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001-4553
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The applicant is a British citizen born in 1961 and currently detained in HM Prison Old Elvet, Durham. Before the Court, he is represented by Mr. B.T. Row, a solicitor practising in Newcastle. The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 June 1993 the applicant was arrested and, together with his brother, charged with burglary and conspiracy to commit burglary. After being charged, the applicant and his brother were released on conditional bail.
Committal papers were served on the defence on 21 September 1993, following the completion of the police investigation. The applicant’s representatives requested an “old style” committal hearing, which would have involved hearing oral evidence from ten prosecution witnesses over two days. It was not possible for the North Tyneside Magistrates Court to schedule a two-day hearing before 4 January 1994. On that date the defence decided to proceed on the basis of written statements under the shortened committal procedure (provided for by section 6(2) of the Magistrates Courts Act 1980). The case was then committed for trial to Newcastle Crown Court.
On 25 February 1994 there was a pre-trial hearing to ascertain the pleas of the accused and to give directions for trial. The applicant and his brother pleaded not guilty and were released on bail.
In a letter received on 21 April 1994, the applicant’s solicitors wrote to the court asking for the case not to be listed for eight weeks to enable them to obtain the report of a forensics expert. In a letter received on 8 June 1994, they asked for a further delay of six weeks. Finally, in a letter received on 8 July 1994 they asked that the trial not be listed until September or October 1994 to enable them to obtain medical evidence.
The trial, which was estimated to require three weeks and involve hearing evidence from 58 witnesses, was listed for 3 July 1995. However, the applicant failed to appear at the trial. In his application he explained that “because of threats which [he] was receiving from the persons actually responsible for the offences for which [he] stood charged, [he] failed to attend court. [He] ... stayed at home to protect [his] family from known criminals who would have caused harm to [his] family”.
The applicant was arrested on 28 July 1995 and remanded in custody. The trial was next scheduled for 4 March 1996. On that date, the applicant’s co-accused brother failed to appear and the case was again adjourned.
On 22 April 1996 there was a further pre-trial directions hearing. Three possible trial dates were proposed: 17 June, 12 August and 4 November 1996. However, the applicant’s counsel, who had acted for him from the outset and whom the applicant wished to represent him at trial, was not available on 17 June, and it was not possible for the trial to take place on 12 August 1996 because of the unavailability of a number of witnesses. The trial was, therefore, fixed for 4 November 1996. The applicant was remanded in custody until then.
At the trial, both the applicant and his brother pleaded guilty to charges of conspiracy to burgle. The applicant was sentenced to four years’ imprisonment.
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[2, 4, 5, 6, 7]
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001-57904
|
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."
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[0, 3, 4, 6, 8, 10, 12, 16, 17, 18, 39, 40, 41, 49]
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001-58115
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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.
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[1, 2, 4, 7, 10, 11, 13, 15, 18, 21, 27, 28, 30, 31]
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001-58227
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6. In 1929 K.N. inherited three-quarters of a tract of land known as the “Karras estate” from his adoptive father. In 1938 K.N.’s adoptive mother sold him the remaining quarter of the “Karras estate”, which she had inherited from her husband. The contract of sale gave the surface area of the “Karras estate” as 12,000,000 sq. m.
7. In 1950, having obtained the necessary permit from the authorities, K.N. built an open-air cinema – the “Ilioupolis” cinema – on part of this land.
8. In 1953 the Minister of Agriculture refused to recognise K.N. as owner of the whole “Karras estate”, taking the view that K.N.’s adoptive father had owned only part of the land, namely an area of between 320,000 and 520,000 sq. m, which did not include the part on which the “Ilioupolis” cinema had later been built. The rest of the area was public forest and was not included in the title deeds submitted by K.N. Thereupon K.N applied to the Supreme Administrative Court to set aside the decision of the Minister of Agriculture but his application was dismissed. On 8 February 1955 a royal decree designated the area in dispute as land to be reafforested. K.N. applied to the Supreme Administrative Court to set aside the royal decree but the court dismissed the application, holding that the disputed area was forest land belonging to the State.
9. By means of Cabinet decisions of 10 February 1965 and 11 March 1966, which were published in the Official Gazette (Eφημερίδα της Κυβερνήσεως) and entered in the Ilioupolis municipal register, the State transferred a 220,000 sq. m area of the “Karras estate” to the Police Officers’ Housing Cooperative. This area did not include the land on which the “Ilioupolis” cinema had been built.
10. On 28 July 1965 a royal decree ordering the reafforestation of land in Ilioupolis was promulgated. According to the Government, this decree covered an unspecified part of the “Karras estate”. On 2 December 1966 the decree was amended by a further decree, which was published in the Official Gazette.
11. On 3 April 1967 K.N. brought an action against the Police Officers’ Housing Cooperative to establish his title to the land which had been transferred to it. The State, as transferor, intervened in the proceedings in favour of the Cooperative. This action was entered in the Ilioupolis mortgage register. In the margin of the relevant page, the subsequent judgments of the Athens Court of First Instance (no. 16992/1973) and the Court of Appeal (no. 4910/1977 – see paragraph 13 below) dismissing the action and acknowledging the State’s ownership of the disputed area were noted.
12. In 1976 K.N. died and his heirs received an inheritance-tax demand in respect of the land on which the cinema had been built. The State took a mortgage on the land as security for the tax debt. The mortgage was paid off in 1982.
13. K.N.’s heirs continued the proceedings brought on 3 April 1967. On 21 June 1977 the Athens Court of Appeal held that the tract of land transferred to the Police Cooperative belonged to the State. In the reasons for its judgment the court agreed with the Minister of Agriculture, holding that K.N.’s adoptive father had owned only a part of the “Karras estate”, which had not included the part on which the “Ilioupolis” cinema had been built or the part which had been transferred to the Cooperative. The Court of Appeal based this conclusion on, inter alia, the fact that in 1905 the “Karras estate” had been entered in the national forest register as forest land and that the State had since, in good faith, had possession and use of it as owner.
14. Following a decision taken by the Deputy Minister of Finance on 19 September 1984, part of the “Karras estate”, including the part on which the cinema had been built, was entered in the register of State property on 27 June 1985. On 9 July 1985 this fact was noted in the Ilioupolis mortgage register. In 1987 K.N.’s heirs brought proceedings to establish their title to the land that had been entered in the register of State property. In 1988 the Athens Court of First Instance dismissed their application on the ground that on 21 June 1977 the Athens Court of Appeal had held that K.N.’s adoptive father had owned only a part of the “Karras estate”, covering an area of between 320,000 and 520,000 sq. m. K.N.’s heirs appealed against that decision.
15. On 9 February 1989 the Athens Court of Appeal held that in its judgment of 21 June 1977 it had resolved only the matter of ownership of the 220,000 sq. m which had been transferred to the Police Officers’ Housing Cooperative. The other dicta in the grounds of the judgment were not binding on K.N.’s heirs. The Court of Appeal consequently set aside the 1988 decision of the Court of First Instance and ordered that court to deal with the merits of the case.
16. On 29 May 1996 K.N.’s heirs applied to State Counsel at the Athens Court of First Instance for interim measures against the State and Ilioupolis Town Council. State Counsel refused their application on an unspecified date. K.N.’s heirs appealed against this decision. On 30 May 1997 Deputy State Counsel at the Athens Court of Appeal dismissed their appeal.
17. In 1978 K.N.’s heirs leased the “Ilioupolis” open-air cinema to the applicant, who completely restored it.
On 4 July 1985 the Attica prefecture informed the applicant that with effect from 27 June 1985 the land on which the cinema had been built was considered to be State property, and that his retention of it was wrongful. The State would consequently be claiming compensation from him in accordance with Article 115 of the Presidential Decree of 11/12 November 1929, without prejudice to its right to evict him under Law no. 1539/1938 on the protection of State land.
On 16 November 1988 the State Lands Authority (Kτηματική Εταιρία του Δημοσίου) assigned the cinema to Ilioupolis Town Council. On 24 November 1988 the Attica prefecture notified the applicant of this and ordered him to vacate the cinema within five days, failing which Law no. 1539/1938 would be applied.
18. On 9 February 1989 the Lands Department (Kτηματική Υπηρεσία) of the Attica prefecture ordered the applicant to be evicted, under Law no. 1539/1938 as amended by Law no. 263/1968. The order was “served” on the applicant on 16 March 1989 by being posted on the door of the cinema. The following day, when the members of the Bar were on strike and the applicant was absent, officials from Ilioupolis Town Council executed the order, forcing an entry into the cinema. An inventory was drawn up of a number of items of movable property belonging to the applicant (projectors, chairs, billboards and bar equipment). A Mr G.L., who was professionally connected with the applicant but was not acting as his representative, signed the inventory and asked the Council officials to store the goods.
19. The applicant challenged the eviction order in the Athens District Court, which dealt with the matter under summary procedure and found for the State. The applicant appealed to the Athens Court of First Instance sitting with a single judge, which on 23 October 1989, having heard the appeal under summary procedure, quashed the eviction order. The court ruled that the Lands Department could issue an eviction order only if the property in question belonged to the State, if the State’s title to the property was not in dispute, and if the property was being unjustifiably occupied by a third party.
The court held, further, that these conditions had not been satisfied in the case before it, since the applicant had established the following facts with a fair degree of certainty: proceedings were pending before the courts in an action brought in a dispute between K.N.’s heirs and the State over the land on which the cinema had been built; K.N.’s heirs had considered themselves to be the owners of the land and the cinema for a very long time and had exercised all the rights and performed all the duties associated with ownership; and, lastly, the applicant had occupied the cinema under a lease since 1978.
20. Following that decision, the applicant made several approaches to the appropriate authorities to challenge the continued occupation of the cinema by Ilioupolis Town Council. On 2 April 1990 the Ministry of Finance stated that, since the eviction order had been quashed, the land should be returned to the applicant and the assignment of the cinema to Ilioupolis Town Council revoked. However, if the Council insisted on retaining the cinema, the matter of who was to compensate the applicant would have to be determined in accordance with the law on business tenancies.
21. On 11 July 1991 the State Legal Council (Nομικό Συμβούλιο του Κράτους), in answer to a question put to it by the Ministry of Finance, expressed the view that the cinema had to be returned to the applicant. The applicant’s claims in respect of the loss he had sustained owing to the eviction could be entertained only if he applied to the State Legal Council or brought proceedings. Furthermore, the State could assert its claim to be the owner of the land by bringing an action against K.N.’s heirs or by expediting the proceedings in the litigation between it and them, which had been pending before the courts since 1987.
On 15 May 1994 the applicant applied to the State Lands Authority to have the cinema returned to him.
22. On 21 December 1994 the applicant sued the State and Ilioupolis Town Council in tort in the Athens Administrative Court for the loss he had sustained as a result of the failure to return the cinema to him. He claimed compensation in the amount of 32,300,000 drachmas (GRD), plus interest for loss of income from 1989 to 1994 and for the loss of his business equipment.
23. On 5 April 1995 the applicant applied to the mayor of Ilioupolis to have the cinema returned to him. On 5 May 1995 he lodged a criminal complaint against the mayor. On an unspecified date he also lodged a criminal complaint against the chairman of the State Lands Authority.
24. On 26 July 1995 the applicant filed an application in the Athens Court of First Instance for registration of a mortgage against Ilioupolis Town Council as security for lost income amounting to GRD 30,000,000. The court dismissed the application on the ground that there was no obligation to return the property, seeing that no application to that end had been made to the court and that there had been no final court decision in the matter.
25. On 31 July 1995 the State Lands Authority, following a further request from the applicant, recommended that the assignment of the cinema to Ilioupolis Town Council should be revoked and the cinema returned to the applicant, who was to be reinstated as tenant by the Ministry of Finance. That recommendation had to be approved by the Ministry of Finance pursuant to Law no. 973/1979.
The applicant, who had not been notified of the recommendation, applied to the Minister of Finance on 4 October 1995. On 13 October 1995 he asked the Athens Court of First Instance to order interim measures against the mayor of Ilioupolis in the tort proceedings. On 16 October 1995 he applied to the Minister of Finance again.
On 25 October 1995 the Court of First Instance held that there were no grounds for ordering interim measures, since there could be no liability on the part of the mayor. On 7 November 1995, following the intervention of State Counsel, the applicant was notified of the State Lands Authority’s decision of 31 July 1995. On 15 November 1995 the applicant requested the Deputy Minister of Finance to approve that decision.
26. On 7 August 1996 the State Legal Council expressed the view that the cinema should not be returned to the applicant, for the following reasons. Although the Athens Court of First Instance had set aside the eviction order of 23 October 1989, it had not ordered the cinema to be returned to the applicant. In its decision of 25 October 1995 the Court of First Instance had held that there was no obligation to return the cinema. Furthermore, under special case-law relating to State-owned property, the lease between K.N.’s heirs and the applicant was not valid. Consequently, the Ministry of Finance would be acting unlawfully if it revoked the assignment of the cinema to Ilioupolis Town Council. On 3 September 1996 the Deputy Minister of Finance approved the opinion of the State Legal Council.
27. On 31 October 1996 the Athens Administrative Court dismissed the action commenced by the applicant on 21 December 1994 on the ground that it should have been brought in the civil courts.
On 17 December 1996 the applicant brought the action in the Athens Court of First Instance, seeking GRD 140,000,000 in damages for the loss of income he had suffered in 1995 and 1996 as a result of being unable to operate his cinema and for non-pecuniary loss. The action was due to be tried on 13 November 1997 but it was still pending on the day of the hearing before the Court.
28. On 7 January 1997 the Committals Division of the Athens Criminal Court decided to commence criminal proceedings against the mayor of Ilioupolis for dereliction of duty.
29. On 27 January 1998 the applicant brought an action against the State and Ilioupolis Town Council in which he sought payment of GRD 32,000,000 plus interest for loss of income during 1997 and for non-pecuniary damage. This action was still pending on the day of the hearing before the Court.
30. The cinema is still being operated by Ilioupolis Town Council and has not been returned to the applicant.
The applicant has not set up an open-air cinema anywhere else.
31. The immovable property of the State is protected against third parties by Law no. 263/1968 amending and supplementing the provisions on State property.
Section 2(2) and (3) of the Law provides:
“… The relevant tax inspector shall issue an administrative eviction order against any person wrongfully taking over public property. An application to set aside such an order may be filed with the appropriate District Court within thirty days of its being served … An appeal against the decision of the District Court may be brought within thirty days before the President of the Court of First Instance, who shall hear it under the special procedure provided for in Article 634 of the Code of Civil Procedure. No appeal shall lie against the decision of the President of the Court of First Instance. The decision resulting from the foregoing procedure shall not prevent the parties from asserting their rights by means of ordinary procedure …”
“… Κατά του αυτογνωμόνως επιλαμβανομένου οιουδήποτε δημοσίου κτήματος συντάσσεται παρά του αρμοδίου Οικονομικού Εφόρου Πρωτόκολλο Διοικητικής Αποβολής. Κατ΄αυτού επιτρέπεται άσκηση ανακοπής ενώπιον του αρμοδίου Ειρηνοδικείου μέσα σε αποκλειστική προθεσμία 30 ημερών από της κοινοποιήσεως του… Κατά της αποφάσεως του Ειρηνοδικείου χωρεί έφεση ενώπιον του Προέδρου Πρωτοδικών, που δικάζει με την ειδική διαδικασία του άρθρου 634 Πολ. Δικ., μέσα σε προθεσμία 30 ημερών. Κατά της αποφάσεως του Προέδρου Πρωτοδικών ουδέν ένδικο μέσο χωρεί. Η κατά την ανωτέρω διαδικασία εκδιδομένη απόφαση δεν παρακωλύει την επιδίωξη των εκατέρωθεν δικαιωμάτων κατά την τακτική διαδικασία …”
Applications to set aside and the entire procedure for challenging administrative eviction orders are concerned solely with the validity of the eviction order and not with recognition of ownership or regulation of possession.
32. Where an administrative eviction order is quashed and it is desired that the decision make provision for the reinstatement of the evicted appellant, an application for reinstatement must be lodged either at the same time as the application to set aside – in which case a consequential order will be made if the application is allowed – or separately with the appropriate court (action for regulation of possession). An application for reinstatement is not subject to the time-limits laid down by section 2 of Law no. 263/1968 for applying to set aside an eviction order, since there is no provision to that effect (Athens Court of Appeal judgment no. 6802/89, Reports 1990, pp. 778-79, Athens Court of First Instance judgment no. 25950/1995, State Legal Council opinion no. 464/96, Annexes 14a and b and 13c).
33. The lessee of a property is the possessor of the leased property. This right of possession is protected by domestic law. The protection of possession both as a material fact and as a legal relationship is regulated in Greek law by Articles 997 et seq. of the Civil Code.
