investigator or public prosecutor. 3. The judge shall check the legality and well-foundedness of the actions (or lack of action) and the decisions taken by the inquiring officer, the investigator and the public prosecutor, not later than five days after the date of the lodging of the complaint, at a court session in the presence of the applicant and his or her defence counsel, legal representative or representative, if they are taking part in the criminal case, other persons whose interests are directly affected by the action (or lack of action) or by the decision against which the appeal has been lodged, and the public prosecutor. Failure to attend by persons who have been duly informed of the time of consideration of the complaint and have not insisted that they be present, shall not be seen as an obstacle to consideration of the complaint by the court. Complaints shall be considered by the court at a public hearing unless stipulated otherwise. ... 4. At the start of the court session, the judge shall announce what complaint is being considered, introduce himself to the persons attending the court session and explain their rights and responsibilities. The applicant, if he is taking part in the court session, shall then adduce the grounds for the complaint, following which evidence shall be heard from other persons in attendance. The applicant shall have the right to respond. 5. After considering the complaint, the judge shall adopt one of the following decisions: (1) a decision finding the action (or lack of action) or the decision of the corresponding official to be illegal or ill-founded and finding him or her liable to provide redress for the violation; (2) a decision rejecting the complaint. 6. Copies of the judge’s decision shall be sent to the applicant and to the public prosecutor. 7. The lodging of a complaint shall not suspend performance of the action and the decision appealed against unless the body of inquiry, the inquiring officer, the investigator, the public prosecutor or the judge deems it necessary.” “1. Complaints and prosecutors’ appeals against judgments, rulings and resolutions of the courts of first instance and appeal courts, as well as complaints and prosecutors’ appeals against court decisions taken in the course of the pre-trial proceedings in the criminal case, shall be lodged in accordance with the arrangements laid down in ... [other provisions of the Code]. 2. Complaints and prosecutors’ appeals against court decisions which have acquired legal force shall be lodged in accordance with the arrangements laid down by [other provisions of the Code].” 143. Article 148 of the Code establishes the arrangements governing appeals against decisions not to institute criminal proceedings: “1. If there are no grounds for the institution of criminal proceedings the public prosecutor, the investigator, the body of inquiry or the inquiring officer shall take a decision not to institute criminal proceedings. A decision not to institute criminal proceedings on the ground set out in point 2 of the first paragraph of Article 24 of the present Code shall be admissible only with respect to the individual concerned. 2. When taking the decision not to institute criminal proceedings after checking the available information about the crime based on the suspicion of its perpetration by the person or persons concerned, the public prosecutor, the investigator or the body of inquiry shall be obliged to consider the possibility of instituting criminal proceedings against the person who reported or spread false information about the crime on a charge of making deliberately false accusations. 3. The decision not to institute criminal proceedings following verification of the information about a crime disseminated through the mass media must be made public. 4. A copy of the decision not to institute criminal proceedings shall be sent to the applicant and to the public prosecutor within 24 hours of the time the decision was given. In this case, the applicant shall be informed of his or her right to appeal against the decision and of the procedure for lodging an appeal. 5. A decision not to institute criminal proceedings may be appealed against to the prosecutor or the court in accordance with the procedure laid down in Articles 124 and 125 of the present Code. 6. If the prosecutor finds a decision not to open criminal proceedings to be unlawful or unfounded, he or she shall revoke the decision not to open the case and shall institute criminal proceedings in the manner established by the present article or return the materials for additional verification. 7. If the judge finds the decision not to institute criminal proceedings to be unlawful or unfounded, he or she shall adopt the corresponding decision, forward it for execution to the public prosecutor and notify the applicant.” 144. Article 254 of the Code establishes the arrangements governing appeals against a decision to discontinue criminal proceedings if such decision is taken by a court. 145. By Resolution no. 16 dated 1 November 1985 “On the practice of application by the courts of the legislation governing the participation of a victim in criminal proceedings” the Plenary Supreme Court summarised and explained the existing practice in relation to the status of the victim in criminal proceedings under the old 1960 Code of Criminal Procedure: “... 2. ... is recognised as a victim an individual who has sustained non-pecuniary, physical or pecuniary damage directly. The recognition of such individual as the victim does not depend on his age, physical or psychological condition. ... 4. Since ... in cases about crimes which resulted in the death of a victim, the [relevant] rights [are transferred] to [his or her] close relatives, one of which, regard being had to the agreement between them, is recognised as the victim. If a few persons outside the circle of the close relatives of the deceased insist on having victim status, they may also be recognised as such ...” 146. By Resolution no. 17 dated 29 June 2010 “On the practice of application by the courts of the norms governing the participation of a victim in criminal proceedings”, which fully replaced Resolution no. 16 of 1 November 1985, the Plenary Supreme Court summarised and explained the existing practice in relation to the status of the victim in criminal proceedings under the new 2001 Code of Criminal Procedure: “... 2. In accordance with the law, a victim, being a physical person who has suffered physical, pecuniary or non-pecuniary damage ... has in the criminal proceedings his or her own interests, for the protection of which he or she, as a participant in the criminal proceedings on the side of the prosecution, enjoys the rights of a party. A person who has suffered as a result of a criminal offence shall be recognised as a victim irrespective of his or her nationality, age, physical or psychological condition or other aspects of his or her personality, and irrespective of whether anyone has been identified as being involved in the commission of that offence. The courts should also take into account any damage inflicted on the victim by the offence, or by a criminally prohibited act committed in a state of insanity. ... 3. In accordance with part 1 of Article 42 of the Code of Criminal Procedure a person who sustained damage [from an offence] shall acquire the rights and obligations set out in the legislation governing criminal procedure as of the time of adoption by a [competent] investigator ... or a court of the decision recognising that person as a victim. At the same time, it should be borne in mind that the legal status of that person as a victim is determined on the basis of his or her factual situation... [thus, this procedural decision does nothing but reflect the existing factual situation and does not determine it]. The person in question can obtain recognition as a victim by making a relevant application ... The refusal to recognise someone as a victim, as well as the inaction of the [relevant official] leading to a failure to recognise that person as a victim can be appealed against in court by way of a pre-trial procedure in a criminal case set out in Articles 124 and 125 of the Code of Criminal Procedure. ... 5. In criminal cases concerning crimes which resulted in the death of a person, the rights of a victim shall be transferred to one of his or her close relatives (part 8 of Article 42 of the Code of Criminal Procedure). By virtue of part 4 of Article 5 of the Code of Criminal Procedure the close relatives are spouses, parents, children, adoptive parents, adopted children, brothers and sisters, grandparents and grandchildren. If the criminal offence affected the rights and legal interests of a few close relatives at the same time and they all insist on acquiring the rights of victims, these persons can also be recognised as victims. ... 7. The meaning of part 1 of Article 45 of the Code of Criminal Procedure is that representatives of the victim ... could be not only counsel, but also other persons ... capable of providing them with qualified legal assistance. ... 9. The courts must comply with the requirements of the law in that the victim, acting with the aim of using his ... powers as set out in the legislation on criminal procedure ... has the right to receive copies of the decision on the institution of a criminal case, recognition of his victim status ... on the discontinuance of a criminal case ... and copies of other procedural documents affecting his interests (Article 42 of the Code of Criminal Procedure). ... 11. On the basis of the principle of equality of the rights of the parties (Article 244 of the Code of Criminal Procedure) a victim has the same rights as the defence to make challenges and applications, to submit evidence, to participate in its examination, to plead ... The victim, his or her representative or legal representative at any stage of the criminal proceedings should be given an opportunity to inform the court about his or her position on the substance of the case and the arguments he or she deems necessary to justify that position. At the same time, the court should take into account the arguments of the victim in respect of the questions which affect his or her rights and legal interests, and to give them a reasoned assessment in taking the judicial decision. ... With a view to creating the necessary conditions for the victim to carry out his procedural duties and to enforce his rights ..., the courts, where there are justified grounds, should take measures to assist the victim in collecting the evidence (receipt of documents, lodging of requests for certificates, etc.). 12. The victim, his legal representative, representative ... shall have the right to take part in all court proceedings in the examined case for the protection of his or her rights and legal interests. In order to secure that right, the presiding judge should inform them of the date, time and place of the court proceedings. ...”

dev

001-82585

ENG

SRB

CHAMBER

CASE OF MIKULJANAC, MALISIC AND SAFAR v. SERBIA

Violation of Art. 6-1;Violation of Art. 13

4. The applicants were born in 1963, 1958 and 1966, respectively, and live in Beograd. 5. On 23 May 2001 the applicants were dismissed from their work. 6. On 6 June 2001 they instituted civil proceedings in the Beograd Third Municipal Court against their former employer, seeking reinstatement and salary arrears. 7. Sometime after the respondent State's ratification of the Convention on 3 March 2004, the applicants' case was assigned to another judge. 8. The next hearing in the case was held on 26 October 2004, when the court decided to hear several witnesses. 9. The hearing scheduled for 23 December 2004 was adjourned by the judge. Subsequently, the case was yet again assigned to another judge and the next hearing was scheduled for 9 September 2005, but did not take place because the witnesses had not been duly summoned. 10. The next hearing, scheduled for 23 November 2005, was adjourned because the summoned witnesses failed to appear. 11. On 24 February 2006 the court held a hearing and heard the applicants and a witness. The applicants requested the court to obtain an additional expert opinion concerning the amount of their salary arrears. The court held two more hearings – on 31 March and 15 May 2006. 12. On 18 May 2006 the court ordered the applicants to advance the costs of the proposed expert opinion and to suggest an expert. The applicants did so on 1 June. At the next hearing held on 16 June 2006, the court ordered that the expert opinion be obtained. The appointed expert submitted the opinion on 5 October 2006. 13. The court held further hearings on 13 October and 15 November 2006. The respondent then filed a request for a transfer of jurisdiction, which was dismissed by the Supreme Court on 6 December 2006. 14. The court held further hearings on 2 and 16 February and on 16 March 2007. On the last mentioned date the court gave judgment, accepting the applicants' claim. The applicants appealed against the decision on costs and the proceedings are currently pending before the second-instance court. 15. The relevant provisions of this legislation are set out in the V.A.M. v. Serbia judgment (no. 39177/05, §§ 70-72, 13 March 2007). 16. Article 122 § 3 provided that all employment-related disputes were to be resolved by the courts within a period of 6 months from the date of institution of the proceedings. 17. This Act entered into force on 23 March 2005 and thereby repealed the Labour Act of 2001. 18. The text of Article 195 § 3 of the Labour Act of 2005 corresponds to the aforementioned Article 122 § 3 of the Labour Act of 2001. 19. The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006). 20. Article 243 of this Code defines “judicial malfeasance” (kršenje zakona od strane sudije) as a separate criminal offence. 21. Article 25 of the Serbian Constitution (Ustav Republike Srbije), published in the Official Gazette of the Socialist Republic of Serbia (OG SRS - no. 1/90), provided as follows: “Everyone shall be entitled to compensation for any pecuniary and non-pecuniary damages suffered due to the unlawful or improper conduct of a State official, a State body or a public authority, in accordance with the law. Such damages shall be covered by the Republic of Serbia or the public authority [in question].” 22. This Constitution was repealed on 8 November 2006, which is when the “new” Constitution (published in OG RS no. 98/06) entered into force. 23. The substance of Article 35 § 2 of the new Constitution corresponds, in its relevant part, to the above-cited text of the aforementioned Article 25 of the previous Constitution. 24. Article 170 of the new Constitution provides that a constitutional complaint may be lodged against the acts of public entities violating human and minority rights and liberties guaranteed by the Constitution. 25. Section 9 of the Constitutional Act on the Implementation of the Constitution (OG RS 98/06) provides that the election of Constitutional Court judges shall be finalised before the end of the first National Assembly session.

dev

001-86352

ENG

SVK

CHAMBER

CASE OF RAPOS v. SLOVAKIA

Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

4. The applicant was born in 1956 and lives in Bratislava. 5. On 15 March 1996 the applicant sued a limited company before the Bratislava II District Court. He claimed royalties for a furniture line which he had designed. 6. On 12 February 1997 the District Court granted the applicant’s request that a second company should be joined to the proceedings as a defendant. On 23 May 1997 the Regional Court in Bratislava upheld that decision. 7. As the first defendant was declared insolvent, the applicant withdrew his claim against it on 2 June 1998. That company was subsequently deleted from the companies register. 8. On 18 September 1998 the Bratislava II District Court decided to transfer the case to the District Court in Žilina. On 30 November 1998 the Supreme Court decided that the case fell within the jurisdiction of the Bratislava II District Court. 9. Between 22 April 1999 and 2 October 2001 the District Court scheduled eleven hearings. The defendant’s representative failed to appear on seven occasions. 10. On 2 October 2001 the District Court dismissed the applicant’s claim. On 12 December 2001 the applicant appealed. 11. On 16 October 2003 the Bratislava Regional Court quashed the first-instance judgment. The court of appeal held that the applicant was entitled to remuneration for the design in question. Further evidence was to be taken with a view to determining the amount. 12. Between 5 March 2004 and 15 April 2004 the file was examined by the Constitutional Court. 13. On 26 April 2004 the case was assigned to a different judge of the District Court. 14. On 16 July 2004, the District Court appointed an expert. As the expert stated that he was not competent in the area concerned, a different expert was appointed on 27 August 2004. On account of the latter’s health problems, a third expert was appointed on 22 November 2004. The third expert informed the District Court that he was not qualified to determine remuneration for artistic design, and for this reason a fourth expert was appointed on 22 April 2005. That expert informed the court that she was not authorised to prepare an opinion on the point in issue. On 7 November 2005 the Bratislava II District Court appointed a fifth expert with a view to having determined the remuneration due to the applicant. On 7 December 2005 that expert replied that he was not entitled to give an opinion on the point in issue. On 9 January 2005 the court asked the second expert, who had earlier stated that he was suffering from health problems, whether he could submit an opinion. He replied in the negative. 15. On 10 July 2006 the judge made a note in the file indicating that it had been impossible to find an expert in intellectual property who was qualified to determine royalties for the design of office furniture. 16. On 19 July 2006 the District Court asked five companies for information on royalties paid to furniture designers. It repeated the request on 26 September 2006. 17. In November and December 2006 the court sent a similar request to the Slovak Chamber of Architects, the School of Creative Arts, the Slovak Design Centre and the Slovak Fund of Creative Arts. In March 2007 and April 2007 the court urged the School of Creative Arts to submit the information. 18. On 14 June 2007 the District Court held a hearing. The applicant was asked to submit documentary evidence concerning the use by the defendant of the furniture line designed by him. The applicant submitted the evidence on 20 June 2007. 19. On 22 October 2007 the District Court appointed an expert in household equipment and furniture and asked him to submit an opinion within forty days. That expert has been registered in the list of experts, translators and interpreters of the Ministry of Justice since 1988. He submitted the opinion on 3 January 2008. On 28 January 2008 the District Court decided on the expert’s fees. 20. The proceedings are pending. 21. On 6 March 2003 the applicant complained to the Constitutional Court that the Bratislava II District Court and the Bratislava Regional Court had violated his right under Article 6 § 1 of the Convention to a hearing within a reasonable time. 22. On 3 June 2004 the Constitutional Court found that the District Court had violated the applicant’s right in issue. The case was of a certain complexity in that expert evidence was required. The applicant had not contributed by his conduct to the length of the proceedings. The defendant had failed to appear at seven hearings, which had resulted in the proceedings being prolonged. The District Court had not proceeded with the case in a smooth and efficient manner, as a result of which the applicant’s claim had not yet been determined. 23. The Constitutional Court ordered the District Court to proceed with the case without further delay and awarded the applicant 20,000 Slovak korunas (the equivalent of 500 euros at that time) in just satisfaction. It also ordered the District Court to reimburse the applicant’s costs.

dev

001-111518

ENG

BIH

CHAMBER

CASE OF MURTIĆ AND ĆERIMOVIĆ v. BOSNIA AND HERZEGOVINA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

5. The applicants were born in 1963 and 1959 respectively and live in Velika Kladuša. 6. They were both employed by Agrokomerc (“the company”), an agricultural company based in Velika Kladuša. In August 1991 the workers’ council of the company adopted a decision on the issuance of internal shares to the company’s employees as part of its reorganisation from a socially owned company into a joint-stock company under the applicable regulations. It was decided that one third of the employees’ salaries would be allocated towards instalment payments for the internal shares to be issued to them. On 30 March 1993 the company’s management board issued a series of resolutions authorising retention of earnings that resulted in an increase in the company’s internal share capital. As a result of these board resolutions, the internal share capital amounted to 80.9% of the company’s total share capital (the remainder being held by the State). The reorganisation process continued until August 1994, when the management of the company was taken over by the State following armed conflict in the north-western part of Bosnia and Herzegovina (where Velika Kladuša is located) during the 1992-95 war. Following the State taking control of the company, the applicants were effectively unable to exercise any of their rights as shareholders, although the company continued to state the privately-held internal share capital allotted to its employees on its annual balance sheets, as well as the State-owned capital, until 30 June 1999. 7. On 7 August 1995 the applicants’ employment was suspended, as well as that of many other employees of the company, and they were placed on a waiting list for potential future employment by the new management of the company. However, they were never subsequently offered the opportunity to resume their employment. 8. On 20 June 2000 the applicants complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the 1995 General Framework Agreement for Peace) in two separate appeals. 9. On 7 March 2001, Revsar, an auditing and consulting company based in Sarajevo, conducted an audit of the transfer of ownership of the company. It held that the measures taken from 1991 until 1994 to establish internal share capital had not been in accordance with the law and that, therefore, such internal share capital had never been formed. Consequently, it concluded that the company was 100% State-owned. 10. On 31 July 2001 the Federation of Bosnia and Herzegovina issued a decree placing the company on the list of the companies under its control on the basis of the State-owned capital. 11. On 8 February 2002 the Human Rights Chamber joined the applicants’ cases (see paragraph 8 above) and those of Mr M. Š. and the Association for the Protection of Unemployed Shareholders of Agrokomerc and adopted a single decision. It was delivered on 8 March 2002. The Human Rights Chamber held that the applicants had acquired possessions, in the form of their paid-up internal shares in the company, which were protected by law and found a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. The reasons were set out in the decision, the relevant paragraphs of which read as follows: “290. In summary, the Chamber has concluded that the applicants acquired protected “possessions” in their paid internal shares in Agrokomerc for which payment was made on the basis of: (a) permanent deposits; (b) allocation of parts of salaries, either on monthly basis during the period of 1991 to 1994, or on an annual basis for 1992; and (c) distribution of profits for 1992 in proportion to the amount of paid internal shares. The decision on the results of the renewed Revsar audit of 7 March 2001, which cancelled all internal shares in favour of state capital in Agrokomerc, deprived the applicants of these protected possessions. In addition, by exercising effective exclusive control over the management of Agrokomerc, the authorities of the Federation further interfered with the rights of the applicants to participate in the management and to share in the profits of Agrokomerc in relation to their paid internal shares. In these respects the Federation did not act “subject to the conditions provided by law”. Consequently, the Chamber concludes that the Federation has violated the rights of the applicants protected by Article 1 of Protocol No. 1 to the Convention. ... 298. The applicants are correct that they have had no real and effective means to participate in the establishment of the ownership structure of Agrokomerc, as that has been established through the performance of the audit, which was conducted exclusively by the auditor Revsar [...]. There have been no actual or effective proceedings in which the applicants have been invited to participate. Under the law, the only way for the applicants to participate in the establishment of the ownership structure of the company in which they are shareholders has been to challenge the appointment of the auditor and to challenge the results of the audit [...]. This has not proven effective in this case. Moreover, the Chamber considers that this type of process has not been adequate properly to allow the applicants to have access to courts for the determination of their civil rights, as guaranteed by Article 6 of the Convention”. 12. Furthermore, the Human Rights Chamber ordered the Federation of Bosnia and Herzegovina to take all necessary steps to recognise the applicants as holders of internal shares in relation to the amount of their paid-up internal shares and to enable them to exercise their right as shareholders to participate in the management of the company. In particular, the Federation was ordered to: (i) employ, at its own expense, internationally recognised auditors to undertake an audit to determine the complete ownership structure of the company, in compliance with International Accounting Standards and International Auditing Standards; (ii) establish the value of the applicants’ shares and have them formally registered; and (iii) provide them with individual share certificates. Lastly, the Human Rights Chamber ordered interim measures whereby certain procedures and arrangements were put in place as regards the company’s management until the adoption of the final audit report and the convocation of a general meeting of the company’s shareholders. 13. On 28 November 2003 the Prague branch of Deloitte & Touche produced an audit report, which found that 90.33% of the company’s capital was State-owned, the remaining 9.67% being in private ownership. In addition, only 3.34% of the total capital had been assigned to individual private shareholders, whilst the outstanding 6.33% remained unassigned. The value of the applicants’ shares had not been established. Consequently, they could not attend the general meeting of the company’s shareholders which was to be held on 16 March 2004. 14. On 7 May 2004 the Human Rights Commission (the legal successor of the Human Rights Chamber) decided to lift the interim measures indicated in the decision of 8 March 2002 (see paragraph 12 above), after having received the final report on the completed audit from the Federation of Bosnia and Herzegovina and a signed copy of the minutes of the first general meeting of the company’s shareholders. 15. On 12 May 2005 the Bihać Cantonal Court registered the changes in the ownership of the company resulting from its reorganisation. 16. On 14 February 2006 a general meeting of the company’s shareholders adopted a resolution authorising the distribution of the unassigned private share capital to individual shareholders (see paragraph 13 above). 17. On 29 October 2007 the applicants were issued with individual share certificates and their shares were formally registered with the Securities Commission. It was established that the first applicant was entitled to 451 shares with a market value of 4,510 convertible marks (BAM) and the second applicant to 1,086 shares with a market value of BAM 10,000. Consequently, the applicants were also allowed to attend general meetings of the company’s shareholders. 18. On 15 January 2009 the Constitutional Court of Bosnia and Herzegovina (which became responsible for the supervision of the execution of the Human Rights Chamber’s decisions after the Human Rights Commission ceased to exist) concluded that the Human Rights Chamber’s decision of 8 March 2002 had been fully implemented. 19. In accordance with Article 239 of the Criminal Code 2003 (Official Gazette of Bosnia and Herzegovina, nos. 3/03, 37/03, 32/03, 54/04, 61/04, 30/05, 53/06, 55/06, 32/07 and 8/10), non-enforcement of a decision of the Human Rights Chamber is a criminal offence: “An official of the State, the Entities or the Brčko District who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, the Court of Bosnia and Herzegovina, the Human Rights Chamber or the European Court of Human Rights, or who prevents the enforcement of any such decision, or who frustrates the enforcement of any such decision in some other way, shall be punished by imprisonment for a term of between six months and five years.”

dev

001-107139

ENG

SVN

CHAMBER

CASE OF MANDIĆ AND JOVIĆ v. SLOVENIA

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

6. The applicants were born in 1959 and 1963 and live in Ljubljana and Trbovlje respectively. 7. The applicants were detained in Ljubljana prison pending their trial. Mr Mandić was detained in the period between 10 July 2009 and 2 February 2010 and Mr Jović in the period between 5 June 2009 and 13 January 2010. 8. Ljubljana prison is the third largest prison in Slovenia. It holds sentenced prisoners, remand prisoners and prisoners in administrative detention. It has an official capacity of 128 inmates, which includes 55 places designated for prisoners on remand, who by law must be held in a separate section of the prison. In principle there are two types of cells in which the prisoners are held. Small cells measuring about 7.5 square metres (8.8 square metres including the sanitary annex) and normally containing two sleeping places, and large cells measuring 16.28 square metres (18 square metres including the sanitary annex) and normally containing six sleeping places. The windows of the cells face either west or east. Remand prisoners are held on the ground floor, which contains sixteen small and five large cells, and on the first floor, which has fourteen cells, including three small and eleven large cells. On the second floor, which contains fifteen cells, thirteen of which are large cells, both remand prisoners and sentenced prisoners are held. In the loft, which contains fourteen large cells, only sentenced prisoners seem to be held. 9. According to the Government, plans for constructing the new prison to replace Ljubljana prison were in progress. However, completion depended on financial resources and no definite date could be given. 10. The applicants were both detained in cell no. 100, which was situated on the first floor. 11. The cell, with a ceiling 2.88 metres high, measured 16.28 square metres. It was equipped with three bunk beds with a total of six sleeping places, one large and one small table, six chairs and a set of cupboards for each of the detainees. The cell had four windows measuring 91x57 centimetres each, which the prisoners were free to open and close. According to the applicants, six prisoners were held in the cell in the period of their detention. The Government, however, submitted that the number varied between five and six. 12. The cell had no artificial ventilation. It was aired by opening the windows and, also, opening the doors in the summer when the detainees were out. During the summer, the detainees were also allowed to bring in ventilators, but they rarely did so. The cell was also equipped with a functioning radiator, which the detainees were free to regulate. 13. The applicants were allowed to bring in a small TV or, with the approval of the prison governor, radios or other electronic devices. In addition, they could borrow books from the prison library and read them in their cells. 14. According to the data provided by the Government, the average temperature in the cells in the late afternoon (5-5.30 p.m.) in the second half of July and August 2009 was approximately 28 oC, exceeding 30 oC on seven days. 15. The applicants received their meals in their cell. 16. A sanitary annex, measuring 1.72 square metres, was attached to cell no. 100. It was a room with floor-to-ceiling walls and a door, equipped with one basin with warm and cold water, a toilet, a drain and a mirror. It had a functioning artificial ventilation system. 17. The applicants had access to the shower room situated on the same floor and containing five showers with partitions. According to the Government, the applicants could use the shower for ten minutes every day in accordance with the daily schedule. 18. Detergents and products for personal hygiene were distributed to the detainees on a weekly basis. Their bed linen was washed once a week and they were given a clean blanket on arrival at the prison. Regular everyday cleaning and thorough weekly cleaning was carried out by the prisoners under the supervision of the prison staff. 19. In the remand section of the prison the cells were locked throughout the day. The applicants could leave the cell only for scheduled activities, such as visits, phone calls, exercising, cleaning, etc. 20. According to the information supplied by the Government, the applicants were allowed to spend by average two hours and a half out of their cell per day. In particular, they could spend two hours per day in the outside yard, which measured 610 square metres and was not covered by any roof. It was usually used by less than 30 prisoners at a time. In addition, they could use a recreation room, measuring around 17 square metres, twice a week for one hour and also for one hour every third Sunday. This room was equipped with two benches, two exercise mats and some weights. The room had natural light. It was usually used by four prisoners simultaneously. 21. A medical office operated in the prison subject to the general regime of the national health-care system. It was open for six hours, three times a week. A dental-care office was open once a week for six hours. A psychiatric clinic was open twice a week for half a day. The prison also employed two psychologists. All detainees underwent a medical examination upon their arrival. Detainees who were using intravenous drugs received vaccinations against hepatitis B following the standard protocol used in such cases. 22. The prison provided the detainees with the possibility to undergo testing for hepatitis B and C and HIV. In 2009 107 detainees were tested. Five were diagnosed with Hepatitis C; other tests were negative, but one person was diagnosed with TBC. 23. According to the prison records, none of the applicants required special medical treatment. Mr Mandić, however, visited the medical office sixteen times, including three visits to a psychiatrist. He also received dental care. Mr Jović only underwent a general medical examination upon arrival at the prison. 24. Article 18 of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) reads as follows: “No one may be subjected to torture, or inhuman or degrading punishment or treatment. ...” 25. The Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/1994 with amendments) regulates, inter alia, the right of a remand prisoner to a two-hour recreation in the open air and the regime of visits, correspondence and other contact with the outside world. It reads, in the relevant part, as follows: “(1) A remand prisoner shall have the right to an uninterrupted rest of eight hours within twenty-four hours. In addition to the above he must be given at least a twohour recreation in the open air every day. ...” “(1) With the authorisation of the investigating judge who is conducting the investigation and under his supervision, ..., within the limits of the Prison Rules, a remand prisoner may be visited by his close relatives and, upon his/her request, also by doctors and others. Certain visits may be prohibited if they might be to the detriment of the [criminal] proceedings. ... (4) A remand prisoner may have correspondence with other persons outside prison. If required ... the investigating judge ... may order the verification of items of correspondence ...” 26. The Regulation on the Execution of Remand (Pravilnik o izvrševanju pripora, Official Gazette no. 36/1999 with amendments) regulates the treatment of remand prisoners in more detail. 27. Section 2 lays down rules for the allocation of remand prisoners. It states that a person whose detention on remand is ordered by the Ljubljana or Kranj District Court should be placed in Ljubljana prison. Until 27 February 2009, when the Regulation was amended (Official Gazette no. 16/09), it had provided that if the prison in which the remand prisoner was to be placed under the aforementioned rule was overcrowded, the court could order the placement of the remand prisoner in another facility with available space. The prison governors were then under obligation to send information concerning occupancy levels to the presidents of Slovenia’s district courts. 28. Other relevant provisions of the Regulation on the Execution of Remand read as follows: “... (2) Sleeping quarters of remand prisoners may be single or shared, with up to four beds, exceptionally more if so required because of the lack of space in a prison.” “(1) Within 48 hours of admittance to prison, every remand prisoner shall be examined by a doctor... (2) If, upon the admittance of a remand prisoner, there is a reasonable suspicion that he is physically injured or has a contagious disease, he must immediately be examined by a prison doctor.” “(1) A remand prisoner who is taken ill or injured shall be given medical assistance in a prison health clinic. (2) If a remand prisoner needs to undergo medical treatment in a medical institution outside the prison, such treatment shall be ordered by a competent court on the proposal of a prison doctor. ...” “(1) As a rule, close relatives may visit a remand prisoner once a week. (2) The Prison Rules may provide for more frequent visits by close relatives, but not more than three visits a week. ... (4) At the request of a remand prisoner, the competent court may allow visits by other persons as well. ...” “To contact persons outside the prison, a remand prisoner may use a prison telephone at his own expense. The Prison Rules shall lay down the times when calls may be made and their duration. ...” 29. The Rules concerning Remand Prisoners in Ljubljana Prison (Hišni red o izvrševanju pripora v zavodu za prestajnje zapora Ljubljana, adopted on 1 January 2005) regulate the regime in the remand section of the prison in more detail. They provide, in so far as relevant: “(1) As a rule, cells occupied by remand prisoners are kept locked ... ...” “(1) Remand prisoners shall spend time in the open air in the recreation yard in accordance with the daily schedule. The time spent in the open air shall be organised in groups and shall be in two parts, with each group spending one hour in the morning and one hour in the afternoon in the open air. Sports and recreational activities may be practised in the recreation yard. (2) The prison shall provide an opportunity for remand prisoners to use the recreation room three times a week, in accordance with the daily schedule.” “Remand prisoners shall shower in shared bathrooms every day.” “(1) All meals shall be served to remand prisoners in their cells in accordance with the daily schedule. ... ...” “(1) Visits to remand prisoners shall take place on days and at times determined in the daily schedule. (2) Remand prisoners who receive visits from close family members very rarely because they live a long way away may request an extension of the period allowed for visits and also a change of the day assigned for visits, which shall be permitted by the prison governor, who shall also take into consideration the space available in the prison.” “(1) Remand prisoners shall be allowed to make telephone calls in telephone booths located in the remand section of the prison. Remand prisoners may call people outside the prison twice a week. The timetable for telephone calls by remand prisoners is determined in the daily schedule. Remand prisoners shall be allowed to use telephone for at least 10 minutes. Requests to make telephone calls shall be made to a guard during the morning roll-call.” ...” 30. The Daily Schedule (dnevni red) is annexed to the rules and determines the timetable of activities in the remand section of the prison. 31. Since 1 January 2009, the Health Care and Health Insurance Act (Zakon o zdravstvenem varstvu in zdravstvenem zavarovanju, Official Gazette no. 9/1992 with amendments) provides for sentenced prisoners and prisoners on remand to be insured and therefore included in the public health system. They can exercise their rights under the Act with certain exceptions. For example, they cannot choose their own general practitioner but are, as regards general health care, limited to the medical service provided in the prison establishment. However, the prisoners are also entitled to medical services for which other insured persons have to pay a supplementary insurance. 32. The relevant provisions of the Criminal Procedure Act read as follows: “... (3) For the purpose of guaranteeing safety, order and discipline or the successful and economical conduct of criminal proceedings, the competent court may transfer a remand prisoner from one prison to another at the proposal of the governor of the prison in which the remand prisoner is placed.” “(1) The indictment shall be served on an accused person who is at liberty without delay; if the person is on remand it shall be served within 24 hours following its receipt. (2) If detention is ordered for the accused person by a decision of the panel (Section 212) the accused person shall, at the time of imprisonment, be served an indictment together with a decision ordering detention. (3) If an accused person who has been deprived of liberty is not in any of the prisons in the territory of the court at which the main hearing should be held, the president of the panel shall order the accused person to be brought immediately to such a prison, where he shall be served the indictment.” 33. The relevant provisions of the Regulation on the Execution of Remand provide: “An accused person whose detention has been ordered shall be transferred by the prison governor on the basis of an order issued by the president of the panel referred to in the third paragraph of Section 273 of the ZKP. In the prison located in the territory of the court where the main hearing will be held, the remand prisoner shall be placed in a cell for remand prisoners. In the prison referred to in the preceding paragraph, a protected person must be separated from other remand prisoners and sentenced prisoners in accordance with the instructions of the unit.” “For the purpose of guaranteeing safety, order and discipline, for reasons of overcrowding or to secure the successful and economical conduct of criminal proceedings, a remand prisoner may be transferred from one prison to another. The transfer may be temporary or for the whole duration of the detention. The competent court shall decide on the said transfer at the proposal of the prison governor. The written proposal referred to in the preceding paragraph shall contain the reasons for the transfer. The competent court shall decide on the proposal by an order which shall be served on the remand prisoner, the prison in which the remand prisoner is on remand and the prison to which the remand prisoner has been transferred. ...” 34. The Administrative Disputes Act (Zakon o upravnem sporu, Official Gazette no. 105/2006 with amendments) provides in so far as relevant: “(1) In an administrative dispute the court shall also decide on the legality of individual acts and actions by which the authorities infringe the human rights and fundamental freedoms of an individual if no other judicial protection is provided. (2) If actions of public authorities are challenged in an administrative dispute, the provisions of this Act referring to the challenging of an administrative act shall apply.” “... (3) For the reasons referred to in the preceding paragraph, the plaintiff may also request the issue of an interim order for the provisional regulation of the situation with regard to the disputed legal relationship, if such regulation, in particular in still existing legal relationships, proves necessary. (4) The interim order referred to in the preceding paragraphs shall be issued by the court competent for the decision on the dispute (5) The court shall decide on the request for the issue of an interim order within 7 (seven) days following the receipt of the request... (6) The parties may lodge an appeal against the decision referred to in the preceding paragraph within 3 (three) days. The appeal shall not stay the execution of the issued interim order. The competent court shall decide on the appeal against the decision without delay, but no later than 15 days after receiving the appeal.” “... (2) A claim may be filed against the violation of human rights and fundamental freedoms under this Act seeking: – to annul, issue or amend an individual act, – to declare that an action infringed a human right or fundamental freedom of the plaintiff, – to prohibit further action, – to undo the consequences of an action.” “(1) In the administrative dispute referred to in the first paragraph of section 4 of the Act the court may establish the illegality of an act or action, prohibit the continuation of an individual action, decide on the plaintiff’s request for compensation for damage and order whatever is necessary to eliminate the infringement of human rights and fundamental freedoms and restore lawfulness. (2) The court shall decide without delay on putting an end to the continuation of actions, and on measures aimed at restoring lawfulness if an unlawful action is still ongoing; an appeal is admissible against the decision within three days. The Supreme Court shall adjudicate on the appeal within 3 (three) days following its receipt. (3) If the court cannot decide without delay in the case referred to in the preceding paragraph, it may issue an interim order of its own motion in accordance with section 32 of this Act.” 35. According to the Constitutional Court’s decision of 2 April 2009 (no. Up-1618/08), the conditions for admission of a claim to an Administrative Court on the basis of the first paragraph of section 4 of the Administrative Disputes Act are as follows: it must allege a violation of a human right or fundamental freedom; there must be a causal link between the violation and the action of the state body; the result of the action must be unlawful hindrance or limitation of the enjoyment of the human right or fundamental freedom or the prevention of such an enjoyment; there should be no other judicial protection available; and the victim must lodge an action for protection from such unlawful action (ibid., §7). 36. The relevant parts of the Civil Code (Obligacijski zakonik, Official Gazette, no. 83/2001 with amendments) read as follows: “(1) Every person shall have the right to request the court or any other competent authority to order the termination of an action infringing the integrity of the human personality, private and family life, or any other personal right, to prevent such action or remedy its consequences. (2) The court or another competent authority may order that the offender terminate his or her action, failing which he or she may be obliged to pay the injured party a certain amount assessed in total or with regard to a unit of time.” “(1) For physical pain endured, for psychological anguish resulting from a general loss of the ability to perform life functions, disfigurement, defamation (injuring a person’s good name and reputation), or infringement of personal freedom or personal rights, or for the death of a next-of-kin, and for fear experienced, the injured party may, if it is established that the circumstances of a case, and in particular the degree of pain and fear and their duration, justify it, be awarded just monetary compensation irrespective of any compensation for material damage, and even if there is no material damage. (2) The amount of compensation for non-pecuniary damage shall depend on the importance of what was at stake and the objective of such compensation; it should, however, not nurture aspirations that are not consistent with its nature and objective.” 37. Section 213.d of the Criminal Procedure Act provides: “(1) Supervision of the treatment of remand prisoners is carried out by the president of a district court. (2) The president of the court or any other judge appointed by the president must visit the remand prisoners at least once per week and must, in the absence of prison guards if necessary, ask them about their treatment. He is required to take the necessary steps to resolve any irregularities observed during the visit. The judge appointed should not be the investigating judge. (3) A president of a court and an investigating judge may visit a remand prisoner at any time, talk to him and hear complaints. “ 38. The relevant extracts from the 2nd General Report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (CPT/Inf (92) 3) read as follows: “46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ... 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.” 39. The CPT’s 7th General Report (CPT/Inf (97) 10) contains the following passage: “13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...” 40. The CPT’s 11th General Report (CPT/Inf (2001) 16) provides: “28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ... 29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large-capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.” 41. The CPT visited Ljubljana prison in 1995 and 2001. During its most recent visit in 2006 the CPT visited the remand section of Ljubljana prison. 42. In 1995 the number of prisoners held in the prison was 188 prisoners, which is significantly lower than it is currently (see document CPT/Inf (96) 18). Following the visit in 2001, the following recommendations were made to the Slovenian authorities (CPT/Inf (2002) 36): “ii. Ljubljana prison 59. ... the CPT reiterates its recommendation that efforts be made to reduce to a maximum of four the number of prisoners held in the cells measuring 18 m², and to accommodate only one prisoner in each cell measuring 8 m².” 43. Following the visit in 2006, the following observations were made to the Slovenian authorities in respect of the remand section of Ljubljana prison (CPT/Inf (2008) 7): “48. The objective of the 2006 follow-up visit to the Ljubljana Prison was to examine measures taken by the Slovenian authorities aimed to implement the CPT’s recommendations with respect to remand prisoners. It should be stated from the outset that the CPT is concerned by the lack of progress as regards remand prisoners’ conditions of detention. 49. With an official capacity of 73, the remand section of the Ljubljana prison was accommodating 123 persons (including three juveniles) at the time of the visit [the whole establishment was accommodating 238 prisoners (with an official capacity of 128)]. Prisoners continued to be accommodated under cramped conditions, with generally five persons in 18 m² cells and two persons in cells measuring 8 m² (including the sanitary annexe). Naturally, this situation had negative repercussions for all aspects of life, both for prisoners and staff. The CPT calls upon the Slovenian authorities to implement its long-standing recommendation to reduce cell occupancy rates at Ljubljana prison. Cells measuring 18 m² should not accommodate more than four prisoners, and the 8 m² cells should preferably not accommodate more than one prisoner. ... 50. At the time of the 1995 and 2001 visits, Ljubljana prison was not in a position to offer remand prisoners anything which remotely resembled a programme of activities. Apart from two hours of daily outdoor exercise and access to a recreation room twice a week, the vast majority of those prisoners spent up to 22 hours a day confined to cramped cells, their only distraction being watching television, listening to the radio or reading books or newspapers. Regrettably, the situation observed in 2006 was hardly any different. The only positive developments concerned increased access to the recreation room (one-hour sessions three times a week) and the installation of a table tennis table in the exercise yard. Only five prisoners were provided with work and two had access to education. The CPT reiterates its recommendation that the Slovenian authorities intensify their efforts to develop a programme of activities for remand prisoners at Ljubljana prison. As stressed by the Committee in previous visit reports, the aim should be to ensure that those prisoners are able to spend a reasonable part of the day outside their cells engaged in purposeful activities of a varied nature (work; education; sport; recreation/association) ... ... 86. In respect of remand prisoners, the CPT is pleased that the Slovenian authorities have implemented its recommendation made in the 2001 visit report, enabling remand prisoners to receive open visits from their relatives (e.g. without a glass partition). However, material conditions in the visiting facilities at Ljubljana prison remained unsatisfactory; especially, they offered little privacy to inmates and visitors and were insufficient for the number of prisoners held. ... 88. At all the establishments visited, sentenced prisoners had adequate access to telephones. The situation was less favourable in respect of remand prisoners. Although entitled to a 10-minute conversation every week, a number of them complained that their calls were in practice shorter. The CPT reiterates the recommendation made in the 2001 visit report (paragraph 93, CPT/Inf (2002) 36) that the Slovenian authorities seek ways of improving opportunities for telephone contact for remand prisoners.” 44. According to the Annual reports issued by the Administration for the Execution of Penal Sentences, the remand section of Ljubljana prison held on average 148 remand prisoners in 2009 (2009 Report, 9. 31) and 139 remand prisoners in 2010 (2010 Report, p. 31). 45. In the chapter concerning the living conditions in Slovenian prisons, the reports include information on prison overcrowding. The rate of overcrowding is calculated on the basis of the domestic statutory requirement for the imprisonment of sentenced individuals, which is 9 square metres for a single occupancy cell and 7 square metres per person in a shared cell. According to the 2009 and 2010 reports nationwide prison occupancy exceeded the official capacity by 29 and 23 percent respectively. Almost all closed prison facilities accommodating male prisoners were overcrowded. The Ljubljana prison was the most overcrowded prison in Slovenia in 2009 and 2010. With an official capacity of 128 prisoners, it held 261 and 245 prisoners in 2009 and 2010 respectively. This meant that the level of overcrowding was 204 and 191 percent respectively (2009 Report, pp. 97 and 98; 2010 Report, pp. 98 and 99). According to the 2008 Report, the level of overcrowding in 2007 and 2008 was 200 and 196 percent respectively (p. 98). These figures include both sentenced and remand prisoners. 46. The 2010 Report noted that in respect of Ljubljana prison the maximum number of prisoners allowed was set at 245; if this number was exceeded the prison administration was required to institute a transfer procedure (p. 100). The report also noted (p. 100): “... Poor living conditions are coupled with overcrowding, which is most present in the large prisons in Slovenia, Dob, Ljubljana and Maribor. The urgency of improving living conditions has been stressed by the Human Rights Ombudsman the CPT and other institutions. ... It is understandable that such living conditions adversely affect prisoners’ hygiene and privacy. Poor living conditions sometimes also obstruct the exercise of prisoners’ rights (work, exercise and recreation, religious ceremonies). In some establishments, prisoners on remand live in worse conditions than sentenced prisoners. The outdated and inadequate furniture in living rooms and other areas presents an additional problem ...” 47. On 17 and 18 February 2009 the Human Rights Ombudsman conducted a visit to Ljubljana prison in her capacity as a “national preventive mechanism” under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“the Optional Protocol”). The report published following the visit reads as follows: “Official capacity is still 128 prisoners. This includes 55 places designated for prisoners on remand, 65 places for sentenced prisoners and 8 places for prisoners in administrative detention. On the day of the visit, the prison held 254 prisoners (126 prisoners on remand, 126 sentenced prisoners and two prisoners in administrative detention). The official capacity was therefore exceeded by 98%. ... the prison administration has replied that in the present circumstances all realistic possibilities for reducing the occupancy level have been exhausted ... The Ministry has also warned that the conditions are unacceptable and the Government should be aware of the problem ... As regards the information about the construction of a new prison, the prison administration has stated that it is not realistic to expect the construction to be completed in a short time ... We are therefore not surprised that in all the cells the number of beds has only increased since our last visit ... ... In the light of the critical overcrowding and all the consequences which relate to it, we consider the conditions unacceptable. The prison still does not have a special drug-free unit. ... The prison administration said that in the current overcrowding conditions it is impossible to organise such a unit. The administration estimated that about 50% of the prison population have drugrelated problems. ... Smoking is allowed only in the cells, whereas the prison does not have permanent smoking or non-smoking cells. Efforts are made to separate the smoking and nonsmoking prisoners, but due to overcrowding this is often very difficult or impossible. ... Prisoners on remand are locked in their cells for on average more than 21 hours a day. The only everyday activity outside cells is exercise in the small internal courtyard ... However, a roof has still not been constructed to allow the use of the courtyard in bad weather as well. This has not been improved due to lack of financial means. Other activities which allow remand prisoners to spend time out of their cells include fitness (twice a week), visits (one hour per week), use of telephone (ten minutes twice a week), short visits to the prison shop (three times a week) and showering (ten minutes per day). The remand prisoners are also allowed to participate in general cleaning on Saturdays, which is welcomed, but insufficient. Our request to allow remand prisoners to spend more time out of their cells was rejected by the prison administration with the explanation that special conditions do not in principle allow for this. ...” 48. In her report concerning her activities under the Optional Protocol in 2009, the Human Rights Ombudsman also noted: “The problem of overcrowding in prisons is one of the most critical and complex problems in the area of enforcing criminal sanctions, especially when it comes to detention on remand. It seems that virtually everything that was possible was done to resolve this problem, by means of the reasonable transfer of prisoners between prisons or their departments. ... A critical point has obviously been reached when it will be necessary to consider more systemic solutions if the country is to meet its [domestic and international] obligations at all ... ... With regard to remand detainees a presumption of innocence applies and therefore it is wrong that they serve the measure imposed in an even worse situation than sentenced persons who are serving a prison sentence. In addition to poor material conditions, the overcrowding has an impact on several other aspects of serving and executing detention (problems with organising activities, access to showers, providing an escort outside the institution when necessary, etc.).” 49. As regards the temperatures in the cells, the following was noted in the 2007 Annual report of the Human Rights Ombudsman: “... During the visit to Ljubljana prison the official capacity was exceeded by almost 95 percent ... At the time of the visit it was ... typically summer weather, therefore the air in the cells was hot and humid. On the third day of the visit (19 July 2007) we measured, at around noon, 31.9 degrees Celsius in some cells. By using their own ventilators and by means of putting shades on the windows, the prisoners tried to lessen the effect of the scorching ... heat, as their rooms were locked and the air could not circulate. We considered that the living conditions, as observed by us during the summer, were inhuman.”

dev

001-93144

ENG

HRV

ADMISSIBILITY

KNAPIC v. CROATIA

Inadmissible

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant, Mr Željko Knapić, is a Croatian national who was born in 1957 and lives in Čakovec. He was represented before the Court by Mr M. Ramušćak, a lawyer practising in Varaždin. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 30 December 2004 the Varaždin State Attorney’s Office (Općinsko državno odvjetništvo Varaždin) indicted the applicant before the Varaždin Municipal Court (Općinski sud u Varaždinu) for threatening behaviour. The applicant chose to defend himself in person and had no legal representation in the proceedings before the trial court. At the first hearing, held on 11 July 2005, the applicant and one witness gave evidence. At the beginning of a hearing scheduled for 8 September 2005 at 12.30 p.m., the applicant’s wife approached the presiding judge asking on the applicant’s behalf for an adjournment of the hearing. She presented medical evidence showing that on 4 September 2005 the applicant had been injured and could not walk. The judge, however, continued with the hearing at which three witnesses, all of whom were called on behalf of the prosecution, gave evidence. The prosecution also gave their closing arguments and the trial was concluded. The applicant was found guilty as charged and sentenced to three months’ imprisonment. On 4 October 2005 the applicant, now legally represented, lodged an appeal whereby he argued that the impugned judgment had not been adequately reasoned, that the reasons given by the trial court had been contradictory and that the facts had been wrongly established. The appeal was dismissed and the first-instance judgment upheld by the Varaždin County Court (Županijski sud u Varaždinu) on 2 November 2005. On 30 December 2005 the applicant lodged a request for an extraordinary review of a final judgment (zahtjev za izvanredno preispitivanje pravomoćne presude). It was dismissed by the Supreme Court (Vrhovni sud Repbulike Hrvatske) on 9 March 2006 on the ground that the applicant had failed to specify any ground for lodging his request under the relevant provisions of the Code of Criminal Procedure. Instead, he had challenged only the findings of the lower courts as to the facts of the case, which was not a ground for a request for extraordinary review of a final judgment. On 16 October 2006 the applicant asked the Varaždin State Attorney’s Office to lodge a request for the protection of legality with the Supreme Court. This was denied on 11 July 2007. The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provides as follows: “(1) Where a law has been infringed, the State Attorney of the Republic of Croatia may lodge a request for the protection of legality against final court decisions and against the court proceedings preceding such decisions. (2) The State Attorney of the Republic of Croatia shall lodge a request for the protection of legality against a court decision adopted in proceedings which violated fundamental human rights and freedoms guaranteed under the Constitution, laws or international law. ...” Article 419 of the Serbian Criminal Procedure Code (Zakonik o krivičnom postupku, published in Official Gazette nos. 70/01 and 68/02) reads: “Where a law has been infringed, the competent State Attorney may lodge a request for the protection of legality against final court decisions and against the court proceedings preceding such decisions.”