34. In particular, Article 997 of the Civil Code, entitled “Protection of possessors”, provides:
“In the event of unlawful interference with the possession of property or of a right or in the event of dispossession, the person who, as lessee or bailee or as a consequence of a similar relationship, took possession of the property or right from the person who had use of it shall also have a possession claim against third parties.”
“Επί παρανόμου διαταράξεως της νομής πράγματος ή δικαιώματος, ή αποβολής εξ αυτής, έχει κατά τρίτων τας περί νομής αγωγάς και ο παρά τιυ νομέως λαβών την κατοχή του πράγματος ή δικαιώματος ως μισθωτής ή θεματοφύλαξ ή συνεπεία άλλης παρομοίας σχέσεως.”
35. The possession claims that the lessee and possessor of the leased property may file are set out in Articles 987 and 989 of the Civil Code.
Article 987 provides:
“A possessor who has been unlawfully dispossessed shall be entitled to claim repossession from the person in unlawful possession. A claim for compensation under the provisions on torts shall not be excluded.”
“Ο νομέας που αποβλήθηκε παράνομα από τη νομή έχει δικαίωμα να αξιώσει την απόδοσή της από αυτόν που νέμεται επιλήψιμα απέναντί του. Αξίωση αποζημιώσεως σύμφωνα με τις διατάξεις για τις αδικοπραξίες δεν αποκλείεται.”
Article 989 provides:
“A possessor whose possession has been the subject of unlawful interference shall be entitled to seek an order restraining the interference and prohibiting it in the future. A claim for compensation under the provisions on torts shall not be excluded.”
“Ο νομέας που διαταράχθηκε παράνομα έχει δικαίωμα να αξιώσει την παύση της διατάραξης καθώς και την παράλειψή της στο μέλλον. Αξίωση αποζημίωσης κατά τις διατάξεις για τις αδικοπραξίες δεν αποκλείεται.”
By Article 987, the possessor is protected in the event of dispossession, that is to say deprivation of control of the property. By Article 989, he is also protected in the event of interference, namely interference with his control of the property not amounting to dispossession. A classic example of interference, as held by the domestic courts, is threatening the possessor with prohibition of a specific act of possession.
The purpose of these remedies is to protect possession itself, regardless of whether it is based on a right or not. It is for that reason that Article 991 of the Civil Code provides:
“A defendant in an action for interference or dispossession can invoke a right giving him control over the property only if that right has been upheld in a final decision by a court after proceedings between him and the plaintiff.”
“Ο εναγόμενος για διατάραξη ή αποβολή δεν μπορεί να επικαλεστεί δικαίωμα που του παρέχει εξουσία πάνω στο πράγμα παρά μόνο αν το δικαίωμα έχει αναγνωριστεί τελεσίδικα σε δίκη ανάμεσα σε αυτόν και τον ενάγοντα.”
In accordance with Article 997 of the Civil Code, a possessor has these rights against third parties and not against the possessor from whom he derives the possession rights. Against the latter he has the rights afforded him by the legal relationship between them.
36. Where a possessor brings an action in possession, it will be either for repossession or for restraint of interference, depending on whether the possessor has been evicted or merely disturbed in the exercise of his control of the property.
Furthermore, the possessor is entitled in the same proceedings to claim compensation for the damage sustained, under the provisions on torts (Articles 914 et seq.).
37. More particularly in respect of the State’s obligation to pay compensation, section 105 of the Introductory Act to the Civil Code is applied, under which unlawful conduct on the part of agents of the State creates an obligation to pay compensation irrespective of whether an offence has been committed by the agents in question. Moreover, where the unlawful situation arises from an administrative act, prior annulment of that act is not required. The court may consider the validity of the administrative act in the course of the proceedings and a specific prior ruling on its validity is not necessary.
38. A possessor whose right is created by a lease is also protected against the lessor if it becomes impossible for him to use the leased property.
39. Article 583 of the Civil Code provides:
“If the agreed use of the leased property is taken from the lessee in whole or in part because of a third party’s right (legal defect), Articles 576 to 579 and 582 shall apply. However, the lessee may himself have the legal defect removed at the lessor’s expense.”
“Αν η συμφωνηθείσα χρήση του μισθίου αφαιρεθεί από τον μισθωτή εν μέρει ή εν όλω εξαιτίας δικαιώματος τρίτου νομικό ελάττωμα εφαρμόζονται οι διατάξεις των άρθρων 576 έως 579 και 582. Αλλ΄ο μισθωτής δεν δύναται να προβεί ο ίδιος στην άρση του νομικού ελαττώματος με δαπάνες του εκμισθωτού.”
40. In that event, the lessee’s rights under Articles 576 to 579 and 582, to which Article 583 refers, are the following: the right to reduce the rent or not to pay the rent, the right to compensation, the right to bring an action against the lessor to have the legal defect removed, and the right to terminate the lease.
Apart from the right to bring an action against the lessor to have the legal defect removed, the lessee may still bring an action in possession at his own expense against third parties in his capacity as possessor (Article 997).
The lessor is exempt from liability only if the lessee was aware of the defect at the time when the lease was signed.
41. Lastly, leases of property for carrying on commercial activities (commercial leases) are also governed by all the above provisions under section 29 of Law no. 813/1978, codified by Presidential Decree no. 34/1995. That provision reads as follows:
“Save as hereinafter provided, leases under the present Law shall be governed by the contractual terms and by the provisions of the Civil Code.”
“Αι κατά τον παρόντα νόμον μισθώσεις, εφόσον δεν ορίζεται άλλως εις αυτόν, διέπονται υπό των συμβατικών περί αυτών όρων και των διατάξεων του Αστικού Κώδικος.”
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001-61317
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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.”
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001-67816
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15. The applicants, Mr Cumpănă and Mr Mazăre, were born in 1951 and 1968 respectively and live in Constanţa.
16. In decision no. 33 of 30 June 1992, Constanţa City Council, implementing government decision no. 147 of 26 March 1992, introduced a fine for drivers of illegally parked vehicles and entrusted the task of removing, towing away and impounding such vehicles to S.C. CBN, a company based in Constanţa.
17. By order no. 163 of 30 June 1992, the mayor of Constanţa authorised a private company, Vinalex, to perform the services of removing, towing away and impounding illegally parked vehicles.
18. A partnership contract was signed on 16 December 1992 by the city authorities and the company in question, the signatories on behalf of the authorities being the deputy mayor (hereinafter “D.M.”) and the council’s legal expert (“Mrs R.M.”). In a letter of 1 April 1994, the mayor of Constanţa requested Vinalex to cease its activities under the contract and informed it that it was considering terminating the contract.
19. On 12 April 1994 the applicants, who are journalists by profession, published an article in the local newspaper Telegraf, of which the second applicant was the editor, with the headline “Former Deputy Mayor [D.M.] and serving judge [R.M.] responsible for series of offences in Vinalex scam”. The names of the former deputy mayor and of the city council’s former legal expert, Mrs R.M., who had subsequently become a judge, were printed in full in the headline and in the article itself.
20. The article, which appeared under the byline of both applicants, was worded as follows:
“In decision no. 33 of 30 June 1992 Constanţa City Council entrusted a commercial company, S.C. CBN S.r.l., with the task of impounding illegally parked vehicles or trailers ... It was the duty of the city authorities’ specialist departments to lay down the practical arrangements for implementing the council’s decision. But things did not turn out that way. Six months after decision no. 33 was adopted, the city authorities, knowingly breaching the provisions of Law no. 69/1991, illegally concluded a partnership contract ... with S.C. Vinalex S.r.l., a company having no connection with the one initially chosen. It is worth noting, however, that the contract in question was signed by the deputy mayor, [D.M.], in place of the mayor, ... and by a certain [M.] instead of the legal expert [M.T.].
By what miracle did S.C. Vinalex enter into a partnership with the city authorities when, in decision no. 33 of 30 June 1992, the city council had authorised CBN S.r.l. to provide a straightforward service? What is striking is that there is no evidence that CBN agreed to give up the task of towing away illegally parked vehicles! ... The crook [D.M.] (the former deputy mayor, now a lawyer) granted Vinalex’s irresponsible employees the power to decide when a vehicle is illegally parked – in other words, to treat citizens and their property with contempt. What form did the fraud take? Sections 89 and 29 of Law no. 69/1991 provide that no partnership contract with a commercial company may be signed without a prior decision by the local council, adopted by a two-thirds’ majority of the total number of councillors. Before a contract is signed, it must be referred to all the local council’s specialist committees for their opinion ... The contract with Vinalex was negotiated and signed illegally, as the signatories based it on the decision [of 30 June 1992], which, as has already been shown, referred to a different company without envisaging any other partnership.
Given that the city authorities had already signed four other contracts before that one, the signatories cannot claim ignorance of the law, but only an intentional breach of it! And because any intentional breach of the law pursues an end in itself – generally that of securing material advantages – it is clear that in this case the former deputy mayor, a lawyer by profession, received backhanders from the partner company and bribed subordinates, including [R.M.], or forced them to break the law.
The Constanţa Audit Court detected this blatant fraud, which has generated considerable profits for the briber (S.C. Vinalex) ... The offending company [S.C. Vinalex] has never shown that it had adequate means to impound illegally parked vehicles. This explains why large numbers of privately owned vehicles have been damaged and, as a result, thousands of complaints have been made on the subject.
Furthermore, the alleged partnership contract was valid for one year, until 16 December 1993. From that date [S.C. Vinalex] no longer had any right to interfere with citizens’ private property! It has nevertheless continued to tow vehicles away and illegally collect money ... It is incomprehensible how the police could have provided it with assistance for the past four months.
Let us briefly consider the conduct of the council’s former legal expert, [R.M.], who is now a judge. Either she was ignorant of the law when she signed the contract, in which case it is hard to understand how she can subsequently have been appointed as a judge (delivering justice on the basis of the same laws which she does not know), or she accepted bribes and may continue to do so in future! It is no surprise that the same judge should have been investigated by the Audit Court for a further illegal act, also committed while she was at the city council (as we reported at the time). Ironically, the Court’s president did not take any action against her on the ground that the sum received was not ... large enough.
Apparently becoming aware that the matter was likely to be uncovered, the city authorities’ coordination department ... notified S.C. Vinalex in writing of the possibility of the contract being terminated on the following grounds: ... ‘You have not supplied any documents showing that you have purchased the platform-type equipment necessary for carrying out the activity properly’ (as stipulated in clause 3 of the contract ...). In the same letter the city authorities informed S.C. Vinalex: ‘As you have not proved that you have the appropriate equipment, we would assess your contribution to the partnership at the level of your company’s capital, that is 110,000 lei. Your share in the partnership’s net income will have to be recalculated in relation to the parties’ contributions.’
Facts are facts, and the documents in our possession speak for themselves of the illegal Vinalex scam.”
21. The article was accompanied by a photograph of a police car on the scene as an illegally parked vehicle was being towed away, photocopies of extracts from the partnership contract and from Constanţa City Council’s decision of 30 June 1992, and certain passages of Law no. 69/1991 concerning the responsibilities and powers of mayors, prefects and city and county councils.
22. The article was also accompanied by a cartoon showing a man and a woman arm in arm, carrying a bag marked “Vinalex” which was full of banknotes. The two characters were depicted as saying to each other:
“Hey, [R.] [diminutive form of Mrs R.M.’s first name], you’ve done a good job there! When I was deputy mayor we made quite a bit, enough to go to America ...”
“[D.] [diminutive form of the former deputy mayor’s first name], if you become a lawyer, I’ll become a judge and we’ll have enough to travel round the world ...”
23. In June 1994 the Financial Control Department of the County Audit Court examined a report submitted on 26 May 1994 by several auditors who had conducted a review of Constanţa City Council’s budget for 1992 and had made the following findings:
(a) The city council’s decision of 30 June 1992 to award S.C. CBN the contract for towing away illegally parked vehicles had not been justified by any bid submitted in writing by the company or by the company’s aims as set forth in its articles of association.
(b) The city council had not given its opinion on the partnership contract signed between the city authorities and Vinalex, and no expert valuation of Vinalex’s assets had been carried out or submitted to the council for approval, contrary to the provisions of the Local Public Administration Act (Law no. 69/1991).
(c) The distribution of the proceeds among the parties as agreed in the contract – 70% to Vinalex and 30% to the city council – had not corresponded to the partners’ respective contributions on the date on which the contract had been signed – 76.4% by the city council and 23.6% by Vinalex – resulting in a loss of income for the city council.
The Financial Control Department considered it necessary to urge the mayor of Constanţa, as the official responsible for authorising appropriations, to “ensure compliance with the law” as regards the parties’ obligations under the contract and to be more efficient when entering into such partnerships with private entities in future. A formal decision to that effect was adopted on 8 June 1994 by the head of the department.
24. The applicants produced to the Court a report dated 17 March 1994 by the same Audit Court auditors, which likewise referred to the irregularities described in paragraph 23 above in the signing of the partnership contract between the city authorities and Vinalex, and indicated that the contract should be terminated. The applicants did not mention the existence of such a report during the criminal proceedings instituted against them following the publication of the impugned newspaper article.
25. On 14 April 1994, following the publication of the article, Mrs R.M. instituted proceedings against the applicants in the Constanţa Court of First Instance for insult and defamation, offences under Articles 205 and 206 respectively of the Criminal Code. She complained, in particular, of the cartoon accompanying the article, which had depicted her as a “woman in a miniskirt, on the arm of a man with a bag full of money and with certain intimate parts of her body emphasised as a sign of derision”. She submitted that the article, the cartoon and the dialogue between the characters had led readers to believe that she had had intimate relations with D.M., and pointed out that she and the former deputy mayor were both married.
26. At a hearing on 13 May 1994, the court adjourned the case as the applicants were not present and, scheduling a further hearing for 27 May 1994, directed that they should be brought before the court on that date.
27. On 27 May 1994 the second applicant stated at the hearing that, as editor, he assumed full responsibility for what had been published in the newspaper. He explained that cartoons were frequently used in the press as a medium for criticism and that he had not intended to damage the claimant’s reputation. In reply to a question from the court, he admitted having known that, by order of the mayor of Constanţa, Vinalex had been authorised to tow away illegally parked vehicles. He stated, however, that he had not thought it necessary to publish that information. Lastly, he stressed that he did not intend to reach a settlement with the injured party and that he was prepared to publish an article in her favour provided that she could prove that what he had published was untrue.
28. On 10 June 1994 the applicants applied to have the case transferred to a court in another county. They also requested an adjournment of the proceedings, arguing that because the claimant was a judge it was impossible for them to find a member of the Constanţa Bar who would agree to represent them.
29. On an unspecified date the Constanţa Bar, in reply to a question from the court, attested that the applicants had not met with a refusal on the part of all of its members and that, in any event, the matter had not been referred to its executive.
30. On 15 June and 1 July 1994 the court adjourned the case as the applicants were not present.
31. In an interlocutory decision of 21 July 1994, the Supreme Court of Justice ordered the referral of the case to the Lehliu-Gară Court of First Instance.
32. On 15 November 1994 the case was entered on that court’s list of cases for hearing. Public hearings were held on 21 December 1994 and on 25 January, 27 February, 20 March, 17 April and 17 May 1995.
33. On 21 December 1994 and 25 January 1995 the applicants did not attend the hearings, although they had been duly summoned. The court summoned them to appear at the hearings on 25 January and 27 February 1995. The applicants did not comply with the summonses.
34. At the hearings on 27 February and 20 March 1995, representatives of Telegraf applied for an adjournment on behalf of the applicants, who were not present. The court allowed the application.
35. On 20 March 1995 a member of the Bucharest Bar, N.V., agreed to represent the applicants.
36. At the hearing on 17 April 1995 in the morning, N.V. asked the court to consider the case after 11.30 a.m. The court granted his request. However, when it sat to examine the case at 12 noon and, subsequently, at 2.30 p.m. it noted that neither the applicants nor their counsel were present in the courtroom. It accordingly adjourned the case until 17 May 1995.
37. At the hearing on 17 May 1995 the court reserved judgment, after noting that neither the applicants – despite their having been duly summoned – nor their counsel had appeared. In a judgment delivered on the same day, the court found the applicants guilty of insult and defamation – offences under Articles 205 and 206 respectively of the Criminal Code. It sentenced them to three months’ imprisonment for insult and seven months’ imprisonment for defamation, and ordered them both to serve the heavier sentence, namely seven months’ immediate imprisonment. As well as this main penalty, the court imposed the secondary penalty of disqualification from exercising all the civil rights referred to in Article 64 of the Criminal Code (see paragraph 58 below).
It also prohibited the applicants from working as journalists for one year after serving their prison sentences, a security measure provided for in the first paragraph of Article 115 of the Criminal Code (see paragraph 59 below).
Lastly, it ordered them to pay Mrs R.M. 25,000,000 Romanian lei (ROL) (equivalent to 2,033 euros at the exchange rate applicable at the material time) for non-pecuniary damage.
38. In stating its reasons for the judgment, the court observed, firstly:
“The Court notes that the injured party has always been present, both in the Constanţa Court of First Instance and in the Lehliu-Gară Court of First Instance, whereas the defendants have generally been absent without justification, despite having been lawfully summoned. In support of her prior complaint, the injured party, Mrs [R.M.], sought leave to produce documentary evidence. Mrs [R.M.] submitted a copy of the 12 April 1994 edition of the local newspaper Telegraf, containing the article referred to in her complaint and the cartoon in which she was ridiculed.
The Court notes that the defendants and the party liable to pay damages, despite being lawfully summoned, have not attended any hearings, and that only the injured party has been present.
The Court notes that the defendants R. Mazăre and C. Cumpănă were informed of the charges against them and of the hearing dates, and that they were assisted by a lawyer of their choosing (who asked the Court first for an adjournment and subsequently for consideration of the case to be postponed until the second sitting, after 11.30 a.m.).
The Court observes that the defendant R. Mazăre gave evidence to the Constanţa Court of First Instance at a public hearing on 27 May 1994, and notes the following from his testimony: the defendant considered that it was not compulsory to have studied at journalism college to work as a journalist; he refused to reply when asked whether he had had access to any other documents on which Constanţa City Council’s decision no. 33 had been based; he understood by ‘series of offences’ the fact of committing several offences; he understood by ‘a multiple breach of the criminal law’ the commission of several offences; he considered that the injured party, in signing the contract in her capacity as a legal expert at the city council, had infringed a number of the provisions of Law no. 69/1991; he pointed out that he could not give the precise legal classification of the offences committed by the injured party, as that did not come within his sphere of competence; he stated that he had said everything there had been to say about the injured party in the newspaper article; he submitted that cartoons were used everywhere and maintained that he had not (through the cartoon) damaged anybody’s reputation (specifically, that of the injured party).
[The Court] notes that the defendant R. Mazăre stated that he assumed full responsibility for everything published in his newspaper, as its editor; ... that he stated that he was aware of the constitutional provisions on the right of journalists to impart information to the public; that he had read the government decision in its entirety but had not published it for lack of space; that he also stated that he had read the full text of the partnership contract entered into by the city authorities and signed by the injured party, Mrs [R.M.], but that he did not know whether the government decision had referred to partnership contracts; ... that the defendant had been aware that the Vinalex company had been authorised by order of the mayor of Constanţa to provide the service of towing away illegally parked vehicles, but that he had not thought it necessary to publish that information in the newspaper; and, lastly, that he stated: ‘In view of the seriousness of the offences committed, I do not think that it was necessary to discuss the matter with the injured party beforehand. Should any documents prove that my statements are unfounded, I am prepared to publish an article in the injured party’s favour.’ ”
39. With regard to the documentary evidence on which the injured party intended to rely in support of her allegations, the court observed:
“Apart from the article published in Telegraf, the injured party, Mrs [R.M.], produced Constanţa City Council’s decision no. 33 – adopted in accordance with government decision no. 147 of 26 March 1992 – in which it was decided to tow away illegally parked vehicles; order no. 163 of 30 June 1992 by the mayor of Constanţa ... authorising the Vinalex company to remove, tow away and impound illegally parked vehicles (‘The conditions for the performance of these services shall be laid down in the partnership contract to be drawn up’); government decision no. 147 of 26 March 1992, in which mayors were empowered to order the removal, towing away and impounding of illegally parked vehicles by duly authorised specialist companies; and order no. 369 of 1 July 1994 by the mayor of Constanţa, in which Vinalex was authorised to provide such services.”
40. With regard more particularly to the article and cartoon in issue, the court held:
“... the article, by the defendants R. Mazăre and C. Cumpănă, was directed at the injured party, tarnishing her honour, dignity and public image and injuring her own self-esteem by means of the (written) accusations conveyed through signs and symbols targeted specifically at her.
The Court considers that these acts took place, that they are punishable under the criminal law, and that they posed a danger to society, not so much because of their practical effect (physical distortion of outward reality) but above all because of the psycho-social consequences resulting from the provision of misleading or incorrect information to the public, giving rise to inaccurate judgments about facts and individuals, establishing a false scale of values in view of the role and public impact of the media, and causing psychological trauma to the injured party. In making its assessment, the Court has had regard to the particular status of the parties to the proceedings: the injured party, Mrs [R.M.], being a lawyer and a representative of the judiciary, and the defendants, Mr R. Mazăre and Mr C. Cumpănă, being representatives of the media.
The Court notes that the defendant R. Mazăre, while realising the seriousness of the acts he had committed, irresponsibly stated that he had been ‘aware of the fact that Vinalex had been authorised by order of the mayor, but did not consider it necessary to publish that order (as well)’...
The Court considers that publication of the article in the newspaper cannot have been justified by a ‘legitimate interest’ in that it was not based on actual facts and the provision of accurate information to the public. It concludes that the defendants ... ‘forgot’ the content of Article 30 § 6 of the Constitution: ‘Freedom of expression shall not be prejudicial to a person’s dignity, honour and private life or to the right to one’s own image’, and of Article 31 § 4 of the Constitution: ‘Public and private media shall be required to provide the public with accurate information.’
It follows from the written submissions filed by the injured party ... that it was always her wish that the criminal proceedings be terminated by a friendly settlement, provided that the defendants agreed to retract the allegations made in the article.
The Court notes that the injured party is a public figure and that, following the publication of the article, her superiors and the authority above them asked her to explain herself regarding the trial, particularly in view of the fact that she was due to take the professional examination to obtain permanent status.”
41. On an unspecified date the applicants appealed against the first-instance judgment of 17 May 1995.
42. At a hearing on 2 November 1995, the Călăraşi County Court reserved judgment, having noted that the case was ready for decision and that the applicants had not appeared in court, despite having been duly summoned, and had not stated any grounds for their appeal.
43. In a judgment of 2 November 1995, the court, after examining all the aspects of the case against the applicants, as required by Article 3856 of the Code of Criminal Procedure, upheld the first-instance judgment, finding it to have been correct. The County Court’s judgment, sent to the archives on 23 November 1995, was final and binding and no ordinary appeal lay against it.
44. On 10 April 1996 the Procurator-General applied to the Supreme Court of Justice to have the judgments of 17 May 1995 and 2 November 1995 quashed. He submitted the following arguments.
(a) The courts’ legal classification of the facts had been incorrect. Pointing out that in the cartoon the applicants had simply highlighted their allegations of corruption on the part of certain city council officials, he accordingly submitted that the facts in issue did not constitute the actus reus of insult as defined in Article 205 of the Criminal Code.
(b) The amount the applicants had been ordered to pay in damages had been extremely high and had not been objectively justified.
(c) Lastly, the requirements of the first paragraph of Article 115 of the Criminal Code, by which the courts could prohibit persons who had committed unlawful acts from practising a particular profession on account of their incompetence, lack of training or any other ground making them unfit to practise the profession, were not satisfied in the applicants’ case, as there was no unequivocal proof that the applicants were incompetent to continue working as journalists or that their doing so entailed a potential danger.
45. In a final judgment of 9 July 1996, the Supreme Court of Justice dismissed the Procurator-General’s application as being manifestly ill-founded, for the following reasons:
“It has been established from the evidence adduced in the present case that on 12 April 1994 the accused, R. Mazăre and C. Cumpănă, published an article in the Constanţa newspaper Telegraf entitled ‘Former Deputy Mayor [D.M.] and serving judge [R.M.] responsible for series of offences in Vinalex scam’, in which it was asserted that in 1992, while she was employed as a legal expert at Constanţa City Council, the injured party, Mrs [R.M.], had been involved in fraudulent activities on the part of a commercial company, Vinalex.
The Supreme Court further notes that, alongside the above-mentioned article, the accused published a cartoon in which the injured party was depicted in the company of a man carrying a bag full of money on his back, and that this was likely to tarnish the injured party’s honour, dignity and public image.
It follows that in publishing the article in Telegraf, the accused attributed specific acts to the injured party which, had their allegations been made out, would have rendered her criminally liable; the two lower courts were therefore correct in finding the accused guilty of defamation under Article 206 of the Criminal Code.
The fact that the accused published alongside the above-mentioned article a cartoon in which the injured party was depicted in the company of a man carrying a bag full of money, in such a way as to tarnish her honour and reputation, constitutes the offence of insult as defined in Article 205 of the Criminal Code ...”
46. With regard to the amount which the applicants had been ordered to pay in damages, the Supreme Court held:
“... the requirement for the accused to pay 25,000,000 lei for non-pecuniary damage was justified, since it is beyond dispute that in publishing the article on 12 April 1994 in a mass-circulation newspaper, the accused seriously offended the dignity and honour of the injured party.”
47. The Supreme Court held, lastly, in relation to the alleged unlawfulness of the temporary prohibition on the applicants’ working as journalists:
“... since the application of security measures in circumstances other than those provided for by law does not feature on the exhaustive list of cases in which the law permits the Procurator-General to apply to have a decision quashed, it cannot form a legal basis for quashing the judgments in issue.”
48. The applicants did not serve the prison sentence they had received in the judgment of 2 November 1995, since immediately after the judgment had been delivered the Procurator-General suspended its execution for eleven months by virtue of Article 412 of the Code of Criminal Procedure (see paragraph 61 in fine below).
49. In a letter of 30 September 1996, the Procurator-General at the Supreme Court of Justice informed the applicants that he had extended the stay of execution until 27 November 1996.
50. On 22 November 1996 the applicants were granted a presidential pardon dispensing them from having to serve their prison sentence. By virtue of Article 71 of the Code of Criminal Procedure, the pardon also waived their secondary penalty of disqualification from exercising their civil rights (see paragraph 58 in fine below).
51. It appears from the first applicant’s employment record (cartea de muncă), of which he submitted a copy to the Court, that, following the Călăraşi County Court’s judgment of 2 November 1995:
(a) he continued to work for Telegraf as editor of the “Events” section until 1 February 1996, when he was transferred for administrative reasons to the C. company, occupying the same position and receiving the same salary as before;
(b) while working for C., he was awarded a pay rise;
(c) he ceased to work for C. on 14 April 1997 on account of staff cutbacks by his employer, a ground for dismissal provided for in Article 130 (a) of the Labour Code as worded at the material time;
(d) thereafter, he was not gainfully employed until 7 February 2000, when he was recruited on a permanent contract by the A. company as deputy editor.
52. Following the final and binding judgment of 2 November 1995, the second applicant continued to work as editor of Telegraf, as indicated in a letter he sent to the Court on 19 January 2000.
53. Between 1 September 1997 and 30 November 1999, while he was a member of the Romanian parliament, the sum of ROL 25,000,000 was deducted from his parliamentary allowance and transferred to Mrs R.M.’s bank account, pursuant to the Lehliu-Gară Court of First Instance’s judgment of 17 May 1995 (see paragraph 37 in fine above).
54. On an unspecified date after that judgment, he was elected mayor of Constanţa, a position he still holds.
55. At the material time the relevant provisions were worded as follows:
“Anyone who tarnishes the reputation or honour of another through words, gestures or any other means shall be liable to imprisonment for between one month and two years or to a fine.”
“Anyone who makes any statement or allegation in public concerning a particular person which, if true, would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public opprobrium shall be liable to imprisonment for between three months and three years or to a fine.”
56. In Resolution no. 1123 of 24 April 1997 on the honouring of obligations and commitments by Romania, the Parliamentary Assembly of the Council of Europe observed that Articles 205 and 206 of the Romanian Criminal Code were unacceptable and seriously compromised the exercise of fundamental freedoms, in particular the freedom of the press. The Assembly therefore called on the Romanian authorities to amend those provisions without delay.
57. Following a process of legislative reform, the New Romanian Criminal Code Act (Law no. 301 of 28 June 2004) provides that the offence of defamation is punishable solely by a fine (Article 225 of the New Criminal Code) and no longer classifies insult as a criminal offence. These legislative amendments will come into force on 29 June 2005.
58. The relevant provisions are worded as follows:
“Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty:
(a) the right to vote and to be elected to bodies of a public authority or to public elective office;
(b) the right to occupy a position entailing the exercise of State authority;
(c) the right to perform a duty or practise a profession or activity by means of which the convicted person carried out the offence;
(d) parental rights;
(e) the right to act as a child’s guardian or statutory representative.”
“The secondary penalty shall consist in disqualification from exercising all the rights listed in Article 64.
A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ...”
59. The relevant provision is worded as follows:
“Anyone who has committed an [unlawful] act through incompetence, lack of training or for any other reasons rendering him or her unfit to perform certain duties or to practise a certain profession or activity may be prohibited from performing those duties or practising that profession or activity. Such a measure may be revoked on request after one year if the grounds on which it was imposed are no longer valid.
...”
60. The relevant provisions are worded as follows:
“A pardon shall have the effect of waiving the execution of a sentence. ... A pardon shall have no effect on security measures or educational measures.”
“A person sentenced to a term of imprisonment of less than one year shall be legally rehabilitated if he does not commit any further offences for three years.”
61. The relevant provisions are worded as follows:
“The Procurator-General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for any final decision to be quashed.”
“An application to have a final conviction ... quashed may be made:
I. ...
...
4. where the penalties imposed fell outside the limits prescribed by law;
...
7. where the offence was incorrectly classified in law ...”
“Before applying to have a decision quashed, the Procurator-General may order a stay of its execution.”
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8. The applicants, Mr J.S. and Ms A.S. are a married couple residing in Stegna.
9. By way of an administrative decision of 29 October 1948 a property owned by the second applicant’s father W.U. and located in Czarzaste-Chodubki was expropriated pursuant to provisions of the 1944 Decree on Agrarian Reform. It was stated in the decision that W.U. was the owner of this property.
10. On 21 December 1948 this decision was upheld by the Minister of Agriculture, who considered that the factual findings of the expropriation commission as to the area of the property concerned could not be called into question given that the commission was composed not only of agents of the administration, but also of political representatives.
11. By an on-site protocol of 7 May 1949 a commission, established under the provisions of the 1944 Decree on Agrarian Reform, inspected the property and found that land situated in Czarzaste-Chodubki owned by the second applicant’s father W.U. consisted of 68 hectares of land, out of which 50 hectares 3175 square metres constituted arable land.
12. On 15 February 1990 the applicants lodged with the Ministry of Agriculture an application to have the expropriation decision declared null and void under Article 156 of the Code of Administrative Procedure or amended under Article 155 of the Code of Administrative Procedure.
13. On 3 March 1995 the applicants complained to the Supreme Administrative Court about the failure of the administration to rule on their 1990 application.
14. On 24 March 1995 the applicants submitted further pleadings to that court, indicating that certain relevant documents had been found in the Ostrołęka Regional Office which showed that the on-site commission had wrongly calculated the surface of the property concerned in 1949. The area of the property was in fact, in the light of the newly found documents, 49,92 hectares of arable land. Thus, the property should not have been subject to expropriation within the framework of the agrarian reform law as it did not attain the minimum threshold of 50 hectares of arable land. The applicants further referred to an official protocol drawn up in 1957, which confirmed this finding.
15. By a judgment of 9 October 1995 the Supreme Administrative Court ordered the Minister of Agriculture to issue a decision concerning the applicants’ application of 1990 within two months from the date of the judgment.
16. By a letter of 10 November 1995 the applicants informed the Ministry that the property in question had had a surface of approximately 44 hectares, as shown by the protocol of 8 April 1948 and by another document drawn up by land surveyor A.P. in 1948.
17. On 17 April 1996 the Ministry of Agriculture obliged the Ostrołęka Regional Office to take further evidence in order to establish the legal status of the property concerned under the provisions of civil law, i.e. to determine who had been the owner of the property concerned at the time of expropriation.
18. The applicants objected thereto by a letter of 19 May 1996, pointing out that the question who had been the owner of the property in 1948 in terms of substantive civil law was entirely extraneous to the administrative case which was pending before the Ostrołęka Regional Office. Any issues concerning the assessment of the link between the former owner of the property and the applicants from the angle of substantive civil law on inheritance was irrelevant for the administrative case, which concerned only the examination of the lawfulness of the administrative decision on expropriation. They insisted that a decision on their restitution claim be given in accordance with the judgment of the Supreme Administrative Court of 1995, which had set a two-month time limit for the authorities to do so.
19. They reiterated their submissions in a letter of 29 May 1996. On 23 July 1996 the applicants again requested that a decision be given. On 3 December 1996 the applicants reiterated their request that the decision on the merits of the case be given and complained that the proceedings had remained pending for a long time. They referred again to the Supreme Administrative Court’s judgment of 9 October 1995.
20. By a decision of 18 July 1997 the Ministry stayed the proceedings on the ground that a certain H.S. had submitted a request to quash the expropriation decision. She had argued that the second applicant’s father W.U. was not its owner, but only its lessee. She contended that it was her father T.U., who owned the property concerned. However, she had failed to submit conclusive documents to prove it. The proceedings were therefore stayed pursuant to Article 97 § 1 of the Code of Administrative Procedure until relevant documents had been submitted.