dev

001-106789

ENG

MDA

CHAMBER

CASE OF FOMIN v. MOLDOVA

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

5. The applicant was born in 1959 and lives in Soroca. 6. The applicant works as a technician for a State telephone company. On 9 June 2005 she called R. over the phone and they arranged for the applicant to visit R. at her house situated on Viilor str. no. 15/36 in Soroca in order to verify the functioning of the phone line installed there. Some twenty minutes later when she came to R.’s home, she was met by R. who, according to the applicant, started shouting at her and calling her names. 7. The applicant called the police from her mobile phone, but was told that she needed to go to the police station in person in order to make a written complaint. She decided to go back to her workplace and told her superior about the incident, but was advised to forget about it. She was told that R. had already called her superior to complain about an alleged assault on her by the applicant. 8. R. complained to the police that the applicant had assaulted her on 9 June 2005. According to R.’s complaint, the applicant had entered her apartment situated on Viilor str. 15 apartment 36 without authorisation and started ripping the phone lines off the wall and insulting her with offensive language. The applicant had then gone to the cellar and destroyed the phone socket and phone lines. She had been extremely irritated and one could smell alcohol on her breath. Finally, she had hit R. in the face and left. R.’s husband wrote a similar complaint, also noting Viilor str. 15 as being the address of the apartment where the incident had taken place. 9. On 11 July 2005 the local police filed a report confirming that the applicant had committed an administrative offence by insulting R. The report attested that on 9 June 2005 the applicant had entered R.’s apartment without authorisation, insulted her with offensive language and then hit her in the face, causing her physical harm. 10. On 26 July 2005 the Soroca District Court found the applicant guilty of the administrative offence of hooliganism. 11. On an unknown date the Bălţi Court of Appeal sent the case for a rehearing. 12. The applicant submitted statements from five companies she had visited on 9 June 2005, all confirming that she had been polite and not under the influence of alcohol that day, which contradicted R.’s statements concerning the applicant’s aggressiveness and alcohol consumption. She also submitted a certificate confirming that no repair of the phone lines at R.’s home or office had been asked for on 9 June 2005 or thereafter, and evidence that after her alleged visit phone calls had been made from both phone lines. That proved, in the applicant’s opinion, that the statements in R.’s complaint concerning the ripping out of the phone line and phone socket had been untrue. She submitted further evidence proving that her company had a contract to service the phone line installed at R.’s place, that she had been asked to verify a number of phone lines on 9 June 2005, including that at R.’s place, and evidence of the applicant’s call to the police on 9 June 2005. 13. On 19 December 2005 the Soroca District Court found the applicant guilty of the administrative offence of insult (injuria). The decision was an almost word-for-word copy of that adopted on 26 July 2005 and reads as follows in its entirety: “Decision concerning the administrative offence under Article 471-1 of the Code of Administrative Offences, 19 December 2005 Judge [V. N.] of the Soroca District Court, having examined the case concerning the administrative offence regarding [the applicant, her address and workplace], has found: On 9 June 2005 at 12.20 p.m. [the applicant] entered [R.’s] apartment situated on Mateevici str. 1, apartment 42 without authorisation and started shouting and calling her names, thus denigrating [R.’s] honour and dignity, therefore committing the administrative offence provided for in Article 473 (1) of the Code of Administrative Offences. The allegation that [the applicant] hit the victim has not been confirmed. In view of the above, relying on [relevant procedural provisions of the Code of Administrative Offences], the court decides: To impose a fine on [the applicant] in the amount of ten conventional units amounting to 200 [Moldovan] lei. This decision may be appealed against within 10 days to the Bălţi Court of Appeal”. 14. In her appeal in cassation the applicant submitted that there was no evidence whatsoever that she had ever been in R.’s apartment at Mateevici str. or shouted at her. The court had not given any ground for the decision such as a document, witness statement or anything other than the statements by R. and her husband. Moreover, she had visited R. at her address at Viilor str. no. 15 and not at Mateevici str. no. 1 as stated in the decision. Finally, the court had disregarded Article 37 of the Code of Administrative Offences (see below), according to which no administrative penalty could be imposed after three months from the date on which the offence had been committed. 15. On 8 February 2006 the Bălţi Court of Appeal upheld the lower court’s decision. The court’s decision started by stating that: “By its decision [of 19 December 2005] the [lower court] imposed an administrative penalty on [the applicant] because on 9 June 2005 she insulted [R.] in her apartment situated on Mateevici str. in Soroca, thus denigrating [R.’s] honour and dignity.” It then summarised the applicant’s appeal. The court further found that the lower It correctly dismissed the part of the complaint that the applicant had hit R., since during the court hearing R. herself had denied having been hit. The court reduced the fine to 136 Moldovan lei (8.80 euros (EUR)), using a slightly different manner of calculating the amount of the fine. That decision was final. Its text was accessible at the Soroca District Court, where it arrived on 20 February 2006. 16. The relevant provisions of the Code of Administrative Offences (“the CAO”) read as follows: “Section 47/3. Insult Insult, that is, the intentional denigration of honour and dignity of a person through an action, verbally or in writing, shall be punished by a fine of seven to fifteen conventional units or by administrative detention of up to fifteen days. Section 266. Circumstances to be clarified during the examination of the case concerning an administrative offence. The authority (official) shall clarify during the examination of the case concerning an administrative offence: whether an administrative offence has been committed; whether the person is guilty of having committed it; whether (s)he should be subjected to administrative responsibility; whether there are circumstances attenuating or aggravating responsibility; whether pecuniary damage was caused; whether there are grounds for forwarding the materials concerning the administrative offence for examination by a public association, the staff [of his/her employer]; as well as other circumstances which are important for the examination of the case.”

dev

001-57624

ENG

GBR

CHAMBER

CASE OF GRANGER v. THE UNITED KINGDOM

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

C. Russo

8. A number of serious incidents between rival groups in Glasgow in the early 1980’s culminated in a fire-raising attack on industrial premises, followed by a petrol-bomb attack on an apartment resulting in the death of six members of the same family. 9. Mr Granger, who is a British citizen born in 1960 and resident in Glasgow, was interviewed by the police during their investigations; on 23 and 25 May 1984, in signed statements, he gave details of how the crimes had been committed and named the persons responsible, that is Thomas Lafferty and six others. This evidence was considered by the Crown to be important and was a major basis for the decision to prosecute those persons. Steps were taken to secure the applicant’s safety until the trial. 10. The trial of Thomas Lafferty and the six others on charges relating, inter alia, to the fire-raising and the murders took place before the High Court of Justiciary in Glasgow in September 1984. Mr Granger appeared as a principal witness for the Crown. However, once in the witness-box, he denied all knowledge of any matters relevant to the crimes. He also denied that he had given the above-mentioned statements, claiming instead that they had been made up by the police, who had pressurised him into signing them. 11. Shortly afterwards, the applicant was arrested and prosecuted on indictment in the High Court of Justiciary for perjury. He was held in custody pending and during his trial. In summary, the charges against him were that, while giving evidence at the Lafferty trial, he had untruthfully: (a) stated that marks on a plan which he had drawn had been placed there by him on the instructions of the police rather than on his own initiative; (b) denied making a detailed statement to the police on 23 May 1984 about the fire-raising; (c) denied making a detailed statement to the police on 25 May 1984 about the murders; (d) claimed to have been pressurised and assaulted by the police and forced to sign statements previously prepared by them; (e) pretended that he had told his solicitor that he had been assaulted by police officers and forced to sign a statement against his will. 12. The applicant received legal aid for the preparation of his defence by his solicitor and for representation at his trial by both senior and junior counsel. The Crown was represented by the Solicitor General for Scotland (see paragraph 29 below), since the gravity of the charges was considered to warrant the presence of a senior prosecutor and since the most senior Advocate Depute, who had appeared for the prosecution at the Lafferty trial, was to be a witness at the applicant’s trial. After a four-week trial before the High Court of Justiciary in Glasgow in February 1985, Mr Granger was found guilty of the first, second and fourth charges against him and not guilty of the fifth; the third was found not proven. He was sentenced to five years’ imprisonment. The trial judge certified, for the purposes of determining the fees payable under the legal-aid scheme, that the case had been one of exceptional length, complexity and difficulty. 13. The applicant’s solicitor subsequently lodged an intimation of intention to appeal against conviction (see paragraph 27 below). The legal aid granted for the perjury trial covered this work, as well as the solicitor’s advising on the prospects of an appeal, obtaining counsel’s opinion on the same point, having counsel frame a note of appeal setting out the grounds of appeal (ibid.), lodging the note of appeal and making an application for legal aid to pay for representation at the hearing of the appeal itself. 14. Such an application was submitted on behalf of Mr Granger, who had insufficient means to pay for legal assistance, to the Supreme Court Legal Aid Committee of the Law Society of Scotland (see paragraph 30 below) on 6 June 1985. It was accompanied by a memorandum, a copy note of appeal (with a supplementary statement of the grounds) and the judge’s summing-up to the jury at the applicant’s trial; later a copy of the indictment and a note of previous convictions were also lodged. 15. The Committee considered the material before it to be insufficient and asked the applicant’s solicitor to furnish counsel’s opinion on the prospects of the appeal. This he did on 4 July 1985. The solicitor had, in fact, already obtained such an opinion, on 14 May 1985, from the senior and junior counsel who had represented Mr Granger at his trial; the senior counsel, in particular, had considerable experience in presenting appeals before the High Court of Justiciary. The authors of the opinion concluded that they could not advise that the appeal should proceed: in their view, neither of the two possible stateable grounds of appeal was of sufficient substance as to have reasonable prospects of success and, in any event, there was no real prospect of satisfying the court that there had been a miscarriage of justice (see paragraph 26 below). The solicitor also provided the Committee with a copy of his letter of 23 May 1985 to his Edinburgh agents, indicating that he disagreed with counsel’s opinion. Although he had obtained on 5 February 1985, for the purposes of the applicant’s trial, a psychiatric report which stated that the applicant was of modest intelligence but with a poor command of English and poor comprehension of written material, he did not communicate this to the Committee. Neither did he refer, in any material he placed before it, to any intellectual or linguistic limitations of his client. 16. By decision of 11 July 1985, which was stated to be final, the Committee refused the application, since it was not satisfied that Mr Granger had substantial grounds for his appeal (see paragraph 31 below). 17. The applicant nevertheless continued to receive advice and assistance from his solicitor and decided to proceed with the appeal. The grounds were the same as those considered by counsel in the opinion of May 1985 (see paragraph 15 above). The applicant maintained that there had been a miscarriage of justice (see paragraph 26 below), in that (in summary): (a) during the cross-examination of a police officer, the trial judge had intervened with the comment - alleged to be tantamount to a premature direction in law to the jury and incorrect - that the line being followed by the defence was incompetent and irrelevant; (b) the judge had erred in admitting in evidence a statement made by the applicant on 23 May 1984, notwithstanding a defence objection that it was inadmissible as being in the nature of a precognition, that is a statement made by a potential witness at an advanced stage of an investigation outlining the evidence he is likely to give at a forthcoming trial; (c) the judge had erred in repelling a further objection to the admissibility of the same statement, namely that it was evidence of crimes not charged against the applicant and would lead to prejudice; (d) the judge had erred in directing the jury that it would not be unfair for a police officer - if he genuinely believed that his superiors intended to use the applicant only as a witness - to have told the applicant, prior to obtaining the aforesaid statement and certain sketch plans, that he would not be charged with any offence; (e) the judge had erred in rejecting a defence submission that the evidence given by the applicant at the Lafferty trial had not been "material" and accordingly could not form the basis of a charge of perjury. 18. The hearing of the appeal opened before the High Court of Justiciary, sitting in Edinburgh as an appellate court of three judges, on 27 September 1985. The Crown was again represented by the Solicitor General for Scotland, accompanied by junior counsel and a member of the staff of the Crown Office (see paragraph 29 below). Since the refusal of legal aid precluded the instruction of counsel and since solicitors do not have rights of audience in the High Court of Justiciary, Mr Granger presented his appeal himself. He read out a statement, prepared by his solicitor, which elaborated on the written grounds of appeal. The Solicitor General replied, addressing the court for about ninety minutes. 19. The principal point discussed at the hearing was whether the court could determine ground (b) of the appeal (see paragraph 17 above) without considering a transcript of the relevant parts of the evidence given at the applicant’s trial. Notwithstanding the Solicitor General’s arguments to the contrary, the court decided that it could not. It therefore ordered that a transcript be prepared and adjourned the hearing to 6 March 1986. The applicant’s solicitor subsequently assisted in the preparation of the transcript. Following this adjournment, Mr Granger did not renew, or request reconsideration of, his legal-aid application, nor did he advise the Legal Aid Committee of the court’s order. 20. At the resumed hearing the applicant had again been provided by his solicitor with a written speech, which dealt with all the grounds of appeal. Although the court pointed out that it wished to hear submissions on ground (b) only, it allowed the applicant, who was unable to comprehend the legal niceties, to read out the speech in full. 21. The High Court of Justiciary unanimously refused the appeal on all grounds. In his written judgment the Lord Justice-Clerk, who presided, gave full consideration to each of the grounds, but was satisfied that none of them had substance and that there had been no miscarriage of justice (see paragraph 26 below). He described the appellant’s submissions as "well prepared and clearly expressed". 22. Mr Granger was released from prison on 16 July 1988 after serving two-thirds of his sentence, the remainder having been remitted. 23. On 26 September 1985 - the day before the first hearing in the applicant’s appeal - the Lord Advocate referred, under section 263A of the Criminal Procedure (Scotland) Act 1975 (see paragraphs 32-33 below), for the opinion of the High Court of Justiciary two questions of law that arose from the judge’s directions to the jury, at the perjury trial, concerning the charge which had been found not proven (see paragraph 12 above). The questions were: (a) whether, in a trial for perjury where the accused was not an accused in the previous trial, it is of any relevance that a statement made by him and falsely denied under oath was allegedly obtained by means described as unfair; and (b) whether, in a trial for perjury, the "materiality" of the false evidence to the issue in the earlier trial is (i) a prerequisite to conviction and in any event (ii) a matter of fact to be left to the jury. 24. On 13 June 1986 the High Court heard submissions on the reference. Mr Granger exercised his statutory right to be represented at the hearing, the fees of senior counsel instructed for this purpose being paid by the Lord Advocate (see paragraph 32 below). In its opinion of 26 June the court held that the trial judge’s directions - which had been favourable to the applicant - had not been an accurate statement of the law. This opinion did not affect the applicant’s acquittal (see paragraph 33 below). 25. Every person convicted of a criminal charge in Scotland has an automatic right of appeal - there being no requirement of prior leave - against conviction or sentence or both. In cases, such as the applicant’s, tried on indictment, the right is conferred by section 228 of the Criminal Procedure (Scotland) Act 1975, as amended by the Criminal Justice (Scotland) Act 1980 ("the 1975 Act"). 26. In an appeal against conviction, the appellant may bring under review any alleged miscarriage of justice in the earlier proceedings. "Miscarriage of justice" is not defined by statute, but covers such matters as misdirections by the trial judge to the jury or wrong decisions on the admissibility of evidence, as well as breaches of natural justice. An appellate court which holds that there has been a miscarriage of justice retains a discretion not to allow the appeal if it determines that the miscarriage is not such as to warrant the quashing of the conviction (section 254 of the 1975 Act). 27. Anyone wishing to appeal against conviction must lodge an intimation of his intention to do so within two weeks of the final determination of the proceedings against him (section 231 of the 1975 Act). He then has six weeks in which he may file a note of appeal containing a full statement of the grounds; he may not, in general, found any aspect of his appeal on a ground not set out therein (section 233 of the 1975 Act). 28. At the hearing submissions will first be made by or on behalf of the appellant; whilst unusual, this may be done in writing (section 234 of the 1975 Act). Counsel for the Crown will then address the court. Counsel for the Crown has a duty to act with complete fairness and to assist the court by providing impartial information and, if need be, argument so that the appellant’s case can be evaluated in the best possible light. This is especially important where the appellant is not represented by counsel. Such cases are common, firstly because the unrestricted right of appeal (see paragraph 25 above) results in the filing of many appeals which are without merit and, hence, do not qualify for legal aid (see paragraph 31 below). Secondly, and irrespective of the availability of legal aid, counsel must, according to the Guide to the Professional Conduct of Advocates, refuse to act further in a criminal appeal if he has formed the opinion that there are no grounds which he is prepared to state to the court. Whether the appellant is represented or not, the court will undertake a thorough examination of the appeal and will be scrupulous in examining the points which might be favourable to him. 29. At the hearing of appeals in the High Court of Justiciary the Crown will always be represented, either by the Lord Advocate or the Solicitor General (who are the Law Officers of the Crown) or by one of the Advocate Deputes. In an appeal against conviction following a long trial, the Crown will usually be represented by the counsel who appeared for it below, on account of his familiarity with the case. As Ministers of the Crown, the Law Officers are liable to be called away from court at short notice to carry out other duties. They will therefore normally be accompanied by another counsel, but he will play no active part unless the Law Officer has to leave. Counsel for the Crown will also invariably be accompanied by the member of the Crown Office staff who prepared the day’s papers for the court; his function is entirely clerical and administrative and he will not participate in the discussion of the appeal. 30. Legal aid granted for a trial on indictment covers certain work done in contemplation of an appeal, as listed in paragraph 13 above. If it is thereafter intended to proceed with the appeal, legal aid may be sought for that purpose. Its availability was, at the relevant time, governed by the Legal Aid (Scotland) Act 1967, as amended ("the 1967 Act"). Applications therefor were then determined by the Supreme Court Legal Aid Committee of the Law Society of Scotland, whose members were independent advocates and solicitors with substantial current experience of court practice. The whole system for the administration of legal aid was reformed by the Legal Aid (Scotland) Act 1986, which repealed and replaced the 1967 Act with effect from 1 April 1987. In particular, the former functions of the Legal Aid Committee were transferred to another body. 31. Section 1(7) of the 1967 Act provided: "In criminal proceedings, a person shall not be given legal aid in connection with - (a) ... It would have been extremely unusual for the Committee to decide that it was not reasonable to grant legal aid to a person appearing to have substantial grounds for appealing. It normally determined applications on the basis of the documents before it, which would have included the note of appeal setting out the grounds and the judge’s summing-up to the jury, and in the light of the views of the counsel or solicitor who acted for the appellant at the trial. According to Article 21 of the Legal Aid (Scotland) (Criminal Proceedings) Scheme 1975, the Committee’s decision on the merits of an application for legal aid for a criminal appeal was final. 32. Under section 263A of the 1975 Act, where a person tried on indictment is acquitted on a charge, the Lord Advocate may refer a point of law which has arisen in relation to that charge to the High Court for an opinion. The person concerned may elect to appear personally or to be represented by counsel at the hearing. If he does not desire to be so represented, the court will appoint counsel to act as amicus curiae, in order to ensure that the issues are fully argued. In either case, counsel’s fees will be paid by the Lord Advocate. 33. This procedure was introduced into Scots law because previously the prosecution had, in all cases tried on indictment, no right of appeal. There was accordingly a risk that an erroneous decision by the trial judge might be treated as authoritative in later cases. The sole purpose of a reference by the Lord Advocate is to clarify the law for the future, section 263A expressly providing that the opinion of the High Court "shall not affect the acquittal" of the person concerned. Fresh proceedings on the charge in question cannot be instituted against him, even if the opinion is favourable to the prosecution.

dev

001-72219

ENG

DNK

ADMISSIBILITY

HINGITAQ 53 AND OTHERS v. DENMARK

Inadmissible

Christos Rozakis

The applicants are 428 individuals from the Thule District in Greenland, and Hingitaq 53, a group that represents the interests of relocated Inughuit (the Thule Tribe) and their descendants in a legal action against the Danish Government. They were represented before the Court by Mr Christian Harlang, a lawyer practising in Copenhagen. s, may be summarised as follows. The population of Greenland (approximately 55,000) is predominantly Inuit, a people bearing an affinity and solidarity with the Inuit populations of Canada, Alaska and Siberia. In the north-west of Greenland the Inuit people are Inughuit (also known as the Thule Tribe), a people living from hunting and fishing, who entered Greenland from Canada in around 2000 BC. They lived completely isolated until 1818, following which they received visits by whalers and expeditions. In 1909 the Danish polar researcher Knud Rasmussen established a commercial trading station and privately initiated a colonisation of the area, which he called the Thule District. By a decree of 10 May 1921 the Thule District was incorporated into the Danish colonial area in Greenland. In order to preserve the people’s way of living, in 1927 Knud Rasmussen established a Hunters’ Council (Fangerråd), which adopted the “Laws of the Cape York Station Thule”. In 1937 Denmark took over the trading station. During World War II, after the German occupation of Denmark in 1940, the United States of America (“the US”) invoked the Monroe Doctrine in respect of Greenland and reached an agreement in 1941 with the Danish minister at Washington that permitted the establishment of US military bases and meteorological stations. Thus, in 1946, among other places in Greenland, a so-called weather station was built in the Thule District. It appears that the Hunters’ Councils received a sum of approximately 200 Danish kroner (DKK) in compensation for this. After the war, Denmark and the US signed a treaty on the defence of Greenland, which was approved on 18 May 1951 by the Danish Parliament (called Rigsdagen at the relevant time) and entered into force on 8 June 1951. Consequently, an American air base was established at the Dundas Peninsula in the Thule District amidst the applicants’ hunting areas and in the vicinity of the applicants’ native village site, Uummannaq (then called Thule). As part of the base a 3 km-long airstrip was built, together with housing and facilities intended to accommodate 4,000 people. There appears to be dispute as to the exact size of the defence area at the relevant time and how much of it the Inughuit were excluded from. The applicants alleged that the defence area amounted to 2.743 square kilometres. It is common ground, however, that Inughuit access to hunting and fishing was increasingly restricted and that the activities at the base eventually had a detrimental effect on the wildlife in the area. In the spring of 1953 the US wished to establish an anti-aircraft artillery unit as well and requested permission to expand the base to cover the whole Dundas Peninsula. The request was granted, with the consequence that the Thule Tribe was evicted and had to settle outside the defence area. The tribe was informed of this on 25 May 1953 and within a few days, while they could still travel over the frozen sea ice with dog sleds, twentysix Inuit families, consisting of 116 people, left Uummannaq, leaving behind their houses, a hospital, a school, a radio station, warehouses, a church and a graveyard (the family houses were later burned down and the church was moved to another village on the west coast). Most of the families chose to move to Qaanaaq, more than 100 km north of Uummannaq, where they lived in tents until September 1953, when substitute housing was built for them (altogether twenty-seven wooden houses), together with facilities for a new village (including a school, a church, a hospital, administration buildings, a power station and road facilities). Also, groceries and equipment were handed out to the families. The total cost of the relocation amounted to approximately DKK 8.65 million (equivalent to 1.15 million euros (EUR)), of which the US paid 700,000 United States dollars (USD), equivalent to DKK 4.9 million. It is estimated that the families’ yearly income on average at the relevant time amounted to DKK 1,500. On 5 June 1953 a new Danish Constitution was passed (to replace the previous one of 1849). It extended to all parts of the Danish Kingdom, including Greenland, which thus became an integral part of Denmark. Subsequently, by Resolution 849 (IX) of 22 November 1954 the United Nations General Assembly approved the constitutional integration of Greenland into the Danish Realm and deleted Greenland from the list of non-self-governing territories. At the Hunters’ Council’s meeting in 1954 the question of compensation for the Thule Tribe’s relocation arose for the first time, but not until after their meetings in 1959 and 1960 did they submit formal requests to the Ministry for Greenland. The latter requested a statement by the Chief of Greenland (Landshøvdingen), who submitted his reply on 3 December 1960. It is in dispute what happened thereafter, but the authorities claimed that the case file had disappeared. It reappeared in 2000. It is undisputed, however, that neither the Hunters’ Council nor the Thule Tribe received a decision on their requests. In 1979 home rule was introduced in Greenland, a scheme which left most of the important decision-making, excluding the areas of foreign policy and defence, to the Home Rule Government (Landsstyret). In 1985, following the publication of a book on the Thule Tribe and the Thule Air Base (Thule – fangerfolk og militæranlæg), the Thule Tribe lodged a fresh claim for compensation via the municipality of Qaanaaq. Consequently, several meetings were held between the Minister for Greenland, the municipality of Qaanaaq, and a working group appointed to safeguard the interests of the applicants. This led, inter alia, to the building of new houses instead of the original houses from the 1950s, and to an agreement between the Danish Government and the Home Rule Government to coordinate a plan to improve the conditions for the Thule municipality vis-à-vis its military neighbour in order to remedy the inconveniences resulting from the existence of the military base. The plan was implemented in the period 1985-1986. Thus, on 30 September 1986 the US and Denmark entered into an agreement reducing the area of the base to almost half its original size. Moreover, the Danish Government and the Home Rule Government agreed to seek a solution concerning an improvement in the use of the military base for additional civilian traffic and to create a civilian transit area funded by the Danish Government. Finally, on 4 June 1987 the Minister of Justice set up a review committee to submit a report establishing the facts of the Thule Tribe’s relocation in 1953. The committee consisted of a High Court judge, a senior archivist and a vice-bishop. As part of the review, numerous people gave statements to the committee, which submitted its report in December 1994. The Home Rule Government made some very critical observations on the conclusions of the report, but found that the material that had been obtained as its basis had been satisfactory, apart from the above-mentioned case file that had apparently disappeared within the Ministry for Greenland and some security-related documents to which the committee had been unable to obtain access. On 31 January 1997, in order to resolve the Thule case dispute, the Prime Minister’s Office (Statsministeriet) and the Premier of the Home Rule Government (Formanden for det Grønlandske Hjemmestyre) entered into an agreement whereby the former agreed to donate DKK 47,000,000 towards the cost of a new airport in Thule. In the meantime, on 20 December 1996 the applicants had brought a case against the Prime Minister’s Office before the High Court of Eastern Denmark (Østre Landsret), seeking a declaration: (1) that they had the right to live in and use their native settlement in Uummannaq/Dundas in the Thule District; (2) that they had the right to move, stay and hunt in the entire Thule District; (3) that the Thule Tribe was entitled to compensation in the amount of DKK 25,000,000 (equivalent to approximately EUR 3,333,333); and (4) that each individual was entitled to compensation in the amount of DKK 250,000 (equivalent to approximately EUR 33,333). The applicants had been granted free legal aid to bring their case, although this was restricted so that their claim for compensation could amount to a maximum of DKK 25,000,000 instead of DKK 136,200,000 (equivalent to approximately EUR 18,169,000), which was the amount that they had originally intended to claim. Before the High Court numerous ethnographical, geographical, historical, political and autobiographical reports, books and minutes, inter alia, were submitted on the issue, including the report of December 1994 by the review committee. Witnesses gave evidence and the High Court visited the relevant areas in Greenland. In addition, experts were appointed to produce a report on the development of hunting in the Thule District. It was submitted on 29 January 1999. On 20 August 1999 the High Court of Eastern Denmark delivered its judgment, which ran to 502 pages. It found, in particular: that the Thule Air Base had been legally established under the 1951 Defence Treaty, the adoption and content of which had been in accordance with Danish law; that the population at the relevant time could be regarded as a tribal people as this concept was now defined in Article 1.1 (a) of the International Labour Organisation’s Convention no. 169 of 28 June 1989 concerning Indigenous and Tribal Peoples in Independent Countries (“the ILO Convention”); that the substantial restriction of access to hunting and fishing caused by the establishment of the Thule Air Base in 1951 and the eviction of the tribe from the Thule District in May 1953 had amounted to such serious interferences that they had to be regarded as expropriations; that the tribe had had too little time to prepare their departure; that expropriations could be carried out in Greenland at the relevant time without statutory authority; but that at the relevant time, pursuant to Article 73 of the UN Charter (FN Pagten), the Danish Government had had international obligations towards Greenland, as was confirmed by section 45 of the Greenland Administration Act of 1925 (Loven af 1925 om Grønlands styrelse); and that the applicants’ claims had not become time-barred. Since the exercise of the rights claimed by the applicants according to the wording of claims nos. (1) and (2) would be incompatible with the presence of the US air base, and having regard to its finding concerning the legal basis for the establishment of the base, the High Court found that claims nos. (1) and (2) could not be allowed, but that claims nos. (3) and (4) should be allowed in part. In order to assess the compensation to be granted, the High Court took into account various accounts, minutes, witness statements and historical and political descriptions but stated that the material did not give an unambiguous and objective picture. In addition, the change in hunting possibilities had to be taken into account. The High Court found it established, for example, that fox hunting, which in 1953 had represented a very significant part of the Thule Tribe’s hunting, had become more difficult since the distance to the fox-hunting fields had increased after the tribe’s removal. On the other hand, the hunting of seals and narwhals had later become of crucial importance. Having regard to those factors, and to the fact that the Danish authorities in the past had failed to examine and specify the loss suffered, the High Court decided to ease the burden of proof normally required for granting compensation for alleged loss. In addition, it found that the loss should be assessed only up to the mid-1960s, when a new site called Moriussaq had been established between Qaanaaq and Uummannaq in order to adapt to various changes in hunting. Finally, the High Court took into account the fact that substitute housing had been built for the families concerned. In conclusion, the High Court found that the Thule Tribe should be granted DKK 500,000 (equivalent to approximately EUR 66,666) in compensation for its eviction and loss of hunting rights in the Thule District. As regards the applicants’ individual claims, the High Court did not find it established that they had suffered pecuniary damage which had not been covered by the substitute housing and the groceries and materials handed out to them in the summer of 1953, and the above amount granted to the tribe by way of compensation. With regard to the claim for non-pecuniary damage, the High Court noted that at the relevant time there had been no legal rules authorising such compensation in relation to Greenland. Nevertheless, having regard to the nature and extent of the interference imposed by the colonial power on an isolated indigenous tribe, the High Court found that the individuals affected in 1953 should be granted an award for non-pecuniary damage. In the assessment of the amount to be awarded, the High Court found it appropriate to deviate from the general principles according to which the calculation of compensation should take as a point of reference the time at which the harm was sustained, in this case 1953, notably because the relevant applicants had been prevented for a long time from having their claim examined. The age of the individuals at the time of the eviction was also taken into account. Accordingly, those applicants who at the relevant time had been at least 18 years of age were granted DKK 25,000 (equivalent to approximately EUR 3,333) in compensation for non-pecuniary damage and those who had been between 4 and 18 years old were granted DKK 15,000 (equivalent to approximately EUR 2,000). In accordance with the applicants’ claim, interest was payable on the amounts awarded as from the date on which the case had been brought before the High Court. In the proceedings before the High Court, the applicants’ two counsel was awarded fees in the amount of respectively DKK 1,200,000 and DKK 1,000,000 plus VAT. On 2 September 1999, in addition to signing a new agreement aimed at renewing the relationship between the Danish Government and the Home Rule Government, the Danish Prime Minister formally apologised to the applicants for the forced relocation of the Inughuit in 1953, by stating as follows: “The Danish High Court has on 20 August 1999 ruled in the case regarding the forced movement of the Thule people in 1953. The Danish High Court states that the Danish authorities acted unlawful at the time. The forced movement was decided and carried out in such a way, and under such circumstances, that it has to be regarded as a serious encroachment towards the people. We cannot alter the historical events, but we have to answer for them and respect them. With the recent verdict, a limit has been set on the Government’s encroachment towards the people. Today, no one can be made responsible for actions committed by past generations almost 50 years ago. But with the spirit of the Commonwealth, and with respect for Greenland and the inhabitants of Thule, the Government would, on behalf of the Danish State, like to offer an apology – utoqqatserpugut (mamiasuktugut) – to the Inughuit, the inhabitants of Thule, and to the rest of Greenland, for the way in which the decision regarding the forced movement was made and carried out in 1953. We wish to continue and strengthen our collaboration and solidarity between Denmark and Greenland. Danish-Greenlandic cooperation within the Commonwealth shall also in the future be based on mutual respect. With the amendment of the Constitution in 1953, the citizens of Greenland were made to enjoy the same rights as the Danish people. With the introduction of the Home Rule Government in 1979, Greenland obtained its own parliament, a fact which implied that decisions were and are made closer to the people in the Greenlandic democracy. Any possible repetition of what took place in 1953 is therefore out of the question. We recognise the achievements we have made through our cooperation and solidarity over the years since 1953. Our Commonwealth has experienced a very positive human, social and economic development for the benefit of the people of Greenland and Denmark. The Danish Government wishes to strengthen Greenlandic participation in matters to do with foreign policy and in security issues relating to Greenlandic interests. Dialogue regarding this matter has begun already on the basis of the report of the ‘Anorak’ Committee (committee comprising officials from both the Greenlandic and the Danish Governments), among other things. Representatives of the Greenlandic Government will be included in the negotiation process, when new agreements are made between the Danish Government and foreign States on matters which relate specifically to Greenland.” On appeal to the Supreme Court (Højesteret), the applicants argued that pursuant to Article 1.1 (b) of the ILO Convention, they had to be considered a distinct indigenous people separate from the rest of the Greenlandic population, for which reason Articles 1, 12, 14 and 16 of the ILO Convention should be applied in particular. They also increased their claim for compensation to DKK 235 million. Before the Supreme Court all the evidence that had been presented before the High Court was submitted, together with the case file from the Ministry for Greenland that had reappeared in 2000. Witnesses also gave evidence. In a judgment of 28 November 2003 the Supreme Court unanimously upheld the High Court’s judgment and held as follows: “The ILO Convention In order to address the Prime Minister’s Office’s request for their claims to be dismissed, and in support of their own claims, [the applicants] have as their main argument referred to the provisions of the International Labour Organisation’s Convention no. 169 of 28 June 1989 concerning Indigenous and Tribal Peoples in Independent Countries (the ILO Convention), particularly Articles 1, 12, 14 and 16. Thus, [the applicants] have argued that pursuant to Article 1.1 (b), the tribe is considered a distinct indigenous people separate from the rest of the Greenlandic population. The Convention became operative for Denmark on 22 February 1997. At the time of ratification, the Greenlandic people as a whole were considered an indigenous people within the meaning of the Convention. In support of its allegation that it is an indigenous people, the Thule Tribe has pointed out that its members descend from the people that lived in the Thule District at the time of the colonisation in 1921, and that its members retain some of their own social, economic, cultural and political institutions. According to its own definition, the Thule Tribe encompasses all descendants of this indigenous population and the descendants’ spouses, irrespective of where they were born and where they live. The members of the tribe see themselves as belonging to one distinct indigenous people. [The Supreme Court finds that] the assessment of whether or not the Thule Tribe is a distinct indigenous people within the meaning of the ILO Convention should be based on current circumstances. In Greenland, there are still regional variations in terms of language, business conditions and judicial systems, caused by the size of the country, communication and traffic conditions, and local natural conditions, among other things. After an overall assessment of the evidence before it, the Supreme Court finds that in all essential respects the population of the Thule District [live under] the same conditions as the rest of the Greenlandic people, and that they do not differ from the latter in any other relevant way. The particulars produced on the difference between the languages spoken in Qaanaaq and in West Greenland and the Thule Tribe’s perception of itself as a distinct indigenous people cannot lead to any other conclusion. The Supreme Court therefore finds that the Thule Tribe does not ‘retain some or all of its own social, economic, cultural and political institutions’, and that accordingly the Thule Tribe is not a distinct indigenous people for the purposes of Article 1.1 (b) of the ILO Convention. Article 1.1 (a) of the ILO Convention also includes ‘tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations’. As reasoned above, the Supreme Court finds that the Thule Tribe does not fall within this provision of the Convention either. This interpretation is consistent with the declaration made by the Danish Government, endorsed by the Greenland Home Rule Government, in connection with the ratification of the ILO Convention. According to this declaration, Denmark has ‘only one indigenous people’ within the meaning of the Convention, namely the original inhabitants of Greenland, the Inuit. In its decision of March 2001 the ILO’s Governing Body reached the same conclusion. It thus endorsed the report of 23 March 2001 by the ILO committee that had considered a complaint submitted by the Greenland trade union Sulinermik Inuussutissarsiuteqartut Kattuffiat (SIK) concerning Denmark’s alleged breach of the Convention. The report states that ‘there is no basis for regarding the inhabitants of the Uummannaq community as a ‘people’ separate from and different from other Greenlanders’ and that ‘the territory traditionally inhabited by the Inuit has been identified and consists of the entire territory of Greenland’. It must be considered established that within the meaning of Article 1.1 of the ILO Convention the Thule Tribe does not constitute a tribal people or a distinct indigenous people within or coexisting with the Greenlandic people as a whole. Consequently, the Thule Tribe does not have separate rights under the said Convention. The Prime Minister’s Office’s request for the claims to be dismissed The fact that the Thule Tribe cannot be considered a tribal people or a distinct indigenous people within the meaning of the ILO Convention does not preclude the Thule Tribe from being entitled to take legal action in accordance with the general rules on the matter. The Prime Minister’s Office has not disputed that the organisation Hingitaq 53 may represent the Thule Tribe. As was stated by the High Court, the Thule Tribe must be considered a sufficiently clearly defined group of people. These matters are not altered by the fact that only 422 of the original approximately 600 individual plaintiffs have lodged individual appeals with the Supreme Court. The objection raised by the Prime Minister’s Office that the Thule Tribe is not entitled to the claims, and that consequently [the tribe] is not the rightful plaintiff cannot result in their dismissal. In view of their substance, Claims 1 and 2 are not so ambiguous that they cannot form the basis of an examination of the case. For this reason, the Supreme Court [agrees with the High Court] that the [Prime Minister’s Office’s] request to dismiss the Thule Tribe’s Claims 1 and 2 should be rejected. For the same reason, the Supreme Court rejects the request to dismiss Claim 3. The Supreme Court further agrees that the request to dismiss Claims 1 and 2 in respect of the individual appellants should also be rejected. Access to habitation, travelling, hunting and fishing (Claims 1 and 2) In support of Claims 1 and 2, [the applicants] have – in addition to the reference to the ILO Convention – argued in particular that the Thule Air Base was established illegally because the 1951 US-Denmark Defence Agreement is invalid under constitutional and international law. [The applicants] have also argued that no legal decision to move the settlement was taken. As was stated by the High Court in section 7.3 of its judgment, the Thule Air Base was established under the 1951 US-Denmark Defence Agreement. The agreement was adopted by the Rigsdagen [name of the Danish parliament until 1953] pursuant to Article 18 of the Danish Constitution, as applicable at the relevant time, and accordingly the Supreme Court accepts that a constitutionally valid approval of the establishment of the base existed, although the technical appendix to the agreement was not submitted to the Rigsdagen. For this very reason, the agreement is also valid under international law. The substantial restriction of access to hunting and fishing caused by the establishment of the Thule Air Base in 1951 cannot, for the reasons stated by the High Court in section 7.4, be considered a non-indemnifiable regulation, but an act of expropriation. This expropriation could, as stated by the High Court in section 7.3, be carried out without statutory authority. The Supreme Court therefore finds, for the reasons stated by the High Court, that the substantive law provisions of the Danish Constitution applicable at that time, including Article 80 on the inviolability of property, did not extend to Greenland, that the Greenland Administration Act did not include any claim to statutory authority, and that the question of establishing the base did not fall within the competence of the Hunters’ Council. As was stated by the High Court in section 7.4, the intervention in the Uummannaq settlement and the Thule colony that took place in connection with the decision in 1953 to move the population is also to be considered an act of expropriation. This intervention may also be considered to have been carried out under the 1951 USDenmark Defence Agreement and the expropriation it entailed could take place without statutory authority. [The Supreme Court] notes that any inadequate information provided to the Hunters’ Council in 1951 and 1953 cannot constitute grounds for invalidity. The Supreme Court therefore finds that both the intervention in 1951 regarding access to hunting and fishing and the intervention in 1953 on relocation of the settlement were legal and valid. In this context, it is not necessary to decide whether or not the population of the Thule District at that time constituted a tribal people or a distinct indigenous people in the sense in which these terms are now defined in Article 1 § 1 of the ILO Convention. The purport of the Thule Tribe’s Claims 1 and 2 is that tribe members are entitled to live in and utilise the abandoned settlement and to travel, stay, hunt and fish in the entire Thule District. For the very reason that, owing to the acts of expropriation, the exercise of this right of enjoyment has been prevented or curtailed in the areas affected by such acts, the appellants’ Claims 1 and 2 cannot be complied with. This finding applies to Claim 1, although in February 2003 the US and Denmark, including the Greenland Home Rule Government, in continuation of the 1951 USDenmark Defence Agreement, signed a memorandum of understanding about isolating Dundas – the area in which the settlement and colony were placed – from the defence area at Thule. In this connection, it should be noted that the Thule Tribe, which as stated is not considered a tribal people or a distinct indigenous people within the meaning of the ILO Convention, cannot claim privileges regarding Dundas with reference to Article 16 § 3 of the Convention. Nor does Greenland customary law give cause for such privileges. The Supreme Court therefore finds for the Prime Minister’s Office as concerns the appellants’ Claims 1 and 2. The Thule Tribe’s claim for damages (Claim 3) The primary claim for damages in the amount of around DKK 235 million relates in the first place to the Thule Tribe’s loss owing to the lost and reduced hunting and fishing opportunities as a result of the establishment of the base and the relocation of the population from the Uummannaq settlement. For the reasons stated by the High Court in section 7.4, the Supreme Court finds that compensation for this loss should be granted according to the principles of Article 80 of the Danish Constitution as applicable at that time, although this provision was not directly applicable to Greenland. After making an overall assessment and weighing up the pros and cons, the High Court set the compensation at an estimated DKK 500,000, and the Prime Minister’s Office has requested that this decision be upheld. For the reasons stated by the High Court, the Supreme Court finds that there has to be a certain adjustment of the standard of proof as to the loss incurred. The calculations on which the Thule Tribe’s claims are based cannot be accorded any weight. These calculations use factors that, to a large extent, may be deemed arbitrary, while discounting various matters that ought to have been included in the assessment. The calculations are not based on developments in the species being hunted. The primary claim in the amount of around DKK 235 million is based on the size of the confiscated land without clarifying the correlation between surface area and hunting potential. The calculation comprises a period of 45 years without taking into account the substantial reduction in the area of the base in 1986 and the general limitation of the indemnification period. These calculation factors relate to an annual compensation figure of DKK 200, the sum which was granted when the weather station in Thule was established in 1946 and whose basis remains unknown. The alternative claim in the amount of around DKK 136 million is mainly based on a presumed increase in costs owing to the longer distances required for hunting, without taking into account the fact that, according to the experts’ report, it was not a general rule that the distances to the most significant hunting grounds increased. The adaptation of the species in question to the changed conditions has not been taken into consideration. The number of hunters included in the calculation – approximately half of the original plaintiffs – is not consistent with the number of hunters affected by the interventions. The Supreme Court agrees, on the whole, with the High Court’s assessment of the facts to be considered when determining the amount of compensation, such as the character of the confiscated hunting grounds, the distances to the most significant hunting grounds, general developments in the patterns of the species concerned – especially the decrease in the fox population and the increase in the narwhal population – and the limitation of the period to be included in the assessment. From an overall assessment the Supreme Court finds no grounds for increasing the compensation of DKK 500,000 set by the High Court. For the reasons stated by the High Court, no separate compensation for the church should be granted. The Supreme Court therefore accepts the request by the Prime Minister’s Office to uphold the Thule Tribe’s Claim 3. Individual claims (Claim 4) The appellants concerned by this claim are members of the Thule Tribe who were affected by the relocation in 1953 or their heirs. They have repeated their claim for compensation of DKK 250,000 each. As was stated by the High Court in section 7.4, the inhabitants of Uummannaq are deemed to have received full compensation for giving up their houses in Uummannaq when they were granted substitute housing. Having been supplied with free goods and equipment from the store, they are further deemed to have received full compensation for special expenses incurred as a result of the relocation. Thus, the claims under Claim 4 relate solely to compensation for the injury that the persons in question suffered owing to the circumstances of their relocation. Before the Supreme Court, the Prime Minister’s Office has admitted that the relocation of the population of Uummannaq, as described by the High Court in section 7.1, was decided and carried out in a way and under circumstances that constituted a serious interference and unlawful conduct towards the population of Uummannaq. Against this background, the Prime Minister’s Office has accepted the amounts of compensation determined by the High Court. In assessing the awards of compensation to be granted, the Supreme Court endorses the High Court’s statements in section 7.5 concerning the matters that have to be taken into consideration. The Supreme Court also agrees that weight should be attached to the population’s age at the time of the relocation as outlined by the High Court, so that persons aged 18 or more at the time of relocation are granted a larger amount of compensation than those who were younger, and persons who were under 4 years of age receive no compensation. The Supreme Court finds no grounds for increasing the compensation awarded by the High Court. The request by the Prime Minister’s Office to uphold Claim 4 is therefore to be complied with. ... Thus, the Supreme Court upholds entirely the High Court’s judgment. None of the parties are to pay costs for the proceedings before the Supreme Court to the other party or to the Treasury. ” On 2 December 2003 the Supreme Court decided on the fee to be awarded the applicant’s counsel. The latter had submitted that since the lodging of the appeal with the Supreme Court he had spent 1,429 hours on the case. The Supreme Court found such an amount of hours to be excessive and granted counsel a legal fee in the amount of DKK 1,500,000 plus VAT (equivalent to approximately EUR 200,000 plus VAT) in addition to compensation for costs and expenses incurred in the amount of DKK 122,605. The Danish Constitution of 1849 ensured, among other things, the inviolability of one’s dwelling and the right of property (Article 80). On 5 June 1953 a revised Danish Constitution was passed. Article 1 of the Constitution provides that the Constitution applies to all parts of the Danish Realm. Greenland’s colonial status was thus ended through full integration into the Danish Realm. The Constitution secured the Greenland population two out of the 179 seats in the Danish Parliament (Folketing). By virtue of its general scope of application, the Constitution put the Greenland population on an equal footing with the Danes and the Faeroese as Danish citizens. The new Constitution reads, in as far as relevant: “The dwelling shall be inviolable. House searches, seizures, and the examination of letters and other papers, and any breach of the secrecy to be observed in postal, telegraphic and telephone matters, shall take place only by judicial order unless particular exception is warranted by statute.” “1. The right of property shall be inviolable. No person shall be ordered to surrender his property except where required by the public weal. This may be done only as provided by statute and subject to full compensation. 2. Where a Bill relating to the expropriation of property has been passed, one-third of the Members of Parliament may, within three weekdays from the final passing of the Bill, request that it should not be submitted for Royal Assent until new elections to Parliament have been held and the Bill has been passed again by the Parliament assembling thereafter. 3. Any question concerning the legality of an act of expropriation and the amount of compensation may be raised before the courts of justice. The examination of issues relating to the amount of compensation may be referred by statute to courts of justice established for that purpose.” Chapter XI of the Charter of the United Nations of 26 June 1945 (Declaration regarding non-self-governing territories) reads as follows: “Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end: a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses; b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement; c. to further international peace and security; d. to promote constructive measures of development, to encourage research, and to co-operate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and e. to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply.” “Members of the United Nations also agree that their policy in respect of the territories to which this Chapter applies, no less than in respect of their metropolitan areas, must be based on the general principle of good-neighborliness, due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters.” By Resolution 849 (IX) the United Nations General Assembly on 22 November 1954 approved the constitutional integration of Greenland into the Danish Realm and deleted Greenland from the list of non-self-governing territories. The ILO Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries was adopted on 27 June 1989 and entered into force on 5 September 1991. With regard to Denmark, the Convention was ratified in 1996 and became operative on 22 February 1997. It applies to the indigenous population in Greenland and ratification was encouraged by the Home Rule Government of Greenland, amounting to a declaration that the Home Rule Act for Greenland fulfils the obligations of the Convention. It reads, in so far as relevant: “1. This Convention applies to: (a) Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.” “The peoples concerned shall be safeguarded against the abuse of their rights and shall be able to take legal proceedings, either individually or through their representative bodies, for the effective protection of these rights. Measures shall be taken to ensure that members of these peoples can understand and be understood in legal proceedings, where necessary through the provision of interpretation or by other effective means.” “1. In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship. 2. The use of the term ‘lands’ in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use.” “1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect. 2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession. 3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.” “1. Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy. 2. Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned. 3. Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist. 4. When such return is not possible, as determined by agreement or, in the absence of such agreement, through appropriate procedures, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees. 5. Persons thus relocated shall be fully compensated for any resulting loss or injury.”

dev

001-98917

ENG

TUR

CHAMBER

CASE OF FADİME AND TURAN KARABULUT v. TURKEY

Violation of Art. 2 (substantive aspect);Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

5. The applicants were born in 1963 and 1950 respectively and live in Sivas. They had two daughters, Nermin Karabulut and Serap Karabulut. 6. According to the applicants, on 29 July 1998 at about 1 p.m. the two girls were hitchhiking to Sivas when a military vehicle stopped and the soldiers who got out started shooting at them. Nermin Karabulut, who was fourteen years old, was shot and died later in the day in a hospital. Serap Karabulut, who was sixteen, was beaten by the soldiers before being taken to a gendarmerie station. She was released the same evening. 7. The same day a scene of incident report was drawn up by the gendarmerie officers. According to that report, a person who wanted to remain anonymous telephoned the gendarmerie and stated that he had seen a female behaving suspiciously. A number of gendarme officers and soldiers arrived at the scene at around 2 p.m. and saw the female in question. When the female saw the soldiers she began to run away. The soldiers unsuccessfully called out to her to stop and then fired fifteen to twenty warning shots in the air. The female responded by throwing a hand grenade at the soldiers and the soldiers continued firing warning shots. When she attempted to throw another grenade, the soldiers shot her. When they searched her the soldiers found a stick, two knives, a screwdriver, a two-metre-long electricity cable, a syringe with a yellow liquid inside and a hand grenade. None of the soldiers were injured in the incident. Nermin Karabulut was then taken to a hospital in the city of Sivas where she died later the same day. 8. On 30 July 1998 the second applicant and his surviving daughter Serap Karabulut made statements to a prosecutor. The second applicant maintained that his two daughters had been trying to flag down a car in order to go to a hospital in Sivas where they had had operations previously. When no cars stopped, the girls had decided to walk to their uncle's house but then the soldiers arrived and told the two girls to stop. Serap Karabulut raised her hands and stopped but Nermin Karabulut started to run away from the soldiers because she was scared. The soldiers then shot her. The second applicant asked the prosecutor to find and prosecute those responsible for the killing of his daughter. 9. Serap Karabulut confirmed the version of the events described by her father and added that she would recognise the soldier who shot her sister. She also stated that the soldiers had beaten her up. 10. The same day Serap Karabulut was taken to the Sivas Numune Hospital where she was examined by a doctor. The medical report indicated that there was an area of bruising measuring 4 x 5 cm, on her right shoulder and a scratch measuring 3 x 4 cm on her left shoulder. 11. Also the same day an autopsy was conducted on Nermin Karabulut's body at the Cumhuriyet University Medical Department, with the attendance of a prosecutor. Just before the autopsy her mother formally identified her deceased daughter. She told those present at the hospital that her daughter Nermin Karabulut had been carrying the knives and the screwdriver in order to defend herself from any possible attacks while she was herding animals. She added that the syringe was hers and contained a tranquilliser which had been prescribed to her by her doctor; she did not know why her daughter had taken it from the house. She asked for those responsible for the killing of her daughter to be prosecuted and punished. 12. According to the autopsy report drawn up the same day, Nermin Karabulut had died as a result of internal bleeding caused by a single bullet which had entered from the back at the level of the eleventh left rib and exited at the front at the level of the ninth rib. The prosecutor who was present during the autopsy observed that the hand grenade which was allegedly found on Nermin Karabulut (see paragraph 7 above) was not among the objects submitted to his office. 13. According to a report prepared the same day at the Gendarmerie Laboratories, the yellow liquid in the syringe was identified as heroin. 14. On 5 August 1998 a scene of incident report was drawn up by the prosecutor who went to the area where Nermin Karabulut was killed. The prosecutor was accompanied by Hafik district gendarmerie commander Mehmet Elagöz, the applicants' surviving daughter Serap Karabulut, the applicants' representative, the village headman (muhtar) and an expert on explosives. A search was carried out in the area, during which a spent bullet case and a grenade fuse were found. A hole, 25-30 cm wide and 810 cm deep, was observed by those present. According to the expert, the hole could have been caused by a hand grenade as well as by numerous other things. No pieces of the hand grenade allegedly thrown by Nermin Karabulut could be found in the area. The Hafik district gendarmerie commander Elagöz told the prosecutor that the second hand grenade which was found on Nermin Karabulut had been destroyed by the soldiers after the incident. 15. On various dates in August, the prosecutor took statements from six gendarmerie officers who had been involved in the incident. The officers stated that they had acted under the belief that Nermin Karabulut was a terrorist because she had thrown a hand grenade at them and also because they had thought that the wooden walking stick hidden under her jacket was a rifle. They had fired warning shots, and when she was about to throw the second hand grenade, they had fired shots at her, aiming below the waist and at the hand with which she had been holding the hand grenade. Their intention was not to kill but to injure her so that they could arrest her. 16. On 12 August 1998 the applicants lodged a complaint with the Sivas prosecutor and informed the prosecutor that the gendarmerie personnel responsible for the killing of their daughter had been issuing press releases in which claims such as “the suicide bomber was on heroin” were made. 17. On 31 August 1998 the Police Laboratory issued its report on the fuse and a sample of soil taken from the hole found at the scene. According to the report, the fuse belonged to a hand grenade of NATO standard, the origin of which could not be identified. It was also established that the soil sample contained traces of Trinitrotoluene (TNT). 18. On 29 September 1998 the Forensic Medicine Institute issued its report on the results of tests carried out on a blood sample taken from Nermin Karabulut's body and on the yellow liquid in the syringe found with her. According to the report, there were no drugs in Nermin Karabulut's blood. The liquid in the syringe was identified as chlorpromazine, a type of tranquilliser. 19. On 22 October 1998 gendarmerie lieutenant-colonel Sabri Semen was appointed as the investigator on the case and began questioning the gendarmerie personnel who had taken part in the incident. On 25 October 1998 the lieutenant-colonel concluded his investigation and recommended that no permission be given for the prosecution of the six gendarmerie personnel. The report contains a summary of the statements made by, inter alia, the six gendarmerie officers, the applicants and Serap Karabulut. The lieutenant colonel considered that the gendarmerie officers had had reason to believe that Nermin Karabulut, who had not stopped when warned and had thrown a hand grenade at the soldiers, was a terrorist. Referring to the applicable legislation according to which gendarmerie officers had the right to use firearms when confronted, the report concluded that there had been no intention to kill and therefore no prosecution should be brought against the six gendarmerie officers involved in the incident. 20. On 10 November 1998 the Commission on the Prosecution of Civil Servants (“the CPCS”) held that the report prepared by the investigator concentrated solely on the issue of the killing and did not examine whether the soldiers had exceeded their powers. The CPCS also considered that the report lacked information on a number of issues. For example, the identity of the gendarmerie officer who shot Nermin Karabulut and the identity of the person who had informed the gendarmerie about “the suspicious female” had not been established. The soldiers' failure to preserve the purported second-hand grenade instead of destroying it had also not been questioned. The villagers had not been questioned about Nermin Karabulut's character, whether she had previously been involved in terrorist activities and where she could have obtained hand grenades. 21. On 8 December 1998 the investigator took additional statements from four of the gendarmerie officers who maintained that they had all fired at Nermin Karabulut at the same time and did not know which bullet had hit her. They had aimed below the waist in order to avoid killing her. Nevertheless, as the terrain was rough, she had received a lethal shot. The grenade found by her side had already been partially detonated by her and therefore would have posed a threat if preserved as evidence. 22. On the same day the lieutenant-colonel took statements from three villagers, who stated that Nermin Karabulut often took long walks in the countryside, sometimes with her father who was a shepherd, and sometimes alone. They did not know whether she had been involved in any terrorist activities before and they did not know from where she could have obtained the hand grenades. A gendarmerie officer who worked as a telephone operator on the switchboard told the investigating lieutenant-colonel that the person who informed them about “the suspicious female” had not given his name. 23. On 9 December 1998 the lieutenant-colonel prepared an additional report. The CPCS decided on 22 December 1998 to decline permission to prosecute the gendarmerie personnel who had killed Nermin Karabulut. The CPCS's decision was quashed by the Council of State on 26 June 2002. 24. On 22 August 2002 the Sivas prosecutor filed a bill of indictment with the Sivas Assize Court and charged six gendarmerie personnel with unintentional homicide, contrary to Article 452 of the Turkish Criminal Code. On 16 October 2002 the applicants intervened in the criminal proceedings. 25. On 28 January 2004 the Sivas Assize Court issued a decision of non-jurisdiction, on the ground that the defendants were military personnel and the act complained of had taken place in the course of their military duties. The case file was sent to the Sivas Military Court. 26. On 14 April 2005 the Sivas Military Court also issued a decision of non-jurisdiction. This decision was upheld by the Military Court of Cassation on 18 October 2005 and on 6 March 2006 the Jurisdiction Disputes Court (Uyuşmazlık Mahkemesi) held that the case fell within the jurisdiction of the Sivas Assize Court since the offence by gendarmes had been committed in the course of their administrative and civil duties. 27. A new trial was conducted by the Sivas Assize Court, during which the defendants were questioned by different criminal courts pursuant to rogatory letters issued by the Sivas Assize Court. 28. On 7 December 2007 the Sivas Assize Court considered that the gendarmes had exceeded their powers on the use of firearms by firing at Nermin Karabulut's back rather than at non-vital parts of her body. The Assize Court also considered that alternative and non-lethal methods could have been employed by the gendarmes to catch Nermin Karabulut. It found the gendarmes guilty of manslaughter and sentenced them to one year and eight months' imprisonment. However, the sentences were then suspended pursuant to Article 51 of the Criminal Code, which gave criminal courts discretion to suspend prison sentences shorter than two years. 29. The applicants and the defendants appealed. On 22 December 2008 the Court of Cassation upheld the Sivas Assize Court's judgment of 7 December 2007 in so far as it concerned its conclusion concerning the finding of guilt. Nevertheless, it quashed the sentencing part of the judgment in so far as it concerned five of the six gendarmes, and remitted the case to the Sivas Assize Court so that the provisions of a new law which had entered into force in the meantime (Law no. 5728 of 23 January 2008) could be applied to them and the pronunciation of their sentences could thus be deferred. As the sixth gendarme already had a criminal record in respect of another offence, the Court of Cassation held that he could not benefit from the favourable provisions of the new law, and upheld his suspended sentence handed down by the Sivas Assize Court on 7 December 2007. 30. A new trial was conducted by the Sivas Assize Court which reiterated on 17 December 2009 the conclusion it had reached on 7 December 2007, and found the remaining five gendarmes guilty of the offence of manslaughter. They were sentenced to one year and eight months' imprisonment but the execution of the sentences was suspended. The Sivas Assize Court observed that the defendants had no previous convictions and considered that they would not commit any such offences in future. The applicants lodged an appeal against the judgment, the outcome of which is unknown to the Court.

dev

001-57904

ENG

NLD

CHAMBER

CASE OF KROON AND OTHERS v. THE NETHERLANDS

Violation of Art. 8;No separate issue under Art. 14+8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

Luzius Wildhaber;Paul Mahoney

7. The first applicant, Catharina Kroon, is a Netherlands national born in 1954. The second applicant, Ali Zerrouk, born in 1961, was a Moroccan national at the time of the events complained of; he subsequently obtained Netherlands nationality. Although they were not living together at the time, they had a stable relationship from which the third applicant, Samir M’Hallem-Driss, was born in 1987; he has both Moroccan and Netherlands nationality. All three applicants live in Amsterdam. 8. In 1979, Mrs Kroon had married Mr Omar M’Hallem-Driss, a Moroccan national. The marriage broke down towards the end of 1980. Thereafter, Mrs Kroon lived apart from her husband and lost contact with him. It appears from official records that he left Amsterdam in January 1986 and his whereabouts have remained unknown ever since. 9. Samir was born on 18 October 1987. He was entered in the register of births as the son of Mrs Kroon and Mr M’Hallem-Driss. Mrs Kroon instituted divorce proceedings in the Amsterdam Regional Court (arrondissementsrechtbank) one month after Samir’s birth. The action was not defended and the divorce became final when the Regional Court’s judgment was entered in the register of marriages on 4 July 1988. 10. On 13 October 1988, relying on section 1:198 (1) of the Civil Code (Burgerlijk Wetboek - "CC" - see paragraph 19 below), Mrs Kroon and Mr Zerrouk requested the Amsterdam registrar of births, deaths and marriages (ambtenaar van de burgerlijke stand) to allow Mrs Kroon to make a statement before him to the effect that Mr M’Hallem-Driss was not Samir’s father and thus make it possible for Mr Zerrouk to recognise the child as his. The registrar refused this request on 21 October 1988. While expressing sympathy, he noted that Samir had been born while Mrs Kroon was still married to Mr M’Hallem-Driss, so that unless the latter brought proceedings to deny paternity (see paragraphs 18 and 21 below) recognition by another man was impossible under Netherlands law as it stood. 11. On 9 January 1989 Mrs Kroon and Mr Zerrouk applied to the Amsterdam Regional Court for an order directing the registrar to add to the register of births Mrs Kroon’s statement that Mr M’Hallem-Driss was not Samir’s father and with Mr Zerrouk’s recognition of Samir. They relied on Article 8 (art. 8) of the Convention, taken both alone and together with Article 14 (art. 14+8), pointing out that while it would have been possible for Mrs Kroon’s former husband to deny the paternity of Samir, it was not possible for her to deny her former husband’s paternity of the child. The Regional Court refused this request on 13 June 1989. It held that in spite of the justified wish of Mrs Kroon and Mr Zerrouk to have biological realities officially recognised, their request had to be refused since, under the law as it stood, Samir was the legitimate child of Mr M’Hallem-Driss. There were only limited exceptions to the rule that the husband of the mother was presumed to be the father of a child born in wedlock. This was justified in the interests of legal certainty, which were of great importance in this field, and by the need to protect the rights and freedoms of others. The law as it stood was therefore not incompatible with Articles 8 and 14 (art. 8, art. 14) of the Convention. 12. Relying again on Articles 8 and 14 (art. 8, art. 14), Mrs Kroon and Mr Zerrouk appealed to the Amsterdam Court of Appeal (gerechtshof). The Court of Appeal rejected the appeal on 8 November 1989. It held that Article 8 (art. 8) was applicable but had not been violated. The restrictions imposed on the mother’s right to deny the paternity of her husband satisfied the requirements of Article 8 para. 2 (art. 8-2). There had, however, been a violation of Article 14 taken together with Article 8 (art. 14+8), since there was no sound reason for the difference of treatment which the law established between husband and wife by not granting the latter the possibility, available to the former, of denying the husband’s paternity. Nevertheless the appeal could not be allowed; it was not open to the court to grant the applicants’ request, as that would require the creation of new Netherlands law, including administrative procedure, and would therefore go beyond the limits of the judiciary’s powers to develop the law. Only the legislature could decide how best to comply with Article 14 (art. 14) of the Convention as regards the possibility of denying paternity of a child born in wedlock. 13. Mrs Kroon and Mr Zerrouk then lodged an appeal on points of law with the Supreme Court (Hoge Raad). They argued, firstly, that the Court of Appeal had violated Article 8 (art. 8) of the Convention by holding that the limitations imposed by section 1:198 CC on the mother’s possibility of denying her husband’s paternity - more particularly the fact that she might do so only in respect of a child born after the dissolution of the marriage - satisfied the requirements of Article 8 para. 2 (art. 8-2). The Court of Appeal had not properly weighed up the interests involved. It ought to have considered the relative weight of, on the one hand, the interests of the biological father and his child and, on the other, the interests protected by the legislation. The Court of Appeal should have given priority to the former interests, which in the case before it were best served by severing the legal ties between Samir and Mr M’Hallem-Driss and establishing such ties between Samir and Mr Zerrouk, who were entitled, under Article 8 (art. 8) of the Convention, to have their family relationship recognised. In addition, they suggested that it followed from the Court of Appeal’s finding of a violation of Article 14 (art. 14) that the interference concerned could not under any circumstances be covered by Article 8 para. 2 (art. 8-2). Secondly, they argued that, by holding that it was not empowered to grant the applicants’ request as that would require the creation of new Netherlands law, the Court of Appeal had violated Articles 14 and 8 (art. 14+8) taken together. In the applicants’ submission, there was no reason to consider that only the legislature was able to remove the discrimination which the Court of Appeal had rightly found to exist; it was sufficient to disregard the requirement that the child must have been born after the dissolution of the mother’s marriage. 14. Following the advisory opinion of the Advocate General, the Supreme Court rejected the appeal on 16 November 1990. The Supreme Court did not rule on the question whether section 1:198 CC violated Article 8 (art. 8), or Article 14 taken together with Article 8 (art. 14+8). It considered that it was not necessary to do so, because it agreed with the Court of Appeal that, even if there had been such a violation, solving the problem of what should replace section 1:198 CC went beyond the limits of the judiciary’s powers to develop the law. This finding was based on the following reasoning: "In this connection, it should not be overlooked that if a possibility were to be created for the mother to deny [her husband’s] paternity [of a child born] during marriage, the question would immediately arise as to what other limitations should apply in order not to jeopardise the child’s interest in certainty regarding its descent from its legitimate parents, which interest the child generally has and which is part of the basis for the present system. Such limitations have therefore also been written into the Bill to Reform the Law of Descent (Wetsvoorstel Herziening Afstammingsrecht; Bijlage bij de Handelingen van de Tweede Kamer der Staten-Generaal - Annex to the Records of the Lower House of Parliament -, 1987-88, 20626, sections 201 et seq.), which is now before Parliament ... [I]t is not certain whether [these limitations] will be retained, added to or withdrawn in the course of the further parliamentary discussion, many variations being conceivable, regard also being had to the need to ensure equal treatment of the father and the mother, in so far, at any rate, that unequal treatment is not justified." The judgment of the Supreme Court was reported in Nederlandse Jurisprudentie (Netherlands Law Reports - "NJ"), 1991, 475. 15. Three more children were born to Mrs Kroon and Mr Zerrouk after the birth of Samir: a daughter, Nadia, in 1989 and twins, Jamal and Jamila, in 1992. They were all recognised by Mr Zerrouk. Mrs Kroon and Mr Zerrouk do not cohabit. The applicants claim, however, that Mr Zerrouk contributes to the care and upbringing of their children. 16. Every municipality has a separate register for births (section 1:16 (1) CC); this is kept by one or more registrars of births, deaths and marriages (section 1:16 (2)). An entry in the register of births, or birth certificate, mentions the mother’s husband as the father if the mother was married at the time of the birth or within a period of 306 days immediately preceding the birth; in all other cases, the name of the father is mentioned only if he recognises the child before or at the time the entry is made (section 1:17 (1) (c) CC). 17. An interested party or the public prosecutor (officier van justitie) can apply to the Regional Court within the jurisdiction of which the register in question is located for an order to correct or add to the register of births. The Regional Court’s decision is forwarded to the registrar of births, deaths and marriages; the correction or addition is made in the form of a note in the margin or at the foot of the certificate (section 1:29 (1)-(3) CC). 18. Section 1:197 CC reads as follows: "The husband shall be the father of a child born in wedlock. Where a child is born before the 307th day following dissolution of the marriage, the former husband shall be its father, unless the mother has remarried." Section 1:197 CC thus creates two legal presumptions. Firstly, a child born during marriage is presumed to be the issue of the mother’s husband; secondly, a child born before the 307th day following the dissolution of the mother’s marriage is presumed to be the progeny of the mother’s former husband. The first presumption may be rebutted only by the mother’s husband, who to that end must provide proof to the contrary (sections 1:199-200 CC - see paragraph 21 below). The second presumption may be rebutted by either the mother or her former husband; the mother’s former husband will, however, have to adduce proof, whereas for the mother a statement is sufficient (section 1:198 CC - see following paragraph). 19. Section 1:198 CC reads as follows: "1. The mother may deny that a child born to her within 306 days following the dissolution of the marriage is the child of her former husband by making a statement to that effect before the registrar of births, deaths and marriages, provided that another man recognises the child by the instrument in which that statement is recorded ... 2. The mother’s statement and the recognition must take place within one year of the child’s birth. 3. The [mother’s] statement and the recognition shall take effect only if the mother and the man who recognises the child marry each other within one year of the birth of the child ... 4. If a judgment annulling the recognition in an action brought by the former husband becomes final, the mother’s statement shall also lose its force. 5. ..." 20. In its judgment of 17 September 1993 (NJ 1994, 373), the Supreme Court deprived section 1:198 (3) CC of its effect. In the case in question - in which a child had been born within 306 days of the dissolution of its mother’s marriage - it was established, firstly, that there was a relationship between the child and its biological father which qualified as "family life" for the purposes of Article 8 (art. 8) of the Convention and, secondly, that the mother and the biological father, who did not wish to marry, wanted the paternity of the mother’s former husband to be denied and the child to be recognised by its biological father. The Supreme Court found that section 1:198 (3) CC constituted an "interference" within the meaning of Article 8 (art. 8), since it obstructed the formation of legally recognised family ties unless the mother and the biological father got married. In deciding whether such interference was permissible under the terms of Article 8 para. 2 (art. 8-2), the Supreme Court noted that when section 1:198 (3) CC had been enacted it was considered more important to protect a child from being deprived of its "legitimate" status than to enable it to establish ties with its biological father. Since then, however, the relative importance of these two opposing interests had changed; in particular, following the judgment of the European Court in the Marckx v. Belgium case (13 June 1979, Series A no. 31), legal differences between "legitimate" and "illegitimate" children had to a large extent disappeared. In view of these developments, it could no longer be said that in cases where, for the purposes of Article 8 (art. 8) of the Convention, there was a relationship between the child and its biological father amounting to "family life", the importance of maintaining a child’s "legitimate" status overrode the interest protected by section 1:198 (3) CC. 21. Section 1:199 CC reads as follows: "The husband can only deny paternity of the child by bringing an action to this end against the mother as well as against the child, which, unless it has come of age, shall be represented in the proceedings by a guardian ad litem appointed for that purpose by the District Court (kantonrechter)." Section 1:200 CC reads: "1. The court shall allow the action to deny paternity if the husband cannot be the father of the child. 2. If during the period in which the child was conceived the husband did not have intercourse with the mother, or if they lived apart during that time, the court shall also declare the action to deny paternity well-founded, unless facts are established which make it appear possible that the husband is the father of the child." Such proceedings must be brought within six months from the day on which the father became aware of the fact that the child had been born; however, if the mother has made a statement of the kind provided for in section 1:198 CC (see paragraph 19 above), this time-limit does not expire until eighteen months after the birth of the child (section 1:203 CC). 22. According to section 1:205 CC, legitimacy is proved by a person’s parentage (afstamming) and the marriage of his or her parents. If there is no birth certificate, the parentage of a "legitimate" child is proved by the undisturbed possession of the status of "legitimate" child. 23. Section 1:221 (1) CC reads as follows: "An illegitimate child has the status of natural child (natuurlijk kind) of its mother. Upon recognition it acquires the status of natural child of its father." Section 1:222 CC reads as follows: "An illegitimate child and its descendants have legally recognised family ties (familierechtelijke betrekkingen) with the child’s mother and her blood relations and, after the child has been recognised, also with the father and his blood relations." Section 1:223 CC reads as follows: "Recognition may be effected: (a) on the child’s birth certificate; (b) by an instrument of recognition drawn up by a registrar of births, deaths and marriages; (c) by any notarial deed (notariële akte)." There is no requirement that the man recognising an "illegitimate" child should be the biological father. Moreover, it is not possible for a man to recognise a "legitimate" child, even if he is the biological father. Recognition under section 1:198 CC (see paragraph 19 above) may be annulled on application by the mother’s former husband if the man who has recognised the child is not the child’s biological father (section 1:225 para. 3 CC). 24. Section 1:227 CC reads as follows: "1. Adoption is effected by a decision of the Regional Court at the request of a married couple who wish to adopt a child. 2. The request can only be granted if the adoption is in the apparent best interests of the child, as regards both breaking the ties with the [natural] parents and reinforcing the ties with the adoptive parents, or - in the case of adoption of a legitimate or natural child of one of the adoptive parents - as regards both breaking the ties with the other parent and reinforcing the ties with the stepparent, and provided that the conditions laid down in the following section are satisfied. 3. ... 4. ..." Section 1:228 CC reads as follows: "1. Adoption shall be subject to the following conditions: (a) ... (b) that the child is not the legitimate or natural child of a legitimate or natural child of one of its adoptive parents; (c) that neither adoptive parent is less than eighteen or more than fifty years older than the child; (d) that the request is not opposed by a parent or the parents with legally recognised family ties with the child. Nevertheless the court shall not be obliged to refuse a request opposed by a parent who was summoned more than two years previously to be heard on the occasion of a similar request by the same couple that was refused, although the conditions laid down in paragraphs (e) to (g) below were satisfied; (e) ... (f) ... (g) that the adoptive parents were married at least five years before the day the request was filed. 2. In the case of adoption of a legitimate or natural child of one of the adoptive parents, the conditions set forth in paragraphs (c) and (g) of the preceding subsection shall not apply. In the case of adoption of a legitimate child of one of the adoptive parents, the condition specified in paragraph (d) shall be replaced by the condition that the former spouse, whose marriage with the spouse of the stepparent has been terminated [by divorce or dissolution of the marriage after judicial separation], if he or she has legally recognised family ties with the child, does not oppose the request. 3. ..." Section 1:229 (1) CC reads as follows: "By adoption the adopted person acquires the status of legitimate child of the adoptive parents. However, if the adopted person already had the status of legitimate child of one of the spouses who adopted him or her, he or she shall retain it and by adoption acquire the status of legitimate child of the other spouse."

dev

001-120818

ENG

BGR

ADMISSIBILITY

SOMICO OOD v. BULGARIA

Inadmissible

David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

1. The applicant company, Somico OOD, is a Bulgarian limited liability company, which was set up in 1993 and is based in Sofia. It was represented before the Court by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 1 February 1993 the applicant company entered into a lease agreement with the Bureau for Servicing the Diplomatic Corps (“the BSDC”), a body of the Ministry of Foreign Affairs, renting from it a Stateowned shop. It appears that the term of the lease agreement was periodically renewed until 31 December 1996. 5. On 30 May 1996 the applicant company submitted a proposal to the Privatisation Agency to purchase the shop under the preferential privatisation procedure available to lessees of State and municipality-owned properties, provided for in section 35 (1) of the Privatisation Act (see paragraph 31 below). 6. In a decision of 22 October 1996 the Privatisation Agency declined the proposal. It reasoned that the conditions under section 35 (1) of the Privatisation Act had not been met, because the BSDC was not a State enterprise and real property included in its assets could not be sold or exchanged. 7. The applicant company applied for judicial review of the Privatisation Agency’s refusal. In a judgment of 14 January 1997, which was considered final, the Supreme Administrative Court (“the SAC”) quashed the decision of 22 October 1996 and instructed the Agency to open a privatisation procedure. The SAC held that the shop was owned by the State and had been assigned to the BSDC for use and management only. 8. Following that judgment, on 13 March 1997 the Privatisation Agency opened a procedure for the shop’s privatisation. On 4 April 1997 its decision to that effect was published in the State Gazette. 9. On an unknown date the BSDC submitted a petition for review (преглед по реда на надзора) of the judgment of 14 January 1997. 10. On 18 September 1997 a five-member panel of the SAC quashed the judgment of 14 January 1997 and remitted the case to a three-member panel of the same court. The five-member panel noted that, notwithstanding the fact that the shop was owned by the State, it was not subject to privatisation because the BSDC did not have the status of a State enterprise. 11. Following a fresh examination, in a judgment of 2 December 1997 a three-member panel of the SAC dismissed the applicant company’s application for judicial review. However, on appeal, in a final judgment of 23 June 1998 a five-member panel of the same court quashed the decision of 22 October 1996 and instructed the Privatisation Agency to open a privatisation procedure aimed at selling the shop to the applicant company. It considered, most notably, that the shop was the property of the State and that the BSDC’s legal status was not an obstacle to the privatisation. It considered, in addition, that the applicant company met all the requirements to benefit from the preferential conditions under section 35 (1) of the Privatisation Act. 12. Following that decision, on 3 August 1998 the Privatisation Agency wrote to the applicant company proposing a price for the shop, inquiring whether the applicant company accepted to buy the shop and inviting it to propose payment conditions. 13. On 6 August 1998 the applicant company informed the Privatisation Agency that it agreed to buy the shop at the price proposed. In addition, it suggested a payment scheme. 14. The signing of the privatisation contract was scheduled for 3 September 1998; however, several hours before the meeting an employee of the Privatisation Agency informed the applicant company by telephone that it would be postponed. 15. Meanwhile, on 2 September 1998 the Privatisation Agency inquired with the Sofia municipality as to whether there were any restitution claims in respect of the shop. On 11 November 1998 the regional governor of Sofia replied that on 19 October 1998 he had decided to transfer the shop to a third party in compensation for their expropriated property (see below). 16. It transpired subsequently that on 27 July 1998 the BSDC had transferred ownership of the shop to the Sofia municipality. On the same day the Sofia municipal council included it in the assets of the municipallyowned company managing municipal real properties. It is unclear whether the Privatisation Agency had been informed of those developments at the time. 17. It also transpired that on 16 April 1998 a third party – the heirs of Ms E.P. – had requested the transfer of the shop in compensation for expropriated real property. As already mentioned, in a decision of 19 October 1998 the regional governor granted their request. 18. The applicant company applied for judicial review of that latter decision. However, on 29 December 1999 the Sofia City Court found its application inadmissible, holding that the applicant company had not been a party to the restitution proceedings and therefore had no standing to challenge the impugned decision. 19. The parties have not informed the Court whether it was possible for the applicant company to challenge the transfer of the property from the State to the municipality, or resort to any other remedy directed against the municipality. 20. On 1 February 2000 the applicant company sought judicial review of the Privatisation Agency’s failure to finalise the privatisation transaction in compliance with the judgment of 23 June 1998. However, on 19 June 2000 the SAC rejected the application for judicial review as inadmissible, holding that the impugned failure to execute a final judicial act did not represent an administrative decision in itself and therefore was not subject to judicial control. 21. On an unspecified date the applicant company requested the assistance of the Ministry of Economy to finalise the privatisation transaction. In a letter of 21 September 2000 the Minister of Economy invited the Privatisation Agency to comply with the judgment of 23 June 1998. 22. In letters of 20 October 1998, 6 April 2000 and 9 January and 22 February 2001 the applicant company also invited the Privatisation Agency to finalise the privatisation procedure. 23. On 2 March 2001 the Privatisation Agency informed the applicant company that the shop had been transferred to the Sofia municipality and that the regional governor’s subsequent decision to transfer it in compensation to a third party represented a new circumstance which impeded the finalisation of the privatisation transaction. 24. The applicant company applied for judicial review of the Privatisation Agency’s refusal. In a judgment of 11 July 2001 a threemember panel of the SAC quashed the refusal and instructed the Agency to transfer title to the shop to the applicant company. It reasoned that the applicant company had acquired the right to buy the shop and the Agency was therefore obliged to sign the privatisation agreement. However, upon an appeal by the Privatisation Agency, in a final judgment of 8 January 2002 a five-member panel of the SAC found the applicant company’s application for judicial review inadmissible. It held that the Agency’s refusal to sign a privatisation agreement had not amounted to an administrative decision because, at that stage of the privatisation procedure, the two parties had been acting on an equal footing. Thus, the existing dispute between them could not be settled in administrative proceedings. 25. On 25 June 2001 the applicant company brought a civil action against the Privatisation Agency, seeking to have declared final the preliminary contract which it considered had been reached between them. Mr Y.P. and Ms S.P., heirs of Ms E.P., intervened in the proceedings with a claim for a declaratory judgment against the applicant company and the Privatisation Agency that they were the owners of the shop on the basis of the regional governor’s decision of 19 October 1998. 26. On 23 June 2003 the Sofia City Court dismissed the action of the applicant company and declared that Mr Y.P. and Ms S.P. were the owners of the shop. Upon an appeal by the applicant company, on 23 June 2004 the Sofia Court of Appeal upheld that judgment. It considered, in particular, that following the judgment of 23 June 1998 (see paragraph 11 above) the applicant company and the Privatisation Agency had exchanged correspondence in which they had reached an agreement on the main conditions of the sale of the shop, which represented a preliminary contract. However, the Privatisation Agency had not been the owner of the shop, which meant that the preconditions for declaring the preliminary contract final had not been present. 27. Following an appeal, in a final judgment of 21 July 2005 the Supreme Court of Cassation upheld the lower courts’ judgments. It considered, in particular, that the correspondence between the applicant company and the Privatisation Agency did not represent a preliminary contract. 28. In the meantime, on 5 April 2002 a notary public, acting with the assistance of the police, put Mr Y.P. and Ms S.P. in possession of the shop. It appears that by this time the applicant company, which was still holding the property, was no longer using it and it was in a state of abandon. 29. The Transformation and Privatisation of State and Municipal Enterprises Act (Закон за преобразуване и приватизация на държавни и общински предприятия: “the Privatisation Act”) of 1992 provided for the transformation of public property and the privatisation of State and municipality-owned enterprises. It was superseded by other legislation in March 2002. 30. Section 3 of the Act indicated the bodies competent to take decisions on privatisation. As concerns State-owned properties, the competent bodies were either the Privatisation Agency, or, for the most important objects, the Council of Ministers. The body competent to decide on the privatisation of municipally-owned properties was the relevant municipal council. 31. Under section 35 (1) of the Privatisation Act, lessees of State and municipality-owned property could propose to buy the property rented by them, without a public auction or competition and for a price equal to the property’s value assessed by certified experts in accordance with rules adopted by the Government. Those preferential conditions were applicable to lessees of State and municipality-owned property who had concluded lease contracts before 15 October 1993 and where the said contracts were still in force on the date of the respective privatisation proposal. 32. Section 35 (2) of the Privatisation Act, as worded after October 1997, provided that where a refusal by the competent administrative body to initiate a privatisation procedure following a proposal by the interested party had been quashed by means of a final court judgment, the relevant administrative body was obliged, within two months of the judgment becoming final, to initiate the privatisation procedure, prepare the privatisation of the property at issue and offer to sell the property to the entitled party. 33. Paragraph 6 of the transitional and concluding provisions of the Privatisation Act addressed different situations of conflict of competing privatisation and restitution interests. It provided, in particular, that in cases where a privatisation contract had already been concluded, the parties claiming to have restitution rights were to be compensated through shares in the companies which had acquired the property, if any such shares were owned by the State or municipalities, or through compensation bonds.

dev

001-81222

ENG

RUS

CHAMBER

CASE OF PRIDATCHENKO AND OTHERS v. RUSSIA

Violation of Art. 6;Violation of P1-1;Pecuniary damage - financial award (Mr Pridatchenko, Mr Frolov);Non-pecuniary damage - financial award (Mr Pridatchenko, Mr Frolov, Mr Sychev)

Christos Rozakis

7. At the time of the described events Mr Pridatchenko (born in 1965), Mr Sychev (born in 1970), and Mr Frolov (born in 1969) were active military officers. Mr Manatov (born in 1970) was a retired military officer. On different dates they sued their actual or former employers, respective military units, in courts. The applicants claimed payment of their salaries, various service-related benefits due to them, provision of free housing, compensation of travel expenses, compensation of damages, etc. In all cases the courts ruled in their favour (at least in part of their claims) making monetary awards. However, for some time the judgments in their favour remained unenforced. 8. On 16 November 2001 the Sertolovo Garrison Military Court granted in part the applicant's claims concerning free housing due to him under the military service contract. The court also awarded the applicant 2,015 Russian roubles (RUR) for legal costs. That judgment was not appealed against and became final on 27 November 2001. 9. On 26 November 2001 the Sertolovo Garrison Military Court granted the applicant's claims concerning the amount of compensation of his travel expenses awarding him arrears in the amount of RUR 93,731.70, plus RUR 15 for legal costs. That judgment was not appealed against and became final on 13 December 2001. 10. On 8 February 2002 the Sertolovo Garrison Military Court at the applicant's request held unlawful the refusal to dismiss the applicant from military service and awarded him RUR 2,015 for legal costs. That judgment was not appealed against and became final on 19 February 2002. 11. On 8 February 2002 the court issued a writ of execution on the basis of the judgment of 26 November 2001. The applicant forwarded it with accompanying documents to the State treasury office of the Leningrad Region. On 16 July 2002 the writ was returned to the applicant unexecuted. The treasury office explained that the debtor had no available funds which could be used for paying off the judgment debt. The applicant was advised to address the writ of execution to the head office of the Ministry of Finance in Moscow, which he did on 23 August 2002. However, the judgment remained unexecuted. 12. On 2 September 2002 the court issued two writs of execution on the basis of the judgments of 16 November 2001 and 8 February 2002 (concerning the legal costs awarded to the applicant). The applicant forwarded them with accompanying documents to the State treasury office of the Leningrad Region. On 10 September 2002 the treasury office returned the unexecuted writs to the applicant referring to the lack of funds on the debtor's account. The applicant was advised to address the writs to the head office of the Ministry of Finance, which he did on 12 September 2002. However, the writs remained unexecuted. 13. On 28 April 2003 the Ministry of Finance allocated from the State budget to the Ministry of Defence RUR 93,746.70 in the applicant's name with reference to the writ of execution issued on 8 February 2002 on the basis of the judgment of 26 November 2001. 14. On 23 September 2003 the Ministry of Finance allocated from the State budget to the Ministry of Defence RUR 2,015 in the applicant's name with reference to the writ of execution issued on 2 September 2002 on the basis of the judgment of 16 November 2001. 15. On 29 September 2003 the Ministry of Finance allocated from the State budget to the Ministry of Defence RUR 2,015 in the applicant's name with reference to the writ of execution issued on 2 September 2002 on the basis of the judgment of 8 February 2002. 16. According to the applicant, the aforementioned amounts were transferred to his account on 10 January 2004. He submitted copies of banking receipts as evidence in that respect. 17. On 8 October 2001 the Kurtamysh District Court of the Kurgan Region granted the claims awarding him RUR 33,210 of salary arrears. The judgment was not appealed against and became final on 19 October 2001. 18. On 13 December 2001 the court issued a writ of execution. The applicant sent it to the bailiff's office. On 28 February 2002 the bailiff's office returned the unexecuted writ to the applicant and advised him to forward it to the Moscow City Specialised Branch of the State treasury. 19. On 27 April 2002 the forenamed branch of the State treasury returned the unexecuted writ to the applicant and explained that it was not responsible for financial obligations of the debtor military unit, apparently in accordance with a territorial jurisdiction principle. 20. It appears that the judgment of the Kurtamysh District Court of the Kurgan Region of 8 October 2001 has not yet been executed. 21. On 23 April 2002 the Far-East Command Military Court by the final decision awarded the applicant RUR 4,000 for non-pecuniary damages caused by the refusal to grant the applicant annual leave. 22. On 18 May 2002 the court issued a writ of execution on the basis of the judgment of 23 April 2002. The applicant forwarded it with accompanying documents to the treasury office of Belogorsk town. On 14 June 2002 the writ was returned to the applicant unexecuted. The Belogorsk town treasury office advised the applicant that it was not competent to deal with such requests. 23. On an unspecified date in 2002 the applicant sued his military unit for the refusal to send him for a medical examination, whereas his state of health was deteriorating. He claimed non-pecuniary damages in that respect. On 5 July 2002 the Belogorsk Garrison Military Court granted the applicant's claims awarding him RUR 5,000 for non-pecuniary damages, plus RUR 10 for legal costs. The judgment was not appealed against and became final on 19 July 2002. On 7 March 2003 the court issued a writ of execution on the basis of the judgment of 5 July 2002. 24. On an unspecified date in 2003 the applicant sent both the writs of 18 May 2002 and 7 March 2003 to the local bailiff's office and to the town treasury office. On 11 April 2003 the Belogorsk town treasury office paid the applicant RUR 1,000 on account of the judgment of 5 July 2002. On the same date they informed the applicant that the debtor had no money for paying off the rest of the judgment debt; the applicant was advised to address himself to the head office of the Ministry of Finance. On 23 April 2003 the bailiff's office returned both writs unexecuted and advised the applicant to forward them to the treasury office. 25. On an unspecified date in February 2004 the judgments of 23 April 2002 and 5 July 2002 were enforced in full. 26. On 29 August 2001 the Petrozavodsk Garrison Military Court granted the applicant's claims concerning compensation of his travel expenses, and awarded him arrears in the amount of RUR 74,360.70. It appears that the judgment was not appealed against and became final. 27. However, for some time the judgment of 29 August 2001 remained unexecuted. Referring to that fact the applicant brought proceedings requesting indexation of the judicial award due to him. 28. On 3 February 2003 the Petrozavodsk Garrison Military Court granted the applicant's claims and awarded him damages caused by non-enforcement of the judgment of 29 August 2001 in the amount of RUR 30,629.91 and RUR 1,030 for legal costs. That judgment was not appealed against and became final on 14 February 2003. 29. On 20 March 2003 a writ of execution was issued. The applicant forwarded it with accompanying documents to the State treasury office of the Republic of Karelia. On 1 April 2003 the writ was returned to the applicant unexecuted. The treasury office explained that the debtor had no available funds which could be used for paying off the judgment debt. The applicant was advised to send the writ of execution to the head office of the Ministry of Finance, which he did on 4 April 2003. However, the judgment of 3 February 2003 remained unexecuted. 30. On 9 October 2003 the judgment of 29 August 2001 was enforced in full. The applicant informed the Court about this fact; however, he maintained his complaints about the non-enforcement of the judgment of 3 February 2003. 31. On 16 February 2004 the Ministry of Finance allocated from the State budget to the Ministry of Defence RUR 31,659.91 in the applicant's name with reference to the writ of execution of 20 March 2003 relating to the judgment of 3 February 2003. 32. According to the applicant, the aforementioned amount was transferred to his bank account on 7 April 2004. He submitted a copy of a banking receipt as evidence in that respect. 33. The Russian Law on Enforcement Proceedings (no. 119-ФЗ of 21 July 1997) designates the court bailiffs' service as the authority charged with enforcement of court decisions (Section 3 § 1). Court judgments can also be executed by tax authorities, banks, financial institutions, other organisations, State officials and individuals – all of them are not considered to be the enforcement authorities (Section 5). 34. Section 110 of the Law on Federal Budget for the Year 2001 (no. 150-ФЗ of 27 December 2000) provided that writs of execution issued against the treasury of the Russian Federation were to be sent for execution to the Ministry of Finance of the Russian Federation and were to be executed in accordance with the procedure established by the Russian Government. A similar provision was included in Section 128 of the Law on Federal Budget for the Year 2002. However, Section 122 of the Law on Federal Budget for the Year 2003 (no. 176-ФЗ of 24 December 2002) established, in addition to the similar requirement that writs of execution were to be submitted to the Ministry of Finance, that the court bailiffs could not enforce judgments against the Russian Federation. 35. On 22 February 2001 the Russian Government approved “Rules on recovery of funds due on the basis of the writs of execution issued by the courts on account of monetary obligations of the recipients of federal budget funds” (“the Rules”). Sections 2 and 3 of the Rules provide that the creditor must submit the writ of execution and a copy of the judgment to the office of the federal treasury where the debtor has its current account. The federal treasury office must grant the recovery within three working days in the part not exceeding the balance of the account (Section 5). Should the balance of the account be insufficient for a full recovery, the writ of execution must be returned to the creditor who can then apply to the Ministry of Finance to recover the outstanding amount from the debtor's funding entity (Section 6). 36. On 9 September 2002 the Russian Government adopted Decree no. 666 which enacted the “Rules of Execution by the Ministry of Finance of court judgments against the Treasury of the Russian Federation arising from the claims for damages caused by unlawful acts or omissions of the State authorities or State officials”. The procedure of execution of such judgments provided by the Rules of 2002 was essentially the same as provided by the Rules of 22 February 2001 cited above. 37. On 19 July 2001 the Supreme Court of the Russian Federation delivered judgment no. ГКПИ 2001-864 concerning the lawfulness of certain provisions of the Rules. In particular, the court held that the Rules did not govern the enforcement of court judgments because the federal treasury was not an enforcement body, pursuant to Section 5 of the Law on Enforcement Proceedings. In subsequent judgment no. ГКПИ 2001-1345 of 22 October 2001 the court clarified its position as follows: “The contents of the contested Rules indicate that they do not govern the procedure for enforcement of court decisions, rather they establish the procedure for voluntary execution of court decisions and for recovery of funds under monetary obligations of recipients of the federal budget funds... The court also has regard to the fact that the contested Rules do not prevent the creditor from resorting to the enforcement proceedings in respect of a court decision...” 38. In judgments nos. ГКПИ 2001-1790 and 2002-139 of 27 February 2002 the Supreme Court of the Russian Federation confirmed that neither the Rules, nor the Laws on Federal Budgets for 2001 and 2002 prevented the creditor from seeking enforcement of a court judgment in accordance with the procedure set out in the Law on Enforcement Proceedings, the Law on Court Bailiffs and the Code of Civil Procedure. Finally, the Supreme Court again upheld this position in judgment no. ГКПИ 2001-1482 of 28 March 2002. 39. On 20 May 2003 the Supreme Court of the Russian Federation in its decision no. KAC 03-205 ruled that the Rules, adopted by Decree no. 666 of 9 September 2002, concerned the voluntary execution of court decisions against the Federal treasury and did not prevent the creditor from seeking enforcement through the court bailiffs. 40. The functioning of military courts is regulated by the Constitution, the Law on Judicial System of 31 December 1996, the Law on Military Courts of 23 June 1999. Military courts belong to the judicial system of the Russian Federation, they are courts of general jurisdiction exercising judicial power in the armed forces. military courts are established or dissolved by a federal law. Military courts are organised in the places of stationing of military units. Military courts administer justice on behalf of the Russian Federation examining cases in their jurisdiction by way of civil, administrative and criminal proceedings. In particular, military courts examine complaints of military personnel against acts or omissions of military officials or military command. Such cases are examined pursuant to the provisions of the Code of Civil Proceedings. Military courts administer justice independently subject only to the Constitution, federal constitutional laws and federal laws. The judges of the military courts are appointed by the President and should have a military rank, in addition to a law degree and necessary qualifications.

dev

001-60344

ENG

LTU

CHAMBER

CASE OF BUTKEVICIUS v. LITHUANIA

Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 6-2;Pecuniary damage - request rejected;Non-pecuniary damage - financial award;Costs and expenses partial award