21. The applicants appealed against the decision to stay the proceedings. They reiterated their request that a decision be given and emphasised that they had remained pending since 1990. They argued that the decision to stay the proceedings had been taken in disregard of the essential substantive law elements of the case. The documents required by the Ministry and relating to the civil law status of the property at the time of expropriation were entirely irrelevant to the administrative case.
22. By a letter of 6 August 1997 the applicants reiterated their arguments. The proceedings remain stayed. The applicants submit that all their efforts to have them resumed have been unsuccessful.
23. Under Polish law no provisions have been enacted allowing specifically for the redressing of wrongs committed in connection with expropriations effected within the framework of the agrarian reform. Therefore no specific legal framework is available, enacted with the purpose of mitigating the effects of certain infringements of property rights.
24. However, it is open to persons whose property was expropriated or their legal successors, to institute, under Article 156 of the Code of Administrative Procedure, administrative proceedings in order to claim that the expropriation decisions should be declared null and void as having been issued contrary to law. In particular, a final administrative decision can be declared null and void at any time if it was issued without a legal basis, or in flagrant violation of law.
25. Decisions flawed as a result of lesser procedural shortcomings, listed under items 1, 3, 4 and 7 of Article 156, such as those given by an authority which lacked competence to issue a decision in a given case, or in a case which had already been decided or addressed to a person not being a party to the proceedings, can only be declared null and void if less than ten years have elapsed from the date on which such decisions were given. In respect of such decisions it is only possible to declare that they were issued contrary to law; the decisions themselves remain valid.
26. If the flaw that taints the challenged decision is of a substantive character, i.e. if the decision had been given without a legal basis or in flagrant violation of law, the administrative authority shall declare it null and void.
27. A decision to declare the old decision null and void, or a refusal to do so, may ultimately be appealed to the Supreme Administrative Court.
28. Article 1 of the Decree provides that “the agrarian reform in Poland is a State and economic imperative and shall be realised ... pursuant to principles set forth in the manifesto of the Polish Committee of National Liberation”.
Article 2 § 1 of the Decree, in so far as relevant, reads:
“The following agricultural estates shall be designated for the purposes of the agrarian reform: ...
e) being a property or a co-property of natural persons or legal entities, if the entire area of the estate exceeds either 100 hectares in total, or 50 hectares of arable land ...
All real estate, referred to in items ... , e) above shall, with no delay and without compensation, be taken over by the State. “
29. Under Article 35 of the Code of Administrative Procedure of 1960, the administration is obliged to deal with cases without undue delay. Simple cases should be dealt without any delay. In cases requiring some enquiry a first-instance decision should be given in no more than one month. In particularly complex cases decisions shall be taken within two months.
30. If the decision has not been given within those time limits, a complaint under Article 37 of the Code may be filed with the higher-instance authority, which shall fix an additional time limit, establish the persons responsible for the failure to deal with the case within the time-limits, and, if need be, arrange for preventive measures to be adopted in order to prevent further delays.
31. In 1995 the Supreme Administrative Court Act was adopted, which entered into force on 1 October 1995. It created further procedures in which a complaint about the administration’s failure to act could be raised.
32. Under Article 17 of that Act, that court is competent to examine complaints about the administration’s inactivity in administrative proceedings in cases referred to in Article 16 of the Act.
33. Pursuant to Article 26 of the Act, if a complaint about the inactivity of an administrative authority is well-founded, the court shall oblige the competent authority to give a decision, or to carry out the factual act, or to confer or acknowledge an individual entitlement, right or obligation.
34. On 1 January 2004 the Law on Administrative Courts came into force, which replaced the 1995 Act and established a two-tiered system of appeals against administrative decisions to administrative courts.
|
[4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 18, 19, 25, 26, 29]
|
001-73291
|
9. In 1990 the applicant founded and became the chairman of the Bulgarian Revolutionary Youth Party („Българска революционна младежка партия“). He ran for parliament in 1990 and in several later elections, unsuccessfully. Apparently he was also a presidential candidate in later elections on that party’s ballot.
10. At a meeting held on 10 November 1996 in Varna the applicant and fortynine other persons formed a party named Communist Party of Bulgaria („Комунистическа партия на България“). They adopted its constitution and elected its management organs. The applicant was elected the party’s chairman. The party’s aims, set out in the preamble to its constitution, were as follows:
“...
The main aim of the Communist Party shall be the revolutionary change of the Bulgarian society – democratisation of the society as a road to true power of the people. The primary goal of the party shall be the practical improvement of the socialist democracy – broadening of the direct participation of the people in the government of the state; economic freedom of the enterprises within the framework of an economy changed and armed with the new philosophy of central planning; active shift towards selfgovernment of the municipalities and the economic units as a transition towards selfgoverning communities within a society of social homogeneity.
...
The Communist Party is convinced of the need for the union of the political parties, movements and eminent personalities into one political coalition – ‘Union for National Cooperation ‘Civic Forum’’, as the most proper way out of the societal antagonisms and divisions.
...
The Party shall advocate a policy of rapprochement between peoples which are at different sociopolitical stages of development; of deepening of the economic, political and cultural ties between them. The Communist Party’s ultimate aim is the ‘constant improvement of society’.
The Communist Party is a party of a new type. It shall struggle for political power and shall work dedicatedly for the triumph of the communist ideal – building of a civil society with the economic nature of a society ruled by the principles of scientific socialism and the political nature of a society free of class divisions, political parties and movements: a society in which the vehicle of development shall be the Man – a universally developed and harmonious personality.”
11. Articles 1 – 8 of the party’s constitution dealt with membership in the party and the members’ rights and obligations. Article 8 set out, inter alia, the grounds for expelling members.
12. Articles 9 – 26 of the constitution set out the organisational structure of the party and the powers of its organs.
13. Article 28 of the constitution, which described the party’s symbols, stated, inter alia, that they stood for the “idea of a revolutionary sociopolitical order”.
14. On 3 December 1996 the applicant, in his capacity of chairman of the party, applied to the Sofia City Court to have it registered.
15. The court held a hearing on 18 December 1996. It noted that the manner of liquidation of the party had not been provided for in its constitution, that the declarations submitted by the founders were incomplete, and that there were certain other irregularities. Accordingly, it adjourned the case for 26 February 1997 with a view to allowing the party to remedy the deficiencies it had spotted.
16. In order to rectify the deficiencies noted by the court, the applicant and the other founders held another meeting on 26 January 1997 and decided to amend the party’s constitution. On 17 February 1997 they submitted the amendments and updated declarations to the court, which admitted them in evidence.
17. A second hearing took place on 26 February 1997.
18. In a decision of 6 March 1997 the Sofia City Court refused to register the party, holding:
“In the course of the proceedings the court found that the applicants have failed to comply with the requirements of sections 7, 8 and 9(2) of the Political Parties Act [of 1990], in order to make the entering of the party in the register possible. [The case-file contains] minutes from the general meeting of the [party] held on 26 January 1997, which are not duly signed. The introduction to the party’s constitution contains aims which are identical to the aims of other, already registered parties. The party’s structure is not fully and clearly set out [in its constitution]; the powers of its different organs are not clearly described, are repeated in the different provisions of the party’s constitution and thus the powers [of the party’s organs] are not clearly spelled out. The party’s constitution does not specify the manner of termination of membership in the party.”
19. On 14 March 1997 the applicant appealed to a threemember panel of the Supreme Court.
20. The court held a hearing on 4 June 1997.
21. On 9 June 1997 the threemember panel of the Supreme Court upheld the lower court’s decision. It opined:
“The name of the Communist Party of Bulgaria formally does not already exist in the register [of political parties], but it does not set it apart from an already registered party – [the Bulgarian Communist Party], as required by section 8(1) of the [Political Parties Act of 1990], because in fact it contains the same words; their rearranging does not change the purport and the essence of the political party. This name does not individualise it and does not clearly set it apart from another, already registered party.
[The party’s] aims, as indicated in part I of its constitution ... are contrary to section 3(2) of the [Political Parties Act of 1990].
The manner of termination of membership in the party is not set out [in its constitution], contrary to section 8(1) of the [Political Parties Act of 1990].”
22. On 1 August 1997 the applicant lodged a petition for review with a fivemember panel of the Supreme Court.
23. A hearing was held on 4 March 1998.
24. In a final decision of 19 March 1998 the fivemember panel of the Supreme Court dismissed the petition in the following terms:
“The impugned decisions should not be quashed first and foremost because the name of the party – Communist Party of Bulgaria – does not set it apart from other parties, in violation of section 8(1) of the [Political Parties Act of 1990], as correctly found by the two courts below. The name is an individualising feature of the party and for that reason it should not duplicate [the names of] other parties, organisations and movements, which may ... engage in political activities. The rule of section 8(1) of the [Political Parties Act of 1990] concerning the party’s name sets the bounds of the founders’ autonomy and initiative in choosing the name. [The founders] must see to it that from a grammatical and a logical point of view there is no duplication of the purport and the essence [of the name] with the name of another party.
In the case at hand the separate words which constitute the party’s name, on the one hand, and the particular wording used, on the other, although not identical to those used in other existing parties’ names, convey a similar meaning. The name “Communist Party of Bulgaria” uses the ideological term “communist”, which term, viewed in a historical context, resembles a party from the not so distant past – the Bulgarian Communist Party – and also resembles the Bulgarian Communist Party ... even though there is a rearrangement of the words...
Regarding the contents of the party’s constitution, as required by section 8(1) of the [Political Parties Act of 1990], the courts [below] have correctly found that the constitution does not indicate the manner of termination of membership in the party. [The constitution sets forth] rules about the admission [of new members], about the members’ rights and the obligations and the [penalties which may be imposed on them], but there are no rules regarding the termination of the membership. Likewise, the powers of the [party’s] organs and its organisational structure are chaotically scattered throughout its constitution.
The [courts below] have correctly found that the aims of the party are contrary to section 3(2) of the [Political Parties Act of 1990]. Part I of the constitution indicates that the main aim of the party [is] the ‘revolutionary change of Bulgarian society’ and the support for the idea of a revolutionary sociopolitical order – part V of the constitution.”
25. It appears that in Bulgaria at least eight other political parties are registered with the word “communist” in their names, e.g. Bulgarian United Communist Party („Българска единна комунистическа партия“), Bulgarian Communist Party of the Bolsheviks („Българска комунистическа партия на болшевиките“), Renewed Bulgarian Communist Party („Обновена българска комунистическа партия“), Bulgarian Communist Party “Georgi Dimitrov” („Българска комунистическа партия ‘Георги Димитров’“), Bulgarian Communist Party “Fatherland” („Българската комунистическа партия ‘Родина’“).
26. In the beginning of 1997 the Sofia City Court registered a party named Communist Party. On 22 April 2000 it changed its name into Communist Party of Bulgaria, which fact was likewise registered by the Sofia City Court in a decision of 16 November 2000, and published in the State Gazette on 22 November 2000 (ДВ, бр. 106 от 22 декември 2000 г.).
27. The relevant provisions of the Constitution of 1991 read as follows:
“1. Citizens may freely associate.
2. Organisations whose activity is directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity ... as well as organisations which seek to achieve their goals through violence are prohibited.
3. The law shall specify the organisations which are subject to registration, the manner of their dissolution, as well as their relations with the State.”
28. The relevant provisions of the Political Parties Act of 1990 („Закон за политическите партии“), as in force at the relevant time, read:
“No political party shall be founded:
1. [which is] aimed against the sovereignty and the territorial integrity of the country, [or] the rights and freedoms of its citizens;
2. whose aims are contrary to the Constitution and the laws of the country;
3. [which is based] on ethnicity or religion, or [aims] to spur racial, national, ethnical or religious hatred;
4. which advocates a fascist ideology, or tries to achieve its goals through violence or other unlawful means.”
“A political party shall be formed at a founding meeting upon the agreement of at least fifty enfranchised citizens. The founding meeting shall adopt its constitution and elect the management organs.”
“The constitution of a political party shall set forth: its name, which shall set it apart from other parties; its seat; its aims and objectives; the manner of becoming a member and of terminating the membership; the rights and obligations of the members; the managing organs; the party’s symbols; the sources of financing, as well as the manner and conditions for the party’s liquidation.”
“1. The political party shall be entered in a separate register kept by the Sofia City Court, on application by the organ which represents it according to its constitution.
2. The application shall be accompanied by copies of: the minutes of the founding meeting, the party’s constitution, and a list of the names and addresses of the members of the party’s managing organ, which represents it according to its constitution.
...”
“A political party ceases to exist:
...
4. when it is dissolved by decision of the Supreme Court [of Cassation].”
“1. [A political party may be dissolved] upon the proposal of the Chief Prosecutor, if the party engages in activities which run counter to section 3 [of this Act].
2. The decision of the Supreme Court [of Cassation] to dissolve a party may be appealed to a five-member panel [of that court].”
29. By section 12(1) and (2) of the Political Parties Act of 2001, in force until April 2005, a party could be dissolved by decision of the Sofia City Court on the application of a public prosecutor if, inter alia, the party systematically contravened the Act’s provisions, its activities ran counter to the provisions of the Constitution, or it had been declared unconstitutional by the Constitutional Court. By section 40(1) and (2) of the Political Parties Act of 2005, presently in force, the Sofia City Court, acting pursuant to the application of a public prosecutor, may order the dissolution of a party if its activities systematically contravenes the Act’s requirements or the provisions of the Constitution.
|
[1, 7, 8, 12, 17, 18, 21, 30, 35, 36, 38, 40, 44]
|
001-76677
|
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.
...
|
[1, 3, 4, 6, 8, 9, 12, 13, 16, 17, 20, 21, 22, 25, 30]
|
001-77181
|
The applicant, Ms Olga Ivanovna Sherstyuk, is a Ukrainian national who was born in 1965 and lives in the town of Popasnaya of the Lugansk region. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice of Ukraine.
The facts of the case, as submitted by the parties, may be summarised as follows.
In October 1988 the applicant opened a fixed-term deposit account in the USSR Savings Bank. Under the contract, the annual interest rate on the deposit was 3 %.
By a decision of 20 March 1991, the Verkhovna Rada (Parliament) of Ukraine declared the Ukrainian branches of the USSR Savings Bank being a property of the Ukrainian State. The operation of banks and banking activities was regulated by law (see Relevant domestic law, below).
Since 1992, Ukrainian economy experienced hyperinflation, with its peak in 1993.
On 30 June 1993 the regional branch of the Ukraine Savings Bank (hereinafter – “the Bank”) placed an announcement in the Lugansk Regional Council’s newspaper called “Nasha gazeta”. The announcement read as follows:
“The Savings Bank informs
As of 1 July this year the annual interest rate on fixed-term deposits and on special deposits for children is set at 220 per cent. No new formalities are required for previously opened fixed-term deposits and special deposits for children.”
According to the applicant, having read this announcement and having received confirmation in the local office of the Bank, the applicant decided, contrary to her initial intentions, not to withdraw her money deposited with the Bank.
In 1996 the Ukrainian authorities implemented a monetary reform intended to replace the former monetary unit, the karbovanets coupon, with a new currency, the Ukrainian hryvnia (українськa гривнa, UAH), at an exchange rate of 100,000 karbovanets coupons for 1 hryvnia.
According to the applicant, in June 2001, having difficulties in understanding the information written in her account statement records, she consulted an expert who, after having examined the above records, found out that since 1994 the annual interest rate on her deposit had been lower than 220%. According to the applicant the annual interest rate on her deposit was 194.7% in 1994, 86.8% in 1995, 29.9% in 1996, 13.7% in 1997, 6.9% in 1998, 7.3% in 1999, and 6.3% in 2000.
In July 2001 the applicant instituted proceedings in the Popasna District Court of the Lugansk Region against the Bank seeking compensation for damages caused by decreasing the annual interest rates on her deposit without informing her and without seeking her prior consent. She complained that the Bank fell short of its obligations to pay on her deposit the interests of 220% per year fixed in 1993 after publication of the announcement in the official newspaper of the regional council.
According to the applicant, during the hearing, the representative of the Bank, explained, among other things, that in accordance with the Bank’s Statute and instructions of 3 October 1980 and 8 July 1998, the Bank was not obliged to disseminate information about the applicable interest rates, but such information had always been available in branches of the Bank and the applicant could have consulted it there.
By its judgment of 25 December 2001, the court rejected the applicant’s claim as unsubstantiated, for the following reasons:
“...the defendant, having changed unilaterally the interest rates on the fixed-term deposit had acted in accordance with Article 41 of the Law of Ukraine “on Banks and Banking Activities” in the wording of 1991, under which the Savings Bank of Ukraine sets the interest rates on deposits within the maximum interest rates set by the National Bank of Ukraine.