Nicolas Bratza

7. The applicant was the Minister of Defence and a Member of the Seimas (Parliament) from 1996 to 2000. 8. On 12 August 1997 the applicant was apprehended in a hotel lobby by the security intelligence and the prosecuting authorities while accepting an envelope containing 15,000 United States dollars (USD) from KK. The latter, a senior executive of a troubled oil company (hereinafter referred to as “the company”), had previously informed the intelligence authorities that the applicant had requested 300,000 USD for his assistance in obtaining the discontinuance of criminal proceedings concerning the company’s vast debts. For slightly more than an hour the applicant was questioned in the hotel lobby. His explanations were recorded and he was allowed to leave the hotel. 9. On 14 August 1997 the Prosecutor General requested the Seimas to permit the institution of criminal proceedings against the applicant. On 19 August 1997 the Seimas agreed. On 20 August 1997 criminal proceedings were instituted. On 14 October 1997 the applicant was charged with attempting to cheat (obtaining property by deception). 10. On 20 October 1997 the Prosecutor General applied to the Seimas for permission to detain the applicant on remand. On 28 October 1997 permission was given. On the same day a prosecutor requested the Vilnius City Second District Court to order the applicant’s detention on remand. Also that day the applicant was brought before a judge of the Vilnius City Second District Court who issued a warrant for the applicant’s arrest on the grounds that he might obstruct the establishment of the truth in the case, inter alia, by exploiting the media and influencing witnesses. The applicant was duly detained. 11. On 30 October 1997 the judge extended the term of the applicant’s detention on remand until 30 November 1997 in the presence of the parties for the same reasons as before. On 3, 5 and 7 November 1997 the applicant appealed against his detention on remand. He requested a hearing. On 11 November 1997 a judge of the Vilnius Regional Court dismissed the applicant’s appeal without hearing the parties. 12. From 27 November 1997 to 5 December 1997 the applicant and his counsel had access to the case-file. On 5 December 1997 the applicant requested the prosecutor to discontinue the proceedings. On a number of occasions he also requested the prosecutor to vary the remand. These requests were rejected. 13. On 8 December 1997 a judge of the Vilnius City Second District Court extended the term of the applicant’s detention on remand until 31 December 1997. On 9 December 1997 the applicant appealed. On 11 December 1997 the Regional Court informed him that no appeal lay against that decision. 14. On 29 December 1997 the Prosecutor General confirmed the bill of indictment, which was transmitted to the Vilnius Regional Court. 15. From 1 to 5 January 1998 the applicant submitted numerous applications to courts, the prison administration, the Ombudsman and the Seimas, alleging that his detention had been unlawful. On 7 January 1998 the Ombudsman concluded that from 31 December 1997 the applicant had been held in detention unlawfully. 16. On 8 January 1998 the Vilnius Regional Court committed the applicant for trial. The court also decided that the applicant’s detention on remand “shall remain unchanged”. No term for that detention was specified. 17. On 23 March 1998 the Vilnius Regional Court adjourned the case and ordered the prosecuting authorities to submit new evidence. In the same decision the court also decided that the applicant’s detention on remand “shall remain unchanged”. No term or grounds for this were specified. The applicant’s counsel was present at the hearing. On 24 March 1998 the applicant appealed against the decision. On 12 May 1998 the applicant submitted a further appeal against the decision of 23 March 1998. 18. On 21 May 1998 the Court of Appeal dismissed this appeal in so far as it concerned the decision to require the prosecution to submit new evidence. The Court of Appeal held that no appeal lay against the decision of 23 March 1998 in so far as it concerned the applicant’s detention. The applicant and his counsel were present at the appellate hearing. 19. On 1 July 1998 the trial before the Vilnius Regional Court was resumed. On 13 July 1998 the Vilnius Regional Court extended the term of the applicant’s detention until 17 August 1998. On 23 July 1998 the detention was extended until 30 November 1998. The court referred to the strength of the evidence in the case-file and the likelihood of the applicant influencing witnesses, warranting his further remand in custody. Defence counsel was present at the hearings. The applicant’s appeals against the decisions of 13 and 23 July 1998 were dismissed by the Court of Appeal on 21 July and 12 August 1998 respectively. The applicant’s counsel had been present at the appellate hearings. 20. On 5 and 19 February, 1 July, 21 October and 3 November 1998, the Vilnius Regional Court rejected the applicant’s requests to lift the remand in custody. His defence counsel was present at the hearings. 21. On 18 November 1998 the Vilnius Regional Court found the applicant guilty of attempting to obtain property by deception. The court rejected the applicant’s defence that he had been incited to commit an offence as a result of the conspiracy between KK and the security intelligence authorities. The court found that the applicant had himself requested KK to contact him, and that the applicant had demanded money in return for him using his authority over certain prosecutors with a view to discontinuing the criminal case involving KK’s indebted company. The Regional Court found that the applicant had thereby intended to cheat. The applicant was sentenced to five years and six months’ imprisonment and fined 50,000 Lithuanian litai (LTL). Half of his property was confiscated. The applicant and his counsel were present before the first instance court. 22. The applicant appealed. On 17 February 1999 the Court of Appeal rejected the appeal, finding no procedural irregularities regarding the investigation and trial. The applicant and his counsel were present at the appellate hearing. 23. The applicant lodged a cassation appeal. On 11 May 1999 the Supreme Court rejected it, finding that the lower courts had properly decided the case. The court mentioned inter alia that it had no competence to examine the applicant’s allegations about the unlawfulness of his detention on remand. The applicant and his counsel were present before the Supreme Court. 24. On an unspecified date, an impeachment procedure was initiated against the applicant in the Seimas. On 15 June 1999 the Seimas refused to impeach the applicant or annul his mandate as a Member of Parliament (“MP”). 25. On 17 March 2000 the Vilnius City Third District Court ordered the applicant’s release on licence. He was released on 20 March 2000. <Translations are given> 26. On 14 August 1997 an article entitled “MP’s whitewash looks hogwash, says prosecutor” was published in the biggest national daily “Lietuvos Rytas”: “The Prosecutor General confirmed that [he had] enough sound evidence of the guilt of A. Butkevičius.” 27. On 15 August 1997 an article entitled “The Chairman of the Seimas does not doubt A. Butkevičius’s guilt” was published in “Lietuvos Rytas”: “When asked whether or not he doubts that A. Butkevičius accepted a bribe, the Chairman of the Seimas said: ‘on the basis of the material in my possession I entertain no doubt.’” 28. The Prosecutor General was quoted in an article entitled “A. Butkevičius prepares for battle and prison” of 16 August 1997 in the daily “Respublika”: “I qualify the offence as an attempt to cheat ... .” 29. The Chairman of the Seimas, quoted in an article entitled “A. Butkevičius will be prosecuted” of 20 August 1997 in “Lietuvos Rytas”: “One or two facts were and are convincing. [The applicant] took the money while promising criminal services.” 30. The Chairman of the Seimas, in an article entitled “A. Butkevičius’s lawyers tag the bribery case as political” of 6 October 1998 in “Lietuvos Rytas”, was quoted as saying that “the Centre and the New Union [parties] co-ordinate the defence of the bribetaker” and that these parties try to protract the proceedings and artificially “victimise” the applicant. 31. The Code of Criminal Procedure (Baudžiamojo proceso kodeksas): “No one shall be arrested or detained save by virtue of a decision of a court or judge.” Article 52 § 2 and 58 § 2 of the Code provide that the accused and their counsel have the right to submit requests and appeal against acts and decisions of an interrogator, investigator, prosecutor or court. “Detention on remand shall be used only ... in cases where a statutory penalty of at least one year’s imprisonment is envisaged. ... . The grounds for detention on remand shall be the reasoned suspicion that the accused will: (1) abscond from the investigation and trial; (2) obstruct the determination of the truth in the case [influence other parties or destroy evidence]; (3) commit new offences ... whilst suspected of having committed crimes provided in Articles ... [274, cheating] of the Criminal Code ... .” “... the arrested person shall be brought before a judge within not more than 48 hours ... . The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the specific term of detention, or vary or revoke the remand ... . After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand.” The amended Article 104-1 (in force since 24 June 1998) provides that the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person, unless the judge decides otherwise. The amended provision also provides that the court should extend the detention on remand before its expiry. “For the purpose of extending the term of detention on remand, a judge ... must convene a hearing to which defence counsel and a prosecutor and, if necessary, the detainee shall be called. The judge decides whether or not to extend the term of detention on remand. ... .” The Code in force since 24 June 1998 makes obligatory the attendance of the detainee at the remand hearings. “An arrested person or his counsel shall have the right during the pre-trial investigation to lodge [with an appellate court] an appeal against the arrest. ... . With a view to examining the appeal, there may be convened a hearing to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing. The decision taken by the judge at appellate instance is final and cannot be the subject of a cassation appeal. A further appeal shall be determined when examining the extension of the term of the detention on remand.” The present Article 109-1 (in force since 24 June 1998) now provides for an appeal to a higher court and a hearing against a decision ordering or extending the term of detention both at the stage of pre-trial investigation and trial, in the presence of the detainee and his counsel, or only his counsel. “The period when the accused and his counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.” Since 24 June 1998 this period is no longer relevant for remand decisions. “A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine: ... 11) whether the remand has been selected appropriately; ... .” “After having decided that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine: ... 2) the remand in respect of the accused; ... .” “The defendant has the right to: ... ; 3) submit requests; ... 11) appeal against the judgment and decisions of a court.” “In the course of the trial, a court may decide to order, vary or revoke a remand in respect of the defendant.” “Decisions of courts ... ordering, varying or revoking a remand ... cannot be the subject of appeal ... .” Pursuant to the general provision of Article 399, a first instance decision was not effective pending the time-limit for an appeal against that decision or during the appeal proceedings. Only those decisions against which no appeal was possible, including remand decisions under the former Article 372 § 4, became effective and were executed on the date when they were taken. The present Article 104-3 § 3 (version in force from 21 December 1999) specifies that all decisions of detention on remand become effective and are executed on the date when they are taken, regardless of the fact that an appeal is possible against any such decision under the amended Article 109-1 (since 24 June 1998, see above). 32. Article 31 § 1 of the Constitution reads: “A person shall be considered innocent until proved guilty in accordance with the law by a final judgment of the court.” Article 11 § 2 of the Code of Criminal Procedure provides: “No one shall be declared guilty of having committed an offence or punished by a criminal penalty save by a court judgment in accordance with the law.”

dev

001-81441

ENG

MDA

CHAMBER

CASE OF PALADI v. MOLDOVA

Preliminary objections dismissed;Violation of Art. 3;Violation of Art. 5-1;Not necessary to examine Art. 5-3 and 5-4;Violation of Art. 34;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Nicolas Bratza

5. The applicant was born in 1953 and lives in Chişinău. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant worked as Deputy Mayor of Chişinău. He was also a lecturer at the Academy of Economic Studies in Moldova. Between 24 September 2004 and 25 February 2005 he was held in the remand centre of the Centre for Fighting Economic Crime and Corruption (“the CFECC”). On 25 February 2005 he was transferred to Remand Centre no. 3 of the Ministry of Justice in Chişinău (also known as “Prison no. 3”, which was subsequently re-named “Prison no. 13”). The applicant suffers from a number of illnesses (see paragraphs 17 and 20 below). 8. The applicant is accused in three separate sets of criminal proceedings under Articles 185 (3) and 327 (2) of the Code of Criminal Procedure (“the CCP”) of abuse of his position and excess of power. 9. On 17 September 2004 the CFECC opened a criminal investigation concerning the applicant and on 24 September 2004 he was taken into custody. 10. On 27 September 2004 the Buiucani District Court issued a warrant for his arrest and detention for 30 days. The reasons given by the court for issuing the warrant were that: “[The applicant] is dangerous to society. If released he may reoffend, destroy evidence or abscond from the law-enforcement authorities, may obstruct the normal course of the investigation or the taking of evidence and may influence evidence and witnesses.” On 4 October 2004 the Chişinău Court of Appeal upheld that decision. Judge M.B. dissented, finding no reason to detain the applicant, as the prosecution had not submitted any evidence of the alleged danger of his absconding or interfering with the investigation. The applicant had a family and a permanent residence in Chişinău, was ill and had no criminal record. 11. The applicant made habeas corpus requests on 5, 13 and 19 October, 2 November and 29 December 2004, and on 22 February, 23 June and 20 September 2005. He relied on the following facts: his poor state of health; the absence of a criminal record; his impeccable reputation as a Doctor of Economics and a university lecturer; the fact that his identification documents had been seized by the prosecuting authorities so that he could not leave the country; the fact that his family and permanent residence were in Chişinău; the fact that he supported his 75-year-old mother who was an invalid; he had the personal guarantee of three well-known persons (who had already deposited 3,000 Moldovan lei (MDL) and each of whom was prepared to pay the further MDL 8,000 initially requested by the court); and the lack of reasons for his arrest. All these requests were rejected for reasons similar to those given in the decision of 27 September 2004. 12. On 22 October 2004 the case file was submitted to the trial court. 13. On an unspecified date in October 2004 the prosecution submitted to the trial court a second case file in which the applicant was also identified as one of the accused. The investigation into that case had begun on 28 March 2003. The investigators twice closed it for lack of evidence (on 15 July and 26 September 2003) but on both occasions a prosecutor ordered its reopening. On 27 October 2004 both cases were joined. 14. On 2 November 2004 Judge L.V., President of the Centru District Court, rejected the applicant’s request for release against the personal guarantee of three well-known persons, without giving any reasons. 15. The applicant appealed but Judge L.V. refused to forward his appeal to the Court of Appeal because the law did not provide for an appeal against such decisions. The applicant submitted the appeal to the Chişinău Court of Appeal directly, which also refused to examine it for the same reason. A similar response was given to appeals made on 25 February and 27 September 2005. 16. On 30 December 2004 a third criminal case file was submitted to the trial court accusing the applicant of abuse of power in his own personal interest. This case was also joined to the two cases against the applicant mentioned above. 17. From 24 September 2004 the applicant was detained in the CFECC remand centre. On 29 September 2004 a medical consultative board examined the applicant’s medical file at his wife’s request and made the following diagnosis: type II diabetes (insulin-dependent), polyneuropathy, diabetic angiospasm, autoimmune thyroiditis stage 2, consequences of trauma to the head with intracranial hypertension, vagovagal paroxysm, chronic obstructive bronchitis, recurrent chronic pancreatitis with endocrine failure, chronic active hepatitis and asthenic syndrome. On 14 November 2004 the applicant’s wife informed the trial court of the findings of the medical board. 18. According to the applicant, the CFECC remand centre had no medical personnel until late February 2005, when a general practitioner was hired to work there. He claims that he requested medical assistance on a number of occasions but received treatment only from doctors from other institutions who visited him when there was an emergency. On 28 September 2004 an ambulance was called to treat the applicant for an acute hypertension. The doctor prescribed a consultation with an endocrinology specialist, who saw the applicant on 21 December 2004. The applicant also informed the prosecutor and the court of his special dietary and medical needs but received no reply. He submitted copies of complaints from his wife, his mother and a parliamentary group to the CFECC authorities, the Prisons Department, the trial court, the President of Moldova, the Minister of Justice and other authorities. The applicant’s wife received several formal replies, essentially informing her that her husband had been seen on a number of occasions by various doctors and that he would be given medical assistance should the need arise. 19. On 15 February 2005 the applicant was seen by Doctor B.E., a psychoneurologist, who concluded that his state of health was “unstable with a slight improvement” and that he needed to continue treatment under supervision. On 25 February 2005 the applicant was transferred to the remand centre of Prison no. 3 in Chişinău. 20. On 2 March 2005, in accordance with a court order, the applicant was examined by a medical board of the Ministry of Health. B.I., a neurologist and member of the board, diagnosed him with encephalopathy, polyneuropathy of endocrinal origin, hypertension, peripheral vascular disease and inferior paraplegia. He recommended that the applicant be treated on an in-patient basis. Z.A., an endocrinologist and member of the board, diagnosed the applicant with diabetes, macro and micro-angiopathy, cardiomyopathy, arterial hypertension, diabetic steatorrhoeic hepathosis, thyroiditis, hypothyroiditis and encephalopathy. He recommended a special diet and treatment on an in-patient basis in specialised clinics (endocrinology-cardiology-neurology). E.V., Head of the Cardiology Department of the Ministry of Health and a member of the board, diagnosed the applicant with ischaemic cardiomyopathy and mixed cardiopathy, unstable pectoral angina, prolonged attacks during the previous two weeks, arterial hypertension (3rd degree), congestive heart failure (2nd degree), hypertension and endocrinal renal failure, diabetic vascular disease and thoracic dilatation. E.V. recommended that the applicant be treated on an in-patient basis in a cardiology unit in order to investigate and prevent the risk of myocardic infarctus. She considered it necessary to undertake anti-coagulant treatment but noted that, given the risk of gastric haemorrhage, such treatment could take place only under conditions of strict supervision and with surgeons at hand to intervene if necessary. 21. On the basis of these recommendations, the trial court ordered the applicant’s transfer to a prison hospital. 22. On the basis of an order by the Ministry of Health, Doctor V.P., a neurologist from the Republican Neurology Centre of the Ministry of Health (“the RNC”), examined the applicant on 20 May 2005. He confirmed the earlier diagnoses and recommended complex treatment in a specialised neurological unit of the Ministry of Health, including treatment with hyperbaric oxygen (HBO) therapy. 23. On 30 May 2005 the director of the prison hospital where the applicant was held informed the court of V.P.’s recommendations and said that the applicant was being given the medication prescribed but not HBO therapy, which it was impossible to administer at the prison hospital for lack of the necessary equipment. He also informed the court that the applicant’s condition prevented him from attending court hearings. 24. On 1 June 2005 the Centru District Court found that the condition of the applicant and of another co-accused had worsened and suspended the examination of their cases “until recovery”. The court did not respond to the applicant’s wife’s request for his release to allow treatment or to the above-mentioned letter from the director of the prison hospital. 25. By letters of 9, 17 and 22 June, 5 July and 1 August 2005 the director of the prison hospital again informed the court of the lack of the necessary equipment at the hospital for the treatment prescribed by V.P. 26. On 7 and 15 September 2005 a medical board of the Ministry of Health, which included doctors from the RNC, examined the applicant, and on 16 September 2005 it recommended, inter alia, HBO treatment in a specialised neurological unit. 27. On 16 September 2005 the director of the prison hospital confirmed, on the applicant’s behalf, that the hospital did not have the necessary equipment for the required neurological treatment. That information was submitted to the Centru District Court. 28. On 19 September 2005 the Helsinki Committee for Human Rights filed an amicus curiae brief with the court after visiting the applicant in hospital. It considered that the applicant’s state of health was irreconcilable with his conditions of detention and treatment and protested against the decision to suspend the examination of the case pending his recovery. 29. In view of the findings of the Ministry of Health medical board of 16 September 2005 recommending that the applicant be treated in a specialised neurological unit, the Centru District Court on 20 September 2005 ordered his transfer to the RNC for 30 days. 30. On 27 September 2005 the applicant requested the Centru District Court to order an expert report regarding his state of health before and after his arrest, as well as his condition on the date of lodging the request. In its decision of the same day the Centru District Court rejected the applicant’s request, since no doubts regarding his state of health had been raised. 31. On an unspecified date the applicant requested the RNC management to describe his state of health and the treatment received. He received no answer. On 17 October 2005 the court ordered the RNC to answer immediately and the court received its answer on 20 October 2005. In it, the RNC set out its diagnosis of the applicant’s condition and found that his health was unstable and that he needed further treatment. On 20 October 2005 the Centru District Court extended the applicant’s treatment until 10 November 2005, on the basis of the letter from the RNC. 32. According to a certificate issued by the HBO Therapy Unit of the Republican Clinical Hospital (“the RCH”), the applicant received five HBO therapy sessions there starting on 2 November 2005, which produced positive results. The applicant was prescribed a twelve-session course, scheduled to continue until 28 November 2005. According to the applicant, he was escorted from the RNC to the RCH every second day for the procedure and also began an acupuncture course there. The applicant submitted a copy of the certificate to the Centru District Court, which on 10 November 2005 decided that he should be transferred to the prison hospital. The court based its decision on the RNC’s letter of 9 November 2005 which stated that the applicant’s condition had stabilised and that he would be released on 10 November 2005. Since the RNC letter did not include HBO therapy among its recommendations for treatment, the court found the schedule of HBO treatment for November to be irrelevant. 33. On 16 November 2005 the Ministry of Health and Social Welfare replied to the Government Agent’s questions regarding the need to treat the applicant. The letter stated that on 17 November 2005 the applicant’s medical records had been examined by a group of doctors, who found that he did not need in-patient treatment “in any medical establishment, including the [RNC]” and that he could be treated as an out-patient. 34. In his letter of 12 February 2007 the applicant submitted to the Court a certificate stating that on 20 June 2006 he had been recognised as having a second-degree disability. 35. On 23 June 2005 the trial court rejected the applicant’s habeas corpus request on the following grounds: “the reasons for prolonging the accused’s detention pending trial remain valid because the charges against him are based on circumstances not yet examined by the court and altering the preventive measure may hinder the establishment of the truth in the criminal trial.” 36. On 8 July 2005 the applicant made another habeas corpus request, relying on Articles 2 and 3 of the Convention and emphasising that while examination of his case had been suspended pending his recovery, he had been refused the medical treatment necessary to ensure such a recovery. The court postponed examination of the request. Examination of the request was again postponed on 11 July 2005 for an indefinite period. 37. On 18 July Judge L.V. was absent and examination of the case was postponed. On 22 July 2005 other members of the court were absent and examination of the case was once more postponed. 38. On 25 July 2005 the applicant requested a copy of the court transcript of 8 and 11 July 2005 and informed the court of the worsening of his condition. The request was refused. On 3 August 2005 the Centru District Court informed the applicant that examination of his habeas corpus request had been postponed pending an answer from the Ministry of Health to its inquiry of 7 July 2005 regarding his condition. 39. On 20 September 2005 the Centru District Court rejected the applicant’s habeas corpus request “because the reasons for prolonging the detention remain valid”. The court also rejected the applicant’s complaint that the insufficient medical treatment he had received amounted to inhuman and degrading treatment: “... because the representative of the [prison hospital] declared that [the applicant] had been given the necessary medical treatment on an in-patient basis; there is no evidence of inhuman or degrading treatment.” At the same time, however, the court ordered the applicant’s transfer to the RNC (see paragraph 29 above). 40. On 27 September 2005 the applicant’s appeal was not examined, the court finding that no further appeal was possible. The court also rejected his request for a medical examination in order to establish his current state of health and the manner in which he had been treated during his detention. 41. On 11 October 2005 the applicant made another habeas corpus request, challenging, inter alia, the persistence of any reasonable suspicion justifying his continued detention. He referred to the finding of a violation of Article 5 of the Convention in the case of Sarban v. Moldova (no. 3456/05, 4 October 2005) as a new circumstance warranting re-examination of the need to detain him. The court rejected the request, finding that it could be submitted only one month at least after the last such request had been examined. It also found that the judgment referred to was not a new circumstance as it related only to Mr Sarban and not to the applicant. 42. On 10 November 2005 the applicant asked the Centru District Court to order his continued treatment at the RNC or his release based on his habeas corpus request. The court rejected the request (see paragraph 32 above) and did not examine the habeas corpus request. 43. On 15 November 2005 the Centru District Court rejected the applicant’s habeas corpus request of 10 November 2005, finding that: “... not all the evidence has been examined; [the applicant] has worked as a deputy Mayor of Chişinău and continues to have influence over witnesses yet to be questioned; he may obstruct the presentation to the court of authentic evidence still being kept by Chişinău Municipality.” 44. On 15 December 2005 the applicant’s detention pending trial was replaced with an obligation not to leave the country. 45. On the evening of 10 November 2005 the Court indicated by facsimile to the Moldovan Government an interim measure under Rule 39 of the Rules of Court, stating that “the applicant should not be transferred from the RNC until the Court has had the opportunity to examine the case, i.e. until 29 November 2005 at the latest”. On 11 November 2005 the Deputy Registrar of the Fourth Section made several calls to the telephone numbers indicated by the Government Agent, but received no response. 46. On the morning of 11 November 2005 the applicant requested the trial court to stay the execution of its decision of 10 November 2005 and to prevent his transfer from the RNC. He submitted a copy of the facsimile from the European Court of Human Rights regarding the interim measures. The Centru District Court did not hold a hearing and did not reply to his request. He was transferred to the prison hospital on the same day. 47. On 14 November 2005 the applicant’s lawyer informed the President of the Supreme Council of Magistrates of the failure by Judge L.V., President of the Centru District Court, to examine his request of 11 November 2005 and asked for urgent action in order to ensure compliance with the Court’s order for interim measures. On the same day the lawyer submitted a similar request to the Agent for the Moldovan Government before the Court and to the Prosecutor General’s Office, noting that the prosecutor in charge of the case had supported the applicant’s request to continue being treated at the RNC. 48. On the same date and following the Government Agent’s request, the Centru District Court ordered the applicant’s transfer to the RNC until 29 November 2005. The subsequent events are disputed by the parties. According to the applicant, he was brought to the RNC at 6.30 p.m., but for six hours the management refused to admit him. When the applicant began to feel ill, the management admitted him after midnight. According to the Government, the applicant was admitted on the day the Centru District Court ordered his admission and the delay resulted from the doctors’ view that the applicant did not require further treatment at the RNC. The Government Agent had personally overseen execution of the order. 49. The applicant submitted a copy of a news report broadcast on the PRO-TV television channel, which showed the events at the RNC. The reporter stated that the applicant had been kept waiting for six hours for a decision and that he was finally admitted after midnight. The doctors informed the reporter that they had refused initially to admit the applicant because of the absence of his personal medical file and had admitted him only when the medical file was brought to them. In an interview given to the same reporter, the Government Agent stated that the reason for the delay in admitting the applicant was “certain technical, organisational issues”. This was confirmed by a statement by the head of the Prisons Department. 50. On 12 December 2005 the Supreme Council of Magistrates informed the applicant’s lawyer, in response to his letter of 14 November 2005, that the Centru District Court had officially received information about the European Court’s order for interim measures on Monday 14 November 2005 at 2.19 p.m. Following an urgent court hearing, the trial court had ordered the applicant’s transfer to the RNC. 51. In May 2006 the applicant allegedly made proposals in writing to the Government regarding the friendly settlement of his case. The document which he submitted to the Court referred to his poor state of health making it impossible for him to participate in the criminal proceedings and included the condition of his “final acquittal guaranteed by the State” before he would agree to withdraw his application before the Court. 52. On 27 July 2006 the Government submitted to the Court a friendly settlement agreement signed by them and the applicant on the same day. They asked the Court to strike the application out of its list of cases pursuant to Article 37 of the Convention. 53. The applicant did not inform the Court of the agreement and did not ask for the striking out of his application. When asked to comment, his lawyer submitted that he had not been aware of the agreement as he had not been involved in the negotiations. In response to the Court’s letter of 22 January 2007 asking the applicant to confirm the conclusion of his free will of the friendly settlement agreement, the applicant asked the Court, on 12 February 2007, to continue the examination of his case since his main condition, allegedly unofficially agreed upon with the Government, of being acquitted of all charges, had not been fulfilled and he considered the agreement null. 54. The relevant domestic law has been set out in this Court’s judgment in Sarban (cited above, §§ 51-56). In addition, Article 329 of the Code of Criminal Procedure provides: “(1) In trying a case the court may order, replace or revoke a preventive measure against an accused, either at the parties’ request or of its own motion. A new request for the ordering, replacing or revoking of a preventive measure can be submitted if there appear to be reasons for doing so, but not earlier than one month from the date when the previous court decision on the same matter entered into force, unless there are new circumstances which prompt the new request. (2) Where detention pending trial is imposed, the court decision may be appealed against, within three days, to higher court, which will decide on the appeal in accordance with Article 312 applied mutatis mutandis.”

dev

001-90941

ENG

GEO

CHAMBER

CASE OF RAMISHVILI AND KOKHREIDZE v. GEORGIA

Violations of Art. 3 (substantive aspect);Violation of Art. 5-1-c;No violation of Art. 5-4;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

8. The first and second applicants were born in 1971 and 1961 respectively and live in Tbilisi. 9. The applicants were co-founders of and shareholders in a private media company (“the media company”) which owned the television channel “TV 202” (“the channel”), broadcasting in Tbilisi. The first applicant, as an anchorman of the popular talk show “Debatebi” (Debates), often addressed politically sensitive issues. 10. Under a service agreement of 25 April 2005, the media company undertook to air several documentary films made by “Studio Reporter”, a private film-production company (“the production company”). Consequently, in May 2005, the latter started working on a documentary concerning certain business activities of Mr B., a parliamentarian from the presidential political party (“the ruling party”), which held at that time the majority of seats in Parliament. The object of the documentary was to expose Mr B.’s allegedly illegal commercial activities. According to the Government, except for the applicants, nobody within the media company knew about the making of the compromising film. 11. After Mr B. had tried in vain to persuade the journalists of the production company to drop the project, he contacted the first applicant. From May to August 2005 the parliamentarian placed numerous telephone calls, asking Mr Ramishvili to block the film. Eventually, they agreed to meet and discuss the issue. 12. During their first meeting, which took place in the morning of 26 August 2005, an agreement was reached whereby the first applicant would not allow the airing of the film on his channel in exchange for USD 100,000 (EUR 80,000). Immediately after this meeting, Mr B. complained to the Minister of the Interior that the first applicant had been blackmailing him. He reported to the authorities that, in the event of the compromising film being aired, it could have disastrous consequences not only for him personally but also for the image of the ruling party. 13. The same day, the Ministry of the Interior initiated criminal proceedings on suspicion of extortion for the purpose of gaining vast profits. Later that day, Mr B. met the first applicant again. They agreed that the latter would accept the sum in two instalments: USD 30,000 and 70,000 (EUR 24,010 and 56,000). 14. In the morning of 27 August 2005, Mr B. informed the prosecution service that he would hand over the first instalment to the first applicant around noon. The 100 US dollar notes were consequently processed with invisible chemicals and marked with a special pencil, while their serial numbers were recorded by the investigation authorities. The Prosecutor General’s Office (“the PGO”) issued a ruling, dated 27 August 2005, at 11.00 a.m., authorising the secret videoing of the meeting without a court order, due to “urgent necessity”. The camera was hidden on the parliamentarian’s person. 15. The meeting during which Mr B. handed over the money to the first applicant took place on 27 August 2005 at noon, in the apartment of a mutual friend of theirs. It was also attended by the second applicant. The conversation and the handing over of the money were videoed secretly (“the video recording of 27 August 2005”) by the parliamentarian. When the applicants left the meeting and got into the second applicant’s car, they were arrested and searched. USD 30,000 and the car in which the money was found were seized. On the same day the Tbilisi City Court legalised the secret video recording. 16. On 28 August 2005 Mr B. was recognised by the investigation as a victim and both applicants were charged with conspiracy to commit extortion. They pleaded “not guilty” and refused to testify at that time. 17. On 29 August 2005 the Tbilisi City Court granted the prosecutor’s motions and remanded the applicants in custody for three months. The order noted that the collected evidence – the parliamentarian’s statements, the results of the on-the-spot search of the applicants, the seized materials and the video recording of 27 August 2005 – substantiated the suspicion that the applicants had committed the offence with which they had been charged. The court dismissed the prosecutor’s argument that the applicants might abscond in view of the gravity of the charge as unsubstantiated. However, it endorsed the fear that they could interfere with the establishment of the truth by exerting pressure on those witnesses who were under their hierarchical authority in the media company. 18. On 31 August 2005 the applicants appealed against this decision, complaining that their detention was not lawful within the meaning of Article 5 of the Convention, since the prosecution had failed to prove the reasonableness of the imposition of such a measure. They complained in particular that, apart from the parliamentarian’s statements, the prosecution had not submitted any other evidence substantiating the suspicion that a crime had been committed. Further, they alleged that, contrary to Article 18 of the Convention, they had been detained not for the purpose of bringing them before the competent legal authority but in order to silence their television channel. 19. On 31 August 2005 the investigator issued a ruling, incorporating as evidence into the criminal case file the seized US dollar notes, the second applicant’s car and the traces of chemicals found there, as well as the applicants’ fingerprints and some other results of their search and arrest on 27 August 2005. 20. On 2 September 2005 the Tbilisi Regional Court dismissed the applicants’ appeal at an oral hearing. The case file contained photographs of that hearing showing that the applicants had been kept in a barred dock, surrounded by several guards. The photographs further showed that the court room was extremely overcrowded (for a detailed description of the hearing, see paragraphs 52-65 below). 21. The decision of 2 September 2005 endorsed the reasoning of the lower court concerning the applicants’ managerial positions in the media company as a ground supporting the risk that they might influence the witnesses. It reiterated that the collected evidence – the parliamentarian’s statements, the results of the on-the-spot search of the applicants, etc. – suggested “with a high degree of probability” that the applicants had committed the crime. 22. On 6 September 2005 the investigator incorporated the video recording of 27 August 2005 and its verbatim transcript as evidence into the criminal case file. On 29 September 2005 the investigator presented the transcript to the applicants. Calling its authenticity into question, the applicants requested leave to watch the recording. 23. On 19 October 2005 the investigator informed the applicants in writing that the preliminary investigation had been terminated. On 11 November 2005 the case materials were presented to the applicants in prison. However, because at that time no appropriate equipment had been provided, it was only on 14 and 16 November 2005 that the applicants, in the presence of their advocates, watched the video recording of 27 August 2005 for the first time. 24. On 22 November 2005 the prosecutor sent the criminal case, along with the bill of indictment of 19 November 2005, to the Tbilisi City Court for trial. 25. On 27 November 2005 the three month pre-trial detention period expired without the court ordering its extension. 26. On 6 December 2005 the applicants filed a complaint with the Tbilisi City Court, demanding their immediate release. They claimed that they had been deprived of their liberty in breach of Article 159 of the Code of Criminal Procedure (“the CCP”) and Article 5 of the Convention, since no judicial decision had authorised their detention since 27 November 2005. No immediate response from the court was forthcoming. 27. On 11 January 2006 the administration of Tbilisi No. 5 Prison, where the first applicant was provisionally detained, transferred the latter from his ordinary cell to the punishment cell (karceri), which measured 5.65 square metres and was intended for solitary confinement, as a disciplinary punishment for using a mobile telephone, the latter incident occurring for the first time. According to the first applicant, in Soviet times, this type of cell was used for the confinement of those on death row. There was another person sharing the cell with the applicant (“the second inmate“). 28. On 13 January 2006, the applicants were taken to the admissibility hearing before the Tbilisi City Court. The City Court decided to commit the applicants for trial under Article 417 § 1 of the CCP. In addition, it rejected their motion of 6 December 2005 to be released or to have their detention pending trial replaced by a more lenient measure of restraint, ruling in the following terms: “The defence incorrectly alleges a violation of the Convention as regards the fact that, after the three month detention period expired, [the applicants] were not immediately brought before a court. [In fact] the criminal procedural law does not require that, once the case is referred to the court for a hearing on the merits, any procedural decision be taken on the measure of restraint applied to the accused. According to the Convention, the [national] court ought to decide on a case within a reasonable period of time. ‘Reasonable period of time’ is defined by Article 680(4) 8 of the CCP as follows. ‘In the course of the hearing of a criminal case by a District (Regional) Court, the period of detention must not exceed 12 months from the date on which the case is sent to the court.’ Consequently, the [applicants’] detention pending trial has not exceeded its legal term.” 29. In the operative part of the decision of 13 January 2006, it was noted that there was no appeal possible. 30. The case file contained photographs showing that the applicants had been kept in a barred dock during the hearing of 13 January 2006 and that there had been security guards armed with machine guns and wearing hoodlike black masks in the court room. 31. On 14 January 2006 at about 11.00 p.m., some toxic smoke (later explained by the authorities to have been caused by the burning of a mattress in the adjacent cell, see paragraphs 44 and 74 below) leaked into the first applicant’s punishment cell. Owing to the lack of ventilation, the smoke filled the cell quickly, causing the applicant and the second inmate to suffer from smoke inhalation, an inability to breathe and eye watering. According to the first applicant, they shouted and knocked on the door for half an hour before the prison guard opened the door and let both inmates out until the smoke was gone. 32. On 15 January 2006 the first applicant was returned from the punishment cell to his ordinary cell. 33. On 19 January 2006 the second applicant, also provisionally detained in Tbilisi No. 5 Prison, was moved from his six-bed cell, with six inmates in it, to another cell with twelve beds, where twenty-nine prisoners were kept. The inmates were obliged to take turns to sleep. 34. On 20 January 2006 the first applicant filed a complaint with both the PGO and the Ministry of Justice (“the MJ”), the authority in charge of the penitentiary system, challenging the conditions in the punishment cell and the lawfulness of his confinement there. According to the complaint, the punishment cell had no window or ventilation and was extremely damp. Tap water ran non-stop and noisily 24 hours a day. A narrow pipe in the corner, located just one metre away from the bed, was designated as a toilet. It was so narrow that it was difficult for the inmates to pass urine and excrement straight into the hole; there was no partition separating “the toilet” from the rest of the cell and a stench hung in the air all the time. One inmate could not avoid seeing what the other was doing. The cell was infested with cockroaches and rats occasionally ran through it. The only bed, infested with vermin, was not wide enough to accommodate two persons. 35. In such conditions, the first applicant claimed that he had not been able either to have any normal sleep or to eat properly. During the whole period of his confinement in the punishment cell, he was never let out for a walk or other physical exercise. He alleged that he was never visited by a doctor or provided with any other care. 36. From 20 January 2006 hearings were held almost daily. In the hearing rooms, the applicants were always kept in the same conditions as those on 13 January 2006: being displayed to the public in the barred dock, in the presence of hooded guards with machineguns. 37. At a hearing on 23 February 2006, the second applicant announced that he had been continuously deprived of necessary medical care and of drinking water in prison. He declared that he intended to begin a hunger strike. The judge did not respond. Shortly afterwards, six more inmates were placed in the second applicant’s already overcrowded 12bed cell, increasing the total number of prisoners there to 35. 38. On 25 February 2006 the PGO informed the first applicant that it had taken note of his complaint of 20 January 2006. It also advised him that, according to the MJ Penitentiary Department, the conditions in the punishment cell fully complied with “international standards”. 39. On 27 February 2006, after the prosecution had finalised its submissions before the court, the applicants requested, on the basis of Article 140 § 17 of the CCP, that their detention pending trial be replaced by a more lenient measure of restraint in view of newly discovered circumstances. In that connection the applicants referred to the fact that none of the witnesses questioned by the prosecution appeared to be under their hierarchical authority, but were rather co-founders of the media company. The Tbilisi City Court dismissed that request on the same day. The judge acknowledged that this fact was indeed “a newly-discovered circumstance...”, but ruled that it was “not a significant new circumstance which could justify revision of the imposed restraint measure”. The judge went on to say, “This is especially true since the accused have not yet presented their submissions and have not been examined; nor has the collected evidence been assessed...” 40. The applicants then challenged the judge for bias, questioning her impartiality, but this challenge was dismissed as unsubstantiated by the same judge of the Tbilisi City Court that same day. An appeal against both decisions of 27 February 2006 lay only in connection with an appeal against the final verdict. 41. On 29 March 2006 the Tbilisi City Court, convicting them of conspiracy to commit extortion, sentenced the first applicant to four and the second applicant to three years in prison. On 30 June 2006 the Tbilisi Appellate Court upheld the verdict. 42. After conviction the applicants were transferred from Tbilisi No. 5 Prison to Rustavi No. 6 Prison. They challenged the appellate decision of 30 June 2006 in the Supreme Court. The case file did not contain information on any further developments in the criminal proceedings. 43. On 3 July 2006 the PGO informed the first applicant that on 18 May 2006 it had opened a criminal case with regard to his complaint of 20 January 2006 concerning his confinement in the punishment cell but, after a preliminary investigation, had decided on 26 June 2006 to close it as no elements of a crime had been disclosed. 44. The PGO decision of 26 June 2006 noted that the first applicant’s transfer to the punishment cell had been, under Rule 22 § 1 (b) of the Prison Rules, a lawful disciplinary punishment for the use of a mobile telephone, such an act representing a grave violation of detention rules. Based on the statements of the administrative staff of Tbilisi No. 5 Prison, as well as the prison doctor and the second inmate, the decision stated that the first applicant had been visited by the doctor daily and offered food identical to that provided in the ordinary cells. It noted however that, according to the first applicant’s statements, he had refused to consume the food due to the unsanitary conditions in the punishment cell. As to the fire incident created by the inmate in the adjacent cell on 14 January 2006, the PGO, relying on witness testimonies, stated that the first applicant had immediately been taken out of his cell until the smoke was gone and that there had been no danger to his life. 45. The Government submitted the minutes of the interview with the second inmate on 21 May 2006. The latter specifically mentioned that the food in the punishment cell had been of a satisfactory quality and that, in any case, he and the first applicant had had ample supplies because of their relatives’ food parcels, which they had brought with them from their ordinary cells. 46. Relying on the examination of the punishment cell carried out by an investigative commission on 23 May 2006, the PGO’s decision of 26 June 2006 further stated that the cell had been equipped with an appropriate system of “air filtration” and inside artificial lighting, and that there had been a toilet, partitioned by a special wall from the rest of the cell. 47. According to the minutes of the punishment cell inspection of 23 May 2006, submitted by the Government, it was conducted without the first applicant or his advocates’ participation. They further disclosed that the punishment cell had been located in the basement of Tbilisi No. 5 prison, its length and width being 276 cm by 205 cm, and the bed had been 120 cm wide. As to the toilet, it consisted of a hole in the ground and two cemented bricks for placing the feet. There was no sink, and the water tap was set just above the toilet hole. The only source of lighting was an electric bulb. According to the minutes of the inspection and the attached plan of the cell, there was no window with access to daylight. 48. With due regard to the above findings, the PGO decided on 26 May 2006 that the prison officials had not exceeded or abused their powers when transferring the first applicant to the punishment cell. 49. On 18 July 2006 the first applicant filed a complaint against this decision, claiming that the investigation had not been effective or objective. He complained that, whilst he had filed his complaint on 20 January 2006, the PGO had opened proceedings only five months later on 18 May 2006. This lapse of time, in his view, had been more than sufficient for the prison administration to renovate the cell completely with a view to hiding the appalling conditions in which he had been held. In this regard, he challenged the PGO’s failure to enquire as to when exactly the ventilation, lighting and the toilet partition had been installed in the punishment cell. The first applicant further complained that the PGO had inexplicably disregarded his assertions that none of the above-mentioned conditions had existed during his confinement and had arbitrarily endorsed those of the prison staff who, being potential suspects in the case, could not be said to have been impartial witnesses. He challenged the fact that, despite his statement that he had never been provided with medical care, the PGO had trusted the statements of the prison doctor, another potential suspect, without having examined any other source of information (i.e. the relevant prison logbook of medical visits). He further claimed that the second inmate, being under the complete control of the authorities who were wellknown for abuses in prisons, might easily have been threatened or forced to make false statements. Finally, the first applicant complained that he and his advocates had learnt about the initiation of the criminal proceedings against the prison administration only after they were terminated on 26 June 2006. Consequently, they had not been given a chance to participate in the investigation so as to ensure its objectivity. 50. On 24 July 2006 the first applicant’s complaint of 18 July 2006 was dismissed by the Tbilisi City Court. In reply to his complaint that the criminal proceedings had commenced only four months after his complaint of 20 January 2006 had been lodged, the decision noted that “the case materials do not support the suspicion that the cell has been renovated since the proceedings were opened on 18 May 2006.” It further stated that the PGO had duly assessed the witnesses’ statements, including those of the prison staff and the first applicant, and that nothing in the case file suggested that the second inmate might have been forced to testify against the first applicant. 51. The decision of 24 July 2006 was adopted without an oral hearing and pronounced in absentia. 52. As part of their observations on the admissibility and merits of the application, the Government submitted a video recording of the proceedings concerning the applicants’ appeal against their detention on remand held at the Tbilisi Regional Court on 2 September 2005. The applicants replied that this recording did not include the scenes of greatest turmoil and had been considerably edited to portray a more favourable image of the hearing, excluding, for example, images of armed men inside the court room. They agreed however that this recording should be accepted and relied on as a source of information about the hearing. The applicants additionally provided annotations to some of the scenes. 53. The opening scenes of the Government’s recording showed an overcrowded court room before the start of the hearing. A large number of media personnel and cameras on tripods were situated in the middle of the room. The dock was a metal cage with a barred ceiling, located at the far end and separated from the rest of the court room. The audience was comprised of civilians, with a large number of women most of whom could be identified as the applicants’ supporters. However, there were some fifteen men in plain clothes who were undercover police agents, according to the applicants. Moreover, many of those men were openly identified as agents by the applicants’ supporters on the spot. The supporters engaged in heated argument with several men in plain clothes, complaining about the lack of space and the State’s inability to provide a larger court room for the hearing. 54. The four uniformed guards and several men in plain clothes escorted the handcuffed applicants into the court room. When the judge was seated, the crowd was still pressing into the room. The entrance door was blocked by the plain-clothes men from inside, while several hooded and armed guards could be seen forcing the door closed from the outside. The judge requested the people in the room to calm down. The judge specifically reproached the media representatives for their disorderly behaviour. 55. The general noise level in the court room remained unabated even after the hearing was declared open. The judge offered the applicants the possibility of conducting the hearing in camera but they refused. Loud male voices could be heard in the court room bitterly arguing and uttering vulgar curses. The body language of the judge betrayed resignation and frustration, as he was unable to establish order. 56. When the advocates spoke they were dazzled by camera flashes and halogen camera lights of the journalists. During their speech there were continual interruptions by the judge and the public, and relentless banging on the entrance door from the outside, as well as the sound of construction works nearby. Now and then mobile telephones rang and persons conducted conversations. Communication between the defence, the prosecution and the judge, constantly hampered by the unsolicited interruptions of journalists, was made possible by repeatedly requesting other people to move aside or sit down on the floor. The temperature in the court room was high, judging by the sweat on people’s faces. The persons presumed to be undercover agents, and some court personnel, could be seen constantly entering and leaving the judge’s deliberation room. 57. In order to see what was happening, respond to the judge or be heard, the applicants had to stand on the chair in the barred dock, hanging on to the metal side bars, and shout. They repeatedly asked the judge and the prosecutors to speak louder as they could not hear them. When answering one of the judge’s questions, the first applicant, hanging on the bars and grimacing as if to emphasise by body language his resentment at the situation, made the following remark: “...The Government might have something against me...this I can [more or less understand]...but [I cannot] understand why it is necessary to detain [the second applicant] ... [unless,] of course, the Government wish to fill up the prisons [cixeebi]!...[Well,] I have been there [in the prison]; unimaginable things happen there!...There is no need for [the second applicant]...no place for him to be with me, here, in this cage! [galiaSi]...This is my declaration!” 58. The immediate proximity of the prosecutor to the judge presented no obstacle of audibility for them. The dialogue of questions and answers between judge and prosecutor was unaffected. Several persons alleged to be undercover agents in plain clothes were shown behind the prosecutor and investigator. 59. There were episodes when the prosecutor refused to reply to the second applicant’ ridiculous question... go and ask the parliamentarian about that!”, and the question was then dismissed by the judge. 60. In another episode, when the second applicant asked, “Could you, please, indicate the page and the paragraph in the case materials which prove that the parliamentarian...has testified against me?”, the prosecutor started laughing in reply and answered in a sarcastic tone, “Which case materials?! Which page?! Which paragraph?!” and then murmured “This man is not sane...” The judge intervened and rephrased the question as follows, “Do the parliamentarian’s testimonies incriminate [the second applicant]?” The prosecutor’s “yes” was endorsed by the judge as a reply to the question. 61. In some episodes, when the applicants or their advocates asked questions which perplexed the prosecutor, the judge either directly replied instead (i.e. by locating the necessary pieces of evidence in the case file) or rephrased the questions in a leading manner, thereby suggesting a suitable answer for the prosecutor. Thus, one of the advocates asked the prosecutor why it was necessary to impose detention on remand for three months, when there were only 8-12 witnesses who remained to be examined. As the prosecutor was unable to answer, the judge interrupted with, “[Because] the criminal procedural legislation does not envisage the imposition of detention for a lesser term”. 62. As the judge retired for deliberations, the public were ushered out of the court room by the guards and plain-clothes men. After the deliberations, the room contained many fewer people than before. The composition of the public had changed to an almost all-male audience, avoiding the camera by ostentatiously turning their backs towards it and the judge. As the judge read the decision, the plain-clothes men stood next to him. Strangers constantly entered and left the judge’s deliberation room. There were brief glimpses of one or two guards wearing black hood-like masks inside the court room in front of the closed door. 63. The closing scenes briefly showed the large number of presumably undercover plain-clothes agents leaving the court room, not hiding their irritation when filmed. A few of the applicant’s supporters, readmitted to the room after the deliberations, complained that the agents had occupied almost all of the seats. They asked the cameraman to film the presence of the agents. The first applicant then stated, “Look, there they are ...the agents (TanamSromlebi)!” and pointed to the plain-clothes men. The following remarks could be heard: “Their presence was overwhelming! ...More agents than family or friends!” 64. In the last scene, a hooded, armed man inside the court room nodded to the cameraman, apparently requesting the latter to stop recording. 65. The case file also contained a video recording, submitted by the applicants, showing how around 30-34 plain-clothes men, identified in the Government’s video as undercover agents, attending the hearing of 2 September 2005, left the Tbilisi City Court through the same back door exit as the handcuffed applicants. The agents were shown being greeted with familiarity in the backyard by the special security forces waiting for the applicants. Some of the undercover agents were filmed changing from their civil clothes into police jackets. The applicants were escorted from the courthouse in the presence of a great number of guards carrying machine guns and wearing black, hood-like masks. 66. In a letter of 11 July 2007, the second applicant informed the Court of his early release from prison on the basis of a Presidential pardon of 26 May 2007. He maintained his intention to pursue the Court proceedings. Article 12 § 7 “Security of the person, respect for human dignity...” “In the course of an investigative or judicial action, it is prohibited to exert upon a person physical or psychological pressure...or to subject a detained person to conditions that encroach upon his or her human dignity.” “1. No one may be arrested without a court order or other judicial decision. 2. Courts, prosecutors and investigators are obliged to immediately release any person who is detained unlawfully.” “1. Where there is a sufficient basis for hearing the case, the judge (court), without prejudging the merits of the case, shall commit the accused for trial... 3. During the admissibility hearing, in addition to deciding whether to commit the accused for trial..., the judge (court) shall decide whether to impose a measure of restraint on the accused.” “The judge (court) shall decide whether to commit the accused for trial within 14 days or, in complicated cases, within a month of the date of delivery of a final judgment on the last criminal case registered with the same judge (court).” Article 437 §§ 2 and 3 provided that the presiding judge was the authority in charge of a hearing. He or she was responsible for maintaining order in the court room and carried out all kinds of procedural actions envisaged by the Code. In addition, Article 442 stated that, during a hearing, the judge had to abide by all the general legal principles contained in Chapter II of Part I of the Code, of which Article 12, cited above, formed a part. “Extortion is claiming another person’s object or property right or property use under threat of using violence against the victim, or the victim’s close relative, destroying or damaging the object, or of making public information which may impair the victim’s reputation, or of spreading such information as may substantially prejudice the victim’s rights...” Under Rule 29 § 3 of the Prison Rules, in the event of a violation of prison regulations, a detainee could be subjected by the prison administration to disciplinary sanctions. Rule 29 § 8 listed the disciplinary sanctions as follows: (a) a warning; (b) a reprimand; (c) a short-term or long-term ban on visits; (d) confinement from 3 to 20 days in a punishment cell; (e) prohibition to receive parcels. Rule 30 § 1 explicitly prohibited detainees from taking food to a punishment cell from their ordinary cells. Under Addendum No. 1 to the Prison Rules, detainees were forbidden to use telephones in prison. The relevant parts of the Report read as follows: “a. Prison No. 5, Tbilisi 67. At the end of the visit in 2001, the CPT’s delegation asked the Georgian authorities to take out of use all cells located in the basement of the main detention block (i.e. quarantine, transit and disciplinary cells). This measure was reportedly taken soon after the 2001 visit. However, as a result of the increasing number of prisoners sent to Prison No. 5, it became necessary to start using the basement cells again. In May 2004, some 170 prisoners were being held in the basement... The cells were dark, badly ventilated, damp and disgustingly filthy. Further, in some cells, prisoners were sharing beds. 68. Conditions on the other levels of the main detention block remained extremely poor. Many of the dormitories were grossly overcrowded, with as little as 1 m² of living space per prisoner. The number of inmates often exceeded the number of beds, thereby compelling prisoners to sleep in two and occasionally even three shifts (for example, 46 prisoners in a cell measuring 45 m² which was equipped with 28 beds). The situation was exacerbated by poor ventilation and lack of natural light...The sanitary arrangements were also completely inadequate: up to 50 prisoners might be sharing the same dilapidated and generally filthy toilet facility inside a dormitory. Further, there was no heating, and exposed electrical wires throughout the accommodation areas created a high risk of accidents... ... 72. The situation with regard to food had not changed since the 2001 visit; in practice, prisoners relied to a great extent on food parcels from their families. Further, as in 2001, prisoners did not receive any personal hygiene items and there were no laundry facilities. The prison had relinquished responsibility for providing prisoners with bedding and many prisoners slept in what could only be described as rags... 74. ...at the end of the visit in November 2003 the delegation made three immediate observations in respect of Prison No. 5 in Tbilisi, requesting the Georgian authorities to: ...(ii) definitively take out of service all cells located in the basement of the main detention building (including the isolation and “karzer” cells); (iii) ensure that all prisoners, including those in the “quarantine” section and disciplinary isolation cells, are guaranteed outdoor exercise of at least one hour per day. In view of the deteriorated situation observed in May 2004, the delegation reiterated the above-mentioned immediate observations... 75. At the end-of-visit talks in May 2004, the Minister of Justice acknowledged that Prison No. 5 was substandard in all the key aspects... ... c. Discipline 138. ...At Prison No. 5 in Tbilisi, the disciplinary cells criticised in the report on the visit in 2001 had been taken out of service and replaced with nine other cells, located in a different part of the basement of the main detention block. Admittedly, the cells in question were larger and equipped with sleeping platforms. However, the cells were substandard in all other respects; in particular, they had no access to natural light and were unventilated, humid and dilapidated... 139. During the second periodic visit, the delegation was concerned to note that prisoners undergoing disciplinary confinement in the establishments visited were still not offered outdoor exercise ... at the end of the visit in November 2003, the delegation made an immediate observation, requesting the Georgian authorities to ensure that inmates placed in disciplinary cells in all penitentiary establishments in the country are guaranteed at least one hour of outdoor exercise per day...The CPT reiterates [that] recommendation...” The relevant parts of the Report read as follows: “...The space allocated for prison cells in Georgia—both in law and in practice—is significantly less than that required by regional human rights standards... In its 2001 recommendations to the Georgian government, the CPT lowered this standard suggesting, “A standard of 4 m² per prisoner should be aimed at.” Georgia’s Law on Imprisonment requires that the living space for each convict in the cells of the Penitentiary Department must be not less than two square meters. Detainees should each be provided with a separate bed... Tbilisi Prison No. 5 dates from 1912...In many parts of Tbilisi Prison No. 5, the walls and floors are crumbling and in a state of disrepair. Electrical wires are exposed in the cells and corridors. The regular detention cells are filled with as many twotier metal bunk beds as the rooms will hold. There were no tables or chairs in the rooms at the time of Human Rights Watch’s visit. Detainees must sit on beds or on the floor when they are not sleeping. The toilets are partitioned from the rest of the cell by only a short wall or sometimes with a piece of fabric or shower curtain that the inmates have put up themselves. This design allows for very little privacy for those using the sanitary facilities. Because of the overcrowding, beds are often placed very close to the toilets. The toilets are decaying and filthy. In several cells Human Rights Watch found piles of garbage near the door. Human Rights Watch considers the conditions in which detainees are housed in this facility violate the prohibition on inhuman or degrading treatment. All of the cells in Tbilisi Prison No. 5 visited by Human Rights Watch smelled strongly of human sweat, human excrement, and cigarette smoke. Detainees spend consecutive days and weeks in these cells without being allowed outside... The cells were also unreasonably hot, due to the overcrowding and lack of ventilation. Many prisoners were reduced to wearing very little clothing in an effort to stay cool... Human Rights Watch found the most appalling conditions to be in the basement “quarantine” cells in Tbilisi Prison No. 5...The cells visited by Human Rights Watch had no natural light or ventilation, owing to their location in the basement, and only one tiny window covered with screens. Artificial light was provided by a bright light over the door. There was no running water in the sinks. There was standing water on the floor in one cell. The bed frames consisted of bare iron planks, and there were no mattresses and only a few tattered blankets... The deputy director of Tbilisi Prison No. 5 claimed that detainees “wash once per week.” However, detainees stated that they do not shower once per week because “[t]here are too many people.”... In Tbilisi Prison No. 5, Human Rights Watch found the kitchen building to be decaying. Water was overflowing some of the food preparation containers resulting in standing water on the floor...”

dev

001-67238

ENG

BGR

CHAMBER

CASE OF NESHEV v. BULGARIA

Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award

Georg Ress

8. The applicant was born in 1953 and lives in Plovdiv. He used to work as a shunter at the Bulgarian State Railways. On 15 August 1995 he was dismissed from his work for having breached disciplinary regulations. 9. On 5 February 1996 the applicant filed with the Plovdiv District Court an action for wrongful dismissal against his former employer. 10. On 12 March 1996 the District Court heard the applicant and his lawyer and rejected the case, ruling that the applicant’s dismissal was not amenable to judicial review. It based its decision on section 9(3) of the Decree No. 9 of 6 January 1981 and the Supreme Court’s practice, according to which employees of the State Railways dismissed for breach of disciplinary regulations could only appeal to a higher administrative body, not to a court. 11. On 18 March 1996 the applicant appealed to the Plovdiv Regional Court against the District Court’s decision. He argued that Decree No. 9 was contrary to Article 6 of the Convention. He also relied on an amendment to the Labour Code of 1993, stating that it vested with the courts power to examine all appeals for wrongful dismissal, despite the provisions of Decree No. 9. 12. By decision bearing the date 8 April 1996 the Regional Court, sitting in private, dismissed the applicant’s appeal, holding that in accordance with Decree No. 9 a judicial appeal against the applicant’s dismissal was not possible. 13. The Regional Court’s decision was not pronounced publicly and was not served. 14. On 4 June 1996 the case file was transmitted by the judge-rapporteur to the Regional Court’s clerical staff which made an entry in the court’s register. 15. On 5 June 1996 the case file was transmitted to the District Court and an entry was made in its register. 16. On 13 June 1996 the applicant submitted a petition for review (преглед по реда на надзора) to the Supreme Administrative Court. 17. The parties were summoned for a hearing but none of them appeared. 18. On 18 July 1997, sitting in private, the Supreme Administrative Court rejected the petition for review as time barred. It held that the Regional Court’s decision had entered into force on 8 April 1996 and that the two months’ time-limit for submission of a petition for review had expired on 8 June 1996 whereas the petition had been submitted on 13 June 1996. 19. At the relevant time, in accordance with Decree No. 9 of 6 January 1981, employees of the State Railways were subject to a special legal regime. They had ranks, wore uniforms and were subject to strict hierarchy and discipline, under the control of the Ministry of Transport. Decree No. 9 set out the special rules governing service in the State Railways. The Labour Code had subsidiary application. 20. Section 9 of the Decree, as in force at the relevant time and until February 1997, provided, inter alia, that disputes about wrongful dismissal of employees of the State Railways were amenable to review by the higher administrative authority only. As a result, until August 1996 the courts’ practice was to reject actions for wrongful dismissal of railways’ employees. 21. In a judgment of 19 August 1996 the Supreme Administrative Court, departing from earlier practice, held that the prohibition of judicial review under Decree No. 9 was to be considered abandoned since 1 March 1993, the date on which an amendment to the Labour Code had entered into force (опр. no. 641 от 19.8.1996 г., Бюлетин на ВС, кн. 10-1996 г., стр. 17). 22. The relevant part of section 9 of Decree No. 9 was eventually repealed by the Constitutional Court by decision of 18 February 1997 as unconstitutional and contrary to Article 6 of the Convention. The Constitutional Court held that dismissal from work could not be excluded from the jurisdiction of the courts, regard being had to the fact that the right to work is one of the fundamental constitutional rights (реш. no. 5 от 18.2.1997 по конст. дело no. 25/96 г. на КС на РБ, Държавен вестник, бр. 20/97). 23. In November 2000 the remainder of Decree No. 9 was repealed and the special legal regime of State Railways employees abandoned. 24. Under the Code of Civil Procedure as in force at the relevant time, service was required only in respect of judgments and certain types of procedural decisions issued by a first level of jurisdiction. 25. Judgments or decisions delivered by a court acting as a second level jurisdiction were not served despite the fact that most of them were amenable to review (преглед по реда на надзора), within particular time limits, before the Supreme Court (which was later reconstituted into the Supreme Administrative Court and the Supreme Court of Cassation). 26. As a result, whenever second instance cases were decided in private (which was the rule in appeals against procedural decisions), the parties could only learn whether or not their case had been decided by visiting the respective court and checking its register periodically. 27. Article 226 of the Code of Civil Procedure, as in force at the relevant time, provided that a petition for review could be submitted within two months from the impugned decision’s entry into force. At that time judgments and decisions issued by a second level of jurisdiction entered into force on the date on which they were made (opr. 3022-95-III). 28. According to the applicant, the courts nevertheless would normally count the two-month time-limit from the date on which the second instance judgment or decision was entered in the respective register. No relevant case-law has been cited by the parties.

dev

001-78555

ENG

UKR

CHAMBER

CASE OF TSARUK v. UKRAINE

Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

Peer Lorenzen

4. The applicant was born in 1941 and lives in the town of Krasnyy Luch, Lugansk region, Ukraine. 5. In 2003 the applicant instituted proceedings in the Krasnolutskyy Town Court against her former employer, the Knyagyninska State Mining Company (Шахта «Княгинінська» ДХК «Донбасантрацит»), for salary arrears and compensation for moral damage. On 29 October 2003 the court awarded the applicant 2,479.19 Ukrainian hryvnias (“UAH”) (Рішення Краснолуцького міського суду Луганської області). 6. In December 2003 the Krasnolutskyy Town Bailiffs' Service (Міський відділ Державної виконавчої служби Красно луцького міського управління юстиції) initiated the enforcement proceedings. 7. By letter of 2 June 2004, the Bailiffs' Service informed the applicant that the debtor's accounts had been seized but that it was impossible to deal in the debtor's property because the debtor was a State enterprise. 8. On 25 March 2005 the Lugansk Regional Commercial Court initiated bankruptcy proceedings against the debtor enterprise. 9. The applicant received UAH 1,386.34; according to the applicant, the rest of the debt remains unpaid. 10. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).

dev

001-61521

ENG

BGR

CHAMBER

CASE OF M.C. v. BULGARIA

Violation of Art. 3 and 8;No separate issue under Art. 13;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Christos Rozakis

9. The applicant is a Bulgarian national who was born in 1980. 10. She alleged that she had been raped by two men on 31 July and 1 August 1995, when she was 14 years and 10 months old. The ensuing investigation came to the conclusion that there was insufficient proof of the applicant having been compelled to have sex. 11. On 31 July 1995 the applicant and a friend of hers had been waiting to enter a disco bar in the town of K., when three men, P. (21 years old at the time), A. (20 years old at the time) and V.A. (age not specified), arrived in a car owned by P. The applicant knew P. and A. She had met P. in the same disco bar and had danced with him once. A. was the older brother of a classmate of hers. 12. A. invited the applicant to go with him and his friends to a disco bar in a small town 17 km away. According to the applicant, she agreed on condition that she would be back home before 11 p.m. 13. In the bar, one or two of the group had drinks. The applicant saw some friends, with whom she had a short chat. According to the applicant, she repeatedly told the others it was time to leave, as it was getting late. 14. At some time late in the evening, the group left and headed back to K. On the way, they were briefly stopped and checked by traffic police. 15. A. then suggested stopping for a swim at a nearby reservoir. According to the applicant, they went there despite her objections. She submitted that she had not suspected the men's intentions. 16. At the reservoir, the applicant remained in the car, in the front passenger seat, saying that she was not interested in swimming. The three men headed towards the water. Soon afterwards, P. came back and sat in the front seat next to the applicant. 17. In her statements to the investigating authorities, the applicant submitted that P. had then pressed his body against hers, proposed that they “become friends” and started kissing her. The applicant had refused his advances and had asked him to leave. P. had persisted in kissing her while she had tried to push him back. He had then moved the car seat back to a horizontal position, grabbed her hands and pressed them against her back. The applicant had been scared and at the same time embarrassed by the fact that she had put herself in such a situation. She had not had the strength to resist violently or scream. Her efforts to push P. back had been unsuccessful, as he had been far stronger. P. had undressed her partially and had forced her to have sexual intercourse with him. 18. In her testimony, the applicant stated: “It was my first time and it hurt a lot. I felt sick and I wanted to throw up. I started crying.” 19. According to P.'s statements, he had had sex with the applicant in the car with her full consent. He had started kissing her, she had responded, and he had tried unsuccessfully to unbutton her jeans or loosen her belt, whereupon she had done so herself and had taken off her pants. 20. After P. had finished, he left the car and walked towards A. and V.A. In his submissions to the police, A. said that P. had told them that he had “shagged” the applicant. Shortly afterwards, the three men returned to the car and the group drove off. 21. In her submissions to the investigator, the applicant stated that she had later come to suspect that the three men had planned to have sex with her and had invented the pretext of swimming to drive to a deserted area. In particular, she did not remember A. and V.A. being wet when they had come back to the car, although they had insisted on going to the reservoir for a swim. 22. The applicant later testified that after the first rape she had been very disturbed and had cried most of the time. According to the version of events given by P. and A. when later questioned, the applicant had been in an excellent mood, had started caressing A., which had irritated P., and had asked to go to a bar or a restaurant. The group had gone to a restaurant, where the applicant had briefly talked with a Ms T., the singer performing there. Ms T. had been sitting at a table there with one Mr M. 23. Ms T., the singer, stated that on 1 August 1995 she had been in the restaurant with Mr M. Shortly after midnight the applicant, whom she knew vaguely, had approached her and asked whether her group would be performing in the next few days. Ms T. recalled having seen at that moment a man waiting at the door. Having heard the answer to her question, the applicant had left. Ms T. stated that the applicant had appeared cheerful and that there had been nothing unusual in her behaviour. 24. Mr M. was also questioned by the police. He stated that he knew the applicant very well and that he did not remember having seen her that night. 25. The applicant disputed the statements of P., A., V.A. and Ms T., maintaining that there had been no visit to a restaurant and that she did not know Ms T. The applicant and her mother later accused Ms T. of perjury (see paragraphs 66-68 below). 26. Instead of returning to K., at around 3 a.m. the group went to a neighbouring town, where V.A.'s relatives had a house. A., V.A. and the applicant got out of the car. P., who was the owner of the car, drove off. 27. The three men and a baker, Mr S., called by them as a witness, later maintained that in the meantime there had been a short stop at Mr S.'s bakery. Mr S. allegedly had the key to the house. Mr S., when interrogated, stated that at about 2 a.m. he had given the key to V.A. and had seen the applicant waiting in the car, apparently in a good mood. Loud music had been coming from the car. The applicant disputed that there had been any visit to a baker's shop and accused the baker of perjury. P., A. and V.A. submitted in their statements that they had decided to go to the house as the applicant had told them that she had quarrelled with her mother and did not want to go back home. 28. The applicant stated to the police that she had felt helpless and in need of protection. As A. was the brother of a classmate of hers, she had expected such protection from him and had followed him and V.A. into a room on the ground floor of the house. 29. There was one bed in the room and the applicant sat on it. The two men smoked and talked for a while. V.A. then left the room. 30. The applicant maintained that at that point A. had sat next to her, pushed her down onto the bed, undressed her and forced her to have sex with him. The applicant had not had the strength to resist violently. She had only begged the man to stop. She later related in her statement: “I started crying and asked him to stop ... He started caressing my breasts and sucking my neck ... At some point he took my jeans and my pants off with his feet. Then he spread my legs apart with his legs and forced his way into me ... [After he finished] I started crying and I continued crying until some time in the morning, when I fell asleep ... [V.A.] woke me up telling me that [A.] had gone to find a car to drive me back to K. I sat on the bed and started crying.” 31. A.'s position before the police was that he had had sex with the applicant with her full consent. 32. On the following morning at around 7 a.m., the applicant's mother found her daughter in the house of V.A.'s relatives. The applicant's mother stated that, having learned from neighbours that her daughter had been seen the previous evening with A., she had been on her way to A.'s house when she had met V.A. in the street. V.A. had allegedly tried to mislead the applicant's mother in an effort to gain time and warn A. However, she had insisted. 33. The applicant and her mother maintained in their submissions during the investigation that the applicant had told her mother right away that she had been raped. A. had also been there. He had told the applicant's mother that “a truck driver” had had sex with her daughter the previous night. 34. According to A.'s version of events, the applicant and her mother had quarrelled, the applicant allegedly refusing to go with her and telling her to go away. A neighbour, apparently named as a witness by A. or V.A., stated that he had heard the quarrel and, in particular, the refusal of the applicant to leave with her mother and her saying that nothing had happened to her. The applicant accused the witness of perjury. 35. The applicant and her mother went directly to the local hospital, where they were directed to see a forensic medical examiner. The applicant was examined at about 4 p.m. 36. The medical examiner found that the hymen had been freshly torn. He also noted grazing on the applicant's neck, measuring 35 mm by 4 mm, and four small oval-shaped bruises. As noted in the medical certificate, the applicant had reported only one rape, stating that it had occurred between 10.30 and 11 p.m. the previous day at the reservoir. 37. The applicant submitted that during the next few days she had refused to talk to her mother about the incident. She had given no details and had not mentioned the second rape at all. She explained that she lived in a conservative small-town environment where virginity was considered to be an asset for marriage. She felt ashamed of the fact that she had “failed to protect her virginity” and of “what people would say about it”. 38. On the first evening after the events, on 1 August 1995, P. visited the applicant's family. The applicant and her mother stated that that evening P. had begged for forgiveness and had claimed that he would marry the applicant when she came of age. The applicant's mother had considered that accepting the offer would be reasonable in the circumstances. This had influenced the initial behaviour of the applicant, who had accepted her mother's idea of minimising the damage. 39. On one of the following evenings, the applicant went out with P. and some of his friends. 40. P. and V.A., the latter claiming that he had been with P. during the visit to the applicant's house on the evening of 1 August 1995, stated that the applicant's mother had told them that “all pleasure must be paid for” and had tried to extort money from them. 41. P.'s grandmother also made a statement to the police. She asserted that on an unspecified date the applicant's mother had visited her, trying to extort money. 42. With regard to that visit and other relevant events, Mrs D., a neighbour and friend of the applicant's mother, stated that the applicant's mother had been very upset about the events and had agreed to her daughter going out with P. as he had maintained that he loved the applicant. The applicant's mother had nevertheless decided to talk to P.'s parents. On an unspecified date Mrs D. and another neighbour had approached the house of P.'s family, but his grandmother had told them to go away, stating that the applicant had slept not only with P. but also with A. At that moment A. had arrived. Mrs D. had asked him whether it was true that he had slept with the applicant. He had confirmed that it was true, adding that he had the money and power to do as he pleased. Until then, the applicant's mother had not known about the second rape. 43. The applicant submitted that a visit by A.'s father on 8 August 1995 had caused her to break down. She had then confided to her mother about the second rape. On 10 August 1995 the applicant's father returned home, after being absent for several days. The family discussed the matter and decided to file a complaint. The applicant's mother did so on 11 August 1995. 44. On 11 August 1995 the applicant made a written statement about the events of 31 July and 1 August. On the same day P. and A. were arrested and made written statements. They claimed that the applicant had had sexual intercourse with them of her own free will. The two men were released. Written statements were also made by V.A. and a person who lived next to the house where the second alleged rape had taken place. On 25 August 1995 a police officer drew up a report and forwarded the file to the competent prosecutor. 45. On 14 November 1995 the district prosecutor opened a criminal investigation into the alleged rape and referred the case to an investigator. No charges were brought. 46. No action was taken on the case between November 1995 and November 1996. 47. On 24 August 1995 P. and A. filed complaints with the district prosecutor's office, stating that the applicant and her mother had been harassing them by making false public accusations. 48. On the basis of these complaints, on 28 August 1995, the district prosecutor ordered a police inquiry. In September and October 1995 several persons were heard and made written statements. 49. On 25 October 1995 a police officer drew up a report apparently accrediting the allegations of P. and A. and disbelieving the version of the facts as submitted by the applicant and her mother. 50. On 27 October 1995 the file was transmitted to the district prosecutor's office with jurisdiction to decide whether or not to institute criminal proceedings against the applicant and her mother. It appears that the matter was left hanging and no decision was taken. 51. Between 2 November and 9 December 1996 the investigator questioned the applicant, her mother and other witnesses. P. and A. were heard as witnesses. 52. The applicant gave a detailed account of the facts, repeating that P. had overcome her resistance by pressing her against the car seat and twisting her hands, and that thereafter she had been in a state of shock and unable to resist A. 53. In his evidence, P. claimed that the applicant had actively responded to his advances. He also asserted that the applicant had spoken with Mr M. at the restaurant they had allegedly gone to after having sex. 54. Both A. and P. stated, inter alia, that shortly after having sex with P. at the reservoir, the applicant had started caressing A. in the car. 55. On 18 December 1996 the investigator completed his work on the case. He drew up a report stating that there was no evidence that P. and A. had used threats or violence, and proposed that the prosecutor close the case. 56. On 7 January 1997 the district prosecutor ordered an additional investigation. The order stated that the initial investigation had not been objective, thorough or complete. 57. On 16 January 1997 the investigator to whom the case had been referred appointed a psychiatrist and a psychologist to answer several questions. The experts were asked, inter alia, whether it was likely that the applicant would have spoken calmly with Ms T., the singer at the restaurant, and then listened to music in the car, if she had just been raped and whether it was likely that several days after the alleged rape the applicant would have gone out with the person who had raped her. 58. The experts considered that, owing to her naivety and inexperience, the applicant had apparently not considered the possibility that she might be sexually assaulted. There was no indication that she had been threatened or hurt, or that she had been in a state of shock during the events, as she had demonstrated a clear recollection of them. The experts considered that during the events she must have been suddenly overwhelmed by an internal conflict between a natural sexual interest and a sense that the act was reprehensible, which had “reduced her ability to resist and defend herself”. They further found that the applicant was psychologically sound and that she had understood the meaning of the events. In view of her age at the time, however, she “could not assert a stable set of convictions”. 59. The experts also found that, if there had indeed been a meeting between Ms T. and the applicant after the events at the reservoir – and this was disputed – it was still possible that the applicant could have had a short exchange with Ms T. after being raped. As to the applicant going out with P. several days after the events, this could be easily explained by her family's desire to lend a socially acceptable meaning to the incident. 60. On 28 February 1997 the investigator concluded his work on the case and drew up a report, again proposing that the case should be closed. He considered that the experts' opinion did not affect his earlier finding that there was no evidence demonstrating the use of force or threats. 61. On 17 March 1997 the district prosecutor ordered the closure of the criminal investigation. He found, inter alia, that the use of force or threats had not been established beyond reasonable doubt. In particular, no resistance on the applicant's part or attempts to seek help from others had been established. 62. The applicant lodged consecutive appeals with the regional prosecutor's office and the Chief Public Prosecutor's Office. The appeals were dismissed in decisions of 13 May and 24 June 1997 respectively. 63. The prosecutors relied, inter alia, on the statements of the alleged perpetrators and V.A. that the applicant had not shown any signs of distress after having sex with P. at the reservoir, and the evidence of the three men and Ms T. that the latter had met the applicant and had spoken with her that night. As regards the applicant's objections that those statements should be rejected as being untrue, the decision of 13 May 1997 stated that “prosecutors' decisions cannot be based on suppositions, and witnesses' statements cannot be rejected only on the basis of doubts, without other evidence ...”. 64. The decision of 13 May 1997 also stated: “It is true that, as can be seen from the report of the forensic psychiatric experts, the young age of the applicant and her lack of experience in life meant that she was unable to assert a stable set of convictions, namely to demonstrate firmly her unwillingness to engage in sexual contact. There can be no criminal act under Article 152 §§ 1 (2) and 3 of the Criminal Code, however, unless the applicant was coerced into having sexual intercourse by means of physical force or threats. This presupposes resistance, but there is no evidence of resistance in this particular case. P. and A. could be held criminally responsible only if they understood that they were having sexual intercourse without the applicant's consent and if they used force or made threats precisely with the aim of having sexual intercourse against the applicant's will. There is insufficient evidence to establish that the applicant demonstrated unwillingness to have sexual intercourse and that P. and A. used threats or force.” It was further noted that the applicant had explained that the bruises on her neck had been caused by sucking. 65. The decision of 24 June 1997 reiterated those findings, while noting that the statements of Ms T., the singer at the restaurant, were not decisive. It also stated: “What is decisive in the present case is that it has not been established beyond reasonable doubt that physical or psychological force was used against the applicant and that sexual intercourse took place against her will and despite her resistance. There are no traces of physical force such as bruises, torn clothing, etc. ... It is true that it is unusual for a girl who is under age and a virgin to have sexual intercourse twice within a short space of time with two different people, but this fact alone is not sufficient to establish that a criminal act took place, in the absence of other evidence and in view of the impossibility of collecting further evidence.” 66. In June or July 1997 the applicant and her mother requested the institution of criminal proceedings against Ms T. and other witnesses, including V.A., alleging that they had committed perjury in that their statements in connection with the investigation into the rape of the applicant had been false. 67. On 14 July 1997 the same prosecutor from the district prosecutor's office who had ordered the closure of the rape investigation refused the request, stating that it was unfounded and even abusive, as all the facts had been clarified in previous proceedings. 68. An ensuing appeal by the applicant was dismissed on 6 February 1998 by the regional prosecutor's office. 69. In June 2001 the applicant submitted a written opinion by two Bulgarian experts, Dr Svetlozar Vasilev, a psychiatrist, and Mr Valeri Ivanov, a psychologist, who had been asked by the applicant's lawyer to comment on the case. 70. The experts stated, with reference to scientific publications in several countries, that two patterns of response by rape victims to their attacker were known: violent physical resistance and “frozen fright” (also known as “traumatic psychological infantilism syndrome”). The latter was explained by the fact that any experience-based model of behaviour was inadequate when the victim was faced with the inevitability of rape. As a result the victim, terrorised, often adopted a passive-response model of submission, characteristic of childhood, or sought a psychological dissociation from the event, as if it were not happening to her. 71. The experts stated that all the scientific publications they had studied indicated that the “frozen-fright pattern” prevailed. Further, they had conducted their own research for the purposes of their written opinion in the present case. They had analysed all the cases of young women aged 14 to 20 who had contacted two specialised treatment programmes for victims of violence in Bulgaria during the period from 1996 to 2001, declaring that they had been raped. Cases that were too different from that of the applicant had been excluded. As a result, twenty-five cases had been identified, in twenty-four of which the victim had not resisted violently, but had reacted with passive submission. 72. By Article 151 § 1 of the Criminal Code, sexual intercourse with a person under 14 years of age is a punishable offence (statutory rape). Consent is not a valid defence in such cases. 73. Consent is likewise irrelevant where the victim is more than 14 years old, but did not “understand the essence and meaning of the occurrence” (Article 151 § 2 of the Code). That provision has been applied in cases where the victim did not grasp the meaning of the events owing to a mental disorder (see judgment no. 568 of 18 August 1973, case no. 540/73, Supreme Court-I). 74. Article 152 § 1 of the Criminal Code defines rape as: “sexual intercourse with a woman (1) incapable of defending herself, where she did not consent; (2) who was compelled by the use of force or threats; (3) who was brought to a state of helplessness by the perpetrator.” 75. Although lack of consent is mentioned explicitly only in the first sub-paragraph, the Supreme Court has held that it is an element inherent in the whole provision (see judgment no. 568, cited above). 76. According to judicial practice, the three sub-paragraphs of Article 152 § 1 can only be applied alternatively, each of them referring to a separate factual situation. The Supreme Court has held that general references to two or all of the sub-paragraphs are not acceptable (see judgment no. 247 of 24 April 1974, case no. 201/74, Supreme Court-I; judgment no. 59 of 19 May 1992, case no. 288/90, Supreme Court-I; and many others). 77. Therefore, an accused person may be found guilty of rape only if it has been established that he had sexual intercourse with a woman in circumstances covered by one of the three sub-paragraphs. 78. The first and third sub-paragraphs concern particular factual situations where the victim was in a state of helplessness at the time of sexual intercourse. The third sub-paragraph refers to cases where the perpetrator put the victim in a state of helplessness before raping her, whereas the first sub-paragraph refers to cases where he took advantage of the victim's existing state of helplessness. 79. The courts have stated that a victim is in a state of helplessness (“incapable of defending herself” or “brought to a state of helplessness”) only in circumstances where she has no capacity to resist physically owing to disability, old age or illness (see judgment no. 484 of 29 July 1983, case no. 490/83, and judgment no. 568, cited above) or because of the use of alcohol, medicines or drugs (see judgment no. 126 of 11 April 1977, case no. 69/77, Supreme Court-II). 80. The second sub-paragraph is the provision applicable in all other cases of alleged rape. Thus, where no special circumstances such as the state of helplessness of the victim are reported, an investigation into an alleged rape will concentrate on establishing whether or not the victim was coerced into having sexual intercourse by the use of force or threats. 81. It is an established view in the case-law and legal theory that rape under the second sub-paragraph of Article 152 § 1 of the Criminal Code is a “twostep” offence – that is to say, the perpetrator first starts employing force or threats and then penetrates the victim. 82. The parties in the present case offered their views on the meaning of the words “use of force and threats” and their interpretation in practice (see paragraphs 113, 122 and 123 below). 83. The Supreme Court has stated that lack of consent is to be deduced from the fact that a situation covered by one of the three sub-paragraphs of Article 152 § 1 has been established, either from the victim's state of helplessness or from the fact that physical or psychological force has been used (see judgment no. 568, cited above). 84. In one case, the Supreme Court stated that “force” was not only to be understood as direct violence, but could also consist of placing the victim in a situation such that she could see no other solution than to submit against her will (see judgment no. 520 of 19 July 1973, case no. 414/73). In that particular case, the perpetrator, after demonstrating his desire for close relations with the victim by his behaviour over a period of two or three days (following her and trying to hold her and kiss her), entered her room, locked the door and asked her to undress. She refused, whereupon he tried to spread her legs apart. Realising that she had no other choice, the victim opened the window and jumped, sustaining serious injury. The perpetrator was convicted of attempted rape resulting in serious injury. 85. Legal commentators have not commented in detail on situations where coercion through force or threats may be considered to have been established, apparently taking the view that this was a matter for judicial interpretation (Al. Stoynov, Наказателно право, Особена част, 1997; A. Girginov, Наказателно право, Особена част, 2002). One commentator has stated that the essential characteristic of rape is the victim's lack of consent and that the three sub-paragraphs of Article 152 § 1 of the Criminal Code embody different situations of lack of consent. He further notes that in previous centuries the utmost resistance by the victim was required and that that view is now outdated. Without reference to caselaw, he considers that what is now required is nothing more than the resistance necessary to eliminate any doubt as to the victim's lack of consent (N. Antov, Проблеми на изнасилването, 2003). 86. Under Article 152 § 1 of the Criminal Code, rape committed by a man against a woman is punishable by two to eight years' imprisonment. At the material time, Article 157 § 1 of the Code provided for one to five years' imprisonment in cases of forced sexual intercourse with a person of the same sex. In 2002 the punishment prescribed under the latter provision was brought into line with that applicable in cases of rape under Article 152 § 1, and is now two to eight years' imprisonment. 87. At the material time, the age of consent in respect of sexual intercourse with a person of the same sex was 16 years (Article 157 § 2 of the Code). In 2002 it was lowered to 14 years. 88. In the legal systems of a number of European States, rape and sexual assault are “gender-neutral” offences, whereas in other countries rape may only be committed by a man against a woman. 89. The minimum age of consent for sexual activity in most States is 14, 15 or 16 years. In some countries, there is a different age of consent for sexual acts without penetration and for sexual acts with penetration, or different penalties depending on the age of the victim. The approaches vary significantly from one country to another. 90. Article 375 §§ 1 and 2 of the Belgian Criminal Code (referred to by Interights), as amended in 1989, read: “Any act of sexual penetration, of whatever nature and by whatever means, committed on a person who does not consent to it shall constitute the crime of rape. In particular, there is no consent where the act is forced by means of violence, coercion or ruse or was made possible by the victim's disability or physical or mental deficiency.” 91. Article 241 § 1 of the Czech Criminal Code (Law no. 140/1961, as amended) provides: “A person who coerces another into an act of sexual penetration or a similar sexual act through violence or the threat of imminent violence or by taking advantage of the person's helplessness shall be liable to imprisonment for a term of two to eight years.” 92. Sections 216(1) and 217 of the Danish Penal Code (referred to by the intervener) provide: “Any person who coerces [another into having] sexual intercourse by violence or under threat of violence shall be guilty of rape and liable to imprisonment for a term not exceeding eight years. The placing of a person in such a position that the person is unable to resist shall be equivalent to violence ...” “Any person who by means of unlawful coercion (according to section 260 of this Act) other than violence or the threat of violence procures sexual intercourse for himself, shall be liable to imprisonment for a term not exceeding four years.” 93. Chapter 20, sections 1 and 3, of the Finnish Penal Code (as amended in 1998) provides: “Section 1: Rape (1) A person who coerces another into having sexual intercourse by the use or threat of violence shall be sentenced for rape to imprisonment for at least one year and at most six years. (2) A person shall also be guilty of rape if he/she takes advantage of the incapacity of another to defend himself/herself and has sexual intercourse with him/her, after rendering him/her unconscious or causing him/her to be in a state of incapacity owing to fear or another similar reason ... Section 3: Coercion into having sexual intercourse (1) If the rape, in view of the low level of violence or threat and the other particulars of the offence, is deemed to have been committed under mitigating circumstances, the offender shall be sentenced for coercion into having sexual intercourse to imprisonment for at most three years. (2) A person who coerces another into having sexual intercourse by a threat other than that referred to in section 1(1) shall be guilty of coercion into having sexual intercourse.” 94. Articles 222-22, 222-23 and 227-25 of the French Criminal Code provide: “Sexual aggression is any sexual assault committed by violence, coercion, threats or surprise.” “Any act of sexual penetration, whatever its nature, committed against another person by violence, coercion, threats or surprise, shall be considered rape. Rape shall be punishable by fifteen years' imprisonment.” “A sexual offence committed without violence, coercion, threats or surprise by an adult on the person of a minor under 15 years of age shall be punished by five years' imprisonment and a fine of 75,000 euros.” 95. The following information about French case-law on rape may be gathered from the authoritative publication Juris-Classeur (2002): (i) The words “violence, coercion, threats or surprise” are given a broad meaning in practice. For example, in one case it was stated that the fact that the victim was begging the perpetrator to stop, without further resistance, where she had previously agreed to enter his car and to be kissed by him, was sufficient to establish that there was rape (judgment of the Court of Cassation, Criminal Division (“Cass. crim.”), 10 July 1973, Bulletin Criminel (“Bull. crim.”) no. 322; Revue de Science Criminelle, 1974, p. 594, observations of Levasseur; see also, for an opposing view, Crim., 11 October 1978, Dalloz 1979. IR, 120). The victim's refusal may be inferred from the circumstances, such as paralysing shock, as a result of which the victim could not protest or escape (Cass. crim., 13 March 1984, Bull. crim. no. 107). (ii) There is “surprise” where the victim cannot freely consent because, for example, she is physically or mentally disabled (Cass. crim., 8 June 1984, Bull. crim. no. 226), in a particular psychological state, involving depression, fragility, or simply distress (Cass. crim., 12 November 1997, Juris-Data no. 2000-005087; Paris Court of Appeal, 30 March 2000, Juris-Data no. 2000-117239), or where the perpetrator used trickery to deceive the victim as to the real situation (Cass. crim., 14 April 1995, Juris-Data no. 1995-002034). (iii) The courts have considered that there is always “surprise”, and therefore rape, where the victim is of such a low age as not to understand the concept of sexuality and the nature of the acts being imposed (Cass. crim., 11 June 1992, Bull. crim. no. 228; Limoges Court of Appeal, 5 April 1995, Juris-Data no. 1995-042693; Paris Court of Appeal, 14 November 2000, Juris-Data no. 2000-134658). In some other cases, however, it has been stated that in principle the age of the victim cannot as such, without additional elements, establish the existence of “surprise” (Cass. crim., 1 March 1995, Bull. crim. no. 92). 96. The relevant part of Article 177 (Sexual coercion; Rape) of the German Criminal Code reads: “1. Anyone who coerces another person (1) by force, (2) by the threat of immediate danger to life or limb, or (3) by exploiting a situation in which the victim is defenceless and at the mercy of the actions of the perpetrator into submitting to sexual acts performed by the perpetrator or by a third person or into performing such acts on the perpetrator or on the third person, shall be punished by imprisonment for not less than one year.” 97. Article 197 § 1 of the Hungarian Criminal Code (Law no. 4 of 1978) provides: “A person who by violent action or a direct threat to life or limb forces a person to have sexual intercourse, or uses a person's incapacity to defend himself/herself or to express his/her will to have sexual intercourse shall be guilty of a serious offence punishable by imprisonment for two to eight years.” 98. In Ireland, section 2(1) of the Criminal Law (Rape) Act 1981 and section 9 of the Criminal Law (Rape) (Amendment) Act 1990 (referred to by the intervener) provide: “A man commits rape if (a) he has sexual intercourse with a woman who at the time of intercourse does not consent and (b) at the time he knows she does not consent or is reckless as to whether or not she is consenting.” “It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of the person, any failure or omission by that person to offer resistance to the act does not of itself constitute consent to that act.” 99. Article 180 § 1 of the Slovenian Criminal Code reads: “Anyone who compels a person of the same or the opposite sex to submit to sexual intercourse by force or the threat of imminent attack on life and limb shall be sentenced to imprisonment from one to ten years.” 100. In the United Kingdom, section 1(1) of the Sexual Offences (Amendment) Act 1976 (referred to by the intervener) provides: “[A] man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of intercourse does not consent to it; and (b) at that time he knows that she does not consent to the intercourse or is reckless as to whether she consents to it.” 101. The Committee of Ministers recommends that member States adopt and implement, in the manner most appropriate to each country's national circumstances, a series of measures to combat violence against women. Paragraph 35 of the appendix to the recommendation states that, in the field of criminal law, member States should, inter alia: “– penalise any sexual act committed against non-consenting persons, even if they do not show signs of resistance; ... – penalise any abuse of the position of a perpetrator, and in particular of an adult visà-vis a child.” 102. In Prosecutor v. Anto Furundžija (case no. IT-95-17/1-T, judgment of 10 December 1998), in the context of the question whether or not forced oral sexual penetration may be characterised as rape under international law, the Trial Chamber made the following relevant remarks about rape under international criminal law: “The Trial Chamber notes the unchallenged submission ... that rape is a forcible act: this means that the act is 'accomplished by force or threats of force against the victim or a third person, such threats being express or implied and must place the victim in reasonable fear that he, she or a third person will be subjected to violence, detention, duress or psychological oppression'. ... ... all jurisdictions surveyed by the Trial Chamber require an element of force, coercion, threat, or acting without the consent of the victim: force is given a broad interpretation and includes rendering the victim helpless.” 103. The Trial Chamber defined rape as: “sexual penetration ... by coercion or force or threat of force against the victim or a third person.” 104. Noting that the terms “coercion”, “force”, or “threat of force” from the Furundžija definition were not intended to be interpreted narrowly, the Trial Chamber in another case (Prosecutor v. Kunarac, Kovač and Vuković, case no. IT-96-23, judgment of 22 February 2001) observed: “In stating that the relevant act of sexual penetration will constitute rape only if accompanied by coercion or force or threat of force against the victim or a third person, the Furundžija definition does not refer to other factors which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim, which ... as discussed below, is in the opinion of this Trial Chamber the accurate scope of this aspect of the definition in international law. ... the basic underlying principle common to [the national legal systems surveyed is] that sexual penetration will constitute rape if it is not truly voluntary or consensual on the part of the victim ... [F]orce, threat of force or coercion ... are certainly the relevant considerations in many legal systems but the full range of [the relevant] provisions ... suggest that the true common denominator which unifies the various systems may be a wider or more basic principle of penalising violations of sexual autonomy. ” 105. In Kunarac, Kovač and Vuković, a Muslim girl in an occupied area was taken by armed soldiers to a building which served as military headquarters. After being raped by two soldiers there, she was brought to a room where she herself initiated sexual contact with the accused Mr Kunarac, the commanding officer. The Trial Chamber noted that the victim had been told by soldiers that she should satisfy their commander sexually or risk her life. The victim therefore “did not freely consent to any sexual intercourse with Kunarac [as she] was in captivity and in fear for her life”. The Trial Chamber also rejected Kunarac's defence that he was not aware of the fact that the victim had only initiated sexual intercourse with him because she feared for her life. The Chamber found that, even if Kunarac had not heard the threats made by other soldiers, he could not have been “confused” by the behaviour of the victim, given the general context of the existing war-time situation and the specifically delicate situation of the Muslim girls in the region. 106. In the context of the above facts, the Trial Chamber made the following observations on the elements of rape under international law: “The basic principle which is truly common to [the reviewed] legal systems is that serious violations of sexual autonomy are to be penalised. Sexual autonomy is violated wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary participant. In practice, the absence of genuine and freely given consent or voluntary participation may be evidenced by the presence of the various factors specified in other jurisdictions – such as force, threats of force, or taking advantage of a person who is unable to resist. A clear demonstration that such factors negate true consent is found in those jurisdictions where absence of consent is an element of rape and consent is explicitly defined not to exist where factors such as use of force, the unconsciousness or inability to resist of the victim, or misrepresentation by the perpetrator [are present]. ... coercion, force, or threat of force [are] not to be interpreted narrowly ... coercion in particular would encompass most conduct which negates consent ... In light of the above considerations, the Trial Chamber understands that the actus reus of the crime of rape in international law is constituted by ... sexual penetration ... where [it] occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.” 107. In the same case, on an appeal by the perpetrators based on the argument, inter alia, that there was no rape without force or threat of force and the victim's “continuous” or “genuine” resistance, the Appeals Chamber, in its judgment of 12 June 2002, stated: “The Appellants' bald assertion that nothing short of continuous resistance provides adequate notice to the perpetrator that his attentions are unwanted is wrong on the law and absurd on the facts. Secondly, with regard to the role of force in the definition of rape, the Appeals Chamber notes that the Trial Chamber appeared to depart from the Tribunal's prior definitions of rape. However, in explaining its focus on the absence of consent as the conditio sine qua non of rape, the Trial Chamber did not disavow the Tribunal's earlier jurisprudence, but instead sought to explain the relationship between force and consent. Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape. In particular, the Trial Chamber wished to explain that there are “factors [other than force] which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim”. A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force ... For the most part, the Appellants in this case were convicted of raping women held in de facto military headquarters, detention centres and apartments maintained as soldiers' residences. As the most egregious aspect of the conditions, the victims were considered the legitimate sexual prey of their captors. Typically, the women were raped by more than one perpetrator and with a regularity that is nearly inconceivable. (Those who initially sought help or resisted were treated to an extra level of brutality). Such detentions amount to circumstances that were so coercive as to negate any possibility of consent.” 108. In its General Recommendation 19 of 29 January 1992 on violence against women, the Committee made the following recommendation in paragraph 24: “(a) States parties should take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act; (b) States parties should ensure that laws against ... abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity. ...”

dev

001-98355

ENG

SRB

CHAMBER

CASE OF KIN-STIB AND MAJKIC v. SERBIA

Preliminary objections dismissed (ratione personae, non-exhaustion of domestic remedies);Remainder inadmissible;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 12 October 1989 the first applicant concluded a joint venture agreement with the “Hotel Intercontinental Belgrade”, concerning the setting-up and joint operation of a casino on its premises. 8. At that time, the said hotel was owned by “Generalexport” (hereinafter “Genex”), a major “socially-owned company” (see paragraph 70 below) with an annual turnover in excess of seven billion US Dollars (“USD”). 9. Article 12 of the joint venture agreement provided that the first applicant was entitled to collect 80% of any earnings made as part of the joint operation of the casino in question, whilst Genex had the right to collect the remaining 20% thereof. Article 19 of the agreement, however, stated that Genex would, in any event, be entitled as guaranteed minimum earnings to a payment of no less than USD 500.000 annually by the first applicant. 10. The casino opened in October 1990. By 1993, however, it closed due to various financial difficulties, and a number of disputes between the parties followed. 11. In 1995 the first applicant brought proceedings against Genex before the Foreign Trade Arbitration Court of the Yugoslav Chamber of Commerce (hereinafter the “Arbitration Court”), seeking repossession of the casino as well as compensation for breach of contract. 12. On 10 April 1996 the Arbitration Court, having resolved issues regarding the first applicant's status, ruled partly in its favour. Specifically, Genex was ordered to: (a) pay compensation in the amount of USD 1,999, 992, plus 6 % interest, on account of the first applicant's inability to operate the casino in question between 1 April 1995 and 31 March 1996; (b) allow the first applicant to retake possession thereof; and (c) effectively manage its operation for five years after reopening it. The sum of USD 1,999,992, i.e. USD 166,666 monthly, was arrived at by multiplying Genex's minimum annual earnings on the basis of the agreed ratio (see paragraph 9 above). 13. On 7 June 1996 the Commercial Court in Belgrade ordered the enforcement of the arbitration award of 10 April 1996, in its entirety. 14. Following several suspensions and adjournments, on 15 October 1997 the National Bank of Yugoslavia informed the Commercial Court that USD 1,672,437.06 had been transferred to the first applicant's bank account. 15. On 4 May 1998 the Commercial Court ordered the payment of the remaining USD 618,542.23, together with the interest accrued. 16. By 6 May 1998 the debtors, Generalexport and International CG as two successor companies of the original Genex company, appear to have fully complied with this order. 17. On 22 March 2004 the first applicant requested repossession of the casino and sought to be allowed to effectively manage it for a period of five years after reopening it. 18. Following three oral hearings, on 28 May 2004 the Commercial Court accepted this request and ordered the debtors to comply therewith. 19. On 30 November 2004 the Constitutional Court of the Republic of Serbia dismissed the applicants' motion to order the full and effective enforcement of the arbitration award, stating that it did not have the competence, ratione materiae, to consider complaints alleging individual human rights violations. 20. On 3 December 2004 the Commercial Court fined the debtors for their failure to comply with the repossession order and mandated repossession within an additional period of thirty days. Initially, the fine imposed was 45,000 Dinars (“RSD”) per debtor (approximately USD 770), but on 7 December 2004 this amount was reduced to RSD 20,000 each (approximately USD 340). 21. In 2005 the applicants filed a complaint with the Court of Serbia and Montenegro. 22. Between 25 May 2005 and 24 October 2006 the Commercial Court fined the debtors for their failure to comply with the repossession order on eight separate occasions. The fines imposed totalled RSD 320,000 (approximately USD 4,770). 23. On 24 October 2006 the Commercial Court terminated the enforcement by means of imposing fines, noting that the maximum statutory amount had been reached in accordance with the Enforcement Procedure Act. 24. On 4 December 2006 this decision was confirmed. 25. On 30 July 2007 the Commercial Court rejected the first applicant's subsequent request for it to impose additional fines on the debtors. 26. On 29 November 2007 this decision was confirmed. 27. On 10 March 2008 the Commercial Court noted that on 9 August 2007 the Privatisation Agency had ordered the restructuring of the debtors and stayed the enforcement proceedings until the conclusion of this process. 28. In 1996 Genex instituted civil proceedings before the Commercial Court in Belgrade, seeking annulment of the arbitration award. Once again, it raised issues regarding the first applicant's status. 29. On 23 June 1997 the Commercial Court rejected this claim, as did the High Commercial Court on 25 May 1997 and, ultimately, the Supreme Court of Serbia on 24 December 1997, at third and final instance. 30. On 5 February 2002 Generalexport and International CG filed a request for the reopening of the annulment proceedings. 31. Following two remittals, on 4 October 2006 the Commercial Court rejected this request. In so doing, inter alia, it noted that the issues raised by the plaintiffs had already been considered, in one form or another, within the impugned annulment suit. 32. On 21 November 2007 the High Commercial Court confirmed this decision on appeal. 33. Following prior remittals, on 27 June 2001 the Commercial Court ruled partly in favour of the first applicant. Generalexport and International CG were thus ordered to pay a total of USD 4,333,333.16, plus interest, on account of the first applicant's inability to operate the casino between 1 April 1996 and 31 May 1998. 34. On 6 September 2001 the High Commercial Court upheld this judgment, and it thereby became enforceable. 35. On 30 January 2002 the Supreme Court reduced the amount awarded to USD 1,083,332, plus interest. It estimated the lost earnings only on the basis of the respondent's minimum annual profit, as stipulated in the joint venture agreement (see paragraph 9 above). 36. In the meantime, on 24 September 2001, the first applicant sought enforcement of the judgment rendered on 27 June 2001, by means of a bank account transfer. 37. On the same day the Commercial Court issued an enforcement order. 38. On 14 February 2002 the Commercial Court terminated the enforcement proceedings. In so doing, it noted that, notwithstanding the fact that the Supreme Court had subsequently reduced the compensation awarded to USD 1,083,332, plus interest, approximately USD 700,000 in excess of this amount had already been transferred to the first applicant's bank account. 39. Following prior remittals, on 3 March 2005, and as rectified on 8 September 2005, the Commercial Court ruled partly in favour of the first applicant. It thus ordered Generalexport and International CG to pay a total of USD 1,426,666.60, plus interest, on account of the first applicant's inability to operate the casino between 1 June 1998 and 1 April 2001. This time, the Commercial Court also estimated the lost earnings on the basis of Genex's minimum annual profit only, as stipulated in the joint venture agreement. 40. On 21 February 2006 the High Commercial Court upheld this judgment, and it thereby became enforceable. 41. On 27 June 2007 the Supreme Court rejected the appeals on points of law (revizije) filed by the parties. 42. In the meantime, on 24 March 2006, the first applicant sought enforcement of the judgment rendered on 3 March 2005 by means of a bank account transfer. 43. On 27 March 2006 the Commercial Court issued an enforcement order. 44. The enforcement proceedings would appear to be still pending. 45. In January 2002 the Second Public Prosecutor's Office in Belgrade charged the second applicant with forgery. In particular, it was alleged that he had made fraudulent statements regarding the first applicant's status under Congolese law, and had forged several powers of attorney in order to get involved in the above proceedings. 46. On 17 January 2002 the second applicant was placed in pre-trial detention but by 22 February 2002 he was released. 47. On 9 July 2004 the Second Municipal Court in Belgrade terminated the criminal proceedings against the second applicant. It stated that the first applicant was indeed a registered entity under Congolese law, that the impugned powers of attorney were authentic, and that there was no evidence whatsoever indicating that the second applicant had committed a crime. 48. Additional criminal proceedings, concerning related “fraud and forgery issues”, were terminated on similar grounds by the District Court in Belgrade on 7 November 2003. 49. On an unspecified date the Hotel Intercontinental was renamed the Hotel Continental. 50. On 8 November 1994 the second applicant bought from G.J., at that time the first applicant's sole owner, “a part of the first applicant” consisting of all of its rights and pecuniary interests derived from the joint venture agreement of 12 October 1989. The second applicant thus became “the owner of this part of the company”, as well as the first applicant's “Director and President” in all matters related to Generalexport. 51. On 6 April 2002 the High Court in Kinshasa confirmed that, as of 19 May 1996, the second applicant held 25% of the first applicant's shares and was its Deputy General Manager. 52. The first applicant's Articles of Association, as certified in December 2002, reaffirmed the above and noted that the second applicant was indeed the first applicant's sole representative in respect of all matters concerning the joint venture in question. 53. On 21 December 2005 the Ministry of Finance issued a statement informing the public that an exclusive gambling licence had been granted to a company called Grand Casino. The licence had been issued for a period of ten years in respect of a casino to be located in Belgrade. 54. On 27 August 2007 the first applicant informed the Privatisation Agency about its outstanding claim in respect of Generalexport and International CG. 55. On 24 March 2008 the first applicant sent another warning letter to the Privatisation Agency. 56. On 29 April 2008, however, International CG, following a public competition organised by the Privatisation Agency, sold some of its real estate to NBGP Properties. One of the buildings sold was the Hotel Continental. Article 8.1.2 of the sales contract provided, inter alia, that the buyer shall not, within a period of seven years, be entitled to mortgage or otherwise burden the hotel, unless it obtains prior written authorisation to this effect from the Privatisation Agency. 57. Despite the restructuring and sale of some of their assets, Generalexport and International CG are themselves still socially-owned companies. 58. Article 4 § 1 provides that enforcement proceedings are urgent. 59. Articles 16 and 17 § 1 explicitly recognise arbitration awards as valid legal bases for the formal institution of enforcement proceedings. 60. Article 23 states that enforcement proceedings shall also be carried out at the request of a claimant not specifically named as the creditor in the final court decision, providing the former can prove, by means of an “official or another legally certified document”, that the entitlement in question has subsequently been transferred to it from the original creditor. This provision shall, mutatis mutandis, also be applied in respect of a debtor who has not been specifically named as such in the final court decision at issue. 61. Articles 202-207 regulate enforcement in situations where a debtor's compliance is required: in particular, where a debtor has been ordered to perform a certain action, desist therefrom or accede thereto. The system provides for the successive imposition of fines up to a certain maximum which, if the debtor happens to be a natural person and the fines cannot be enforced, may ultimately be converted into a number of prison days. 62. The substance of Article 37 of this Act corresponds, in the relevant part, to that of Article 23 of the Enforcement Proceedings Act 2000 referred to above. 63. The Enforcement Procedure Act 2004 entered into force on 23 February 2005, thereby repealing the Enforcement Procedure Act 2000. In accordance with Article 304, however, all enforcement proceedings instituted prior to 23 February 2005 are to be concluded pursuant to the 2000 legislation. 64. Pursuant to Article 483 § 1, an arbitration award has the force of a final judgment in respect of the parties to the proceedings, unless the arbitration agreement itself provides for an appeal to a higher instance. 65. Articles 484, 485 and 486 set out the deadlines and the specific grounds for the annulment of an arbitration award, which can only be sought through the institution of a separate civil suit before a “regular” court of law. 66. Article 64 § 1 provides that a domestic arbitration award shall have the force of a final domestic judgment and shall be enforceable. 67. This Act entered into force in June 2006 and thereby repealed the above-cited provisions of the Civil Procedure Act. 68. Articles 19-20e set out the details as regards the restructuring of companies about to be privatised. This restructuring, however, is optional and a company may be sold without having been restructured if the Privatisation Agency so decides. 69. Article 20ž provides, inter alia, that all enforcement proceedings instituted in respect of companies undergoing restructuring shall be stayed until the conclusion of this process. 70. The relevant provisions of this legislation are set out in the R. Kačapor and Others v. Serbia judgment (nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, §§ 68-76, 15 January 2008).