At the same time, this Law does not foresee any other conditions for setting interest rates on deposits, including agreement of depositors.
Taking into account, that Laws ... have the highest legal force and are obligatory for implementation by all legal persons and citizens of Ukraine, the court considers that the defendant’s actions on unilateral changes of the interest rates on the fixed-term deposit of the applicant had been lawful, therefore the claims ... are unsubstantiated...”
The applicant appealed against this judgment to the Lugansk Regional Court of Appeal.
On 4 April 2002 the Lugansk Regional Court of Appeal upheld the judgment of the first instance court. In its decision the appellate court, having repeated the reasoning of the first-instance court, also noted that the applicant had deposited her money in 1988 with the interest rate of 3 per cent. Since 1 July 1993 the Bank had been changing the interest rate but the latter never went lower than the original rate of 3 per cent.
The applicant appealed in cassation.
On 23 June 2003 the panel of three judges of the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation.
Article 41
“Everyone has the right to own, use and dispose of his or her property, and the results of his or her intellectual and creative activity...
No one shall be unlawfully deprived of the right of property. The right of private property is inviolable...”
Article 41. Interest rates of the Ukraine Savings Bank
“The Ukraine Savings Bank fixes the interest rates on the deposits of the population within the limits of the maximum interest rates, established by the National Bank.”
|
[2, 3, 4, 9, 11, 13, 14, 16]
|
001-80083
|
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.
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[3, 4, 5, 6, 7, 8, 9, 11, 13, 14, 15, 16, 17, 18, 21, 22, 24, 25, 26, 27, 28]
|
001-83482
|
6. The applicant was born in 1922 and lives in Granemore, County Armagh.
7. At about 10.40 p.m., shortly after closing time, on 6 June 1976, a police officer in the Royal Ulster Constabulary (“RUC”) drove a car, stolen by RUC Reserve Constable Laurence McClure, up to the Rock Bar, a public house. The applicant was leaving the bar at that time. He was shot twice in the stomach by McClure, who then placed a 10lb gelignite bomb against the door of the pub. The detonator exploded but the bomb failed to explode. At the later trial a reserve police constable, William McCaughey, stated that shots were fired by his companions at the injured man on the ground and then he fired a number of shots through the window of the bar. Bullet strike marks were later found around the darts board inside the bar, where there had been seventeen people. No-one else was physically injured.
8. The applicant was taken to hospital in an ambulance and police attended the scene, sealing off the area while an army technical officer examined the explosive device and ensured that it was in a safe condition. A Scene of Crime Officer examined the scene, took possession of material associated with the bomb and a gun recovered from a burnt out car found approximately one mile away, which police linked to the attack. Photographs of the bar were taken and maps prepared.
9. The investigation did not close and became active again in 1978, when a Catholic priest Father Hugh Murphy was abducted by loyalist paramilitaries intending to use him as a hostage vis-à-vis the IRA. In the course of the investigation, the police arrested McCaughey, who, in the course of questioning, revealed his part in the abduction of the priest and in a variety of other loyalist paramilitary incidents. McCaughey made allegations incriminating himself and police officer McClure in respect of the Rock Bar attack. McClure was arrested and admitted involvement. Two further serving police officers, Ian Mitchell and David Wilson, also admitted involvement in, or prior knowledge of, the attack on the bar. McCaughey admitted firing the shot which wounded the applicant.
10. The applicant was aware that charges were pending against four police officers. He had been contacted by the police in April 1980 and summoned to appear in Belfast Crown Court on 23 April 1980. He was subsequently advised of various date changes and then that the case was postponed and that he would be contacted. In fact the hearing took place on 30 June 1980. The applicant had not been informed and learned about the outcome on the radio.
11. Three men, McCaughey, McClure and Mitchell, faced charges of attempted murder of the applicant, wounding the applicant with intent contrary to section 18 of the Offences against the Persons Act 1961, attempted murder of the persons inside the bar, causing an explosion contrary to section 2 of the Explosives Substances Act 1883, possession of explosive substances with intent to endanger life or cause serious injury and possession of firearms and ammunition with intent. The three officers pleaded not guilty to the charges of attempted murder; McClure and Mitchell pleaded not guilty to wounding the applicant. The Director of Public Prosecutions (“the DPP”) entered a nolle prosequi in respect of those charges which accordingly were not proceeded with. No reasons were given for this decision. The only person facing a charge concerning the applicant was McCaughey, who received a term of seven years for wounding him. McClure was sentenced to two years' imprisonment for causing an explosion, possession of an explosive substance with intent and possession of firearms and ammunition with intent, all sentences suspended for three years. Another RUC officer, David Wilson, was charged with withholding information contrary to section 5(1) of the Criminal Law (Northern Ireland) Act 1967, based on the fact that he had been aware of the attack beforehand and had not taken any steps to prevent it.
12. With the exception of McCaughey, the other officers received suspended prison terms. In sentencing, Lord Lowry stated inter alia:
“... It does not seem realistic to believe that after all that they have endured – some with their careers in ruins, others with their careers in jeopardy- that they require much by way of deterrent or by way of reform, and no proper sentence which I pass will make an impression on terrorists while other members of the police force are no doubt already embarrassed, sufficiently embarrassed and shocked by what has happened in these cases and been seen to happen to their colleagues. ... I must remember that whatever sentence is just it would follow that it would be imposed on a different and lower scale from that appropriate to terrorists, no matter whichever side, whose aim is to achieve their political ends by violence and to attack the very fabric of society.”
13. It had been advanced by the defence and accepted by the trial judge that McCaughey had only aimed to shoot the applicant in the legs and had done so.
14. McClure had also been facing charges in relation to his involvement in the attack on Donnelly's Bar, Silverbridge, in 1975 in which three people had been killed (see application no. 32457/04, Brecknell v. the United Kingdom). These charges were later dropped.
15. In the course of the investigation in 1978, McCaughey made revelations giving rise to investigations in eleven specific cases, some of which were linked in terms of the identities of those involved, the modus operandi or by virtue of the ballistic examinations of weapons used. Nine suspects were arrested in total, including five police officers, and all were eventually charged with offences.
16. One of those implicated was a police officer John Weir who was named as having been involved in the murder of a shopkeeper called Strathearn in Ahoghill in April 1977: he was convicted for that murder in June 1980 and sentenced to life imprisonment. The Government stated that both McCaughey and Weir refused to name the two loyalist paramilitaries also involved with them in the murder unless they received immunity from prosecution. The police and prosecuting authority took the decision prior to the trial not to enter into any process of bargaining with Weir and McCaughey. While both were approached by the police after their convictions to see if at that stage they would give evidence against the loyalist paramilitaries, each again refused to do so unless there was something in it for themselves. The Government stated that during the period in which Weir was detained he was interviewed on a large number of occasions. At no time did he implicate himself or others in any offence other than the Strathearn murder.
17. On 1 February 1993 John Weir was released from prison on licence. In January 1999, he made a statement to a journalist alleging RUC and Ulster Defence Regiment ("UDR") collusion with loyalist paramilitaries from the Portadown area in the mid-1970s. This statement was published in the Sunday Times newspaper in March 1999. It was obtained by the Patrick Finucane Centre, a human rights non-governmental organisation in Derry (“the Centre”).
18. John Weir's statement made detailed allegations about security force collusion with loyalist paramilitaries in a series of incidents. He alleged inter alia that RUC Reserve Constable Laurence McClure had told him that the murder of the Reavey family members was carried out by Robert McConnell, a member of the UDR, Laurence McClure, Johnny Mitchell, another Reserve Constable in the RUC and McClure's brother who was not a member of the security forces. The statement also made links between this incident and other attacks allegedly carried out by members of the security forces, both RUC and UDR, and loyalist paramilitaries. This group used the farmhouse in Glennane owned by James Mitchell, a RUC reservist, as a base from which to carry out attacks on Catholics and nationalists. Other attacks allegedly included the murder of Colm McCartney and Sean Farmer at a bogus vehicle checkpoint in August 1975 (see application no. 34575/04); the attack on Donnelly's Bar in which Trevor Brecknell, Michael Donnelly and Patrick Donnelly were killed (see application no. 32457/04); and the murder of Joseph, Barry and Declan O'Dowd and wounding of Barney O'Dowd (see application no. 34622/04). Weir also linked these attacks to the Dublin and Monaghan bombings in which 33 people were killed in the Republic of Ireland.
19. On or about 10 June 1999, RTE, an Irish television channel, broadcast a television programme that contained allegations of security force involvement in a number of deaths, including that of Trevor Brecknell. Weir made allegations on that programme that members of the RUC and UDR were directly involved in the attack on Donnelly's Bar. A BBC Spotlight programme produced a similar documentary dealing with these allegations.
20. These allegations attracted considerable attention on both sides of the Irish border and became the subject of police investigation in both jurisdictions. The Government stated that the police investigation in Northern Ireland was focussed on determining whether Weir's allegations should be assessed as sufficiently credible to require a full investigation. They obtained from the journalist an edited transcript of the interview with Weir. While his whereabouts were unknown to the RUC, Weir met with senior Irish police officers at the Irish Embassy on 15 April 1999. A copy of his statement was provided by the Garda to the RUC, along with a further statement made by Weir to another journalist dated 3 February 1999. The police analysed the available materials and sought to identify the personalities to be interviewed. It became apparent that some had died and that others, living abroad, could not be traced. A series of seven interviews were conducted, under cautions, between July and December 2001, of those individuals central to Weir's account who could be traced. No charges were preferred. The interviews followed the format of Weir's allegations being put to the interviewee for his or her response. The predominant response was denial of any involvement and claims that Weir had been untruthful. No admissions were made by any interviewee. Interviews were also conducted with less central personalities and with police officers involved in interviewing Weir in 1978. The latter stated that Weir had not mentioned the matters now being alleged.
21. Meetings were held regularly with RUC counterparts in the Republic of Ireland. The RUC co-operated also with the judicial inquiry established in the Republic of Ireland into the Dublin and Monaghan bombings (see the description of the inquiry in the case of Brecknell referred to above). Amongst matters about which the RUC team provided information to the inquiry was ballistics information which linked some of the weapons used to more than one incident. In February 2000 a substantial report was compiled by the RUC for the Garda dealing with Weir's allegations. It profiled Weir and dealt inter alia with a description of the 1978 investigation into McCaughey, Weir and others. It concluded that the investigation would continue but that his credibility was in doubt. According to the Government, despite inquiries being conducted, Weir's whereabouts could not be traced. This report was not disclosed as the investigation was continuing. An internal RUC report dated 27 February 2001 concluded that it would be necessary to interview Weir before any view could be finalised in respect of the credibility of his allegations: such interview was not possible as his whereabouts were not known. The report noted the absence of any previous mention of the allegations before 1999 and that much of what he said was hearsay and speculation. Enquiries made of the British Embassy in Nigeria (where he had a known address) and the criminal intelligence service and others failed to locate Weir. Contact was made with the Garda and the secretariat of the Inquiry into the Dublin and Monaghan bombings without positive result.
22. The Serious Crime Review Team (“SCRT”) was established in March 2004, with responsibilities including the review of all historical murders by way of case assessment for evidential and investigative opportunities.
23. Unlike the other case (Brecknell, Reavey, O'Dowd and McCartney, cited above), the Rock Bar case was not referred to the SCRT. This was because it was not a murder case and there had been four convictions. Nonetheless because of connections with other cases, the case was also referred to the Historical Enquiry Team (HET). The HET director of Investigations, Detective Chief Superintendent James of the London Metropolitan Police Force, took over personal supervision of the investigation which has progressed through the first three of five stages of the HET process (collection of all relevant material; assessment of the investigations to date; review of evidence, with intelligence and open and non-police sources, together with a meeting with the families of the victims of the attack). As a number of investigative opportunities were identified and to be followed up, the case was to continue to be processed by HET, which had been put in touch with Weir by the Centre. The Government submitted that if any evidence of police involvement in the murders was found, the Office of the Police Ombudsman for Northern Ireland would then become involved. The Government have provided recent information that Weir finally agreed to meet with the HET in Dublin; he refused, however, to make a written statement or to give evidence in court.
There has been contact between the police and the applicant, as well as with the Centre acting on behalf of a number of concerned families. In particular, there were meetings in September 2002 with Detective Chief Inspector Paterson, and a meeting with the Chief Constable in June and August 2004; in May 2006, Detective Chief Superintendent James met the applicant together with the person who owned the bar at the time; and there has also been extensive correspondence with the families or their representatives.
See Brecknell, cited above (§§ 39-41).
See Brecknell, cited above (§§ 42-49).
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[3, 4, 5, 6, 7, 9, 10, 14, 15, 16, 18]
|
001-90165
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5. The applicant was born in 1948 and lived in Warsaw.
6. On 17 September 1997 the applicant was arrested by the police. On 18 September 1997 the Warsaw District Court (Sąd Rejonowy) decided to place the applicant in pre-trial detention in view of the reasonable suspicion that he had been involved in drug trafficking as part of an organised criminal gang. In particular, the applicant was suspected of having participated in the recruitment of persons used for international drug trafficking.
7. The applicant’s pre-trial detention was extended on several occasions.
8. On 15 May 1998 the applicant was indicted before the Warsaw Regional Court.
9. The applicant, who had suffered two heart attacks in 1993 and 1995, submitted that his health deteriorated after his arrest. On 22 July 1998 he consulted a cardiologist. On 8 September 1998 the Medical Panel (Komisja Lekarska) decided that there were no reasons militating against the applicant’s detention, provided that the detention centre in which he was detained possessed a hospital wing.
10. In September 1998 the applicant and several co-accused were indicted before the Warsaw Regional Court (Sąd Okręgowy).
11. On 22 January 1999 the applicant consulted a non-prison doctor who prescribed a coronary angiography (koronografia). The applicant submitted that he had not been informed of this.
12. On 1 February 1999 the Medical Panel again found that the applicant could be held in a detention centre if it had a hospital wing.
13. On 4 August 1999 the applicant was again examined by a nonprison doctor who confirmed the need for a coronary angiography. The applicant submitted that the prison authorities refused to carry out this procedure. He complained about this to the Helsinki Foundation for Human Rights in Warsaw.
14. Between 18 and 31 August 1999 the applicant was treated in the hospital wing of the detention centre.
15. On 23 August 1999 the Warsaw Regional Court extended the applicant’s detention, finding that the grounds for it remained valid. On the same date the court dismissed the applicant’s request for release finding that the applicant’s state of health was not incompatible with detention.
16. The applicant’s detention was subsequently extended by the Supreme Court on 16 September 1999, on the ground of the reasonable suspicion against him.
17. In October 1999 the trial court decided to return the case to the prosecutor and to join the investigation to another case concerning organised crime. On 21 October 1999 the Warsaw District Court ordered the applicant’s detention in connection with this set of criminal proceedings.
18. On 2 November 1999 the prison authorities replied to the Helsinki Foundation regarding the applicant’s health care. The authorities stated that the applicant had been examined by doctors on several occasions and that the cardiologist had not ordered the coronary angiography but had only suggested it as one of several possible treatments. The applicant’s state of health did not preclude detention and he could receive any necessary treatment in the hospital wing of the detention centre. They reiterated that the applicant was detained in a detention centre which had hospital facilities and that, if necessary, he would be hospitalised.
19. On 19 November 1999 the applicant was transferred to the Łódź detention centre, which had no hospital wing. The applicant argued that this was in reprisal for his complaint to the Helsinki Foundation. In March 2000 the applicant lost consciousness and was transferred to the Łódź Prison Hospital, where he remained for 10 months.
20. On 6 January and 24 March 2000 the Warsaw Regional Court, upon an application from the Wrocław Regional Prosecutor (Prokurator Okręgowy), further extended the applicant’s pretrial detention, relying on the reasonable suspicion that he had committed the offences in question and on the complexity of the case, which justified the continuation of the investigation.
21. On 7 April 2000 the Warsaw Court of Appeal (Sąd Apelacyjny), on an application from the prosecutor, decided to further extend the applicant’s detention until 20 October 2000. In addition to the existence of a reasonable suspicion that the applicant had committed the offences, the court relied on the complexity of the case, the severity of the anticipated penalty and the need to secure the proper conduct of the investigation. Finally, the court found no evidence that the applicant, and four other co-accused, should be released from detention due to their various health conditions. The court added, however, that it was for the prosecutor to order a medical examination of the accused and to reach a decision regarding their further detention.
22. On 8 June 2000 the Supreme Court (Sąd Najwyższy) decided to amend the Court of Appeal’s decision and extended the applicant’s detention pending the outcome of the investigation until 10 October 2000.
23. On 3 October 2000 the Warsaw Court of Appeal, on another application from the appellate prosecutor, decided to extend the applicant’s pre-trial detention, and that of fourteen co-accused, until 10 February 2001. The court repeated the reasons given in previous decisions.
24. On 4 October 2000 a coronary angiography and other tests were carried out in Łódź University Hospital. The applicant submitted that the results of the tests provided evidence of his very serious state of health and proof that his life was in danger.
25. On 14 November 2000 the Warsaw Court of Appeal dismissed the applicant’s appeal against the decision of 3 October 2000 extending his detention. The appellate court, referring to the applicant’s state of health, established that he could be detained and treated in the prison hospital until the date of the surgery.
26. On 7 December 2000 the applicant was examined by doctors from Łódź University Hospital, who ordered that he should undergo heart surgery in a non-prison hospital. A medical certificate of 24 January 2001, issued by Łódź Prison Hospital, confirmed the need to carry out a coronary artery bypass graft (CABG, a so-called heart bypass operation).
27. On 24 January 2001 the applicant was transferred to the Mokotów Detention Centre in Warsaw, as the surgery was to be carried out in the Anin Institute of Cardiology.
28. On numerous occasions the applicant applied to be released from detention. He justified these requests by referring to the state of his health and the fact that his imminent surgery could not be carried out in the hospital wing of the detention centre but necessitated his release from detention. Nevertheless, on 6 February 2001 the court further extended the pretrial detention of the applicant and his co-accused. The decision did not contain any particular reference to the applicant’s health.
29. On 27 April 2001 the applicant was indicted before the Warsaw Regional Court.
30. In April 2001 the applicant was examined by doctors in the Anin Institute of Cardiology, who agreed to carry out laser heart surgery on the applicant.
31. On 15 May 2001 the Warsaw Court of Appeal again extended the applicant’s detention. The court found:
“In the instant case, [the applicant] was arrested on 17 September 1997 and detained on remand on 18 September 1997 by the decision of the Warsaw District Court.
On 9 May 2001 the pre-trial detention of 22 co-accused was extended until 11 October 2001. The procedural grounds therefore justify the extension of detention also with respect to [the applicant] until 11 October 2001. Moreover, there are no grounds for lifting his pre-trial detention under Article 259 of the Code of Criminal Procedure.
As [the applicant’s] pre-trial detention has lasted for over 3 years and 6 months, it is necessary to schedule the date of the hearing and to plan the trial so that the provisions of the [Polish Code of Criminal Proceedings] and Article 6 of the [Convention] are respected - that is, the right to a trial within a reasonable time.”
32. The applicant lodged an appeal against the decision but on 12 June 2001 the Warsaw Court of Appeal dismissed it.
33. The Anin Institute of Cardiology scheduled laser heart surgery on the applicant and ordered that he be admitted to the Institute on 27 July 2001. The applicant’s representative submitted that the applicant was never informed of this. The Government submitted that the surgery could not take place on that date on account of prolonged renovation work to the Institute.
34. Between 8 August and 10 September 2001 the applicant was hospitalised in the Warsaw prison hospital for pneumonia.
35. On 5 September 2001 the Anin Institute of Cardiology sent a letter to the applicant, informing him that the second appointment for his laser heart surgery had been scheduled for 21 September 2001. The applicant submitted that the letter was delayed and that he had been informed about it after the date in question. From the copy of the envelope submitted by the applicant’s wife, it appears that the letter was posted on 10 September 2001; a stamp indicates that it was delivered to the registry of the Mokotów Detention Centre on 11 September 2001 [Sekretariat, Areszt Śledczy Warszawa; 11 Wrz. 2001]. The envelope is marked “registered post - v. urgent” [polecony – b. pilne] and contains the following stamp “Censored 24.09.01” [Ocenzurowano]. The Government maintained that this letter never arrived at the Mokotów Detention Centre and that the authorities had not been aware that the Institute had scheduled the date of the applicant’s surgery.
36. The Anin Institute of Cardiology again rescheduled the date of the applicant’s heart surgery and gave him an appointment for 26 October 2001. It appears that this notification was delivered to the detention centre by the applicant’s lawyer in person.
37. On 1 October 2001 the applicant was examined by the Medical Panel, which gave a decision on the same date. The decision contained a reference to his medical record and the information that he would be admitted to undergo surgery at the Anin Institute of Cardiology on 26 October 2001. The decision states:
“16. The Panel’s decision -
It is necessary to change the preventive measure.
17. The grounds for the decision -
The patient requires surgical treatment at the Anin Institute of Cardiology. The date of admittance to the Institute is scheduled for 26 October 2001. Further ... detention is a threat to the patient’s health.”
This decision of the Medical Panel was not sent to the trial court until a later date (see paragraph 44 below).
38. On 5 October 2001 the Warsaw Court of Appeal extended the pretrial detention of the applicant and the other co-accused for a further four months. The court did not examine the applicant’s state of health or any circumstance that would concern him individually.
39. On 12 October 2001 Dr M.M., from the hospital wing of the Mokotów Detention Centre, issued a medical certificate, which was sent by fax to the trial court on 15 October 2001. The certificate stated:
“The prisoner’s complaints:
Has been treated for many years for coronary thrombosis, hypertension. Had suffered heart attacks. Recent effort-related chest pain.
Established during examination:
Conscious, sound blood circulation and respiration ...
Diagnosis:
Ischaemic heart disease, has had heart attacks, currently has relatively sound blood circulation. Had pneumonia.
Conclusions:
At present he can participate in the court’s hearings. The patient was examined by the Medical Panel on 1 October 2001.”
40. On 16 October 2001 the trial against the applicant and forty-four coccused started before the Warsaw Regional Court. The applicant was brought to the courtroom to attend the hearing of 16 October 2001. At the hearing the court informed the applicant’s lawyer that a medical certificate of 12 October 2001 had been submitted on the previous day. In the light of the certificate, the court dismissed the applicant’s request to sever the charges against him, holding that his health did not justify a separate examination of the case.
41. The applicant attended the second hearing on 18 October 2001.
42. At the next hearing, held on 19 October 2001, the applicant was heard and the statements given by him at the investigation stage were read out. The trial court adjourned the hearing until Monday 22 October 2001.
43. On 22 October 2001 the applicant was brought to the court room, where he lost consciousness before the hearing began. An ambulance was called. At 9.30 a.m. he was transferred back to the hospital wing of the Mokotów Detention Centre. He was examined by a doctor, who considered that he did not require hospitalisation but was unfit to participate in the hearing on that day. After examination in the hospital wing the applicant was transferred to his cell in the detention centre.
44. The hearing started later than scheduled, due to the commotion caused by the applicant’s fainting and the arrival of the ambulance. The presiding judge enquired about the applicant’s health by calling the Mokotów Detention Centre and the Anin Institute of Cardiology. From the latter the judge learned that the applicant’s admittance to the Institute was scheduled for 26 October 2001. The judge was also informed by the detention centre’s authorities that the applicant had been examined by the Medical Panel on 1 October 2001 but that the report had not yet been confirmed by the relevant medical authorities, and thus could not be submitted to the court. Nevertheless, at the second break in the hearing, the Mokotów Detention Centre sent the presiding judge, by fax, the Medical Panel’s decision, which concluded that the applicant’s continued detention represented a risk to his health (see paragraph 37 above).
45. On 22 October 2001 at 9.30 a.m. the applicant was examined by a doctor from the hospital wing of the detention centre on account of a worsening of his health. The doctor issued a certificate stating that the applicant did not require hospitalisation but was unfit to participate in the hearing on that day.
46. At 3.45 p.m. on 22 October 2001 the applicant was taken from his cell to the hospital wing of the Mokotów Detention Centre; he was unconscious. The medical team managed to resuscitate the applicant, so that he began breathing on his own again and his heart beat was restored. They also attempted to locate a hospital that would admit him. The applicant was taken in a serious condition to hospital in Lindley Street, Warsaw, where he died on 25 October 2001 without regaining consciousness.
47. On 22 October 2001 the trial court decided to examine the charges against the applicant in a separate set of proceedings, as his health prevented him from participating in the hearings. The court further decided to release the applicant from detention on 26 October 2001 and to transfer him on that date to the Anin Institute of Cardiology for surgery.
48. On 8 November 2001 the Warsaw Regional Court decided to discontinue the criminal proceeding against the applicant on the ground that he had died on 25 October 2001. On 10 August 2002 the trial court convicted thirty-seven defendants and sentenced them to prison terms varying from 2 to 12 years.
49. On 30 October 2001 the applicant’s wife requested the Warsaw District Prosecutor to start an investigation into the applicant’s death. On 12 November 2001 the Helsinki Foundation for Human Rights made a similar request, informing the prosecutor that the applicant had not received adequate medical care in the Mokotów Detention Centre.
50. On 31 October 2001 a post-mortem examination of the applicant’s body was carried out by the Warsaw Medical Academy (Akademia Medyczna w Warszawie). The examination concluded that the cause of the applicant’s death was acute coronary insufficiency, given the advanced stage of his heart disease.
51. On 20 December 2001 the Warsaw District Prosecutor initiated an investigation into the allegations that the applicant’s death had been caused by the failure of the doctors in the Mokotów Detention Centre to secure him adequate medical care.
52. On 13 February 2002 the prosecutor heard the applicant’s wife. She described how her husband’s health had constantly deteriorated, as observed by her during her regular bi-monthly visits. His serious health problems started when he was transferred to the Łódź Detention Centre, where there was no hospital facility. After he lost consciousness he spent several months in a hospital, and at that time he underwent a coronary angiography. On his return to the Warsaw Detention Centre, his health deteriorated further and he had been coughing badly, and suffered from chest pain. His complaints, however, were dismissed on each occasion by the prison doctor, a general practitioner. Only after collapsing 6 months later was he transferred to the Warsaw Prison Hospital, where he was diagnosed with pneumonia and treated accordingly. At that time it was recommended that he undergo heart bypass surgery. During the hearings which started a few days before his death the applicant was in very poor health. The applicant’s wife also testified that he had received notification about the first scheduled operation in the Anin Institute of Cardiology, set for 21 September 2001, but only after that date. She went to the Anin Institute of Cardiology to obtain the second appointment for 26 October 2001, which she personally transmitted to the applicant’s lawyer so that he could notify the detention centre. However, the applicant passed away before that date.
53. On 28 March 2002 the prosecutor heard the Head of the Warsaw Prison Hospital. She testified that the applicant had stayed in her ward until 10 September 2001 because he had pneumonia and was being prepared for a bypass operation, to be carried out in the Anin Institute of Cardiology. Since the operation could not be carried out at that time, the applicant was returned to his cell in the detention centre.
On the same date the prosecutor questioned a doctor working at the prison hospital, who was consulted by the applicant in 1997, on two occasions in 1998, on one occasion in 1999 and on 2 July 2001.
54. On 29 March 2002 the prosecutor heard another doctor, employed in the prison hospital, who had treated the applicant during his stay in the hospital, that is, until 10 September 2001. Like the previous witness, this doctor did not believe that the applicant had been simulating, had complained excessively or had not been following the doctor’s recommendations.
55. On 29 March and 10 September 2002 the prosecutor heard Dr M.M. who worked in the hospital wing of the Mokotów Detention Centre. He stated that, according to a note made by him in the applicant’s medical record, on 27 September 2001 he learned that the Anin Institute of Cardiology had decided to admit the applicant. He forwarded this request to the prison authorities, as it was necessary to obtain a decision from the Medical Panel. The prosecutor showed the witness a copy of the letter from the Anin Institute of Cardiology of 5 September 2001, stating that the date of the applicant’s admittance to hospital was scheduled for 21 September 2001. The witness was unable to ascertain whether he had previously seen this letter or whether his annotation in the applicant’s medical record of 27 September 2001 had been made in connection with it.
56. On 4 April 2002 a doctor from the Anin Institute of Cardiology was heard by the prosecutor. She testified that in March 2001 the Mokotów Detention Centre requested the Institute to examine the applicant. He was diagnosed with coronary thrombosis and recommended for a laser operation. The witness stated:
“On 27 June 2001 a letter was sent to the detention centre with a request to stop administering aspirin to Mr Dzieciak; it also set the date of his admittance to the Institute for 6 July 2001. The patient did not show up. Again the patient was invited for 21 September 2001 – he did not turn up. The third summons was for 26 October 2001 – he did not show up. We received information that the patient had died on 25 October 2001 (we received this information from a judge). As far as I know the patient did not show up because he had not obtained leave from the detention centre, and we had not agreed to conduct the operation in the presence of guards as we had no conditions for that (moreover, we had repair work going on at that time).”
The witness also stated that the applicant’s wife, who had apparently learned about the planned date of the operation, had informed the hospital administration about the difficulties experienced by the applicant in obtaining leave from the detention centre. The hospital’s administration had contacted the Mokotów Detention Centre and learned that the decision on whether or not to grant the leave would be taken before 26 October 2001. The doctor also confirmed that a judge from the Regional Court had called the hospital on 22 October 2001, enquiring whether the applicant had an operation scheduled and saying that a fax with this information had been sent to the court.
57. Finally, on 4 April 2002 the prosecutor questioned another doctor from the prison hospital, who had treated the applicant on 20 and 22 October 2001. He testified that on 22 October 2001 the applicant was brought back from the court hearing at 9.30 a.m. suffering from chest pain. He conducted an ECG test and administered medication so that the applicant’s condition was stable. The witness considered that the applicant had not required hospitalisation but issued a certificate stating that he should not attend the hearing on that day. At 3.33 p.m. on the same day the applicant was brought from his cell on a stretcher; he was unconscious, had no heart beat and was not breathing. After resuscitation his heart beat was restored and he began to breathe independently. The witness ordered an ambulance and contacted hospitals to find one which would admit the applicant. Finally, the fourth hospital, located on Lindley Street, agreed to admit the applicant.
58. The prosecutor also requested the Mokotów Detention Centre to clarify when the letter of 5 September 2001 from the Anin Institute of Cardiology, informing the authorities of the applicant’s scheduled admittance on 21 September 2001 for surgery, had reached the detention centre. According to the Government, the Head of the Mokotów Detention Centre replied that there was no evidence that such a letter had ever arrived at the detention centre; however, the letter informing about the next date for surgery, scheduled for 26 October 2001, had reached the detention centre on 26 September 2001.
59. On 14 August 2002 the Anin Institute of Cardiology confirmed to the prosecutor that the letters indicating the dates of the applicant’s admittance to the Institute (for 6 July and 21 September 2001) had been sent by ordinary mail to the Mokotów Detention Centre.
60. On 23 September 2002 the prosecutor ordered the Gdańsk Medical Academy to prepare an expert opinion. The prosecutor asked the experts to answer following questions:
“1. Was the death of Zbigniew Dzieciak a consequence of:
- unsuccessful medical treatment for which nobody can be held responsible (niezawinione niepowodzenie lekarskie),
- medical malpractice,
- failure to apply due diligence during his medical treatment at the Mokotów Detention Centre and hospital in Lindley Street,
- other circumstances, different from the above?
2. Did the state of health of Zbigniew Dzieciak allow him to remain in the detention centre and to participate in the trial, including lengthy court hearings?”
61. In 1 July 2003 the experts submitted their opinion to the prosecutor. The experts relied on the applicant’s medical file and on the post-mortem examination. They concluded as follows:
“...in answer to question no. 1, we consider that [the applicant’s] death was the consequence of unsuccessful medical treatment for which nobody could be held responsible. Having analysed the file, we find that there was no medical malpractice during the period between the applicant’s arrest and his death. On the basis of the submitted documents we cannot perceive any lack of diligence during his treatment in the detention centre and in hospital in Lindley Street. We have, however, reservations about the fact that the date of the applicant’s cardio-surgical intervention was rescheduled twice (a conclusive elucidation of the grounds for this ‘postponing’ is not within the competence of the undersigned experts). Nevertheless, the type and extent of changes in the heart muscle, as established by the post-mortem examination, do not allow [us] to conclude if, and to what extent, the surgery would have led to improvement in the functioning of the applicant’s left ventricle of the heart.
Ad 2.
In response to the second question, it should be noted that when the applicant’s health was clearly deteriorating and in connection with the approaching surgery, the Medical Panel gave a decision on the necessity of changing the preventive measure, as a continued stay in detention constituted a threat to the patient’s health. On the basis of the documents collected, it is not possible to establish the period when medical indications appeared indicating a need to change the preventive measure.
We believe that it is impossible to establish beyond doubt a causal link between the deterioration in the applicant’s health and his participation in the trial.”
62. On 28 August 2003 the Warsaw District Prosecutor discontinued the investigation. The decision reads:
“On 12 November 2001 the Helsinki Committee informed the District Prosecutor of the possibility that an offence had been committed under Article 231 or 160 of the Criminal Code. It appears from the request that on 22 October 2001 the applicant was called from his cell for transferral to the court hearing, and that his state of health subsequently deteriorated. Attempts were made until evening to resuscitate him in the hospital of the detention centre. In the evening he was taken to hospital in Lindley Street where, on 24 October 2001, he died.