dev

001-4916

ENG

ITA

ADMISSIBILITY

CANEPA v. ITALY

Inadmissible

Christos Rozakis

The applicant is an Italian national, born in 1951 and currently residing in Chiavari (Genoa). In 1978 the applicant married Mrs G. Two children, X and Y, were born in wedlock in 1983 and 1988. In December 1993 the applicant left the marital house and started living with a certain Mrs M. The applicant alleges that, since then, he made substantial efforts to maintain regular contacts with X and Y. However, he had to face “the aggressive behaviour of his wife”, who allegedly tried to “destroy [his] reputation and his relationship with his own children.” The first claim before the Genoa Youth Court On 18 March 1994 the applicant requested the Genoa Youth Court (“tribunale dei minorenni”) to grant him the care and custody over his children. He observed that from 31 December 1993 he was de facto separated from his wife and that the latter had a negative influence on X and Y. In an order of 19 April 1994, the Genoa Youth Court provisionally granted Mrs G. the custody of the children. The court also decided that the applicant should have access to X and Y one day per week and one week-end every fortnight. The judicial separation proceedings and the proceedings before the Genoa Youth Court On 30 May 1994 Mrs G. filed a claim for judicial separation with the Genoa District Court. In an order of 3 February 1995, the President of the District Court confirmed the committal to Mrs G. of the children's care and custody and the applicant's right of access. He ordered, however, that X and Y should not stay overnight at the applicant's place when Mrs M. was present. On 26 May 1995 the applicant and Mrs M. had a daughter, Z. On 13 June 1995 the Genoa investigating judge appointed an expert, the psychologist and psychotherapist L., and charged him to analyse the relationship between X, Y and their parents and the behaviour of the applicant and Mrs G. with regard to their children. On 14 September 1995 L. informed the investigating judge that the applicant had refused to consign Y to his mother's care. In an order of 19 September 1995, the investigating judge decided to suspend the applicant's access to X and Y. This decision was adopted pursuant Article 333 of the Civil Code, according to which where the conduct of the parents is detrimental to the child, the judicial authorities may take any decision that is appropriate. Such decisions may be revoked at any stage of the proceedings. On 30 September 1995 a bailiff tried to apprehend Y at the applicant's place. However, notwithstanding the assistance of two carabinieri, this attempt failed since the child refused to join his mother. On 2 October 1995 the applicant presented to the investigating judge a report prepared by an expert of his own choosing. The report indicated that Y had shown a spontaneous desire to live with his father and that frustrating his will would have been detrimental for the child's psychological stability. On 3 October 1995 L. filed his final report with the District Court's registry. On the basis of the interviews he had had with the applicant, X, Y, Mrs G. and Mrs M., L. concluded that the applicant and Mrs M. were trying to use Y in order to sustain their animosity against Mrs G., who, on the other hand, had shown greater maturity and educational capacity. In an order issued on 6 October 1995, the Genoa investigating judge confirmed the suspension of the applicant's access to X and Y and ordered the case-file to be forwarded to the Genoa Youth Court. On 13 October 1995 the investigating judge ordered that Y be consigned to his mother's care, if need be, with the police's assistance. On 23 October 1995 the applicant appealed against this order. In a decision of 31 October 1995, filed with the registry on 2 November 1995, the Genoa District Court declared the applicant's claim inadmissible, no appeal being available against an execution order. On 3 November 1995 Mrs G., assisted by a bailiff and by the carabinieri, tried to apprehend Y at his primary school. This attempt failed as a consequence of the child's refusal to join his mother and of the intervention of the applicant and Mrs M. With regard to this episode, the applicant alleged that the carabinieri physically injured Y, who was moreover psychologically humiliated before his schoolmates. However, none of these circumstances is mentioned in the bailiff's written record. In an order of 1 February 1996, the Genoa Youth Court declared that Mrs M. should abstain from bringing Z in the neighbourhood of Y's primary school. It observed that according to the information at its disposal, Z, who was at that time about eight months old, had been waiting for prolonged periods in a car parked outside the school. Such a situation, which had occurred even on cold winter days, could be regarded as being detrimental to the interests of the little girl. This order was eventually revoked on 9 June 1997. According to the applicant, the Youth Court moreover threatened him and Mrs M. of limiting their parental authority over Z. In an order of 22 April 1996, filed with the registry on 29 April 1996, the Genoa Youth Court, acting in accordance with Article 333 of the Civil Code and observing that the applicant had refused to consign Y to his mother's care and to attend the meetings scheduled by the Genoa social services, ordered that the applicant's parental authority be suspended, that the care over Y be provisionally committed to the Genoa City Council and that the child be transferred to a public care institution. In execution of his order, on 29 April 1996 Y was apprehended by three policemen in front of his primary school and placed in the public care institution K., which was allegedly kept secret to the applicant. On 2 May 1996 the President of the Genoa Youth Court gave the applicant a letter from Y, which had been partly censored by the authorities in order to prevent the reader from finding out the place where it had been written. On 9 May 1996 the applicant lodged an appeal against the order of 22 April 1996. In an order of 6 June 1996, filed with the registry on 19 July 1996, the Genoa Youth Appeal Court confirmed the suspension of the applicant's parental authority. It annulled the remainder of the impugned decision, observing that pending the separation proceedings the Youth Court was not competent to decide issues other than those related to the above mentioned suspension. In the meanwhile, in a decision of 7 May 1996, the Genoa Youth Court had ordered that Y be committed to his mother, his continuos stay in a public care institution being detrimental for him. On 15 May 1996 Y started living with his mother's family. In a judgment of 7 May 1996, filed with the registry on 20 June 1996, the Genoa District Court declared that the applicant was responsible for the spouses' separation and fixed at 3,000,000 lire the monthly sum that he should pay to Mrs G. The District Court also granted Mrs G. custody of the children, confirmed the suspension of the applicant's access and charged the Genoa Youth Court to supervise a gradual and possible renewal of the contacts between X, Y and their father. On 31 July 1996 the applicant appealed against this judgment. On 10 October 1996 the President of the Genoa Court of Appeal fixed the date of the hearing at 6 December 1996. On that occasion the applicant declared that he did not intend to pursue his claim. In an order of the same day, filed with the registry on 9 January 1997, the Genoa Court of Appeal declared the applicant's appeal inadmissible. As a consequence, the judgment of 7 May 1996 became final. The applicant indicated that the decision to withdraw his appeal was due to the little confidence he had in the Genoa magistrates. In the meanwhile, in an order of 7 October 1996, the Genoa Youth Court had granted the applicant access to Y once a week. All the meetings took place in a public care institute where an educator (“educatore”) was always present. The applicant alleged that, notwithstanding the Youth Court's decision, on 16 July 1997 an educator named F. decided to suspend the meetings at issue. From that date, the applicant had no further contacts with Y. In a note of 22 October 1997, F. informed the Genoa Public Prosecutor's Office that the social services had tried on several occasions to get in touch with the applicant - who could not be found - and had eventually recorded a message on his answering machine, without any result. On 4 June 1997 the applicant requested the Genoa District Court to reduce the amount of the monthly sum due to Mrs G. and to grant him custody over Y and access to his children. In an order of 16 July 1997, filed with the registry on 23 July 1997, the Genoa District Court, observing that the applicant was not represented by a lawyer as prescribed by Italian law, declared this claim inadmissible. According to the applicant, the Genoa Youth Court and its attached Public Prosecutor's Office refused to take into consideration a number of claims he had personally introduced seeking the annulment of the suspension of his parental authority and the adoption of a number urgent measures in the interests of his children. The divorce proceedings On 30 April 1998 the applicant introduced a claim for divorce before the Genoa District Court. The date of the hearing was fixed at 13 November 1998. The proceedings were subsequently adjourned to 7 January 1999, on which date the President of the District Court placed himself at the disposal of the parties with a view of securing a friendly settlement of the matter. Considering that there was no basis for such a settlement, the President adjourned the case until 8 June 1999. The other claims introduced by the applicant In 1996 and 1997, the applicant had introduced a number of claims, requesting that criminal proceedings be instituted against L., the magistrates of the Genoa Youth Court, a lawyer of his own choosing, Mrs G's father and the educator F. None of these claims had any substantial result. In particular, on 3 June 1998 the Genoa investigating judge decided not to commence proceedings against F. on the basis of the applicant's allegations.

dev

001-23053

ENG

TUR

ADMISSIBILITY

YILMAZ v. TURKEY

Inadmissible

Georg Ress

The applicant, Mr Muharrem Yılmaz, is a Turkish national, born in 1920 and living in İstanbul. He is represented before the Court by Mr Koçak, a lawyer practising in İstanbul. The facts of the case, as submitted by the applicant, may be summarised as follows. In 1992, the General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a state body responsible, inter alia, for motorway construction, expropriated a plot of land belonging to the applicant in İstanbul. A committee of experts assessed the value of the plot of land and this amount was paid to the applicant when the expropriation took place. On 25 November 1997, following the applicant’s request for increased compensation, the Pendik Civil Court of General Jurisdiction awarded him an additional compensation of 6,734,461,850 Turkish liras (TRL) plus an interest at the statutory rate of 30 % per annum. On 10 March 1998 the Court of Cassation upheld the decision of the first-instance court. The due amount, which was 11,416,404,000 Turkish liras (TRL) including the interest, was paid to the applicant on 26 May 1998. Under Law no. 3095 of 4 December 1984 the rate of interest on overdue State debts was set at 30% per annum. As of 1 January 1998 the statutory rate of interest increased to 50%. The statutory rate of interest was set at the compound interest rate, namely 60% as of 1 January 2000. A description of further relevant domestic law may be found in the Aka v. Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, §§ 17-25; Akkuş v. Turkey, judgment of 9 July 1997, Reports 1997-IV, §§ 13-16.

dev

001-108881

ENG

UKR

COMMITTEE

CASE OF MURDUGOVA v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

André Potocki;Karel Jungwiert;Mark Villiger

6. The applicant was born in 1920 and lived in Kyiv, Ukraine, and in Yerevan, Armenia. 7. From 1947 to 1966 the applicant was married to M. Mrs Sardaryan was born during the marriage. The applicant and M. divorced in 1966. On 11 August 1984 they remarried. 8. On 12 January 2007 the applicant died and Mrs Sardaryan inherited her rights and obligations. 9. On 2 April 2007 M. died and Mrs Sardaryan inherited his rights and obligations. 10. On 22 November 1996 M. instituted divorce proceedings in the Moskovskiy District Court of Kyiv against the applicant. 11. On 6 May 1997 M. amended his claims and requested a declaration that the marriage of 1984 was void. Subsequently he modified and withdrew his claims on several occasions. 12. On 24 March 1998 the court declared the marriage void. The applicant appealed. 13. On 29 April 1998 the Kyiv City Court (since 2001 the Kyiv City Court of Appeal) quashed this judgment on the ground that the lower court had failed to examine the initial claims of M. and to establish crucial facts, and remitted the case for fresh consideration. 14. On 26 June 1998 the applicant submitted a counterclaim, seeking a divorce. 15. On 27 July 1998 the Moskovskiy District Court granted the divorce petition in respect of M. and the applicant. M. appealed. 16. On 9 September 1998 the Kyiv City Court quashed this judgment on the lower court’s failure to assess properly the evidence and remitted the case for fresh consideration. 17. On several occasions the Kyiv City Court transferred the case from one trial court to another for further examination: in September 1998 to the Zaliznychniy District Court of Kyiv; in October 1999 to the Starokyivskiy District Court of Kyiv; and, eventually, on 20 January 2000 to the Kharkivskiy District Court of Kyiv (in 2001 this court was reorganised into the Dniprovskiy and Darnytskiy District Courts of Kyiv). 18. On 4 July 2001 the court found for M. and declared the marriage with the applicant void. The applicant appealed. 19. On 4 December 2001 the Kyiv City Court of Appeal quashed this judgment and remitted the case for fresh consideration to the Dniprovskiy District Court of Kyiv. It noted, inter alia, that although the trial court had examined the case in the applicant’s absence, it had failed to take into account her written pleadings, which were important for a fair examination. M. appealed in cassation against this decision but on 7 March 2002 the Supreme Court of Ukraine dismissed his appeal. 20. On 26 April 2002 the Dniprovskiy District Court resumed the proceedings. 21. On 23 May 2003 the court granted divorce to M. and the applicant. The hearing was held in M.’s absence. M. appealed. 22. On 18 November 2003 the Kyiv City Court of Appeal quashed the judgment on the ground that the trial court had failed to examine whether the absence of M. was for good reasons or not and remitted the case for fresh consideration. 23. On 12 December 2003 the Dniprovskiy District Court resumed the proceedings. 24. On 17 March 2005 the court rejected M.’s claim to have the marriage declared void and dismissed the applicant’s claim because she had failed to attend the hearing. 25. On 28 July 2005 and 21 May 2007 respectively, the Kyiv City Court of Appeal and the Donetsk Regional Court of Appeal, acting as a court of cassation, dismissed M.’s appeals. 26. A substantial number of the approximately seventy hearings in this set of proceedings were adjourned following the parties’ requests, referring to their poor state of health or their failure to appear before the court. In her requests to adjourn the hearings the applicant, who, it appears from the available documents, was represented, requested the trial courts either not to hold hearings in her absence or to stay the proceedings till her recovery. The trial courts stayed the proceedings several times pending the parties’ recovery. The courts further warned the parties that they would examine the case in the respective party’s absence; on one occasion the court fined the applicant for non-attendance, but this decision was later quashed upon the applicant’s appeal. 27. According to the applicant, she did not appeal against the judgment of 17 March 2005 but in August 2005 she instituted new and separate divorce proceedings in the Golosiyivsky District Court of Kyiv. On 14 March 2006 the court divorced the applicant and M. 28. In 1986 the applicant’s family was granted tenancy of a publicly owned two-roomed apartment. On 28 November 1991 M., with the applicant’s consent, bought the apartment from the local municipal authority. 29. On 25 November 1996 the applicant instituted proceedings in the Moskovskiy District Court of Kyiv against M., seeking to declare the above sale contract void. 30. On 15 November 1996 the court attached the apartment in question. 31. In March 1997 the applicant amended her claims, claiming ownership of half of the apartment. 32. In April 1997 M. forcibly evicted the applicant from the apartment. The applicant moved to Yerevan, Armenia, and resided there until her death. 33. On 29 May 1997 the Moskovskiy District Court stayed the proceedings pending determination of the divorce proceedings. 34. In the period between 22 October 1999 and January 2000 the case was transferred to the Starokyivskiy and Kharkivskiy District Courts of Kyiv, following the relevant decisions by the Kyiv City Court. 35. On 31 January 2000 the Kharkivskiy District Court of Kyiv, having taken over the case, decided to stay the proceedings pending determination of the divorce proceedings. 36. On 29 August 2002 the Golosiyivskiy District Court of Kyiv (before October 2001 the Moskovskiy District Court of Kyiv) lifted the attachment order on this apartment as “the main dispute had been resolved”. According to the applicant, neither she nor her representative were present at this hearing. She also contended that Judge U., the president of the court, who rendered this ruling, had intervened unlawfully in the proceedings as at that moment they were pending before the Darnytskiy District Court of Kyiv (formerly the Kharkivskiy District Court of Kyiv). The applicant further pointed out that in the ruling of 29 August 2002 Judge U. had referred to a judgment which did not exist. 37. On 20 September 2002 M. made a gift of the apartment to K.N., a third person. On 21 February 2003 the latter sold the apartment to K.R. The applicant alleged that she only became aware of the ruling of 29 August 2002 in April 2003, when the apartment had been already sold. 38. On 3 April 2003 the Darnytskiy District Court (formerly the Kharkivskiy District Court of Kyiv, see paragraph 17 in fine) made an attachment order in respect of the apartment in question. On 21 June 2004 the Kyiv City Court of Appeal amended the order so that it applied to half of the apartment only. According to the applicant, neither she nor her representative was summoned to the last-mentioned hearing. On 21 March 2006 the Supreme Court of Ukraine upheld the ruling of 21 June 2004. 39. On 7 May 2003 the court rejected the applicant’s request to renew her the time-limit for appeal against the decision of 29 August 2002. There is no evidence that the decision of 7 May 2003 has been ever sent to the applicant. According to the applicant, she learned about it on 30 July 2004 at the latest from the letter of the Kyiv City Court of Appeal. There is no evidence that the applicant has ever tried to obtain a copy of the decision of 7 May 2003 and to appeal against it. 40. On 17 February 2004 the Darnytskiy District Court inquired of the Dniprovskiy District Court as to the outcome of the divorce proceedings. 41. On 26 June 2006 the Darnytskiy District Court resumed the proceedings. 42. On 12 September 2006 the applicant submitted an additional claim to declare the gift contract of 20 September 2002 and the sale contract of 21 February 2003 (see paragraph 37 above) void. 43. On 21 September 2006 the case was transferred for examination to the Golosiyivskiy District Court. On 18 January 2007 the Kyiv City Court of Appeal quashed this decision on an appeal by the applicant and remitted the case back to the Darnytskiy District Court. 44. On 16 June 2007, both parties, the applicant and M., having died, the Darnytskiy District Court stayed the proceedings until the identity of the parties’ heirs had been determined. 45. On 10 October 2007 Mrs Sardaryan joined the proceedings as the sole heir to both parties. She also modified the claims, seeking to have the contracts of 20 September 2002 and 21 February 2003 declared void and to have the court recognise that she owned the apartment outright. In this regard she indicated K.N. and K.R. as defendants. 46. On 5 November 2007 the proceedings were resumed. 47. On 26 June 2008 the Darnytskiy District Court found for Mrs Sardaryan. On 28 October 2008 the Kyiv City Court of Appeal upheld this decision. On 15 September 2010 the Supreme Court of Ukraine quashed these decisions and remitted the case for a fresh consideration to the first instance court. The proceedings are apparently still pending.

dev

001-80903

ENG

FRA

CHAMBER

CASE OF DUPUIS AND OTHERS v. FRANCE

Violation of Art. 10;No separate issue under Art. 6-2

David Thór Björgvinsson

4. By a decree of 17 March 1982, a “Mission for coordination, information and action against terrorism” was set up. This “anti-terrorist unit” at the Elysée Palace operated from 1983 to March 1986 within the office of the French President, engaging in telephone tapping and recording. 5. In November 1992 a weekly magazine published a handwritten note dated 28 March 1983, under the letterhead of the President's Office, containing indications that telephone lines, in particular those of certain journalists and lawyers, had been tapped. In the same year a list of the people who had been placed under surveillance was published in the press. 6. The case aroused considerable media interest and a judicial investigation was opened in February 1993. In the course of the proceedings G.M., deputy director of the French President's private office at the time of the surveillance, was placed under formal investigation on a charge of invading the privacy of others. 7. On 25 January 1996, a few days after President Mitterrand's death, the publishers Arthème Fayard published a book entitled Les Oreilles du Président (“The President's Ears”), which had been written by the first two applicants, both journalists, on the subject of the monitoring operations at the Elysée Palace. 8. On 1 February 1996 G.M. lodged a criminal complaint, with an application to join the proceedings as a civil party, against Mr Pontaut and Mr Dupuis, accusing them of handling documents obtained through a breach of professional confidence, of knowingly deriving an advantage from such a breach and of handling stolen property. In his complaint G.M. noted that appendix 1 of the book consisted of six “facsimile telephone-tap transcripts” which were identical to documents in the case file and that the other three appendices (list of individuals under surveillance) were also based on information from the file. He further cited thirty-six passages from the work which reproduced officially-recorded statements made to the investigating judge by the individuals under investigation or witnesses. 9. In the ensuing judicial investigation the applicants denied having obtained their information illegally. They refused to reveal their sources and claimed that many of the people examined by the judge had since publicly disclosed the content of their statements. As regards the facsimile telephone-tap transcripts and the content of the official records, the applicants argued that they had been circulating among journalists well before the opening of the judicial investigation. 10. In a judgment of 10 September 1998 the Paris tribunal de grande instance found that both the facsimiles and the record extracts came from the judicial investigation file, which was only accessible to persons bound by the secrecy of the judicial investigation or by a duty of professional confidence. The court considered that, regardless of how the documents in question had been transmitted, they could not have fallen into the applicants' hands without an offence being committed. In the court's opinion, experienced journalists could not have been unaware of that fact. Observing that all the elements of the offence of handling illegally-obtained items (recel) were sufficiently established, the court found Mr Pontaut and Mr Dupuis guilty of the offence of handling information obtained through a breach of the secrecy of the investigation or through a breach of professional confidence, under Articles 226-13, 226-31, 321-1 and 321-9 to 321-12 of the Criminal Code, and ordered each of them to pay a fine of 5,000 francs (equivalent to 762.25 euros (EUR)). The court further ordered them, jointly and severally, to pay 50,000 francs (EUR 7,622.50) in damages and found the company Librairie Arthème Fayard civilly liable. The applicants' book continued to be published and no copies were seized. 11. The applicants appealed. They claimed, among other things, that Article 6 § 2 and Article 10 of the Convention had been breached and argued that the judgment against them could not be regarded as necessary in the light of the Convention. 12. On 16 June 1999 the Paris Court of Appeal upheld the judgment, for the following reasons in particular: “ ... The quantity, diversity and accuracy of the sources used by the defendants show that they were actually in possession of reproductions of documents from the judicial investigation file, as mere transcriptions or oral accounts would not have enabled them to make such systematic use of the material in that file ... The defendants could only therefore have obtained the documents through the intermediary of persons involved in the proceedings, who can be divided into two groups. The first group is bound by the secrecy of the investigation (judges and prosecutors, clerks, police officers, etc.), any breach of which will constitute a criminal offence. The second group consists of persons who are entitled to obtain copies of documents but who are not bound by the secrecy of the investigation, namely lawyers and the parties themselves ... These clear and coherent provisions show that compliance with certain conditions ensuring the secrecy of the investigation forms an integral part of the duty of professional confidence. To be sure, the rights of the defence must not be impaired by that duty. ... Thus the documents used by the defendants were necessarily obtained illegally and the precise classification of the offence has no bearing on the unlawfulness of their origin, which is the necessary and sufficient basis of the statutory characterisation of the offence of handling (recel), as is confirmed by the case-law of the Court of Cassation. ...” 13. As regards Article 10 of the Convention, the Court of Appeal held as follows: “Even though the actual object of the handling specifically consists of elements of the judicial investigation, it should first be observed that the offence of handling provided for under Article 321-1 of the Code of Criminal Procedure corresponds to a commonly used characterisation. ... Accordingly, whilst proceedings in their current form may not be very numerous, they are based on clear and established provisions, which have been implemented in foreseeable conditions. Under paragraph 2 of the above-mentioned Article 10, the exercise of freedom of expression may be subject to restrictions, in particular for the protection of the reputation or rights of others or for maintaining 'the authority and impartiality of the judiciary'. It has been established that, by obtaining a number of the confidential documents from proceedings in which [G.M.] had been placed under judicial investigation, the defendants interfered with his private life and with his defence rights as an individual under judicial investigation. That action further demonstrated a wilful disregard for the rules governing the functioning of the judicial authority. In addition, the act of publication, which was the avowed objective of Mr Pontaut and Mr Dupuis, was bound to prejudice the presumption of innocence, a right which must be guaranteed for every person against whom criminal proceedings are brought. ... An obligation to comply with the basic rules governing the functioning of courts and the practices of persons involved in the administration of justice contributes to maintaining the democratic features of society. Accordingly, the rules concerning respect for the secrecy of the judicial investigation, like those concerning the duty of professional confidence, have the effect of protecting the judicial authority from excessive pressure, as well as protecting essential interests of those involved in the proceedings. The restrictions to which freedom of expression is subject are therefore necessary, particularly because it has not been established that the constraints imposed in the present case really had an adverse effect on the informing of public opinion, having regard to the articles published on the subject, any more than it has been established that there was a breakdown in the administration of justice of which public opinion had to be informed.” 14. The applicants appealed on points of law. 15. In a judgment of 19 June 2001 the Criminal Division of the Court of Cassation dismissed their appeal. 16. The Court of Cassation rejected the ground of appeal in which the applicants alleged, among other things, that there had been a violation of Article 6 § 2 of the Convention, finding as follows: “In finding guilty the defendants, who had denied having obtained the information unlawfully, but had refused to reveal their sources, the Court of Appeal notes that the book contained facsimile telephone-tap transcripts which are exact copies of pages from the investigating judge's case file, and of official records of statements drawn up by the judge. The court adds that, absent any evidence to support the hypothesis of accidental disclosure, the source could only have been a professional bound by a duty of confidence, whether one of the persons required to respect the secrecy of the judicial investigation or a lawyer bound by a duty of professional confidence under Article 160 of the decree of 27 November 1991 on the organisation of the legal profession. The court infers from the foregoing that, regardless of how the documents in question were transmitted, they could not have fallen into the hands of the defendants without an offence being committed. It adds that experienced journalists could not have been unaware of this fact. 17. The Court of Cassation, reasoning as follows, also dismissed the applicants' ground of appeal, based on a violation of Article 10 of the Convention, in which they submitted that the simple fact that the telephone tapping described in the book was the subject of a judicial investigation was not sufficient to justify the interference with their freedom of expression and that the judgment against them did not fulfil any necessity: “In dismissing the complaint that there had been a violation of Article 10 of the European Convention on Human Rights, the Court of Appeal, by reasoning of its own and espousing that of the court below, notes that the essential subject matter of the offending work consists of the actual case file from the judicial investigation in progress; that the book reproduces, among other things, numerous passages from interviews with individuals examined by the investigating judge; and that this information was used in some detail in the authors' observations on the functioning of the monitoring system set up within the French President's Office. The court explains that the defendants found themselves in possession of confidential information on [G.M.] to which they had no right of access, thus interfering with a legitimate interest of the latter. The court adds that the limits to which freedom of expression is subject are necessary, particularly because it has not been established that the constraints applied in the present case caused any real prejudice to the informing of public opinion or that there was any breakdown in the administration of justice of which public opinion had to be informed. Having regard to the foregoing findings, from which it transpires that the defendants were prosecuted for disclosing the content, that remained confidential, of material from a judicial investigation in progress, and that such a measure was justified by the necessity of protecting the rights of others, one such right being the presumption of innocence, and by the need to prevent disclosure of confidential information and to maintain the authority and impartiality of the judiciary, the Court of Appeal duly substantiated its decision for the purposes of Article 10 of the European Convention on Human Rights. ... In awarding damages to the civil party, on the ground that the publication by the defendants of confidential information concerning that party had directly contributed to the damage he had sustained, the Court of Appeal substantiated its decision for the purposes of Article 2 of the Code of Criminal Procedure.” 18. In a judgment of the Paris Criminal Court dated 9 November 2005, G.M. was given a suspended six-month prison sentence and fined EUR 5,000. “The disclosure of confidential information by persons who are entrusted with it either on account of their position or profession or on account of a temporary function or assignment shall be punished by one year's imprisonment and a fine of 15,000 euros.” “The offence of handling (recel) is constituted by the concealment, possession or transmission of a thing, or by the fact of acting as an intermediary with a view to its transmission, in the knowledge that the said object was obtained by means of a serious crime (crime) or other major offence (délit). The offence of handling is also constituted by the fact of knowingly deriving an advantage, by any means, from the product of a serious crime or other major offence. Handling shall be punished by five years' imprisonment and a fine of 375,000 euros.” 20. Recommendation Rec(2003)13 of the Committee of Ministers of the Council of Europe to member States, on the provision of information through the media in relation to criminal proceedings, reads as follows: “... Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so; Recalling that the rights to presumption of innocence, to a fair trial and to respect for private and family life under Articles 6 and 8 of the Convention constitute fundamental requirements which must be respected in any democratic society; Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system; Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention; ... Desirous to enhance an informed debate on the protection of the rights and interests at stake in the context of media reporting relating to criminal proceedings, and to foster good practice throughout Europe while ensuring access of the media to criminal proceedings; ... Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states: 1. take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions, 2. disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and 3. bring them in particular to the attention of judicial authorities and police services as well as to make them available to representative organisations of lawyers and media professionals. Appendix to Recommendation Rec(2003)13 - Principles concerning the provision of information through the media in relation to criminal proceedings Principle 1 - Information of the public via the media The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles. Principle 2 - Presumption of innocence Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused. ... Principle 6 - Regular information during criminal proceedings In the context of criminal proceedings of public interest or other criminal proceedings which have gained the particular attention of the public, judicial authorities and police services should inform the media about their essential acts, so long as this does not prejudice the secrecy of investigations and police inquiries or delay or impede the outcome of the proceedings. In cases of criminal proceedings which continue for a long period, this information should be provided regularly. ...”

dev

001-99843

ENG

RUS

ADMISSIBILITY

KOROLEV v. RUSSIA

Inadmissible

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant, Mr Vladimir Petrovich Korolev, is a Russian national who was born in 1954 and lives in Orenburg, in the Russian Federation. The applicant sued the Head of the Passport and Visa Department at the Regional Directorate of the Interior for having denied him access to documents pertaining to a delay in issuing his new travel passport. On 25 September 2001 the Verkh-Isetskiy District Court of Ekaterinburg dismissed the applicant’s claim. On 13 November 2001 the Sverdlovskiy Regional Court quashed the judgment on appeal and referred the case back to the District Court. On 16 April 2002 the District Court allowed the applicant’s claim, ordering the Head of the Passport and Visa Department to allow the applicant access to all the documents and materials relating to the issuing of his passport. The court also held that the Passport and Visa Department should pay the applicant 22.50 Russian roubles ((RUB) – less than one euro) in compensation for the court fees. On 4 July 2002 this judgment was upheld on appeal and became final. It is not evident from the case file if and when the respondent authority complied with the judgment in the part concerning the applicant’s access to his file. All reported actions taken by the applicant in the wake of the judgment were solely aimed at recovering the RUB 22.50 awarded by the District Court. On 22 July 2002 the District Court issued a writ of execution which was explicitly limited to the payment of the court’s award of RUB 22.50. On 28 April 2003 the bailiff initiated enforcement proceedings. On 15 December 2003 the applicant challenged the bailiff’s inactivity before the District Court. On 22 December 2003 the judge found the complaint to fall short of the procedural requirements and requested the applicant to comply therewith by 5 January 2004. The applicant was in particular requested to substantiate the bailiff’s alleged failure. The applicant supplemented his complaint on 31 December 2003. On 6 January 2004 the court found that the applicant had not complied with the said requirements and dismissed the complaint without considering its merits. On 10 February 2004 the Sverdlovskiy Regional Court upheld that decision.

dev

001-105582

ENG

RUS

ADMISSIBILITY

KOLOBOV v. RUSSIA

Inadmissible

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant, Mr Vladimir Ivanovich Kolobov, is a Russian national who was born in 1955 and lives in Magnitogorsk, in the Chelyabinsk Region. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, the then Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. In 1999 the applicant’s son, A. Kolobov, was suspected of several offences, including murder. On 12 March 1999 the applicant’s son was driving the applicant’s car VAZ-2108 when he was stopped by the police. A car inspection record was drawn up on the same day. The car was taken to the district police station car park. The applicant was told that the car was subject to a restraint order (решение о наложении ареста на имущество). On 29 July 1999 an investigator from the Magnitogorsk prosecutor’s office issued an impounding order in respect of the car, worded as follows: “[H]aving examined the criminal case file in respect of A. Kolobov, and given that his criminal activity has caused pecuniary damage to [the victims]; considering that the damage has not been remedied in full, as well as the fact that Kolobov used the car for committing criminal offences; noting that the investigation has established that certain parts of the car were taken as a result of assaults and murders against their owners; for the purpose of returning the property, securing civil claims and confiscating property, and pursuant to Article 175 of the RSFSR Code of Criminal Procedure, I order that the car, owned by V. Kolobov and currently in the possession of A. Kolobov, be impounded and placed in the [police station] car park”. According to the inventory list drawn up on 29 July 1999 after a visual inspection of the car’s exterior (because no key was available), the car was in good condition. In reply to the applicant’s complaint, by a letter of 15 November 1999 the prosecutor informed him as follows: “...the impounding order imposed by the investigator on the car...was lawful and justified because the car was a piece of physical evidence in the case. The seizure did not seek to secure civil claims or a confiscation order in respect of A. Kolobov’s property since he was not the owner of the car in question. A request for lifting the impounding order should be addressed to the court trying the case against A. Kolobov.” On 26 April 2000 the Chelyabinsk Regional Court convicted the applicant’s son of murder and robbery. He was sentenced to a term of imprisonment and ordered to pay compensation to the victims. According to the Government, it could be seen from the judgment that the robbery had been committed with the use of the applicant’s car, as various items taken away from the victims and firearms had been transported in that car. In the same judgment, the trial court lifted the restraint order and ordered the authorities to return the car to the applicant. However, it also held that unspecified “parts of the car body should be destroyed”. The judgment became final on 19 February 2001. In reply to the applicant’s request for the car to be returned, on 18 April 2001 the town prosecutor’s office advised him that he should contact the person in charge of the police station car park for further information. The police station, in their turn, told the applicant that he was obliged to pay a parking fee. The applicant refused. On 15 June 2001 the town prosecutor’s office confirmed that this requirement was unlawful. In reply to the applicant’s further complaint, on 31 July 2001 the regional prosecutor’s office informed him that the car would be returned to him on 3 August 2001. The car was returned to him on that date in a dilapidated condition. According to the applicant and an expert report drawn up on the same date, tyres were damaged and two fog lights were missing. The applicant and Mr K. also alleged that several objects (a stereo and its speakers, a radio scanner, a first-aid kit, a fire extinguisher, floor mats, etc.) were missing. In September 2001 the applicant brought civil proceedings against the town prosecutor’s office and the police department. His claims read as follows: “On 12 March 1999 my car was taken to the Pravoberezhniy district police station car park. However, a restraint order was issued only on 29 July 1999. On the same day, an inventory list was drawn up...As followed from the judgment of 26 April 2000 concerning my son, the car had to be returned to me...The judgment became final on 19 February 2001...The car was not returned to me because the [authorities] told me that I had to be a fee...I sustained pecuniary damage because of the loss or deterioration of several parts of the car...Unreasonable and unlawful actions of the authorities caused moral suffering because I had to spend time and effort to initiate proceedings and complaints...” The case was assigned to a justice of the peace in the First Circuit of the Leninskiy District of Magnitogorsk. He held several hearings and ordered several adjournments, in particular at the applicant’s request, to collect evidence and to hear witnesses. The judge decided that the Pravoberezhniy police station, as well as the federal Ministry of Finances and the Prosecutor General’s Office, were the appropriate defendants in the case. On 14 August 2002 the court established that the car had been considered as physical evidence in the criminal case against the applicant’s son; it had been lawfully placed in the police station car park. The justice of the peace, however, considered that the authorities’ refusal to return the car after February 2001 and the requirement to pay for its safekeeping had been unlawful. With reference to the inventory list drawn up on 29 July 1999, the court considered that the available materials confirmed the loss of the fog lights, the stereo and its speakers, the radio scanner and the floor mats, as well as the damage to the tyres. The court granted the pecuniary claim in part, as well as the court, expert and lawyer’s fees. It awarded the applicant 11,725.37 Russian roubles. The court also held as follows: “As to the claim in respect of non-pecuniary damage, the court reiterates that compensation in respect of moral or physical suffering caused by actions affecting non-property rights or interest may be awarded under Article 151 of the Civil Code. [The applicant] adduced no evidence to confirm that the respondents’ actions had violated his personal non-property rights or interests. Under Article 1099 § 2 of the Civil Code compensation in respect of moral suffering caused by an action or inaction affecting material rights should be awarded, if prescribed by law. The applicable legislation does not provide for compensation in respect of moral suffering caused by the damaging of a car or by the delay in its return to the owner...” The applicant appealed arguing as follows: “The first-instance court wrongly rejected one part of my pecuniary claims...Also, I was refused compensation in respect of non-pecuniary damage...As to moral suffering, from 12 March to 29 July 1999 and from 19 February to 3 August 2001 I could not use my car; I was unlawfully required to pay a parking fee and had to spend my time and effort seeking redress before national authorities...” On 5 February 2003 the Leninskiy District Court of Magnitogorsk upheld the judgment in the following terms: “The court rightly dismissed the claim concerning non-pecuniary damage because [the applicant] had omitted to justify it with reference to any ill health or psychological distress. Instead, he justified it with reference to real losses owing to the impossibility of using the car and the loss of time in reclaiming it.” In November 2003 the applicant received the amount awarded.

dev

001-112091

ENG

ISL

CHAMBER

CASE OF BJÖRK EIÐSDÓTTIR v. ICELAND

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano

5. The applicant, Mrs Björk Eiðsdóttir, is an Icelandic national who was born in 1974 and lives in Reykjavík. At the material time she worked as a journalist for Vikan, a weekly magazine. 6. In 2007 there was a public debate in the print and televised media in Iceland on whether the regulations pertaining to strip clubs should be made stricter or whether such clubs should be banned. In June 2007 a magazine named Ísafold published an article discussing the links between such clubs and prostitution. It maintained that the conditions of strip club dancers originating from eastern Europe could be compared to human trafficking as defined in the relevant United Nations instruments. 7. Subsequently, Vikan published in its issue no. 31 interviews with three east European women who worked at a strip club called Goldfinger owned by Mr Y. They had stated that they were happy working for Mr Y and that the critical remarks made about strip clubs could only be explained by the envy of certain other women. In the same issue, Vikan published the interviews of two anonymous strip dancers who described negative aspects of their jobs, namely that it was accompanied by prostitution and drug addiction. 8. Thereafter Vikan was contacted by a young Icelandic woman, Mrs Z, who offered to tell her story. She was a former strip dancer who had worked at several strip clubs and had worked for Mr Y. She said that she had felt offended at seeing strip dancing being portrayed as a glamorous career. Mrs Z met the applicant for an interview, which the applicant tape recorded and then typed up on the basis of the recording. The applicant sent the typed version to Mrs Z by e-mail for confirmation and consent to publish the story. Mrs Z responded in the affirmative. 9. On 23 August 2007 Vikan published in its issue no. 34 an article based on the interview conducted by the applicant with Mrs Z. An introduction referred to the above-mentioned coverage in issue no. 31. In the interview, Mrs Z described her work as a striptease dancer in various establishments, notably at Goldfinger owned Mr Y. The article, which had a number of sub-headings, comprised, inter alia, Mrs Z’s description of prostitution which she was reported to have said went on unhindered in these establishments, for example at Goldfinger; her drug addiction after she had started working as a striptease dancer; and threats she had been subjected to in connection with her work. The front cover of the magazine displayed a photograph of Mrs Z, which was also found on the first inside page of the magazine next to an editorial by Mrs G.E.A., the magazine’s editor, dealing with the above-mentioned article. Photographs of Mrs Z also featured on the title page of the article, next to its main text and a photograph of Mr Y. 10. Alongside the latter photograph it was stated that the magazine had contacted him and had asked his opinion about Mrs Z’s account that he “encourage[d] girls who work[ed] for him to engage in prostitution and act[ed] as an intermediary in this respect”. It was further stated: “[Mr Y] totally rejected this. ‘I can categorically state that not one of my girl employees is encouraged to engage in prostitution. But, on the other hand, I cannot prohibit acts by them in their free time.’ When it was put to him that prostitution reportedly took place within the walls of his club, his answer was that this was not, to his knowledge, true to fact. ‘This is simply a tremendous lie and it seems that those who are successful must always be slandered. I have always tried to act as fairly as I possibly can towards my girls. I have been active in this branch for nine years, and I would not have retained my employees if I had asked them to do something against their will, ... [Mr Y] also was of the view that Vikan’s account of these matters was prompted by vicarious considerations, as Vikan was published by the same company as Mannlíf and Ísafold, against which he said that he had initiated legal proceedings. [Mr Y] was emphatic that no falsehood should be published about him or his business, and finally stated: ‘I hope to God that you will not have any troubles on account of what you publish in your magazine.’” 11. On 5 and 6 September 2007 Mr Y lodged defamation proceedings against the applicant, the editor, Mrs G.E.A., and Mrs Z before the Reykjavík District Court. In his writ, in which he set out the four judicial claims described below, he requested that the following statements published by Vikan in the relevant issue, be declared null and void (dauð og ómerk): A. “I ended up working for [Mr Y], but there was a lot of prostitution at his clubs, and huge pressure was placed upon the girls who worked for him to engage in such activities.” B. “[Mr Y] has always been strongly involved in prostitution which occurs inside his clubs. After dancing in private was banned, the prostitution has simply been carried out behind curtains allegedly used for the purpose of talking to the clients in private.” C. “It varies a lot whether the clients pay [Mr Y] himself for the service or deal directly with the girls...” D. “I have overcome my fear of those men, although I have certainly been threatened with death and for a while I was too afraid to leave the house.” E. “The girls he employs come here temporarily for three months at a time and are treated as if they were in prison.” F. “In between, they are really under house arrest in the building apart from a period of time during which they are permitted to go outside.” G. “The reason for this is that girls were discovered to have found clients for themselves outside the club without [Mr Y] receiving a share of the fee; he wants to control the prostitution himself.” A. “Prostitution the rule rather than the exception.” B. “Threatened with death.” C. “Brought to Iceland without any suspicion of what was going to happen.” A. “Threatened with death if she told anyone.” [Published as a heading on the front page.] B. “[Mrs Z] worked as a stripper and tells the Vikan reporter all about the prostitution and the threats to her life.” [Published in a summary in the table of contents.] C. “[Mrs Z] says the prostitution is allowed to continue unhindered and that it is conspicuous inside the striptease clubs.” [Published in a summary in the table of contents.] “[Mrs Z.] is incredibly brave to have the courage to step forward and tell her story despite having been threatened with death ... .” 12. Mr Y argued that the responsibility for the statements in judicial claim no. 1 lay mainly with Mrs Z or, in the alternative, with the applicant as the author of the article. The latter was responsible for the remarks in judicial claim no. 2 and the defendant G.E.A., as the magazine’s editor, was responsible for the remarks in judicial claim no. 3. Alternatively, in the event that the court did not accept this claim, Mr Y requested that the applicant be held responsible as the author of the article referred to in the heading and summary in question. 13. In addition, Mr Y requested an order that the respondents, jointly and severally, be ordered to pay him 5,000,000 Icelandic krónur (ISK) in respect of damages and ISK 800,000 to cover the cost of publishing the judgment in the case in three newspapers and also in the following issue of Vikan. 14. In disputing the above claims, the applicant and the editor of Vikan argued inter alia: “Most people would agree that the plaintiff is a controversial individual because of the activities in which he has been involved in Reykjavík and Kópavogur. The debate relating to the connection between striptease dancing and prostitution is tenacious, not least because abroad such operations are often run side by side, openly and in a legal manner, but also because of the nature of these activities. As an example of the persistence of such rumours in Iceland, a report on human trafficking in Iceland (court document no. 7), by the US Embassy in Iceland, dating from 2006, could be mentioned. At page 3 of the report, it is stated that during its compilation, a member of the embassy staff was offered sexual services at the restaurant Goldfinger. It is an established fact that the operation of pole-dancing establishments comprises obtaining girls, for the most part foreign nationals, for the purpose of dancing scantily clad or nude in front of the clients of the establishment, or in private cubicles, and, as indicated by the term, it is hard to observe everything that goes on inside such closedoff spaces. Furthermore, the plaintiff has admitted in public that there have been incidents at Goldfinger where clients were offered sexual services, cf. an interview with the plaintiff on Channel 2, 1 June 2007 (court document no. 6). Because of the mystique, among other things, which to most people, surrounds such activities as well as persistent rumours regarding prostitution and human trafficking, the defendants felt that a discussion of this matter would be of interest and relevance to the general public. The defendants refer, for example, to a news item contained in court document no. 9, which cites the Chief of Police in Reykjavík as stating in his report regarding a licence for Goldfinger that European research has shown striptease dancers to be subjected to various kinds of abuse and, in many cases, they become the victims of human trafficking or other crimes. The defendants feel that the plaintiff has to accept and tolerate controversial discussion with regard to the operation of Goldfinger .... The presentation of the plaintiff’s case, however, is characterised by the shortcoming that he appears to identify himself with the operation of all the poledancing establishments in Iceland.” 15. In the course of the oral proceedings before the District Court, Mr Y and Mrs Z concluded a judicial settlement agreement, whereby he withdrew his action against her. He maintained his claims against the applicant and the editor. 16. By a judgment of 4 April 2008 the District Court found that several of the statements originating from Mrs Z had been defamatory and that she in principle could be held liable but the action against her had been withdrawn. In contrast, the applicant and the editor could not be held liable and so the District Court dismissed Mr Y’s action against them. 17. Mr Y then appealed against the District Court’s judgment to the Supreme Court. 18. The applicant and the editor referred to their arguments before the District Court and disputed that the allegations that had formed the subjectmatter of Mr Y’s defamation action had constituted defamatory statements and innuendos against him. In any event, with regard to judicial claim no. 1, according to section 15 of the Printing Act, the respondents could not be held responsible for the affirmations made by Mrs Z in the interview and who ought to be considered as their author. As to judicial claim no. 2, the disputed sub-headings had not contained innuendos directed against the appellant’s honour or allegations to the effect that he had organised prostitution or other illicit activities. The interview had been conducted with Mrs Z who had spoken unreservedly about her experience of working as a striptease dancer in a number of striptease establishments. In processing the interview the applicant had used sub-headings in order to divide the text into chapters for clarification and to highlight each topic separately. She had only referred to the interviewee’s words and had made no independent contribution. The same or similar considerations applied to judicial claims nos. 3 and 4. The conditions for liability under section 26 of the Damage Compensation Act no. 50/1993 had not been fulfilled. The respondents had not made any allegations that exceeded their constitutionally protected right to freedom of expression (Article 73 of the Icelandic Constitution). 19. By a judgment of 5 March 2009 the Supreme Court rejected Mr Y’s appeal in so far as it concerned the editor. In so far as it concerned the applicant, it upheld judicial claim no. 1, items A to C and E to G, and judicial claim no. 2, item A. It ordered the applicant to pay the appellant ISK 500,000 (approximately 3,000 euros (EUR)) in compensation for nonpecuniary damage and ISK 400,000, plus interest, for his costs before the District Court and the Supreme Court. Its judgment contained the following reasons: “The main issue in dispute in the present case is whether the respondents are liable on the basis of section 15 (2) and (3) of the Printing Act, No. 57/1956 for statements that [the applicant] had cited from the interviewee and whether headings and references which the respondents themselves had created, which they maintained was done in close connection with the words used by their interviewee, fell within the provision on freedom of expression in Article 73 of the Icelandic Constitution. The grounds of the case of each party are sufficiently described in the judgment which is being challenged. As indicated therein, the plaintiff based his claim for the annulment of the remarks in judicial claim no. 1, items A to G, on the premise that they contained defamatory innuendos regarding his character, which are the responsibility of the [applicant] as the author of the article, see section 15 (2) of Act No. 57/1956. The title page of the article stated that its text had been prepared by [the applicant]. She confirmed at the court hearing that she had been the author of the article and had also formulated the sub-headings. She had determined the wording of the sub-headings, which, like the article, contained a near-verbatim rendering of [Mrs Z]’s statements. This was indeed her ([Mrs Z]’s) account. [The applicant] stated that she had tape-recorded the interview, used the recording as a foundation for the article and had sent the result to [Mrs Z]. Subsequently [Mrs Z] had confirmed by email that this was an accurate rendering of her account. When comparing the manuscript of the interview and its tape-recording, on the one hand, and the article in question with its subheadings, on the other hand, it is however clear that this is not a verbatim rendering of the interviewee’s statements. However, it is also clear that the [applicant] in the main accurately rendered the substance of what her interviewee had said. As mentioned above, she had later confirmed that her story had been accurately rendered. Since the [applicant] is, as stated on the front page [...], the author of the text and has admitted to having written the article and its sub-headings, she is considered to be the author of the article and the sub-headings in the sense of section 15 (2) of Act No. 57/1956 and as such bears responsibility for this work. It is of no consequence whether [Mrs Z] may also be regarded as the author of the article in the sense of this provision of the law. By the remarks identified in items A, B, С and D of judicial claim no. 1 of his claim, the plaintiff [Mr Y] is alleged to be guilty of offences under Article 206 of the Penal Code [...], by organising for his own profit prostitution among the girls working for him on his premises and by exerting pressure on them for this purpose. The words in items Ε and F, however, convey the suggestion that Mr Y had deprived the girls who worked for him of their freedom, which constituted an offence under Article 226 of the Penal Code. The main text under the sub-heading ‘Prostitution the rule rather than the exception’ contained, inter alia, the words specified in items A and B of judicial claim no. 1, as well as other allegations relating to [Mr Y] and his striptease premises, Goldfinger. It is clear from the relationship between the main text and the heading, that the heading is directed against [Mr Y]. The same applies to this heading as to the remarks in judicial claim items A, B., С and G above. The remarks identified in items A, B, C, E, F and G of judicial claim no. 1 and the sub-heading referred to in item A of judicial claim no. 2 constitute a violation of Article 235 of the Penal Code. They do not comprise an expression of opinion or values but statements of fact that are not covered by Article 73 of the Icelandic Constitution with respect to freedom of expression. In accordance with Article 241 (1) of the Code they are declared null and void by the court. The words mentioned in item D of judicial claim no. 1 were directed against unspecified persons, not against the appellant [Mr Y]. The sub-headings in items B and C of judicial claim no. 2 were of a general nature; nor did the text below those headings appear to link them to [Mr Y]. Therefore, the [applicant] is acquitted with respect to those judicial claims. The words indicated in judicial claim nos. 3 and 4 of the claim, for which the respondent [editor, G.E.A.] bears responsibility according to section 15 (3) of Act No. 57/1956, are also of a general nature and she is therefore acquitted with respect to these judicial claims. The reasoning and conclusions of the present judgment are to be published in the first issue of Vikan that appears after its delivery. However, the claim in respect of expenses for further publication are rejected. Under section 26 (1)(b) of the Damage Compensation Act No. 50/1993, [Mr Y] is awarded compensation, to be paid by [the applicant] with respect to the abovementioned defamatory statements, in an amount of ISK 500,000, plus interest [...], which is deemed actionable. In accordance with this conclusion, the [applicant] is ordered to pay the appellant legal costs before the District Court and the Supreme Court [...]. In other respects, legal costs are not recoverable.” 20. Article 73 of the Constitution of the Republic of Iceland, Act No. 33/1944, read: Article 73 “Everyone has the right to freedom of opinion and belief. Everyone shall be free to express his thoughts, but shall also be liable to answer for them in court. The law may never provide for censorship or other similar limitations to freedom of expression. Freedom of expression may only be restricted by law in the interests of public order or the security of the State, for the protection of health or morals, or for the protection of the rights or reputation of others, if such restrictions are deemed necessary and in agreement with democratic traditions.” 21. The Penal Code No. 19/1940 contained in Chapter XXV, entitled “Defamation of character and violations of privacy’, the following relevant provisions: Article 234 “Any person who harms the reputation of another person by an insult in words or in deed, and any person spreading such insults shall be subject to fines or to imprisonment of up to one year.” Article 235 “If a person alleges against another person anything that might be harmful to his or her honour or spreads such allegations, he shall be subject to fines or to imprisonment of up to one years.” Article 236 “The making or spreading of an injurious allegation against a person’s better knowledge, this shall be subject to up to 2 years imprisonment. If an allegation is published or spread in a public manner, even where the person spreading the allegation did not have a probable reason to believe it to be correct, this shall be subject to fines or up to 2 years’ imprisonment.” Article 241 “In a defamation action, defamatory remarks may be declared null and void at the demand of the injured party. A person who is found guilty of a defamatory allegation may be ordered to pay to the injured person, on the latter’s demand, a reasonable amount to cover the cost of the publication of a judgment, its main contents or reasoning, as circumstances may warrant in one or more public newspapers or publications.” 22. Section 26(1) of the Tort Liability Act No. 50/1993 provided: “A person who a. deliberately or through gross negligence causes physical injury or b. is responsible for an unlawful injury against the freedom, peace, honour or person of another party may be ordered to pay non-pecuniary damages to the injured party.” 23. The Printing Act No. 57/1956, Chapter V on the liability for the contents of publications, contained the following relevant provisions. Section 13 “Any person who publishes, distributes, or is involved in the publishing or distribution, of any publication other than a newspaper or periodical shall bear criminal liability and liability for damages pursuant to the general rules of law if the substance of the publication violates the law.” Section 15 “As regards liability for newspapers or magazines other than those listed in section 14, the following rules shall apply: The author is subject to criminal liability and liability for damages if he or she is identified and either resident in Iceland when the publication is published or within Icelandic jurisdiction at the time proceedings are initiated. If no such author is identified, the publisher or editor are liable, thereafter the party selling or distributing the publication, and finally the party responsible for its printing or lettering.” 24. The Code of Ethics of the Icelandic Journalists Association included the following provisions: Article 1 “A journalist will endeavour to do nothing which will bring discredit upon his or her profession or professional association, paper or newsroom. A journalist shall avoid any actions which could undermine the public opinion of journalists’ work or damage the interests of the profession. A journalist shall always exhibit fairness in dealings with colleagues.” Article 2 “A journalist is aware of his or her personal responsibility for what he or she writes. He or she shall bear in mind that he or she will generally be regarded as a journalist in his or her writings and speech, even when he or she is acting outside his or her profession. A journalist will respect the confidentiality of his or her sources.” Article 3 “A journalist will exercise care in his or her gathering of material, the use of the material and presentation to the extent possible, and show due consideration in sensitive matters. A journalist shall avoid any actions which could cause unnecessary distress or dishonour.”

dev

001-23738

ENG

RUS

ADMISSIBILITY

SARDIN v. RUSSIA

Inadmissible

Peer Lorenzen

The applicant, Mr Aleksandr Petrovich Sardin, is a Russian national, who was born in 1947 and lives in Omsk. The facts of the case, as submitted by the applicant, may be summarised as follows. Between May 1968 and September 1969 the applicant performed military service near the Semipalatinsk nuclear tests site. On 25 May 1998 the Ministry of Defence of Kazakhstan issued the applicant with a certificate confirming that he had been exposed to radioactive emissions during his military service. In 1998 and 1999 the applicant unsuccessfully applied to various Russian authorities to be granted the status of a victim of the Semipalatinsk nuclear tests. In October 1999 the applicant lodged a civil action against the Social Security Agency of the Omsk Regional Administration (“the Agency”). He challenged the refusal of the Agency to issue him with a certificate for citizens who had been exposed to radioactive emissions as a result of nuclear tests on the Semipalatinsk test site (“the Semipalatinsk certificate”). On 23 March 2000 the Tsentralniy District Court of Omsk granted the applicant’s action and ordered the Agency to provide him with the Semipalatinsk certificate confirming his entitlement to certain social benefits. The Agency did not appeal against the judgment and it became final on 3 April 2000. On 20 June 2000 the court bailiffs opened enforcement proceedings. The Agency did not execute the judgment and requested the Omsk Regional prosecutor’s office to bring an application for supervisory review. On 6 July 2000 the Omsk Regional prosecutor’s office ordered the court bailiffs to suspend the enforcement proceedings and lodged an application for supervisory review (протест в порядке надзора) with the Presidium of the Omsk Regional Court. The prosecutor submitted that the area where the applicant had served was not in the Russian list of areas that had suffered from radioactive emissions and the Kazakh legislation could not be applied by analogy. On 20 July 2000 the applicant received a court summons advising him that the hearing on the prosecutor’s complaint would take place on 1 August 2000. The applicant submits that on 25 July 2000 he filed written observations, but they were not accepted and he was promised that he would be given time to make oral submissions. On 1 August 2000 the Presidium of the Omsk Regional Court held a hearing. According to the applicant, his representatives were not given an opportunity to speak before the court and the written memorandum was only accepted by the court registrar after the hearing finished. The Presidium of the Omsk Regional Court, by way of supervisory review, quashed the judgment of 23 March 2000 on procedural and substantive grounds and remitted the case for a new examination. On 26 September 2000 the Tsentralniy District Court of Omsk made a new determination of the applicant’s action against the Agency and dismissed it as having no grounds in the domestic law. On 31 January 2001 the Civil Chamber of the Omsk Regional Court upheld, on the applicant’s appeal, the judgment of 26 September 2000. The Law “On the social protection of citizens who had been exposed to radioactive emissions as a result of nuclear tests on the Semipalatinsk test site” (no. 149-FZ of 19 August 1995), which was in force at the material time, provided that certain benefits and compensation available to the Chernobyl victims should be extended to those citizens who had lived in the area surrounding the Semipalatinsk test site and their descendants of the first and second generations. Articles 2 and 3 specified that the scope of the benefits and compensations should be determined by reference to a person’s exposure to radioactive emissions. These benefits and privileges included, in particular, free medical treatment, free medical insurance, housing maintenance subsidies, special payments to offset the loss of potential earnings, preferential treatment under labour laws, etc. Under Article 5 the Semipalatinsk certificates were the documents confirming a person’s entitlement to benefits and compensations set out in the Law.

dev

001-79212

ENG

TUR

ADMISSIBILITY

ERIK v. TURKEY

Inadmissible

The applicant, Rahime Erik, is a Turkish national of Kurdish ethnic origin who was born in 1950 and lives in Diyarbakır. She was represented before the Court by Mr M. Muller, Mr T. Otty, Ms L. K. N. Claridge, and Mr K. Yıldız of the Kurdish Human Rights Project in London. may be summarised as follows. In late November or early December 1995, a large team of police officers forcibly entered the applicant’s house and arrested her son, Hakan Erik. The applicant claims that, during arrest, they were ill-treated and that for a long time she was unable to discover the whereabouts of her son. She further claims that the police threatened her that if her son was not conscripted for military service he would be killed. On 7 December 1995 the applicant’s son, Hakan Erik, commenced his compulsory military service. He was stationed in Nazilli Military Headquarters. The applicant submits that her son had told her that some of the soldiers, namely M.A.S., B.Y.Ö and I.O., had threatened to kill him because he was from Lice and, therefore, a terrorist. On 29 April 1996 Hakan Erik was found shot. He was taken to the SKK Hospital, where he died. A post mortem examination was conducted on the deceased. The doctor considered that no autopsy was needed since the cause of death was internal bleeding from a single shot gun wound to the chest. No bruises were found on the body. The authorities were of the opinion that the applicant’s son had committed suicide. On 1 May 1996 Hakan Erik’s body was transferred to Diyarbakır for burial. The applicant claims that she was told several times not to uncover the body and to bury it within ten minutes. She further submits that when she uncovered the body she discovered that apart from the gun wound there was bleeding coming from the right eye, right ear and nose. On 2 May 1996 the applicant’s husband complained to the Diyarbakir public prosecutor’s office that his son had been killed by two soldiers and claimed that his son’s body had suspicious injuries. He requested an autopsy. On 2 and 3 May 1996, the prosecutor heard the applicant’s husband, who reiterated his previous submissions. In May 1996 the prosecutor decided that he lacked competence to investigate the complaints and transferred the case file to the İzmir military prosecutor. On 10 May 1996 the body of Mr Erik was exhumed. The autopsy confirmed that the cause of death was internal bleeding from a single shot gun wound to the chest. The autopsy report also found that there was a scaled graze of 1x0.5 cm on the right ankle and that there were no other signs of bruises on the body. Finally, the report indicated that due to putrefaction of the body there was swelling, blood-clots and a change of colour in some parts of the body. Acting by proxy, the Diyarbakir public prosecutor heard the applicant and her husband on 13 May 1996. By a decision dated 19 December 1996, the Izmir military prosecutor decided to discontinue the proceedings. In her decision, the prosecutor, relying on the testimonies of other conscripts, two civilians, the ballistic report and the autopsy report, concluded that there was no indication which would lead her to conclude that the death of Mr Erik had been caused by someone else’s intent or negligence. In the same decision the prosecutor filed an indictment against Mr I.O. for the ill-treatment of subordinates. She submitted that, independent of the death of Hakan Erik, it had been established by witness testimony that Mr I.O. had slapped the deceased and two other conscripts for not keeping a proper guard. She requested that Mr I.O. be charged and convicted under Article 117 § 1 of the Military Criminal Code. On 8 January 1997 the applicant objected to the prosecutor’s decision to discontinue the proceedings. In her petition, the applicant submitted, in particular, that her son had not committed suicide but had been killed. She claimed that her son had told her that he had been threatened by Mr M.A.S. and Mr B.Y.Ö. She further complained about the contradictions between the post mortem examination and the autopsy report. In this regard, she submitted that the autopsy report had found a graze on her son’s right ankle whereas the post mortem report had found no bruises on his body. On 31 January 1997 the applicant’s objections against this decision were dismissed by the İzmir Military Court. This decision was served on the applicant on 19 February 1997. In the meantime, Mr I.O. was convicted under Article 117 § 1 of the Military Criminal Code and sentenced to a fine. This decision became final on 4 February 1999 as no one appealed. The applicant was not a party to the proceedings. The first letter concerning the application was submitted by the applicant’s lawyers on 13 June 1997 to the European Commission on Human Rights. After giving a brief description of the events and submitting without further specification that the applicant alleged a violation of Articles 2, 3, 6, 9, 10, 13 and 14 of the Convention, the lawyers informed the Commission that they were assembling the necessary documentation in order to submit the full application. A number of official documents were attached to the first letter. The Registry of the Commission acknowledged receipt and the case was given a provisional number. On 28 October 1999 the applicant’s lawyers submitted the completed application form together with documents. On 14 December 1999 the Registry of the Court informed the applicant’s lawyers of certain shortcomings in the application, namely that the full application form had been submitted 2 years, 4 months and 15 days after the first letter and requested that they provide an explanation of the reasons for the delay. The applicant’s lawyers’ attention was drawn to the Convention organs’ case-law on this point. On 4 January 2000 the applicant’s lawyers submitted that the applicant and her family were subjected to constant intimidation and threats by the authorities, that the failure to investigate Mr Erik’s death constituted a continuing violation and that there were considerable delays in obtaining the documents pertaining to the domestic investigation. On 27 March 2000, upon the receipt of a revised authority form, the application was registered. The applicant’s lawyers were informed that the date of introduction of the application would be considered as having been 13 June 1997 unless the Court decided otherwise.

dev

001-82200

ENG

UKR

CHAMBER

CASE OF KUCHERUK v. UKRAINE

Preliminary objection (non-exhaustion of domestic remedies) partially joined to merits and dismissed (Art. 3 and 13) and remainder dismissed;Preliminary objection (six-month period) dismissed (Art. 3 and 13);Preliminary objection (six-month period) allowed (art. 5-1 and 5-4 : detention in the SIZO);Preliminary objection (non-exhaustion of domestic remedies) dismissed (art. 5-4 : confinement in the hospital);Violation of Art. 3;No violation of Art. 5-1;Violation of Art. 5-1;Violation of Art. 5-4;Not necessary to examine Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses award - domestic proceedings

Peer Lorenzen

5. The applicant was born in 1980 and lives in the city of Kharkiv. 6. In 1998 the applicant was diagnosed as suffering from schizophrenia. Since then the applicant has undergone outpatient treatment at the City Psychoneurological Healthcare Centre no. 3 (hereafter “the Healthcare Centre”). 7. In March 2001 the applicant was convicted of theft and hooliganism and sentenced to one and a half year’s imprisonment suspended on probation. 8. On 12 April 2002 the applicant was arrested and taken into police custody at the Kominternovskyy District Police Station on suspicion of hooliganism and theft. 9. On 15 April 2002 the police investigator assigned to the applicant’s case charged him with hooliganism and theft. On the same day, considering that there were serious suspicions against the applicant, that he had a previous conviction for similar offences and was on probation and that there was a serious risk that the applicant would commit further offences or escape trial, the judge of the Kominternovskyy District Court of Kharkiv (hereafter “the Kominternovskyy Court”) ordered the applicant’s detention on remand. 10. On that same date the applicant was examined at the City Hospital no. 13. He was found to be suffering from schizophrenia but fit for detention on remand. 11. On 16 April 2002 the applicant was brought to the Kharkiv Regional Pre-trial Detention Centre SIZO no. 27 (hereafter “the SIZO”) from the police station. On his admission the applicant was received by the SIZO medical department for observation and assessment. The prison psychiatrist diagnosed him as suffering from schizophrenia, but certified him fit for detention at the SIZO. 12. The applicant was admitted to a psychiatric ward of the medical wing of the SIZO. On 17 and 25 April 2002 he was visited by a prison therapist who prescribed him cardiovascular and systemic medication. 13. On 30 April 2002 the investigator asked the Healthcare Centre for information on whether the applicant had been known to be suffering from a mental disease. On 5 May 2002 the Healthcare Centre confirmed that the applicant had been under psychiatric treatment for schizophrenia since 1998. Relying on this information, on 13 May 2002, the investigator ordered an inpatient forensic psychiatric examination of the applicant to determine his sanity at the time of the offence. 14. The applicant was transferred to the Psychiatric Hospital no. 15 (hereafter “the Hospital”), where he was examined from 17 to 29 May 2002. On the latter date forensic experts drew up a report, which included the following findings: “...Psychiatric status The patient is available for verbal contact. However such contact is highly formal. Mimics and movements are spontaneous and incongruous. He cannot understand or appreciate the purpose of the examination or the situation in general. The patient is restless, euphoric, fidgety, talkative but incoherent in his speech. .... The patient ... roars with laughter and grimaces, sticking his tongue out. ... Sometimes he starts asking in a whisper whether he will be released, but having received the answer, asks the same question again. ... If asked about his experience after the arrest, the patient becomes restless, somewhat confused, the expression on his face becomes blank. ... His memory and intelligence cannot be tested for lack of productive contact... Sometimes he becomes tense, restless and quarrelsome.... Conclusion 1. Mr Kucheruk currently shows symptoms of acute personality disorder in the form of a reactive state of mind. 2. It is at present impossible to determine the question of his sanity at the time of the offences on account of the complexity of the clinical manifestations of his reactive state of mind, which could also point to another mental illness. 3. Mr Kucheruk’s mental state requires compulsory inpatient psychiatric treatment.” 15. In early June 2002 the applicant was transferred back to the SIZO. On 6 June 2002 he was examined by the prison psychiatrist. No medication was prescribed on that occasion. 16. On 12 June 2002 the investigator requested compulsory psychiatric treatment for the applicant. On the same date the applicant’s case-file was sent to the Kominternovskyy District Prosecutor’s Office for approval. On 14 June 2002 the investigator’s request and the case-file were received by the Kominternovskyy Court. 17. On 5 July 2002 the Kominternovskyy Court, following an adversarial trial in the presence of the applicant’s lawyer, found him guilty of theft and hooliganism as charged. Referring to the experts’ report of 29 May 2002, the court found that the applicant’s acute personality disorder made it impossible at that stage to determine his sanity at the time of the offences and, consequently, to consider the question of punishment. The Kominternovskyy Court made an order under Article 421 of the Code of Criminal Procedure (hereafter the CCrP) committing the applicant for compulsory psychiatric treatment and suspended the criminal proceedings against him pending his recovery. The court also specified that: “Mr Kucheruk’s preventive detention on remand is to be revoked upon his admission to the psychiatric establishment. The judgment may be appealed against to the Kharkov Regional Court of Appeal within fifteen days from its delivery.” 18. On 10 July 2002 the court order of 5 July 2002 was sent to the SIZO for implementation. 19. In the meantime, the applicant, who was held in an ordinary cell, started to show signs of personality disorder. At the subsequent inquiry the inmates with whom he shared a cell stated that the applicant had acted in a strange way, mumbling incoherently, suddenly yelling at them or starting a fight. On 2 July 2002 the applicant assaulted one of his cellmates. On the same day he was transferred to the medical wing of the SIZO, where he shared a cell with other prisoners. 20. From 2 July 2002 onwards each new duty shift of the SIZO guards was regularly informed of the possibility of violent outbursts on the applicant’s part, and of the threat he posed to other detainees, the SIZO staff and himself. 21. On 3 July 2002 the prison psychiatrist examined the applicant, diagnosed him as suffering from schizophrenia and catatonic stupor and prescribed tranquilisers, analeptics (drugs that stimulate the central nervous system) and systemic drugs. On 4 July 2002 the psychiatrist found that the applicant had recovered from the catatonic stupor, and prescribed a change in his medication. 22. On 8 July 2002 the applicant became particularly agitated, moving erratically around the cell, waving his arms, bumping into the furniture and swearing at prison guards. At 7.00 a.m. three prison guards on duty were called by the medical wing staff to deal with the applicant. Through the peephole they observed his erratic movements and, having classified them as an “outrage” (буйство) within the meaning of section 18 of the Law “on Detention on Remand”, ordered the applicant to stand still, face the wall and put his hands behind his back. When the applicant failed to comply, the guards warned him that they were about to use force and entered the cell. The guards beat the applicant with truncheons, forced him to the floor and handcuffed him. Although a prison paramedic was called to attend to the applicant soon after the incident, there is no information that he received any treatment or medication for the injuries sustained during the struggle to restrain him. 23. In a report dated 8 July 2002 and amended, it would appear, on 15 July 2002, the three prison guards and the paramedic involved in the incident informed the Governor of the SIZO about the circumstances of the use of special police equipment (truncheons and handcuffs). In different handwriting it was added that the handcuffs were applied at 7.00 a.m. on 8 July 2002 and removed at 6.45 a.m. on 15 July 2002. At the bottom of the page, below the signatures of the officers and the paramedic, it is indicated that “distinct traces of the use of [truncheons and handcuffs] were found” and that “no other injuries ... could be detected”. These notes were signed by a certain Kh., apparently a prison doctor or paramedic, and dated 15 July 2002. 24. On 8 July 2002 the Governor ordered the applicant to be confined to a disciplinary cell for ten days for “serious breach of prison rules”. Before his transfer the applicant was examined by two prison officers and a doctor, who indicated in their report that his shoulders and buttocks bore traces of injuries inflicted by truncheons. They concluded, however, that the applicant was fit to be detained in the disciplinary cell. 25. Whilst in the disciplinary cell the applicant was locked up for about twenty-three hours each day. Although the disciplinary cell was visited each day by a physician and psychiatrist, no treatment or medication was administered to him as, according to the medical records, he refused to accept them. The entries made by the prison physician in the applicant’s medical record for 10, 12 and 16 July 2002 state: “10 July 2002 ... [the applicant] lurched towards me, stretching out his handcuffed hands... 12 July 2002 ... [the applicant] was moving quickly around the cell, bending down and trying to pull his legs between his handcuffed hands... banging his head against the wall trying to free himself from the handcuffs ... 16 July 2002 ... [the applicant] is trying to remove the handcuffs, rolling on the floor”. 26. The applicant’s detention in the disciplinary cell continued until his discharge from the SIZO on 17 July 2002. 27. On 17 July 2002 the applicant was transferred to the Hospital for compulsory treatment pursuant to the Kominternovskyy Court’s judgment of 5 July 2002. 28. On 27 January 2003, following a fresh assessment of the applicant’s mental condition, the psychiatric commission of the Hospital recommended that his psychiatric treatment should continue. 29. On 28 February 2003, having regard to the experts’ report of 29 May 2002 and the oral submissions of the doctor in attendance at the Hospital, the Kominternovskyy Court allowed the petition of the chief psychiatrist of the Hospital and ordered an extension of the applicant’s compulsory psychiatric treatment pending his recovery. 30. On 2 April 2003 the applicant’s mother filed a petition with the Moskovskyy District Court of Kharkiv (hereafter “the Moskovskyy Court”) under Article 256 of the Code of Civil Procedure (hereafter “the CCivP”) seeking to have her son declared incapable by reason of mental disorder. 31. On 26 May 2003 the psychiatric commission of the Hospital recommended that the applicant’s compulsory treatment be discontinued. 32. On 28 May 2003 the Moskovskyy Court ordered a forensic psychiatric examination of the applicant under Article 258 of the CCivP in order to determine his sanity. 33. On 7 July 2003 the Kominternovskyy Court lifted the compulsory treatment order. It also indicated that criminal proceedings against the applicant should be resumed and a forensic psychiatric examination ordered to determine his sanity at the time of the offence. 34. On 1 August 2003 the pre-trial investigation against the applicant was resumed. 35. On 4 August 2003 the Hospital received the Kominternovskyy Court’s ruling of 7 July 2003. 36. On 5 August 2003 the investigator requested the Kominternovskyy Court to authorise the applicant’s inpatient psychiatric examination under Article 205 of the CCrP, which request was granted on 6 August 2003. 37. Both forensic examinations ordered by the Moskovskyy and Kominternovskyy Courts were completed on 1 September 2003. The psychiatric experts concluded that the applicant’s mental disorder prevented him from understanding the consequences of his actions and controlling his behaviour. 38. On 2 September 2003 the applicant was discharged from the Hospital and handed over to his mother. 39. On 4 November 2003 the Kominternovskyy Court terminated the criminal proceedings against the applicant in view of his lack of criminal liability. 40. On 11 November 2003 the Moskovskyy Court allowed the mother’s petition and declared the applicant legally incapacitated. 41. Upon the applicant’s admission to the Hospital on 17 July 2002 his mother was informed of his whereabouts. Ms Kucheruk stated that when she visited him the following day she saw that he was badly injured and could hardly move or talk. The only words he allegedly managed to utter were “[they] beat [me] severely” (cильно били). 42. On 25 July 2002 the applicant’s mother filed a criminal complaint against the prison guards for ill-treatment of her son. 43. On 2 August 2002 the applicant’s mother and a human rights activist from a local non-governmental organisation visited the applicant in his ward. They drew up a document attesting that the applicant had an injury on his head behind the left ear, several bruises on the face and forehead and deep cuts around his wrists. 44. On an unspecified date the Governor of the SIZO opened a criminal investigation into the applicant’s mother’s complaint. On 19 and 20 August 2002 written statements were taken from two of the inmates who had shared an ordinary cell with the applicant, from his four cellmates in the medical wing who witnessed the incident of 8 July 2002, from three prison guards involved in that incident and from a prison paramedic. The inmates and the prison guards briefly outlined the events of 2-8 July 2002 as they are described above in paragraphs 19 and 22. The paramedic wrote that he had been called to attend to the applicant after the latter had been immobilised by the guards. He had observed truncheon marks on the applicant’s shoulder blades and buttocks and marks on his wrists made by handcuffs. 45. As part of the inquiry, on 14 August 2002 the Governor of the SIZO ordered that medical evidence be obtained. On the same day the applicant was examined by an expert from the Kharkiv Forensic Medicine Institute. The expert’s report stated the following: “Examination Mr Kucheruk has a 2.5x0.5 cm oblong abrasion with a thick scab on the outer part of his right wrist. The wound is horizontal. Similar abrasions are observed on the inner part of the right wrist and the outer and inner parts of the left wrist, as well as on the left elbow, the right occipital area and the inner-rear and frontal parts of the left thigh. These injuries measure from 1x0.2 cm. to 5.5x0.3 cm. ... Conclusion 1. According to the medical documents provided [by the Governor of the SIZO] it is established that Mr Kucheruk bore bruises and abrasions which had been inflicted by blunt solid objects. When Mr Kucheruk was examined on 14.08.2002 he had abrasions on his head, right foot, arms and left thigh. He also had bruises on the left eye and the left shoulder. All these injuries were inflicted by blunt solid objects. The bruises were three to five days old and the abrasions seven to ten days old... 2. Having regard to the description of the injuries in medical documents [drawn up by the SIZO staff], as well as the entries for 8 and 15 July 2002, where the injuries are not described at all, and the nature of the injuries (indicating the use of truncheons and handcuffs), it is impossible to draw any conclusions about the time of the injuries. 4. Mr Kucheruk’s injuries could have been inflicted by special equipment (truncheons and handcuffs).” 46. On 21 August 2002 the Governor of the SIZO decided not to bring criminal proceedings against the guards involved in the incident, finding no wrongdoing on their part. He relied in this conclusion on the written statements made by the inmates and prison officers and the forensic report of 14 August 2002. On an unknown date the prison supervision department of the Kharkiv Regional Prosecutor’s Office confirmed this decision. 47. On 4 September 2002 the applicant’s mother received a letter from the Governor of the SIZO in which he informed her that no criminal investigation in respect of the accused prison officers was to be opened, without, however, indicating the date of the relevant decision or providing a copy. In his letter the Governor also expressed the opinion that the truncheons and handcuffs had been used by the guards in accordance with the relevant regulations, to protect the SIZO staff and the applicant himself from his uncontrolled and aggressive behaviour. 48. On 26 December 2002 the Kharkiv Regional Prison Department (hereafter “the Department”) informed the applicant’s mother that an additional internal inquiry, undertaken, apparently, on her request, had revealed no wrongdoing on the part of the SIZO guards. 49. By a letter of 16 January 2003 the Head of the Department informed the applicant’s mother that her further complaints were unsubstantiated. He referred in this connection to the inquiry carried out by the Governor of the SIZO, which had culminated in his decision of 21 August 2002. This was the first mention of the date of the Governor’s decision in any official correspondence with the applicant’s mother. On 8 February 2003 she requested a copy of the final report and access to the case-file. On 25 February 2003 the Head of the Department rejected this request. On 27 March 2003 he rejected her second request for access to the file. 50. On 31 March 2003 the applicant’s mother challenged the Governor’s decision of 21 August 2002 before a court. On 27 May 2003 the Zhovtnevy District Court of Kharkiv (hereafter “the Zhovtnevy Court”), having heard the prosecutor, rejected her complaint as unsubstantiated. The applicant’s mother appealed. 51. In the course of the appeal proceedings, on 14 August 2003, the applicant’s lawyer was, for the first time, given access to the case-file. 52. On 18 November 2003 the Kharkiv Regional Court of Appeal quashed the decision of the Zhovtnevy Court on the grounds that it had been taken in the complainant’s absence, and remitted the case for fresh consideration. 53. On 24 December 2003 the Zhovtnevy Court found, without giving any details, that the inquiry was flawed. It reopened the case and handed it to the Governor of the SIZO for further investigation. 54. On 4 March 2004 the Governor, referring to the same evidence as before, discontinued the criminal proceedings again. His final report indicated, inter alia, that: “...Mr Kucheruk arrived at the [SIZO] with a medical certificate, issued by the city hospital no. 13 on 15 April 2002, according to which he was fit to be detained in a SIZO. ... On the basis of this information Mr Kucheruk was placed in a psychiatric ward of the medical wing. On 16 April 2002 Mr Kucheruk was examined by [the prison psychiatrist] who diagnosed him as suffering from schizophrenia. At the time of the examination his mental condition was satisfactory and he did not need any active treatment.” As to the applicant’s conduct after the incident of 2 July 2002 and his transfer from the ordinary cell to the medical wing, the Governor stated that: “On 3 July 2002 Mr Kucheruk was examined by [the prison psychiatrist], who found him suffering from schizophrenia and catatonic stupor and prescribed the relevant medication. On 4 July 2002 the patient recovered from the catatonic stupor ... but continued to have tense relations with his cellmates. Accordingly, based on general information about Mr Kucheruk’s behaviour, the officers on duty were warned daily about his possible violent outbursts against his cellmates or the SIZO staff.” The report of 4 March 2004 further states that, following the incident of 8 July 2002, the applicant was placed in the disciplinary cell for serious breach of prison rules. Having regard to the applicant’s mental condition, the paramedic who examined him after the incident had recommended keeping him handcuffed. As regards the time of the applicant’s discharge to the Hospital, the Governor indicated that: “The [Kominternovskyy Court’s judgment of 5 July 2002] did not contain any provision for immediate execution. It set out a fifteen-day time limit for appeal; therefore the term provided by Article 404 of the Code of Criminal Procedure for execution of this judgment was complied with as the applicant was transferred to the [Hospital] on 17 July 2002.” 55. On 1 October 2004 the Zhovtnevy Court, acting on a complaint lodged by the applicant’s lawyer, quashed that decision and ordered further investigations, pointing out the following irregularities: failure to take account of the submissions of the applicant’s mother concerning the applicant’s state of health in July-August 2002; failure to measure the lawfulness and reasonableness of the guards’ conduct against the legal principle prohibiting degrading treatment; failure to determine whether the applicant’s misbehaviour constituted a breach of prison rules that warranted his placement in a disciplinary cell; failure to consider the proportionality of the force used; the fact that the investigation was conducted by the Governor of the SIZO, a person whose impartiality was highly doubtful. 56. The case-file was transmitted to the Kharkiv Regional Prosecutor’s Office for additional investigations. In a final report of 1 November 2004 a prosecutor of the prison supervision department of the Kharkiv Regional Prosecutor’s Office came to a similar conclusion to that reached by the Governor of the SIZO, that the applicant was fit for detention in the SIZO and the prison officers concerned acted properly on the basis of the orders they were given and the relevant regulations. The prosecutor referred to the evidence collected by the Governor’s investigation and the statements of the prison psychiatrist that certain drugs should normally be used to pacify mentally ill patients, and when no drugs were available, special equipment could be used to immobilise such patients. The prosecutor further agreed with the Governor’s finding that the applicant’s conduct constituted a flagrant violation of prison rules and warranted his detention in the disciplinary cell. The applicant’s mother appealed. 57. On 30 July 2005 the Chervonozavodskyy District Court of Kharkiv (hereafter “the Chervonozavodskyy Court”) quashed that report and ordered further investigations as the authorities had failed to follow the instructions of the Zhovtnevy Court. 58. On 6 September 2005 a senior prosecutor of the prison supervision department of the Kharkiv Regional Prosecutor’s Office, following additional investigation, decided not to bring any charges against the prison officials. His final report repeated, in substance, the findings in the report of 1 November 2004 that the applicant had been fit to be detained in the SIZO and that there had been no wrongdoing on the part of the prison authorities. The senior prosecutor stated, inter alia, that the applicant’s detention after 12 June 2002 had been based on a letter from the Head of the Investigative Department of the Kominternovskyy District Police Station that the applicant’s case-file had been sent to the Kominternovskyy District Prosecutor’s Office for approval. As to the applicant’s ten-day confinement in the disciplinary cell, he considered that “the severity of the punishment imposed was fully in keeping with the nature of the offence committed”. He further considered that the applicant had been held in the SIZO until 17 July 2002 because of the fifteen-day time-limit for entry into force of the judgment of 5 July 2002. Although the forensic report of 14 August 2002 recorded the use of handcuffs by the prison guards, the investigation did not establish whether or not, between 8 and 15 July 2002, the applicant was handcuffed all the time. The senior prosecutor concluded that there was no evidence that the prison officers had acted in bad faith or in violation of the relevant laws and regulations when restraining the applicant with truncheons and handcuffs, putting him in a disciplinary cell and holding him in the SIZO until 17 July 2002. 59. On 28 October 2005 the applicant’s mother challenged that report before the Chervonozavodskyy Court, where the proceedings are still pending. 60. The relevant extracts from the Constitution read as follows: “Article 28 Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ... Article 29 Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law...” 61. The text of Article 19 and Articles 92 and 94-96 of the Criminal Code of 5 April 2001 can be found in the Court’s judgment in the case of Gorshkov v. Ukraine (no. 67531/01, § 28, 8 November 2005). 62. Article 365 of the Code provides: “Excess of authority or official powers, that is the wilful commission by an official of acts which patently exceed the rights and powers vested in him or her and which cause any significant damage to the legally protected rights and interests of individual citizens, state and public interests or those of legal entities shall be punishable ....” 63. Article 367 of the Code prescribes liability for official negligence: “Neglect of official duty, that is failure to perform, or improper performance, by an official of his or her official duties due to negligence, where it causes any significant damage to the legally protected rights and interests of individual citizens, state and public interests or those of legal entities, shall be punishable ...” 64. The relevant provisions of the CCrP regulating the conduct of pretrial investigation proceedings are summarised in the Court’s judgment in the case of Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 38 and 39, 4 April 2006), 65. Article 101 enumerates the bodies responsible for inquiries. Normally these functions are discharged by the police. However, paragraph 5 of Article 101 also vests this power in the governors of prisons and pre-trial detention centres, who conduct inquiries into offences committed by prison officials involving infringements of prison rules. 66. Articles 148 (purpose of and grounds for taking preventive measures), 149 (list of preventive measures), 150 (circumstances that should be taken into account in choosing a preventive measure) and 156 (time-limits for holding in custody) of the CCrP are to be found in the Nevmerzhitsky v. Ukraine judgment (no. 54825/00, § 53, ECHR 2005). 67. Article 155 of the CCrP insofar as relevant provides as follows: “Detention on remand as a preventive measure shall be applied in cases concerning offences for which the law envisages a penalty of more than three years’ imprisonment... Persons against whom a detention on remand order is issued shall be held in pre-trial detention centres.” 68. Article 237 of the CCrP insofar as relevant provides: “In a case received from the prosecutor [with the bill of indictment], the judge in a preliminary hearing shall resolve the following questions: ...4) whether there are any reasons to change, terminate or apply a preventive measure.” 69. Article 241 of the CCrP reads as follows: “A preparatory hearing shall be held within 10 days or, in complex cases, 30 days of receipt of the case-file by the court.” 70. Article 205 of the CCrP provides: “If forensic medical or psychiatric examination necessitates long-term monitoring or assessment of the suspect, the court, on the investigator’s request and with the prosecutor’s authorisation, may order the suspect’s commitment to the relevant medical institution.” 71. Article 347 of the CCrP provides: “An appeal may be lodged against: ...2) a court order concerning the application of ... compulsory medical treatment.” 72. According to Article 349 of the CCrP: “An appeal against a judgment, ruling or order of a first instance court ... may be filed within fifteen days of its adoption...” 73. Article 402 of the CCrP reads as follows: “The court order or ruling shall become final and enforceable upon the expiry of the time-limit for appeal.” 74. Articles 416 (Grounds for the application of measures of compulsory medical treatment) and 422 (Termination or modification of the applicable compulsory measures of medical treatment) of the CCrP are set out in the Gorshkov judgment (cited above, § 31). 75. Article 424 provides as follows: “An appeal or cassation appeal or an appellate or cassation petition by the prosecutor (апеляційне чи касаційне подання прокурора) against a ruling or resolution adopted by a judge or a court in the manner laid down by this Chapter, shall be entered in the ordinary manner.” 76. According to Article 417 of the CCrP: “Pre-trial investigation in cases concerning illegal acts committed by persons who are not criminally responsible or who bear only limited criminal responsibility, as well as in cases concerning offences committed by persons who become mentally ill after the events in question but before the imposition of the sentence, shall be conducted by the investigating authorities pursuant to the rules set out in Articles 111-130 and 148222 of the present Code. Following the completion of the pre-trial investigation, if the alleged offender is found to have no, or limited, criminal responsibility, the investigator shall draw up a ruling requesting the court to commit the person for compulsory medical treatment ... This ruling shall be sent to the prosecutor.” 77. Article 418 of the CCrP reads as follows: “Having received a case with the ruling under Article 417 of this Code, the prosecutor: 1) if he agrees with the ruling, shall confirm it and transmit the case to the court; 2) if he finds that the ... collected evidence is insufficient to reach a conclusion as to the mental condition of the accused or that the collected evidence is insufficient to prove that the illegal act was committed by the person concerned, shall return the case-file to the investigator with written instructions for further inquires.” 78. Article 419 of the CCrP insofar as relevant provides: “If the judge or the president of the relevant court who received the case-file with the request for compulsory medical treatment agrees with the investigator’s ruling, he or she shall send the case directly for trial. The trial in such cases shall be held in open hearing, with the obligatory participation of the prosecutor and defence lawyer, in accordance with rules laid down in Chapters 25 and 26 [Articles 283-317] of this Code.” 79. According to Article 421 of the CCrP: “When it is established that a [mentally ill] person has committed an illegal act or a person became mentally ill after committing an offence ... the court shall commit him or her for compulsory medical measures, indicating exactly what measure should be applied.” 80. Article 221 of the CCivP provides in its relevant part: “The court must suspend its examination of a case if ...it is impossible to hear the case before other civil, criminal or administrative proceedings have been terminated.” 81. Article 256 of the CCivP provides that close relatives of a mentally ill person, associations, a prosecutor or a local board of tutorship may apply to the court with a view to declaring that person incapable by reason of mental disorder. 82. According to Article 257 of the CCivP a petition filed under Article 256 should include evidence of the mental disorder which prevents the person concerned from understanding his or her actions and conducting his or her affairs. 83. Article 258 of the CCivP empowers the court to order forensic psychiatric examination of the person concerned. In exceptional cases, when the person overtly avoids examination, the court may order his or her compulsory psychiatric examination. 84. Section 8 of the Act provides that: “Detained persons shall be held in ordinary cells. In exceptional circumstances ... and for medical reasons, following a reasoned decision of the relevant investigating authority or governor of the relevant pre-trial detention facility, a detainee may be placed in solitary confinement.” 85. Section 18 of the Act sets out rules governing the use of force by prison guards. Officers in pre-trial detention facilities are entitled to use physical force, police equipment and firearms against the inmates. The use of force should be preceded by a warning if the circumstances so allow. If the use of force cannot be avoided, it should not exceed the level necessary for fulfilment by the officers of their duties and should be carried out so as to inflict as little injury as possible. Prison officers are entitled to use force and special equipment, including unarmed combat, handcuffs, truncheons etc., with a view to putting an end to physical resistance, violence, outrage (буйство) and opposition to the lawful directions of the administration of the detention facility when other means of achieving a legitimate objective prove ineffective. Special police equipment and firearms must not be used on women with visible signs of pregnancy, elderly persons, persons with visible signs of invalidity or underage persons, except in the event of an assault by a group of these persons which is dangerous for the lives of the prison officers or others. 86. A governor has the power to place a prisoner in a disciplinary cell where this is necessary to put an end to physical resistance, violence, outrage and opposition to the lawful directions of the administration. 87. The choice of the means to be used and the time and intensity of their use depends on the circumstances, the nature of the wrongdoing and the personal characteristics of the perpetrator. 88. An officer who uses force or special equipment must immediately report it to his direct supervisor and the relevant prosecutor. All persons against whom the above means have been used should be immediately examined by a medical practitioner. 89. The relevant provisions of the Act are quoted in the case of Gorshkov (cited above, § 30). 90. Paragraph 4 of the Resolution enumerates the cases when special means may be used, including when they are necessary for putting an end to resistance to police officers or other persons carrying out official public order duties. 91. Paragraph 6 of the Resolution provides that decisions to use special means must be taken by an official responsible for maintening public order or by the head of the particular operation. A person taking such a decision must immediately inform his or her superiors in writing. 92. Paragraph 7 of the Resolution obliges the police officers who applied the special means to ensure immediate medical assistance to the victims. 93. Paragraph 14 of the Resolution prohibits the application of rubber truncheons to the head, neck, collar area, stomach and genitalia. 94. According to Paragraph 2.5 of Decree no. 346/877 psychiatric establishments are obliged to inform the relevant local police department of the imminent release of mentally ill persons. 95. The relevant extracts from Decree no. 397 of the Ministry of Health of 8 August 2001 on the procedure for applying compulsory measures of medical treatment in psychiatric hospitals to persons who have mental illnesses and who have committed socially dangerous acts (approved by the Supreme Court of Ukraine, the Ministry of Internal Affairs and the General Prosecution Service) are set out in Gorshkov (cited above, § 32). 96. The relevant extracts from the Instruction on the procedure for applying measures of compulsory medical treatment to persons of unsound mind who have committed socially dangerous acts (adopted by Decree No. 397 of the Ministry of Health) are also quoted in the case of Gorshkov (cited above, § 33). 97. According to Section 8 of the Resolution, force, as an element of excess of power, can be both physical and psychological. Physical force may involve, inter alia, unlawful deprivation of liberty and inflicting blows. 98. Section 9 of the Resolution provides that illegal actions constituting an excess of power fall within the scope of criminal law when they are “painful or abusive”, and the Supreme Court has declared that such actions are to be interpreted as “painful or abusive” when they inflict physical pain or moral suffering on the victim. These actions can involve, inter alia, the unlawful use of special police equipment such as truncheons and handcuffs. 99. The 1983 Resolution was valid at the material time. In 2005 it was replaced by Resolution no. 7 of 3 June 2005. 100. In both Resolutions (1983 and 2005 - Sections 9 and 15 respectively) the Supreme Court, interpreting domestic law regulating the types of compulsory measures of a medical character, stated that a court which orders compulsory treatment of a person against whom a preventive measure had been taken should simultaneously order the discontinuation of the preventive measure from the moment of the person’s admission to a psychiatric institution. 101. The relevant provisions of the first and second annual reports are set out in the Nevmerzhitsky judgment (cited above, §§ 60 and 61). 102. The relevant extracts from Committee of Ministers Recommendation No. R (87) 3 on the European Prison Rules (adopted by the Committee of Ministers on 12 February 1987 at the 404th meeting of the Ministers’ Deputies) read as follows: “Medical services 26. 1. At every institution there shall be available the services of at least one qualified general practitioner. The medical services should be organised in close relation with the general heath administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality. 2. Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners, and there shall be staff of suitably trained officers. 30. 1. The medical officer shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with hospital standards, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. 2. The medical officer shall report to the director whenever it is considered that a prisoner’s physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment. Discipline and punishment 38. 1. Punishment by disciplinary confinement and any other punishment which might have an adverse effect on the physical or mental health of the prisoner shall only be imposed if the medical officer, after examination, certifies in writing that the prisoner is fit to sustain it. Instruments of restraint 39. The use of chains and irons shall be prohibited. Handcuffs, restraint-jackets and other body restraints shall never be applied as a punishment. They shall not be used except in the following circumstances: a. if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise; b. on medical grounds, by direction and under the supervision of the medical officer; c. by order of the director, if other methods of control fail, in order to protect a prisoner from self-injury, injury to others or to prevent serious damage to property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority. 40. The patterns and manner of use of the instruments of restraint authorised in the preceding paragraph shall be decided by law or regulation. Such instruments must not be applied for any longer time than is strictly necessary. Insane and mentally abnormal prisoners 100. 1. Persons who are found to be insane should not be detained in prisons and arrangements shall be made to remove them to appropriate establishments for the mentally ill as soon as possible. 2. Specialised institutions or sections under medical management should be available for the observation and treatment of prisoners suffering gravely from any other mental disease or abnormality. 3. The medical or psychiatric service of the penal institutions shall provide for the psychiatric treatment of all prisoners who are in need of such treatment.” 103. The relevant extracts from the CPT Report [CPT/Inf (2004) 34] on a visit to Ukraine from 10 to 26 September 2000 read as follows: “The CPT would point out that all mentally ill prisoners, including those serving life sentences, should be cared for and receive treatment in a hospital facility adequately equipped and with qualified staff. Forcing such prisoners to stay in prison, where they cannot receive appropriate treatment for lack of suitable facilities or because such a facility refuses to accept them, is an unacceptable state of affairs. The transfer of mentally ill prisoners to an appropriate psychiatric facility should be considered a high priority.”