Following the post-mortem examination the expert from the Warsaw Medical Academy established that the cause of [the applicant’s] death had been acute coronary insufficiency, given the advanced stage of [his heart disease]. In the expert’s opinion there was no evidence that would allow [him] to establish that the applicant’s pneumonia had had a bearing on his death. [The Head of the Prison Hospital] testified that [the applicant] had been on her ward once – he was admitted on 8 August 2001 with symptoms of pneumonia and was released on 10 September 2001 in good condition. He was again admitted to the hospital on 22 October 2001 and he was transferred to hospital in Lindley Street after 5.20 p.m.
An expert opinion from the Gdańsk Medical Academy was ordered for the purpose of establishing the circumstances of [the applicant’s] death.
From the submitted expert opinion it appears that the applicant’s death was a consequence of unsuccessful medical treatment for which nobody could be held responsible. Having analysed the file the experts were unable to find evidence of medical malpractice during the period between the applicant’s arrest and his death, could not perceive any [missing: lack of diligence] during his treatment in the detention centre and subsequently in hospital in Lindley Street. In the experts’ view it had not been possible to establish beyond doubt a causal link between the deterioration in the applicant’s health and his participation in the trial.
In the light of the above it must be established that the evidence gathered does not allow the conclusion that [the applicant’s] death was a consequence of the actions or omissions of third persons.
Accordingly it has been decided as above.”
63. The applicant’s wife, supported by the Helsinki Foundation, lodged an appeal against this decision. She complained that the prosecutor had failed to examine thoroughly the allegations raised in her request to initiate the proceedings. In particular, there had been no examination of why, having lost consciousness in the court room on 22 October 2001, the applicant was not immediately taken to hospital but was returned to the detention centre.
64. On 19 January 2004 the Warsaw District Court dismissed the appeal, reiterating the prosecutor’s findings that the applicant’s death was “unsuccessful medical treatment”. The court had not made any new findings relating to the course of the events. It noted that the information about the surgery scheduled for 21 September 2001 had not reached the Mokotów Detention Centre. However, on 26 September 2001 the detention centre received information that the surgery could take place on 26 October 2001, provided that the applicant received authorisation. The court further established that on 1 October 2001 the Medical Panel had given a decision finding that a further stay in detention would pose a risk for the applicant’s health; that ruling had been validated by the Head of the Panel on 22 October 2001. Previously, on 16 October 2001, the Head Doctor of the Prison Medical Service had ordered that the decision be supplemented by a copy of the results of the coronary angiography. On 23 October 2001 the Panel’s decision was faxed to the trial court, at whose disposal the applicant remained. The court concluded:
“Taking into account the above circumstances, and the fact that it was not possible to establish a causal link between the applicant’s participation in the trial [and the deterioration in his health] or to establish whether, and to what extent, the surgery would have led to an improvement in the functioning of the applicant’s left ventricle of the heart, it must be concluded that the prosecutor was right in finding no evidence in the circumstances of the instant case pointing to the commission of an offence, and that the prosecutor’s decision was based on Article 7 of the Code of Criminal Procedure. Accordingly, the impugned decision shall be upheld.”
65. On 12 July 2002 the applicant’s wife lodged a civil claim with the Warsaw Regional Court, seeking compensation in connection with her husband’s death. She maintained that her late husband had not received proper medical treatment in the detention centre and had been obliged to participate in the hearings despite his poor state of health. The applicant’s wife applied for legal aid, submitting that her monthly income, comprising her salary as a cleaning lady and disability benefit for her daughter, who suffered from cerebral palsy, was equivalent to EUR 370. The applicant’s representative submitted that the court had exempted her from paying court fees but had dismissed her application for legal aid.
66. On 26 January 2004 the Warsaw Regional Court dismissed the claim. The court examined the treatment that the applicant had undergone since his arrest in 1997 and the prosecutor’s case file concerning the investigation into the applicant’s death. It found that the State Treasury could not be held liable for damage, as it had not been established that the applicant’s death had been caused by unlawful actions or omissions of the detention centre officials. In addition the court found that the applicant had failed to prove that her financial situation had deteriorated as a result of her husband’s death.
67. The applicant’s wife appealed against the judgment.
68. On 14 November 2004 the Warsaw Court of Appeal dismissed the appeal. The court agreed with the first-instance court’s assessment that the applicant’s wife had not sustained damage as a consequence of her husband’s death, and that her claim had thus been ill-founded. The court also dismissed as unsubstantiated the applicant’s complaints that the prison authorities had contributed to her husband’s death by failing to provide him adequate medical care.
69. The applicant failed to lodge a cassation appeal with the Supreme Court against that judgment. She did not apply to a court to have a legal-aid lawyer appointed for the purpose of lodging such appeal on her behalf.
70. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and the rules governing other, socalled “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 August 2006.
The Code sets out the margin of discretion as to the continuation of a specific preventive measure. In so far as relevant, Article 257 provides:
“1. Pre-trial detention shall not be imposed if another preventive measure is sufficient.”
The relevant part of Article 259 provides:
“1. If there are no special reasons to the contrary, pre-trial detention 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.”
|
[1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 28, 29, 31, 32, 33, 34, 35, 37, 39, 54, 55, 56, 57, 60, 61, 63, 64, 65, 66, 68, 69, 81, 85, 93, 94, 96, 97, 101, 103, 104, 105, 106, 107]
|
001-88523
|
The applicant, Mr Clarence Hornby, is a British national who was born in 1945 and lives in Wigan. He was unrepresented before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 8 March 2001, leaving no dependent children. His claim for widows’ benefits was made on 17 June 2001 and was rejected on 31 June 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was confirmed by an appeal tribunal on 8 October 2001. 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 benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.
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[2, 3]
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001-97402
|
5. The applicant, Mr Mariusz Pińkowski, is a Polish national who was born in 1970 and lives in Częstochowa.
6. On 9 March 2000 the Częstochowa Regional Prosecutor (Prokurator Okręgowy) charged the applicant with being an accomplice to an armed robbery and murder in France.
7. On the same date the Częstochowa District Court (Sąd Rejonowy) remanded the applicant in custody. The court justified its decision by the strong evidence against the applicant, the likelihood of a severe sentence of imprisonment being imposed on him if convicted and the risk that he might obstruct the proceedings.
8. On an unspecified date the applicant was charged with being an accomplice to an armed robbery, murder, false imprisonment and being a member of an organised criminal gang (no. II K 55/01). All the offences in question were alleged to have taken place in France.
9. Subsequently, on 25 May 2001 the applicant was charged with being an accomplice to an armed robbery and with the imprisonment, torture and murder of a certain A.T., and with being a member of an organised criminal gang in France.
10. On 18 June 2001 the bill of indictment was lodged with the Częstochowa Regional Court.
11. The applicant's pre-trial detention was extended by the decision of the Katowice Court of Appeal (Sąd Apelacyjny) of 28 August 2000 (upheld by the Supreme Court (Sąd Najwyższy) on 2 October 2000) and the decisions of the Katowice Regional Court of 14 February, 28 June and 29 November 2001 (upheld by the Katowice Court of Appeal on 14 March, 22 August and 20 December 2001, respectively).
12. The courts referred to the original grounds for the applicant's detention and, additionally, to the international dimension of the case.
13. Meanwhile, on 1 March 2002 the Nowy Sącz Regional Court convicted the applicant as charged and sentenced him to twenty-five years' imprisonment. The reports obtained from Polish and French forensic experts in the course of the proceedings were contradictory as regards the cause of the victim's death. However, relying on the witness testimony and other evidence, the court established that the victim had died not as a result of asphyxia (when the applicant, acting together with accomplices, strangled him with a wire and put tape around his face) as claimed by some experts but as a result of being shot by the applicant in a forest where the applicant had possibly buried him with the aid of the gang.
14. On 3 October 2002 the Kraków Court of Appeal quashed the above judgment and remitted the case to the prosecution for further investigation, with a view to eliminating the major discrepancies in the evidence obtained.
15. On 21 November 2003 the Częstochowa Regional Prosecutor issued a new decision charging the applicant with, among other offences, attempting to kill A.T. by strangling him and then hiding the body. The supplementary investigation revealed that the victim had died as a result of numerous wounds inflicted on him. In addition, the applicant was found to have incited and led the other accomplices, acting on orders from a certain R.S. All the offences in question were alleged to have taken place in France.
16. Meanwhile, the preventive measure was upheld by decisions of the Kraków Court of Appeal of 21 February, 21 August, 3 October and 31 December 2002, and 26 March, 24 September and 16 December 2003.
17. Subsequently the applicant's pre-trial detention was extended by the trial court, the Nowy Sącz Regional Court, in its decisions of 29 June and 15 November 2004 and of 29 March and 19 August 2005 (upheld by the Kraków Court of Appeal on 22 July and 9 December 2004 and on 4 May and 14 September 2005, respectively).
18. The courts reiterated the original grounds for the applicant's pre-trial detention. In addition, although they acknowledged the fact that the investigation had been lengthy, the domestic courts considered it justified in the light of the international character of the case and the fact that certain witnesses had to be examined with the aid of the French authorities.
19. On an unspecified date in early-2004 a new bill of indictment was lodged by the prosecutor (no. II K 8/04) and the case was sent to the Nowy Sącz Regional Court.
20. From 17 May 2004 until 18 November 2005 the trial court held thirteen hearings. The court examined a French witness and obtained a forensic report from a French expert. The case file comprised twenty-three volumes in Polish and twenty-nine volumes in French.
21. On 18 November 2005 the Nowy Sącz Regional Court convicted the applicant as charged and sentenced him to fifteen years' imprisonment. That term was reduced by the period which the applicant had already spent in pre-trial detention, from 11 March 2000 until 27 March 2001 and from 14 January 2003 until 18 November 2005.
22. On 8 March 2006 the Kraków Court of Appeal acquitted the applicant of inciting and commanding the other accomplices and upheld the remainder of the first-instance judgment.
23. On 15 February 2007 the Supreme Court dismissed the cassation appeals lodged by the defence lawyers.
24. In parallel to his pre-trial detention which is the subject of the instant application, the applicant served two separate prison sentences. Between 22 April and 31 July 2002 the applicant was serving a sentence of 100 days imposed on him by a judgment of the Częstochowa District Court of an unspecified date (no. III K 1554/98). On 31 July 2002 he started serving a sentence of twelve years' imprisonment, which was imposed on him by a judgment of the Nowy Sącz Regional Court of an unspecified date (no. II K 14/06).
25. During his pre-trial detention, the applicant was first held in the Nowy Sącz Prison and later in Częstochowa Remand Centre.
26. On 14 November 2001 the Penitentiary Commission of Nowy Sącz Prison (Komisja Penitencjarna) classified him as a “dangerous detainee” (“N”). That decision was based on the information about the applicant obtained from the trial court, namely that he had been suspected of a cruel crime committed while acting in an organised criminal gang.
27. On 8 May 2003 that decision was lifted by the Penitentiary Commission of Częstochowa Remand Centre.
28. The applicant did not submit any details about the conditions of his detention under the “N” regime.
29. It appears that on 19 December 2007 the applicant was released on parole.
30. The applicant did not complain about the length of the proceedings under the Act 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”).
31. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are summarised in several judgments concerning similar cases (see, among others, Kauczor v. Poland, no. 45219/06, §§25-27, 3 February 2009; Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006; Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006).
32. The relevant domestic law and practice concerning remedies for excessive length of judicial proceedings, in particular the applicable provisions of the above-mentioned 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
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[1, 2, 5, 6, 7, 8, 11, 12, 13, 15, 16, 19, 20, 25, 26, 27]
|
001-91415
|
5. The applicant was born in 1946 and lives in Pasiky-Zubrytski.
6. Since 1974 the applicant has worked as a teacher in the Lviv Boarding School no. 6 for Children with Language Disorders (“the School”). In 1995 he was elected head of the school branch of the “VOST” - one of the two trade unions represented in the School.
7. On 12 January 1996 the local Board of Education employed Mrs P. to serve as a director, notwithstanding opposition from some staff, in particular the VOST members.
8. In May 1996 Mrs P. dismissed an employee, who was a VOST member, without the consent of the VOST. Subsequently, in 1998, this employee was reinstated as a result of a court action brought on her behalf by the VOST.
9. On 6 June 1996 Mrs P. refused to sign a collective agreement, signed by the VOST and the head of the second trade union present at the School.
10. On an unspecified date in late 1996, a former School driver who had been dismissed by Mrs P. for incompetence submitted a written statement to the applicant, alleging that in April 1996 Mrs P. had ordered him to unload ten boxes of humanitarian aid intended for the School at her father’s estate and that on many occasions she had used the school vehicle for personal purposes.
11. In early 1997 the applicant in his capacity as a trade union leader made several applications to the Control Inspection Department (Контрольно-ревізійне управління, a public audit service, scrutinising the use of funds by State-owned entities, “the KRU”), alleging that Mrs P. had abused her office and misused School property and funds. In particular he stated that Mrs P. had appropriated ten boxes of humanitarian aid, the School’s TV set, other video equipment and bricks from the school boundary wall which had been demolished. On several occasions the applicant also complained about the situation to Mr U., the regional leader of the VOST.
12. In response to these complaints in 1997 the KRU held several inquiries into the use of the School funds.
13. In its report of 28 February 1997, the KRU stated that there were no serious instances of mismanagement of the School’s property.
14. The KRU’s report of 26 March 1997, however, revealed certain shortcomings on the part of the School administration in the handling of humanitarian aid, charity and the bricks. However, no evidence was found that any of the humanitarian aid or charity monies or any bricks had been appropriated by Mrs P.
15. In April 1997 the applicant on behalf of the School branch of the VOST, Mr U. on behalf of the Regional VOST, and Mr N. on behalf of the local branch of the Ukrainian Conservative Party made a criminal complaint against Mrs P. to the Lychakivsky District Prosecutor’s Office (“the Prosecutor’s Office”) a criminal complaint against Mrs P., referring largely to the same circumstances as in the VOST’s complaints to the KRU. On 28 April 1997 the Prosecutor’s Office dismissed this complaint for want of evidence of criminal conduct on Mrs P.’s part. On 17 June 1997 a second criminal complaint was dismissed on the same ground. However, criminal proceedings were initiated into the circumstances of the disappearance of the TV set and the video equipment.
16. On 26 May 1997 several representatives of the Regional VOST picketed the Lychakivsky District Administration protesting against the alleged abuses by Mrs P. The participants in the picket carried placards with various slogans criticising Mrs. P. and her deputy Mrs N., as well as their supporters within the local administration. The slogans concerning Mrs P. read as follows: “Mrs P. and Mrs N. - return humanitarian aid and 20,000 bricks from the school wall to the disabled children”; “Boarding school no. 6 director Mrs P. and her clique of VOST persecutors [should be submitted] to court”; and “Mrs P. and Mrs N., sticky hands off the disabled children of Boarding school no. 6”.
17. In May 1998 Mrs P. brought a private prosecution against the applicant. She complained, in particular, that in his letters to the KRU and the Prosecutor’s Office the applicant had falsely accused her of abuse of office and misappropriation of public funds and that he had organised and participated in the picket of 26 May 1997, during which the demonstrators displayed offensive placards. Mrs P. further concluded that the applicant’s actions fell within the ambit of Article 125 § 2 (defamation in print) and § 3 (false accusation of serious crimes) and Article 126 (insult) of the Criminal Code of 1960 in force at the material time.
18. On 14 May 1998 a judge of the Lychakivsky District Court of Lviv found that the applicant’s conduct vis-à-vis Mrs P. fell within the ambit of Article 125 § 1 of the Criminal Code (simple defamation) and Article 126, and initiated criminal proceedings against the applicant. The judge further ordered that the applicant be placed under an undertaking not to abscond.
19. In the course of the investigation, the charges against the applicant were re-qualified from Article 125 § 1 to Article 125 § 3.
20. On 12 November 1999 the Prosecutors’ Office notified the applicant of his indictment under Article 125 § 3 and Article 126 of the Criminal Code.
21. On 15 November 1999 the investigation prepared a final bill of indictment under these provisions and gave the applicant access to the case file before its transfer for court proceedings.
22. On 26 January 2000 the Lychakivsky District Court held the first hearing in the applicant’s case.
23. In March 2000 the applicant’s case was transferred to the Shevchenkivsky District Court of Lviv (“the Shevchenkivsky Court”).
24. On 26 June 2001 the Shevchenkivsky Court found the applicant guilty of an offence under Article 125 § 3 as charged and dropped charges under Article 126 as redundant. It sentenced him to one year’s imprisonment suspended for one year and to a fine of 200 Ukrainian hryvnas (UAH). The court also allowed Mrs P.’s civil claim in part and ordered the applicant to pay her UAH 1,000 in non-pecuniary damages and UAH 100 in legal fees.