dev

001-4663

ENG

SWE

ADMISSIBILITY

SLAVOV v. SWEDEN

Inadmissible

Gaukur Jörundsson;Josep Casadevall

The applicant, a stateless person, was born in Bulgaria in 1939. Before the Court he is represented by Mr Henrik Olsson, a lawyer practising in Stockholm. The applicant moved to Sweden from Bulgaria in 1965. Since more than eight years, he is married to a Swedish national, A.S. He also has a 23 year old daughter who lives in Sweden. As from 1968 the applicant has been convicted on many occasions for serious and repeated crimes, inter alia crimes against property, including robbery, as well as smuggling of goods and narcotics offences of an aggravated nature. He has been sentenced to the following terms of imprisonment: 1972 - 2 years, 1974 - 2 years, 1977 - 7 years, 1980 3 years, 1985 - 5 years. He was released on probation on 27 February 1991. At that time, 2 years and 10 months of his sentences had not been served. The applicant’s expulsion from Sweden was ordered in 1972 and 1980. However, by a Government decision of 29 April 1982, the expulsion orders were revoked by pardon as the applicant risked political persecution in Bulgaria. Having regard to that decision, the District Court (tingsrätten) of Huddinge, in its 1985 judgment, refrained from ordering the applicant’s expulsion. In May 1992 the applicant was charged with having possessed and stored, with the intention to sell, 389 grams of amphetamine in April 1992. However, on 25 May 1992, the District Court of Huddinge acquitted the applicant. By a judgment of 8 June 1993 the District Court of Nacka convicted the applicant for two narcotics offences, one of which was considered as aggravated, illegal possession of a weapon and falsification of a passport. All the crimes had been committed in March 1993. The more serious narcotics offence involved the possession and storage, with the intention to sell, about 5 kilograms of amphetamine. The applicant was sentenced to six years in prison. Further, the court ordered his expulsion from Sweden and issued a prohibition on his return. When fixing the applicant’s prison sentence, the court had regard to the detriment suffered by him on account of the expulsion. The public prosecutor appealed against the Huddinge District Court judgment and the applicant appealed against the Nacka District Court judgment. The Svea Court of Appeal (Svea hovrätt) joined the two cases and gave judgment on 12 August 1993. Reversing the judgment of the District Court of Huddinge, it found the applicant guilty of the narcotics offence committed in April 1992. It upheld the judgment of the District Court of Nacka in regard to the finding of guilt, the expulsion order and the prohibition on return. Having regard to the expulsion order, it sentenced the applicant to a total of seven years’ imprisonment. On 15 September 1993 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal. In 1994, at his own request, the applicant lost his Bulgarian citizenship. According to a medical certificate issued on 22 January 1996 by S.A., a licensed psychologist at Hall Prison, the applicant had mental problems due to the expulsion order and had expressed the intention not to commit any crimes in the future. S.A. expressed that, with increased age, criminal activities tend to decrease. On several occasions thereafter the applicant requested the Government to exercise its power under Chapter 7, Section 16 of the Aliens Act to annul the expulsion order. All his requests were denied. The last decision was taken by the Government on 2 July 1998. The applicant was released on probation on 4 October 1997 and was expelled from Sweden on 30 June 1998. His wife left Sweden and joined him soon thereafter.

dev

001-78860

ENG

SWE

ADMISSIBILITY

SVENSKA FLYGFORETAGENS RIKSFORBUND AND SKYWAYS EXPRESS AB v. SWEDEN

Inadmissible

The first applicant, Svenska Flygföretagens Riksförbund (the National Association of Swedish Airlines), is a nationwide non-profit association open for membership to all serious, commercial airline companies. The second applicant, Skyways Express AB, is a private limited airline company based in Sweden and is a member of the applicant association. The applicants are represented before the Court by Mr J. Thörnhammar, a lawyer practising in Stockholm. The Swedish Government (“the Government”) are represented by their Agent, Mr C.H. Ehrenkrona, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The Swedish Civil Aviation Administration (Luftfartsverket, hereinafter “the CAA”) is a public utility, wholly-owned by the Swedish State. The activities of the CAA are directed by the Government and subject to their decisions. The CAA operates 19 airports in Sweden and is responsible for, inter alia, air traffic services and air safety in the country. The aviation infrastructure is financed through charges levied by the CAA on the airline companies wanting to use State airports. About two-thirds of the CAA’s budget is financed by these traffic charges. The Government specify the economic goals and restrictions applicable to State authorities, such as the CAA, through so-called letters of regulation (regleringsbrev), which are binding. The letter of regulation relevant to the instant case was issued by a Government decision dated 18 December 1997. It stipulated guidelines for, inter alia, the overall targets and the financial conditions of the CAA and specifically fixed the financial targets of the CAA for the period between 1999 and 2001. The letter also stipulated the following limitation on permissible increases in traffic charges: “As a restriction on price increases, the traffic charges, excluding land routing charges, security charges and noise charges, must not increase on average over the years more than the net price index, calculated as of 1993.” Following consultations with Swedish and foreign airline companies, the CAA, on 10 December 1998, decided to adopt a regulation which established new norms for air traffic charges at State airports (the Code of Statutes of the CAA – Luftfartsverkets författningssamling – LFS 1998:83). The regulation was published on 22 December 1998 and entered into force on 1 January 1999. By a letter of 10 January 1999, the first applicant, on behalf of its members, filed an appeal with the Government against the decision of the CAA. It argued that the increase in air traffic charges amounted to 5%, which was too high having regard to the situation in the country with hardly any inflation and low interest rates. It also pointed out that the new charges heavily disadvantaged smaller aircraft, imposing on them relatively high price increases compared to heavier aircraft. The first applicant also stated that the airline companies had not had sufficient time to alter their customer prices in line with the increase since the decision had been made by the CAA on 10 December 1998 and had come into force already on 1 January 1999. The CAA submitted its comments to the Government in a letter dated 15 January 1999. The CAA initially stated that the appeal had been received on 12 December 1998 and had thus been made in time. (The stated date is obviously incorrect; the correct date appears to have been 12 January 1999.) However, the CAA opposed the appeal since the increase in the charges was necessary to fulfil the financial demands imposed on the CAA. It stated that the total increase in charges amounted to 4.2%, which corresponded to an annual increase in its income of approximately 115,000,000 Swedish kronor (SEK). The main increases had been made in relation to passenger charges, charges for local air flight services and the minimum charges for landing. The increase of the two latter charges in relation to smaller aircraft had been compensated by introducing a new annual landing card and by increasing the weight-limit for aircraft having to pay the local air flight charge. Furthermore, the lighter aircraft had experienced very little price increases between 1993 and 1998 compared to the heavier aircraft. The CAA further reiterated that the Government had imposed a limit on the charge increase corresponding to the net price index calculated from 1993. The increase in charges previously made between 1993 and 1998 had, however, been below this limit; the CAA had in fact lowered prices by 5% during this period. The current increase was therefore well within the scope of possible increases accumulated over the years. In a letter dated 29 April 1999, the first applicant submitted to the Government its comments on the CAA’s position. It stated that the introduction of the annual landing card for the lighter aircraft, whilst commendable, was of minor importance since only three or four aircraft in the country could benefit from it. It conceded that, in previous years, the CAA had charged less than the authorised price increases. However, it found it remarkable that the CAA relied on the cumulative effect of the price ceiling’s shortfall over the years to justify a steep increase in the charges now. On 11 May 2000 the first applicant further submitted that the net price index had fallen heavily since 1995 and had, during certain periods, almost reached the 1993 level. The scope for increasing the charges had thus gradually been reduced. Furthermore, a large part of the increase concerned charges restricted by the Government’s letter of regulation, and the increase in those charges clearly exceeded the development of the net price index. The first applicant also stated that the real increase in charges was in fact greater than that mentioned by the CAA, since infrastructure costs should also be considered a traffic charge. The CAA submitted to the Government on 26 June 2000 that it had not overstepped the price ceiling set by the Government and that the infrastructure charges were to be excluded from the calculation of the increases complying with the price ceiling. The first applicant responded, in submissions to the Government on 21 August 2000, that the Government’s letter of regulation did not provide for the possibility of accumulating the annual increases, as the CAA had done, and that the increase in air traffic charges clearly exceeded the development of the net price index during the given period. On 28 February 2002 the Government dismissed the first applicant’s appeal for the following reasons: “Under section 35 of the Ordinance (1988:78) with Instructions for the CAA, the decisions of the CAA in matters other than personnel issues are subject to appeal only if expressly stated. The instant appeal concerns a decision on the issue of regulations, as provided for in chapter 8 of the Instrument of Government [Regeringsformen]. There is no provision stating that an appeal lies against such a decision of the CAA. The appeal will not therefore be examined.” The CAA is a public utility and part of the State administration. It does not own its assets but merely administers them for the State. As opposed to other public authorities, a utility is a self-financing unit conducting business, and is run on principles of corporate finance. Under section 1 of the Ordinance with Instructions for the CAA (Förordningen med instruktion för Luftfartsverket, 1988:78, hereinafter “the CAA Ordinance”), applicable at the material time, the CAA is defined as a central public authority with the overall responsibility for civil aviation. The Government decide upon the conditions for the individual State authorities through ordinances and annual letters of regulation. The letters of regulation set out, inter alia, the goals to be achieved by the authority, the funding at the authority’s disposal and the way that funding should be distributed among its different activities. Chapter 6, section 13 of the Aviation Act (Luftfartslagen, 1957:297) provides that the Government, or an authority designated by the Government, may issue regulations concerning charges for the use of public airports or other public facilities or services for air traffic. While the air traffic charges originally were set by the Government, the competence to do so was, of 1 January 1993, delegated to the CAA through an amendment (section 75) to the Aviation Ordinance (Luftfartsförordningen, 1986:171). These two provisions constituted the legal basis for the CAA’s decision of 10 December 1998 to adopt its regulation on new air traffic charges. As regards the right to appeal, section 35 of the CAA Ordinance provided the following: “The decisions of the CAA in personnel matters are subject to appeal to the Government, [unless otherwise stated] ... The decisions of the CAA concerning the enrolment for education in the air traffic control service are not subject to appeal. The decisions of the CAA in other matters are subject to appeal only if 1. this follows from a provision other than section 22(a) of the Public Administration Act [Förvaltningslagen, 1986:223], or 2. a provision specifically refers to section 22 (a) of the Public Administration Act. If the matter concerns the exercise of public authority in respect of an individual and there are no specific provisions on appeal, the decision is nevertheless subject to appeal to the Government.” The Public Administration Act applies to the handling of matters by the administrative public authorities and to the courts’ handling of administrative matters (section 1). Under section 22 of the Act, a decision may be appealed by the person whom the decision concerns, provided that it has affected him or her adversely and is subject to an appeal. Under section 22 (a), appeals lie to the administrative courts. However, this does not apply to decisions in administrative matters or in matters concerning the adoption of regulations (normgivningsärenden), as provided for in chapter 8 of the Instrument of Government (Regeringsformen). If there is a specific provision in another Act providing for an appeal, that provision will have precedence. Section 23 provides that an appeal shall be made, within three weeks, to the authority which issued the impugned decision. According to section 24, that authority shall examine whether the appeal has been submitted in time. If it has been submitted in time, the appeal and the case-file are forwarded to the authority empowered to examine the appeal. Chapter 8 of the Instrument of Government contains provisions on laws and other regulations, stating the areas which may be regulated only by law and the areas which may also be regulated by other provisions, as well as the competence of Parliament or the Government to delegate the power to issue regulations to the authorities or the municipalities. The term “exercise of public authority” (myndighetsutövning) is used in many laws and regulations, including the Instrument of Government, the Public Administration Act, the Criminal Code (Brottsbalken) and the Tort Liability Act (Skadeståndslagen, 1972:207). According to the preparatory works of the Instrument of Government (prop. 1973:90, p. 397) and the Public Administration Act (prop. 1985/86:80, p. 55), the term has the same meaning as section 3 of the repealed 1971 Public Administration Act (1971:290). That section gave the following definition: “the exercise of authority to decide on a benefit, right, obligation, disciplinary sanction, dismissal or other comparable issue in respect of an individual” (“utövning av befogenhet att för enskild bestämma om förmån, rättighet, skyldighet, disciplinpåföljd, avskedande eller annat jämförbart förhållande”).

dev

001-115316

ENG

TUR

ADMISSIBILITY

DEMİR v. TURKEY

Inadmissible

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

1. The applicants, Mr Nurettin Demir and Mrs Çiçek Demir, are Turkish nationals who were born in 1976 and 1975 respectively and live in Manisa. They were represented before the Court by Mr C. Hüseyni, a lawyer practising in Manisa. 2. The Turkish Government (“the Government”) are represented by their Agent. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 31 July 2002 the applicants’ three-year-old daughter Melisa, while walking with the second applicant, was severely injured and later died, after a rubbish container she had touched fell on top of her. 5. According to the post-mortem examination report, dated 1 August 2002, the cause of death was bleeding into the chest cavity (haemothorax), possibly resulting from the falling of a rubbish container on the deceased. A classic autopsy was not deemed necessary. 6. On the same day the first applicant gave a statement to the police in which he stated, inter alia, that if the incident was the result of negligence on the part of the Municipality then he wished to lodge a complaint. 7. On 6 August 2002 the second applicant gave evidence to the police. She submitted that while they were walking home from a visit, her daughter had grabbed the open metal lid of the rubbish container and the rubbish container had fallen on top of her. 8. On the same day the second applicant’s sister – an eye-witness to the events – also gave evidence along the same lines as the second applicant. 9. On 7 August 2002 two police officers inspected the area where the incident had taken place. They noted, inter alia, that the back wheels of the container were faulty and that the container had a tendency to fall backwards if the lid was pulled. 10. On 14 April 2003 the prosecutor heard evidence from Mr A.L., the municipal official responsible for rubbish containers, as a suspect. He maintained, inter alia, that he had been informed of the incident ten days after the events, that the municipality had given financial support to the family, and that the incident had been due to the applicants’ daughter pulling the lid of the rubbish container. 11. On the next day, 15 April 2003, the prosecutor filed a bill of indictment charging the second applicant and Mr A.L. with causing death by negligence. The charges were brought under Article 455 of the Criminal Code (no. 765). 12. Subsequently, criminal proceedings commenced before the Turgutlu Criminal Court of First Instance. 13. On 16 June 2003 the Turgutlu Criminal Court of First Instance conducted an on-site inspection. 14. On 4 July 2003 an expert report, prepared by Mr E.Ö., found that the degree of fault attributable to the second applicant for the death of the applicants’ daughter was 2/8, and it was 6/8 in respect of Mr A.L. The defendants objected to the report and a second expert report was commissioned by the court. 15. On 15 September 2003 a second expert report, prepared by one lawyer and two experts on job safety, held that no fault could be attributed to the accused as the responsibility lay with the Turgutlu Municipality, on the basis of the notion of service fault (hizmet kusuru), since the wheels of the rubbish container in question had been broken and it had been placed on an uneven surface. 16. On 25 February 2004 the Turgutlu Criminal Court of First Instance, on the basis of the expert report, acquitted the applicant of the charges against her. It also decided to halt the proceedings against Mr A.L. since no prior authorisation for his prosecution had been obtained, as required under domestic legislation. 17. On an unspecified date the prosecuting authorities requested the Turgutlu District Governor’s Office to grant authorisation for Mr A.L.’s prosecution. 18. On 11 November 2004 the Turgutlu District Governor’s Office, after a preliminary investigation, declined to grant the necessary authorisation for Mr A.L.’s prosecution. In its decision, the District Governor’s Office noted that under the provisions of the contract concluded between the Turgutlu Municipality and the Hastürkler limited company (the firm responsible for rubbish collection – hereinafter “the company”), it had been the responsibility of the company to repair the faulty container and to inform the municipal official with responsibility for rubbish containers about it. 19. On 8 December 2004 the Manisa Regional Administrative Court dismissed an objection by the prosecutor and upheld the decision of the Turgutlu District Governor’s Office. 20. On 7 February 2005 the prosecutor, noting that authorisation to prosecute Mr A.L. had been refused, decided not to prosecute him. 21. On 16 January 2004 the applicants had applied to the Turgutlu Municipality for compensation. Since no response was received, on 13 May 2004 the applicants brought an action for compensation in the Turgutlu Administrative Court against the Municipality. 22. On 1 July 2004 the first-instance court dismissed the applicants’ claim for compensation on the ground that they had submitted it too late (süre aşımı). In this connection, the court, referring to section 13 of Law no. 2577, noted that it should have been obvious to the applicants that the responsibility of the Municipality was engaged and therefore they should have applied to the relevant authority within a year of the death of their child. 23. On 9 February 2005 the Supreme Administrative Court, by a majority, upheld the judgment of the first-instance court. A request by the applicants for rectification of its judgment was also dismissed by the same court on 13 February 2006. On both accounts one judge dissented on the ground, inter alia, that the applicants had become aware of the fault of the municipality only on receipt of the expert reports, and that therefore they were within the applicable time-limits. 24. On 18 August 2006 the applicants lodged a criminal complaint with the Turgutlu public prosecutor’s office against Mr M.H., the authorised representative of the Hastürkler limited company, requesting that he be prosecuted and convicted for the death of their daughter. They submitted that nineteen months had elapsed since the prosecutor’s office had decided not to prosecute the municipal authorities and that no other steps had been taken since that time. In this connection, the applicants requested the prosecutor’s office to act without further delay as the statutory time-limit for trial in respect of the offence was approaching. 25. Mr M.H. gave evidence to the police on 6 December 2006, denying the allegations against him and claiming that the company was responsible only for collecting rubbish in and around the rubbish containers and nothing further. 26. In an indictment dated 13 May 2007 the Turgutlu Public Prosecutor charged Mr M.H. with causing death by negligence. The charges were brought under Articles 85 § 1, 22 and 50 § 4 of the Criminal Code. 27. On 21 May 2007 the criminal proceedings against the accused began before the Turgutlu Criminal Court of First Instance. 28. In the course of the trial the court heard evidence from the accused and the applicants, commissioned expert reports and conducted an on-site inspection. 29. The expert report prepared by Mr C.B., an inspector at the Labour and Social Security Ministry, concluded that the Municipality and the company responsible for collecting the rubbish were at fault. 30. On 14 September 2007 the applicants joined the proceedings as civil parties (müdahil). 31. On 5 December 2007 an expert report prepared by three engineers, experts on job safety, concluded that the second applicant was at fault to the degree of 4/8 for the death of the applicants’ daughter as she had not been diligent, the Municipality was at fault 2/8 for not conducting the necessary inspections, and Mr M.H. was at fault 2/8 for failing to replace the broken wheels of the rubbish container. 32. On 27 February 2008 the first-instance court, relying on the findings of the expert reports of 31 January 2007 and 5 December 2007, found that Mr M.H. was guilty as charged and sentenced him to two years’ imprisonment. This sentence was subsequently reduced to six months’ imprisonment and commuted to a fine. 33. On 16 September 2010 the Court of Cassation quashed the decision of the first-instance court and discontinued the proceedings against the accused on the ground that the prosecution of the offence had become timebarred under Articles 102 § 4 and 104 § 2 of the Criminal Code (no. 765) and Article 322 of the Code of Criminal Procedure. 34. On 30 July 2007 the applicants initiated compensation proceedings against the company on the ground that the latter was responsible for the death of their daughter. The first applicant requested 7,000 Turkish liras (TRL) in respect of pecuniary damage and TRL 15,000 in respect of nonpecuniary damage. The second applicant requested TRL 8,000 in respect of pecuniary damage and TRL 15,000 in respect of non-pecuniary damage. The applicants further requested, on behalf of their remaining two children, TRL 5,000 in respect of non-pecuniary damage. They further requested the court to issue a temporary injunction banning the sale or transfer of the cars belonging to the company. 35. The company requested the court to dismiss the proceedings as they considered that no fault could be attributed to it. 36. On 1 August 2007 the compensation proceedings commenced before the Turgutlu Civil Court of First Instance. Regular hearings were held. The court examined the case-file of the criminal proceedings brought against the company representative and commissioned an additional expert report to examine the discrepancies between the expert reports contained in the casefile. 37. At a hearing on 9 October 2007 the first-instance court issued an injunction in respect of two cars belonging to the company. 38. On 18 July 2008 an expert report prepared by Mr Ö.T. concluded that both the Municipality and the company were 50% at fault. 39. On 30 July 2008 an expert report prepared by a lawyer was submitted to the court. This report concerned the amount of pecuniary damage to be awarded to the applicants on the basis of the findings of the expert report of 18 July 2008. 40. Another expert report prepared by three engineers, experts on job safety, concluded, on 15 December 2008, that the company was at fault in the circumstances of the present case. They considered that since the municipality had not been informed of the condition of the rubbish container, no fault could be attributed to it. The report further concluded that no fault could be attributed to the second applicant, as she had been holding the deceased’s hand at the time of the incident. 41. At a hearing held on 6 March 2009 the first-instance court decided to commission an additional expert report, as it considered the conclusions as to the attribution of fault in the earlier reports were divergent. 42. On 20 April 2009 an expert report prepared by three engineers, experts on job safety, was submitted to the court. That report concluded that the company was 25% at fault for not preventing its workers from misusing the containers, for not supervising the work, for the placing of the container on an uneven surface, and for the failure to inform the authorities about the broken wheel. It considered that Mr M.H. was 5% at fault for not ensuring general work discipline. The second applicant was 20% at fault for not preventing the child from touching the container, and the Municipality was 50% at fault for not placing the container on an even surface, for not ensuring the container did not overbalance when the lid was open, for not checking or prescribing and taking measures to prevent misuse of the container from causing harm, and for not checking whether the relevant work was being conducted in accordance with the provisions of the contract. 43. On 26 October 2010 an additional expert report was prepared by a lawyer, calculating the amount of pecuniary damage to be awarded to the applicants on the basis of the findings of the latest expert report. 44. On 5 October 2009 and 3 November 2009 the applicants requested the court to broaden the case so as to include Mr M.H. and the Municipality as co-defendants in the compensation claim. 45. On 3 November 2009 the first-instance court partially ruled in the applicants’ favour. It first held that the second applicant was at fault for letting her child get too close to a rubbish container in the middle of the night; the municipality was at fault for several reasons, such as not placing the bin on a proper surface, not ensuring that its lid was properly functional, and not checking whether the rubbish container posed a danger, or whether the company was abiding by its contractual obligations. It found that the company was at fault for various reasons, such as not enforcing work discipline, not preventing the misuse of its rubbish containers, and failing to monitor and inform the relevant authorities about faulty rubbish containers. It considered that the responsibility of the company for the incident was 25%. It thus awarded the first applicant TRL 3,319.56 in respect of pecuniary damage and TRL 4,500 in respect of non-pecuniary damage, and the second applicant TRL 3,155.62 in respect of pecuniary damage and TRL 4,500 in respect of non-pecuniary damage. It further awarded TRL 1,500 in respect of nonpecuniary damage to each of the applicants’ surviving children. The court fixed the interest at the statutory rate applicable on 31 July 2002, the date of the incident. Finally, the court dismissed the applicants’ request for the broadening of the case to include Mr M.H. and the Municipality as codefendants, as no such procedure existed in domestic law. 46. The applicants appealed. 47. On 15 January 2010 the applicants commenced enforcement proceedings in order to claim the sums due, which amounted in total to TRL 53,671.49 at the time. The Government submitted correspondence between the enforcement office and various institutions, notably banks, concerning whether the company had any existing assets. According to the record prepared by Mr R.C., a deputy enforcement officer, on 16 February 2012 no movable or immovable property was registered under the name of the firm and the case-file was closed on 29 December 2011. 48. On 14 July 2011 the Court of Cassation rectified and upheld the decision of the first-instance court. 49. On 30 September 2011 the applicants initiated compensation proceedings against the Turgutlu Municipality. The latter raised the objection that the court was prevented from examining the case as the statutory time-limit had expired. 50. On 3 February 2012 the Turgutlu Civil Court of First Instance held that the statutory time-limit for examining a compensation claim arising out of a tortious act (haksız fiil) had expired. Referring to Article 60 of the Civil Code of Obligations, the court noted that the liability of the municipality as regards the events had been held to be 50% in the previous compensation proceedings, and thus the applicants had failed to lodge an application with the court against the Municipality within one year of the date on which they had learned of the damage and its perpetrator. 51. The relevant domestic law applicable at the time of the events is as follows. 52. Article 17 of the Constitution provides that everyone has the right to life. 53. Article 455 § 1 of the Criminal Code (no. 765) reads: “Anyone who, through carelessness, negligence or inexperience in his profession or craft, or through non-compliance with laws, orders or instructions, causes the death of another shall be liable to a term of imprisonment of between two and five years and to a fine of between 20,000 and 150,000 Turkish liras.” 54. A prosecution for an offence punishable by a prison sentence of a maximum of five years must be brought within five years (Article 102 § 4 of the Criminal Code (no. 765)). 55. At the time of the incident, under the Code of Criminal Procedure, a public prosecutor who, in any manner whatsoever, was informed of a situation which gave rise to a suspicion that an offence had been committed was required to investigate the facts with a view to deciding whether or not criminal proceedings should be brought (Article 153). However, the public prosecutor’s jurisdiction was restricted ratione personae at the preliminary investigation stage if the suspected offender was a State employee or public servant and the alleged offence had been committed during the exercise of official duties. Law no. 4483 (Law on the prosecution of civil servants and public officials) determined which authorities were empowered to give permission for a State employee or public servant to be prosecuted for an offence committed in the exercise of official duties and regulated the procedure to be followed. In such cases, it was for the competent authority (depending on the suspect’s status) to conduct a preliminary investigation and, consequently, to decide whether criminal proceedings should be opened. The decision given by the relevant authority could be challenged before the Supreme Administrative Court. A decision not to prosecute was automatically reviewed by that court. 56. On 1 June 2005 a new Criminal Code (Law no. 5237) entered into force. Under Article 85 § 1 of the new Criminal Code a person causing the death of another person by negligence was liable to a term of imprisonment of between two and six years. 57. Section 13 of Law no. 2577 (Code on Administrative Procedure) provides that persons who have suffered damage on account of a wrongful act of the administration must apply to the relevant authority for rectification of the situation within a year of the date on which they were notified or otherwise learned of the impugned act, before bringing a lawsuit. Should all or part of the claim be dismissed, or if no reply is received within sixty days, the victim may bring administrative proceedings. 58. Under the Code of Obligations (no. 818), anyone who has suffered damage as a result of a tortious or criminal act may bring an action for damages for pecuniary loss (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal courts on the issue of the defendant’s guilt (Article 53). 59. In civil law, the claim for damages must be initiated within one year of the date when the prejudiced party has received knowledge of the damage and of the person liable, but in any case within ten years of the date when the act which caused the damage took place (Article 60 of the Code of Obligations (no. 818)).

dev

001-110445

ENG

RUS

CHAMBER

CASE OF DAMIR SIBGATULLIN v. RUSSIA

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;Article 6-3-d - Witnesses);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

10. The applicant was born in 1974 and is serving a sentence in a correctional colony in Kineshemskiy District, Ivanovo Region. 11. Criminal proceedings were instituted against the applicant in Uzbekistan. The prosecution suspected that in February 1998 he and a Mr A. had robbed and murdered an elderly woman in Tashkent. After the murder they had allegedly packed the victim’s body in a box and given the box to bus drivers at a local market to transport it to a supermarket in another town. The applicant and his accomplice had also allegedly sold the victim’s property, including furniture, carpets, clothes, and household utensils, to a number of individuals in the days following the murder. 12. According to the Government, after committing the criminal offences the applicant fled Uzbekistan and returned to Russia. On an unspecified date Russian prosecution officials opened a criminal case against the applicant for crimes allegedly committed in Uzbekistan. On 17 November 2003 the applicant was arrested and placed in a detention facility in Ivanovo. 13. In 2004 the applicant was committed for jury trial. 14. On 24 April 2004 the Ivanovo Regional Court initiated the jury selection process. Twenty-five people reported for jury duty on that day. 15. Three potential jurors were excused for personal reasons. The prosecution successfully challenged one potential juror for cause and made two successful peremptory challenges. The defence made two jury challenges for cause and two peremptory challenges, which were accepted. 16. A jury of twelve was selected and two alternates appointed. It appears from the record of the jurors’ responses to the questions asked by the presiding judge that close relatives of five jurors worked for the police and at the Service for Execution of Sentences. In particular, the husband of juror no. 2 and the son of juror no. 4 worked as traffic police officers. The son-in-law of juror no. 3 was employed by the Service for the Execution of Sentences. The husbands of jurors nos. 11 and 13 worked for the police as telecommunications and radio operators respectively. In addition, two jurors on the panel had been victims of criminal offences. In 2000 juror no. 1 had been attacked by a drunk person, but the matter was subsequently settled out of court. In 1994 the son of juror no. 6 died as a result of a house collapse. 17. After the jury had been empanelled and sworn in, defence counsel challenged the entire jury venire upon account of partiality. The defence alleged that the fact that certain jurors had been victims of criminal offences could influence their judgment. The challenge for the array was dismissed. 18. On 24 November 2003 the President of the Ivanovo Regional Court sent a letter to Uzbek law-enforcement officials asking for assistance. The letter, in so far as relevant, read as follows: “In compliance with the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk, 22 January 1993), which came into force for Uzbekistan on 19 March 1994 and for Russia on 10 December 1994, the Ivanovo Regional Court asks competent officials of the Republic of Uzbekistan to provide legal assistance in a criminal case... According to the case-file materials all the witnesses the court wants to call to testify in the present case live in the Republic of Uzbekistan. In this respect, [I] ask you to provide legal assistance in ensuring the appearance of the witnesses in the criminal case before the Ivanovo Regional Court... at 10 a.m. on 20 January 2004, by serving the individuals listed below with the enclosed summons and by providing [the Ivanovo Regional] court with documents confirming that the summonses have been served: [The Ivanovo Regional Court enclosed a list of thirteen witnesses, including their dates of birth and home addresses. All but two of the witnesses, lived in Tashkent. The remaining two were registered in the town of Dzhizak].” A similar letter was sent on 26 November 2003 by the Russian Ministry of Justice to the Ministry of Justice of the Republic of Uzbekistan. 19. On 20 February 2004 the Ivanovo Regional Court issued a decision, which read as follows: “[The applicant] is accused of murdering, on 22 February 1998, together with Mr A., an elderly woman, Ms B., in Tashkent, with the intention of taking her property. [The prosecution] included Mr A. on the list of those to be heard in court as witnesses for the prosecution... Mr A. [who had already been found guilty of those offences by a court in Uzbekistan and sentenced to eighteen years’ imprisonment] is currently serving his sentence in [a correctional colony] in the town of Almalyk in the Tashkent Region of Uzbekistan. Having regard to the fact that pursuant to Article 240 of the Russian Code of Criminal Procedure all items of evidence in a case, including statements by witnesses, are to be examined in open court, [I] consider it necessary to take steps to ensure the presence of that witness at a court hearing, in compliance with the requirements of international law. Paragraph 5 of Article 456 of the Russian Code of Criminal Procedure, which defines how a person who is detained in a foreign State is to be called to a court hearing, refers to paragraph 3 of Article 453 of the Russian Code of Criminal Procedure, by virtue of which a request for legal assistance is to be submitted in accordance with an international agreement between the Russian Federation [and the foreign State]. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk, 22 January 1993...)... plays the role of that international agreement in the present case. Article 78.1 of the Convention provides for the possibility of conveying a person who is serving a sentence (if he agrees) to be questioned as a witness, following a decision by the Prosecutor General of the requesting State. By virtue of Article 80 of the Convention the actions in question which require authorisation by a prosecutor (a court) are to be carried out by prosecuting authorities within the procedure defined by the Prosecutors General of the two States.” On the same day the President of the Ivanovo Regional Court, relying on the norms of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”), sent similar letters to the offices of the Prosecutor General of the Russian Federation and that of the Republic of Uzbekistan. The court president asked the prosecuting authorities of the both countries to convey the applicant’s associate, Mr A., to Russia for him to testify in open court in the criminal case against the applicant. 20. In January 2004 the Ivanovo Regional Court received information regarding attendance by two witnesses from the list. A judge from the Dzhizak Town Court in Uzbekistan informed the Regional Court that the whereabouts of one witness were unknown and that another witness could not travel to Russia in view of his difficult financial situation. The judge also noted that the second witness stood by the statements he had given to the investigating authorities. On 17 and 19 April 2004 the Regional Court received e-mails from two other witnesses who, in similar wording and citing their difficult family situation and poor health, informed the court that they were unable to attend the trial. The witnesses also gave their full support to the statements made during the pre-trial investigation. A telegram from another witness arrived on 23 April 2003. This witness refused to travel to Russia, citing poor health. The Regional Court did not receive any information pertaining to the remaining witnesses. 21. On 22 April 2004 the Ivanovo Regional Court held a trial hearing. 22. The prosecution requested the Regional Court to read out statements made by the prosecution witnesses and the applicant’s associate, Mr A., to the Uzbek authorities, arguing that it was impossible to obtain their attendance. Four witnesses failed to appear for various personal reasons and the remaining witnesses lived in Uzbekistan. The applicant and his counsel objected, relying on the defendant’s right to cross-examine witnesses testifying against him. The applicant noted that during the pre-trial investigation he had repeatedly asked the investigating authorities to hold confrontation interviews with the witnesses. However, his requests had been dismissed without any explanation. 23. The Regional Court agreed to read out statements by the four prosecution witnesses who had failed to appear for personal reasons, finding those reasons to be valid. As regards statements by the remaining witnesses and Mr A., the Regional Court held as follows: “During the last six months the court has taken all lawful steps to ensure the witnesses’ presence, and certain witnesses have sent in information which confirmed that they had been summoned properly. Due to the fact that other witnesses live in another State, and taking into account that they confirmed their statements in a court hearing in the Tashkent City Court [during the trial against Mr A.], [the court] considers that the present extraordinary circumstances preclude their attendance [and] decides to read out the statements of the ... witnesses who failed to appear.” The Regional Court read out statements by the remaining six prosecution witnesses and by Mr A. It also announced the results of photo-identification parades conducted by the Uzbek investigating authorities during which the witnesses had identified the applicant and Mr A. 24. A copy of the court hearing records presented to the Court by the parties show that in addition to the witnesses’ depositions the Regional Court studied the records of the crime scene examinations of 15 and 20 March 1998, an autopsy report, a document confirming the victim’s identity, a search report, a warrant for the applicant’s arrest and records of pre-trial confrontation interviews between Mr A. and the witnesses whose statements had been read out by the Regional Court. The Court further heard the applicant and his parents, who denied the applicant’s involvement in the robbery and murder and insisted that at the time of the crime he was staying with his family in Russia. 25. At the same hearing the applicant accused the prosecution of jury tampering and sought the discharge of the entire panel. He claimed that juror no. 1 had tapped the prosecutor on the hand and the prosecutor had responded with a nod of the head. Defence counsel supported the accusation claiming that he had witnessed the incident. The prosecutor denied the incident, stating that he was not acquainted with juror no. 1. Juror no. 1, in response to questions from the presiding judge, stated that he had not known the prosecutor before the trial and that he had never had a conversation with him. The presiding judge, without giving any reasons, dismissed the applicant’s challenge to the empanelled jury. 26. The parties’ closing arguments followed. The defence argued that there was no material evidence, such as fingerprints, bloodstains and so on, linking the applicant to the criminal offences, and that the applicant had been denied an important right to cross-examine witnesses against him. 27. On 7 May 2004 the jury, by eight to four votes, found the applicant guilty of aggravated murder and robbery. 28. On 12 May 2004 the Ivanovo Regional Court accepted the verdict and sentenced the applicant to eighteen years’ imprisonment. 29. The applicant and his lawyer appealed, arguing that the jury had not been fair and impartial because certain jurors had been victims of criminal offences and the prosecution had tried to exert improper influence on at least one of the jurors. They further alleged a violation of the applicant’s rights, having regard to the fact that at no stage of the proceedings had either he or his lawyer been offered the opportunity to question the prosecution witnesses. 30. On 8 July 2004 the Supreme Court of the Russian Federation upheld the conviction, finding that the investigating authorities and the Regional Court had not committed any serious violations of the criminal procedural law. 31. The Russian Code of Criminal Procedure provides that an officer of a court or a judge’s assistant has to compile a list of jury candidates for the trial. The candidates are to be drawn at random from the district or regional list of jurors. The candidates’ names are entered in the list in the order in which their lots were drawn. The list of jury candidates is then served on the parties. The parties have the right to make an unlimited number of challenges for cause and two peremptory challenges to potential jurors. The presiding judge decides on the challenges. After deleting the names of the successfully challenged candidates, the court secretary or the judge’s assistant makes up the list of the remaining jury candidates, whose names are to appear in the same order as in the first list. The twelve candidates whose names appear first on the list form the jury, and the two candidates whose names appear next become substitutes. Before the jury is sworn in, the parties may challenge the entire panel if they argue that due to particular features of a criminal case the panel will be unable to render an objective verdict. The presiding judge is to decide on any such challenge to the empanelled jury (Articles 326–330). 32. Earlier statements made by a victim or witness may be read out if the parties give their consent to it and if (1) there are substantial discrepancies between the earlier statement and the later statement before the court or (2) the victim or the witness has not appeared before the court (Article 281 § 1). 33. The court may, without seeking the consent of the parties, read out earlier statements by the defaulted a victim or witness in case of (1) death, (2) serious illness, (3) the refusal to appear by a victim or the witness who is a citizen of another States or (4) natural disaster or other force majeure circumstances (Article 281 § 2). 34. Chapter 5 of the Code determines steps to be taken when asking foreign authorities for legal assistance. In particular, Article 453 provides that a prosecutor, an investigator or a court, when they need to carry out an interrogation, a search, seizure or any other procedural action in the territory of a foreign State, may ask assistance from investigating or judicial officials of that State to organise/perform that procedural action. Records of procedural actions performed by foreign officials on a request by Russian authorities will have the same evidentiary weight as evidence received by Russian officials in the territory of the Russian Federation (Article 455). Article 456 deals with the issue of summoning witnesses who live outside the Russian Federation to give statements regarding a criminal case pending before Russian authorities. 35. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the 1993 Minsk Convention”), to which both Russia and Uzbekistan are parties, provides that a witness and a victim who are subjects of one Contracting Party can be summoned, for the purpose of their examination, by a “body of justice” of another Contracting Party. The witness and the victim are entitled to reimbursement of travel, and certain other, costs and expenses incurred in connection with their participation in the criminal proceedings (Section 9). 36. If a witness or a victim does not obey a summons to appear without a valid reason, they may be brought to a courtroom under escort (Article 113). 37. Witnesses and victims are entitled to reimbursement of costs and expenses incurred in connection with their participation in criminal proceedings (Article 131). 38. Witnesses and victims who live abroad may be summoned, with their consent, to criminal proceedings conducted in the Russian Federation (Article 456 § 1). 39. Article 413 of the Russian Code of Criminal Procedure, setting out the procedure for reopening of criminal cases, reads, in so far as relevant, as follows: “1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances. ... 4. New circumstances are: ... (2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to: (a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms; (b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms; (c) other new circumstances.”

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001-114097

ENG

POL

CHAMBER

CASE OF GŁOWACKI v. POLAND

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

5. The applicant was born in 1957 and lives in Warsaw. 6. On an unknown date in 1991 the applicant was charged with aggravated robbery. In 1993 the Siedlce Regional Prosecutor (Prokurator Wojewódzki) stayed the investigation as the applicant’s whereabouts were not known. In July 1993 the applicant was arrested and began serving a prison sentence which had been imposed in 1982. 7. On 14 March 1994 a bill of indictment was lodged with the Warsaw Regional Court (Sad Wojewódzki). The applicant was charged with robbery. 8. The proceedings were stayed on 6 March 1996 in view of the applicant’s health. In December 1996 he underwent spinal surgery. The trial was resumed on 28 September 1997. 9. The applicant failed to appear at some hearings in 2003, however the trial court found that this was because he had been serving a prison sentence imposed in another set of criminal proceedings. 10. On 5 April 2004 the charges against the applicant and several coaccused were severed and dealt with in a separate set of proceedings. 11. The applicant failed to appear at a hearing held on 30 June 2005. On the same date the Warsaw Regional Court (Sad Okręgowy) issued a wanted notice in respect of the applicant and ordered that he be arrested and remanded in custody. 12. On 18 July 2005 the court severed the charges against the applicant, to be dealt with in a separate set of the proceedings, and on the same date stayed the proceedings as the applicant was in hiding. 13. The applicant was arrested on 18 May 2007. He was placed in the Warsaw Białołęka Detention Centre on 21 May 2007. 14. On 11 June 2007 the Warsaw Regional Court resumed the proceedings against the applicant. 15. In the course of the proceedings, the applicant’s detention was extended on 13 August and 17 December 2007 and 26 March, 21 April, 21 July and 26 September 2008. In their decisions on the matter the authorities relied on the original grounds given for holding him in custody. The applicant did not appeal against most of the decisions extending his detention. 16. On 22 September 2009 the Warsaw Regional Court convicted the applicant of armed robbery, burglary and causing serious bodily harm and sentenced him to five years’ imprisonment. 17. The applicant’s detention was subsequently extended, in particular on: 26 September and 22 December 2008 and 6 March 2010. The applicant lodged an appeal against the last of those decisions. 18. On 10 April 2010, at the applicant’s request, the detention was lifted and he was released from custody. 19. On 2 March 2011 the applicant began serving the prison sentence imposed on 22 September 2009. 20. On an unknown date in 2007 the Płock Regional Prosecutor (Prokurator Okregowy) instituted criminal proceedings against the applicant and several co-accused on charges of illegal possession of weapons and robbery. 21. On 23 May 2007 the Ostrołeka District Court remanded the applicant in custody, relying on the suspicion that he had committed the offences with which he was charged. It attached importance to the likelihood of a lengthy prison sentence being imposed on the applicant, the serious nature of the offences of which he was suspected, and the risk that he would go into hiding. This was made more likely by the facts that he did not have a permanent place of residence and was unemployed. The applicant did not appeal against this decision. 22. In the course of the investigation the applicant’s detention was extended on 31 July and 15 November 2007 and on 31 January, 18 April and 3 October 2008. The authorities relied on the original grounds given for keeping him in custody. 23. Appeals by the applicant against the decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful. 24. On 21 January 2008 a bill of indictment was lodged with the Płock Regional Court. 25. On 18 December 2008 the Płock Regional Court convicted the applicant as charged and sentenced him to seven years and six months’ imprisonment. The applicant’s detention was subsequently extended. 26. On 28 October 2009 the Warsaw Court of Appeal partly upheld the first-instance judgment and partly remitted it. It also sentenced the applicant to one year’s imprisonment. The applicant served this sentence between 18 May 2007 and 18 May 2008. 27. On 8 December 2009 the Warsaw Court of Appeal lifted the applicant’s remand in custody. 28. On 1 September 2009 the applicant lodged a complaint with the Warsaw Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). The applicant sought a ruling that the length of the proceedings before the Warsaw Regional Court (see paragraphs 6-19 above) had been excessive, and also sought an award of just satisfaction. 29. On 15 December 2009 the Court of Appeal gave a decision and dismissed the applicant’s complaint. The court considered that there had been no significant delays in the proceedings, as the applicant had contributed to the length of the proceedings. 30. On 21 May 2007 the applicant was placed in the Warsaw Białołęka Remand Centre (Areszt Śledczy). 31. On 1 June 2007 the Penitentiary Commission of the Warsaw Białołęka Remand Centre classified him as a “dangerous detainee” (tymczasowo aresztowany niebezpieczny) and ordered that he be placed in a closed cell. The commission referred to: the fact that the applicant was accused of armed robbery and using fake police uniforms, and that he had previously escaped from the Warsaw Mokotów Remand Centre, and also to his “serious lack of moral character” and long history of criminal convictions. 32. Every three months the Warsaw Remand Centre Penitentiary Commission reviewed and upheld its decision classifying the applicant as a “dangerous detainee”. In particular on 26 February 2008 the commission confirmed its previous decision. It considered that it was necessary to place the applicant in solitary confinement as he had been charged with numerous offences, including armed robbery. The commission also referred to “serious lack of moral character”. 33. The applicant appealed to the penitentiary courts against most of those decisions, arguing that he was suffering from various health problems including hemiparesis and discopathy, and should not be placed in solitary confinement. He also stressed that he had never been charged with acting as part of an organised criminal group. 34. All his appeals were dismissed. The courts gave decisions on 26 May, 29 August and 17 October 2008, 15 April and 24 June 2009, and 4 March 2010. The authorities relied on the grounds given for the initial decision. In particular they stressed the risk posed by the seriousness of the offences and the use of weapons and fake police uniforms. 35. On 30 May 2008 the applicant was transferred to Płock Prison so that he could attend the proceedings before the Płock Regional Court (see paragraphs 20-27 above). He was placed alone in a cell for dangerous detainees. This situation applied between 30 May and 4 September 2008 and 9 September and 11 December 2008. The applicant complained about this on several occasions, alleging that due to his health problems, for safety reasons he should have been placed with another inmate. 36. Due to his “dangerous detainee” status the applicant was under increased supervision. The applicant’s cell in Płock Prison measured 6.92 sq. m. Between 11 December 2008 and 9 January 2009 he shared it with another inmate. Every time the applicant left or entered his cell he was subjected to a body search, which in practice meant that he had to strip naked. Examinations of the applicant’s body, his clothing and shoes were conducted in a separate room, with no third parties present. 37. The applicant was ordered to wear “joined shackles” (kajdanki zespolone) on his hands and feet on three occasions during the proceedings before the Płock Regional Court, on 2, 9 and 11 June 2008. Those shackles consisted of handcuffs and fetters joined together with chains. On each occasion he was put in the shackles on his arrival at the court and remained handcuffed throughout the day until the end of the hearing. 38. The applicant was allowed to receive visits from his family. According to a list of visits provided by the Government, between 8 July and 28 October 2008 the applicant was visited on four occasions by his sister and son (one visit per month). Subsequently, between 29 June 2009 and 2 November 2009 his sister and son visited him on average once a month. The majority of these visits lasted one hour. Between 28 October 2008 and 4 June 2009 he was not visited by anyone. 39. On 8 May 2009 the applicant was granted leave to attend his mother’s funeral. 40. The Government submitted that after his initial complaint the applicant had, in direct conversation with the prison authorities, agreed to be held in solitary confinement. 41. The applicant argued that when his complaints were unsuccessful he had had no other choice than to accept the situation which had been imposed on him. 42. The applicant was detained in the following detention centres: Warsaw Białołeka Detention Centre, Lublin Remand Centre, Warsaw Mokotów Remand Centre, and Płock Prison. 43. He failed to lodge a claim for compensation for damage to his health sustained as a result of inadequate conditions of detention. 44. The applicant argued that the living conditions in the detention centres in which he was detained were inadequate. The cells were very small, with approximately 3 sq. m per person. The exercise area was also very small, approximately 15 sq. m. 45. The Government submitted that during the applicant’s detention in all four of the penal establishments listed above all standards of detention were respected. 46. The relevant domestic law and practice concerning the imposition of dangerous detainee status are set out in the Court’s judgments in the cases of Piechowicz v. Poland (no. 20071/07, §§ 105-117, 17 April 2012), and Horych v. Poland (no 13621/08, §§44-56, 17 April 2012). 47. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006), and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006). The relevant domestic law and practice concerning remedies for excessive length of judicial and enforcement proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland, no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V, and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII, and in its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. 48. Article 23 of the Civil Code contains a non-exhaustive list of “personal rights” (dobra osobiste). This provision states: “The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.” Article 24, paragraph 1, of the Civil Code provides: “A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an appropriate sum for the benefit of a specific public interest.” 49. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads: “The court may grant an appropriate sum as pecuniary compensation for non-material damage (krzywda) to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of whether they are seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...” 50. Articles 417 et seq. of the Polish Civil Code provide for the State’s liability in tort. Article 417 § 1 of the Civil Code (as amended) provides: “The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.” 51. Article 4421 of the Civil Code sets out limitation periods for civil claims based on tort, including claims under Article 23 read in conjunction with Articles 24 and 448 of the Civil Code. This provision, in the version applicable from 10 August 2007, reads, in so far as relevant, as follows: “1. A claim for compensation for damage caused by a tort shall lapse after the expiration of three years after the date on which the claimant learned of the damage and the identity of the person responsible for it. However, this expiry date may not be later than ten years after the date on which the event causing the damage occurred.” 52. The relevant international documents concerning the imposition of security measures and the 2009 Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are set out in the Court’s judgment in the case of Piechowicz v. Poland (cited above, §§ 127-136).