25. In its judgment the court established that in numerous letters signed by the applicant, Mrs P. had been baselessly accused of misappropriation of public funds. The court also found that the applicant had initiated and participated in the picketing of 26 May 1997, referring to various pieces of evidence, including submissions by several School employees that they had seen him during the picket holding a slogan.
26. The applicant appealed against the judgment of 26 June 2001. He alleged in particular that the prosecution had failed to prove that he had intentionally disseminated falsehoods. Furthermore, no attention had been accorded to the fact that he had acted in his official capacity as a local VOST leader, empowered by the union members to inform the authorities about Mrs P.’s official misconduct and that according to the findings of the KRU and the law-enforcement authorities his accusations had not been entirely baseless. The applicant further denied any involvement in the picketing, referring to his absence on the photographs of the picket made by the plaintiff as well as to a doctor’s certificate concerning his inpatient treatment until 27 May 1998. He also alleged that the case could not be considered under § 3 of Article 125 of the Criminal Code, as pursuant to the decision of 14 May 1998 criminal charges filed by Mrs P. under this provision had been re-qualified as charges under § 1 of Article 125.
27. On 21 August 2001 the Lviv Regional Court of Appeal heard the case in the applicant’s absence and upheld the judgment of 26 June 2001. It found, in particular, that the applicant’s guilt, including in respect of participation in the picketing, had been proved by numerous sources of evidence. In particular, several School employees attested to having seen the applicant holding a slogan during the picketing and his doctor stated that his treatment had not precluded him from leaving the hospital premises.
28. The applicant filed eleven cassation appeals, which were dismissed due to his failure to follow formalities envisaged by law. On 25 April 2003 a judge of the Supreme Court declared the applicant’s twelfth appeal in cassation, in which he raised essentially the same arguments as in his appeal, admissible.
29. On 13 November 2003 the Supreme Court upheld the previous judgments.
30. The text of Article 125 of the Code read as follows:
Defamation [Наклеп], namely the intentional dissemination of falsehoods aimed at damaging the reputation of another shall be punishable by ...
Defamation in print ... shall be punishable by ....
Defamation linked with an unfounded accusation of committing a grave offence shall be punishable by up to five years’ imprisonment.
31. Article 126 of the Code provided as follows:
“Insult [Образа], namely the intentional humiliation of the honour and dignity of a person expressed in an indecent form shall be punishable by ...”
32. Following a process of legislative reform, the New Ukrainian Criminal Code of 5 April 2001 no longer classifies defamation and insult as criminal offences.
33. The text of Article 27 of the Code of Criminal Procedure (governing the private prosecution proceedings, as in force before 21 June 2001) may be found in the judgment of 10 August 2006 in the case of Lyashko v. Ukraine (no. 21040/02, § 23).
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[6, 9, 10, 11, 12, 13, 19, 20, 21, 22, 26, 31]
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001-90276
|
4. The applicants were born in 1924, 1932, 1940, 1949, 1946, 1944, 1937 and 1934 respectively and live in different cities in Turkey.
5. On various dates, the applicants inherited or bought plots of land and properties near the coasts in different parts of Turkey, namely in Çanakkale, Şarköy, Izmir, Mudanya and Seferihisar. Some of the applicants constructed houses or operated commercial entities on their land.
6. On different dates, the Treasury requested from the competent courts of first instance to determine whether the applicants’ properties were located within the coastal strip. A group of experts appointed by the courts inspected the plots of land and any existing buildings on them and concluded that they were located within the coastline area.
7. Following the conclusion of the expert reports, the Treasury brought actions before the relevant courts, requesting the annulment of the applicants’ title deeds to the land and the properties, on the ground that they were located within the coastal area.
8. On various dates, the courts of first instance upheld the request of the Treasury and annulled in full the applicants’ title deeds in application nos. 23953/05, 37166/05, 19638/06 and 17654/07, whereas the title deeds in the remaining two applications were partially annulled. In their decisions, the courts held that, pursuant to domestic law (the Coastal Law of 1990), the 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 plots of land.
9. Appeals by the applicants against these judgments were dismissed by the Court of Cassation. Some of the applicants’ requests for rectification of the judgments were also rejected by that court.
10. In application no. 23953/05 the applicant brought an action for damages in the Şarköy Civil Court of First Instance on account of his loss of ownership and the demolition of four shops located on the land. On 28 October 2003 the Şarköy Civil Court of First Instance dismissed the applicant’s action on the ground that, inter alia, the State was not liable for the damage resulting from the cancellation of the registration of the property in issue. The applicant appealed. In a judgment of 24 September 2004 the Court of Cassation upheld the judgment. A rectification request by the applicant was further dismissed by the Court of Cassation on 17 March 2005.
The details concerning the six applications are indicated in the table below:
11. 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).
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[2, 3, 4, 9]
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001-102788
|
The applicant, Mr Józef Szyc, is a Polish citizen who was born in 1950 and is currently detained in Biała Podlaska Prison. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 November 1990 the applicant was imprisoned in Biała Podlaska Prison. Subsequently, he was many times transferred between prisons in Włodawa, Biała Podlaska, Siedlce, Kamińsk and Chełm.
On 23 July 2009 the applicant was released from Chełm Prison as he had been granted a leave on compassionate grounds.
On 20 July 2010 the applicant resumed serving his prison sentence. He is currently detained in Biała Podlaska Prison.
The applicant submitted that practically all prisons in which he had been detained from 1999 or 2000 onwards had been overcrowded. By way of an example, he submitted that in June 2008 he had been detained in a prison cell with a living space of approx. 1 m² per inmate. He moreover asserted that on one occasion, for a period of one week, he was forced to sleep on a mattress on the cell floor. The overcrowding had resulted in tension and conflict among the detainees as well as in the progressive deterioration of the prison’s sanitary conditions.
The applicant further submitted that from November 1995 and over the next 13 years, he had been detained together with smokers, despite his being a non-smoker. The cells in which he had been detained had no proper ventilation.
As regards the applicant’s detention in Włodawa Prison, the Government pointed out that prior to 2 January 1999 the prison authorities had not been storing information as to the exact number of prisoners detained in each cell on specific dates. They further submitted that, to their general knowledge, the problem of overcrowding had not existed in Włodawa Prison prior to 1999. The Government acknowledged that from January 1999 until May 2003 the applicant had been temporarily placed in cells with a living space ranging from 2.5 m2 to 3.49 m2 per prisoner. The total time in which the applicant was imprisoned in cells of less than 3 m² per prisoner amounted to at least 145 days.
The Government explained that during his entire stay in Włodawa Prison the applicant had been detained only in non-smoking cells.
As for the applicant’s detention in prisons in Chełm and in Siedlce, the Government acknowledged that both these penitentiary centres had been permanently overcrowded at the relevant time. The applicant had been imprisoned in cells of less than 3 m² per prisoner for an overall period of 835 days. On one occasion, due to lack of space, the applicant was required to sleep on a double mattress on the cell floor for nine days. During an unspecified time the applicant was detained together with smokers, but he never complained to the authorities about this fact.
In Biała Podlaska Prison the applicant was incarcerated in cells with a living space ranging from 2 m2 to 4.1 m2 per prisoner. The total period during which he was detained in cells of less than 3 m² per prisoner amounted to 744 days. The Government explained that in Biała Podlaska Prison the applicant had been serving his sentence in a semi-open ward where cells remained open during daytime. Moreover, from November 2006 to August 2007 he had been allowed to take a bath on a daily basis. Lastly, they submitted that, on three occasions, the applicant had been granted a temporary, accompanied release from prison. He was also granted leave to attend his father’s funeral without being accompanied by a prison officer.
More recently, the applicant submitted that the living conditions in Biała Podlaska Prison were inadequate and that he was detained together with four other inmates in cell no. 139 which was designed for three persons.
The applicant informed the Court that on unspecified dates in 2003 and 2004 he brought several civil actions against prisons in Włodawa, Siedlce and Chełm for the infringement of his personal rights. He briefly informed the Court that his claims had been unsuccessful but failed to provide details about the exact course or the outcome of any of the proceedings.
The Government submitted that the applicant’s civil action against Włodawa Prison had been dismissed by a decision of the first-instance court against which the applicant did not appeal. Three other civil actions which the applicant had attempted to institute before the Siedlce Regional Court (Sąd Okręgowy) were all rejected for failure to comply with the prescribed procedural requirements.
The Government further submitted that the applicant had instituted another civil action before the Lublin Regional Court (Sąd Okręgowy). These proceedings were currently pending. The applicant did not contest the foregoing statements.
A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54).
|
[5, 6, 7, 9, 10, 11, 12, 15]
|
001-102634
|
5. The applicant was born in 1951 and lives in Tököl.
6. In 1999 the applicant was sentenced to eight years' imprisonment for armed robbery by the Rimini Court in Italy. (The European Court of Human Rights subsequently held that the unfairness of the underlying proceedings gave rise to a violation of Article 6 § 1 of the Convention by the Italian authorities and awarded the applicant just satisfaction: Somogyi v. Italy, no. 67972/01, ECHR 2004IV). The end date of this sentence was 28 December 2007.
7. On 19 May 2003 the applicant was transferred to Hungary. On 20 October 2003 the Budapest Regional Court in Hungary held that he was to serve the remainder of his sentence under a strict regime in a Hungarian prison (fegyház) and that he could be released on parole after serving four-fifths of the term, i.e. on 23 May 2006.
8. The applicant appealed. On 16 February 2006 the Attorney General's Office intervened in the case, filing a motion for remedy in support of the applicant. The Office argued that the service of the applicant's sentence under a strict regime constituted an undue aggravation of his penal situation, in breach of Article 11 of the Transfer Convention, which entailed that he could be released on probation only belatedly.
9. On 14 March 2006 the Supreme Court quashed the Regional Court's decisions concerning the regime of the applicant's transferred sentence and his conditional release, holding that they were unlawful. It held that the best approximation of the Italian sentence in Hungarian law was to have imposed a medium regime (börtön) on the applicant for the remainder of his prison term, release on parole then being possible after having served three-quarters of the sentence.
10. On 17 March 2006 the applicant was released.
11. Subsequently, the applicant brought an official liability action against the Regional Court. He claimed compensation for the fact that, because of that court's wrong reconciliation of the Italian and Hungarian penitentiary rules, he had been released on parole only on 17 March 2006, whereas under the medium regime he could have already been released in November 2005. He also sought damages for having erroneously spent two years and five months in a strict-regime prison.
12. After divergent decisions, on 15 May 2008 the Supreme Court finally dismissed the action. Concerning the belated release, it held that, although the Regional Court's interpretation of the law had been overruled, there was no indication that it had carried out the complex task of reconciling the inconsistent Italian and Hungarian rules with gross negligence giving rise to tort liability. As to the period wrongly spent in a strict-regime prison, it noted that the applicant had not substantiated that he had sustained any actual damage.
13. From 1994 onwards, criminal proceedings were conducted against the applicant in Hungary for the abuse of firearms. On 6 February 2004 the Buda Central District Court sentenced him to four months' suspended imprisonment. The court observed that unlicensed firearms had been found in the applicant's car and, in so doing, it relied on the testimony of several witnesses. It took into account the extreme protraction of the case since 1994 as a crucial mitigating circumstance entailing a suspended sentence.
14. On 12 May 2005 the Budapest Regional Court upheld this judgment. On 15 November 2005 the Supreme Court dismissed the applicant's petition for review.
15. The Convention on the Transfer of Sentenced Persons (European Treaty Series no. 112) provides as follows:
“The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. ...”
“1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.
2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.”
“In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority: ...
d. shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.”
|
[2, 3, 4, 7, 12, 13]
|
001-102256
|
5. HADEP was a political party which had been established on 11 May 1994. At the time of its dissolution on 13 March 2003 its general secretary was the second applicant, Mr Ahmet Turan Demir, who had been elected to that post in February 2003.
6. In the general election held on 24 December 1995 HADEP received 1,171,623 votes, which represented 4.17% of the total number of votes cast. In the general election held on 18 April 1999 HADEP received 1,482,196 votes. However, as HADEP did not succeed in passing the required threshold of 10%, it was unable to be represented in the Grand National Assembly of Turkey following these two general elections (see HADEP and Others v. Turkey (dec.), no. 51292/99, 13 November 2008). In local elections held on 18 April 1999 HADEP won control of 37 municipalities. It had branches in 47 cities and in hundreds of districts. In 2002 HADEP became a member of the Socialist International.
7. The applicants submitted that, during a National Security Council (Milli Güvenlik Kurulu) meeting held on 18 December 1996, a decision had been taken to dissolve HADEP. In support of this assertion the applicants submitted to the Court a report which, they claimed, had been adopted by the National Security Council and which had subsequently been leaked to the press. The report, which is classified 'Secret', details a number of recommendations including “the control and pursuit of HADEP by the State in order to quell its activities”. Following this decision HADEP branches had been raided and its administrators had been subjected to physical pressure. In support of this latter argument the applicants submitted to the Court two reports, detailing the physical attacks on and the killings and forced disappearances of dozens of HADEP members, some of which have been examined by the Court (see, inter alia, Tanış and Others v. Turkey, no. 65899/01, ECHR 2005–VIII).
8. On various dates criminal proceedings were brought against a number of members of HADEP who were holding executive positions within the party. Some of the proceedings were suspended while some ended in convictions. Some of them were convicted of spreading “separatist propaganda”, in breach of section 8 of the Prevention of Terrorism Act, while others were convicted of “incitement to racial hatred and hostility in society on the basis of a distinction between social classes, races or religions”, in breach of Article 312 of the Criminal Code. A number of others were convicted of lending assistance to the PKK in breach of Article 169 of the Criminal Code, for making speeches, allowing hunger strikers to use HADEP premises and for possessing a number of documents prepared by PKK members in a law-firm owned by one of them. Some served their prison sentences while execution of the sentences of a number of others was stayed.
9. On 29 January 1999 the chief prosecutor at the Court of Cassation brought proceedings before the Constitutional Court and demanded that HADEP be dissolved. The chief prosecutor argued that HADEP had become a “centre of illegal activities against the integrity of Turkey”. In support of his allegations the chief prosecutor referred to the criminal proceedings pending against members of HADEP and a number of activities of its members. One incident relied on by the chief prosecutor was that during HADEP's annual general meeting in 1996 the Turkish flag had been taken down and replaced with a PKK flag.
10. On 25 February 1999 the chief prosecutor asked the Constitutional Court to render an interim decision banning HADEP from taking part in the forthcoming April general and local elections. The chief prosecutor's request was refused by the Constitutional Court on 8 March 1999.
11. On 5 April 1999 lawyers for HADEP submitted a written defence to the Constitutional Court. They alleged that the chief prosecutor's request for the dissolution of HADEP had been made as a result of the National Security Council's above-mentioned decision (see paragraph 7). They further argued, inter alia, that as it was not clear what the accusations against HADEP were, it was not possible for them to make full use of their defence rights. The lawyers relied on Articles 6, 9, 10, 11 and 14 of the Convention and Article 3 of Protocol No. 1 to the Convention, and asked the Constitutional Court to take into account the decisions and judgments of the European Court of Human Rights in cases concerning the dissolution of a number of other political parties in Turkey.
12. The chief prosecutor maintained in his written submissions of 9 April 1999 that HADEP had close ties with the PKK, and alleged that the former was being controlled by the latter. The chief prosecutor also repeated his request for HADEP to be dissolved before the elections which were to be held on 18 April 1999. This request was not accepted by the Constitutional Court.
13. During the proceedings, in their submissions to the Constitutional Court HADEP's representatives drew attention to the fact that the person who had taken down the flag was not a member of the party. They further stated that, immediately after the incident the HADEP congress had publicly condemned the incident. Since then HADEP had been dissociating itself from the incident and condemning it as an attack on a common symbolic value of the people of Turkey.
14. In its decision of 13 March 2003 the Constitutional Court decided unanimously to dissolve HADEP. The Constitutional Court based its decision on Articles 68 and 69 of the Constitution and sections 101 and 103 of the Political Parties Act (Law no. 2820). In arriving at its conclusion, the Constitutional Court took account of the activities of certain leaders and members of HADEP and concluded that HADEP had become a centre of illegal activities which included aiding and abetting the PKK.
15. The Constitutional Court noted, in particular, that during HADEP's annual general meeting in 1996 a non-HADEP member wearing a mask had taken down the Turkish flag and replaced it with a PKK flag and a poster of the then leader of the PKK, Abdullah Öcalan. During the same meeting slogans had also been chanted in support of the PKK and its leader. The then general secretary of HADEP Mr Murat Bozlak, who was present during the meeting on that day, had done nothing to stop the Turkish flag being taken down and had stated during his speech that “the existence of the Kurds in Turkey, who were not allowed to speak their mother tongue, had been denied. The PKK, despite ongoing military operations, massacres and provocations, was holding its ceasefire. Nothing could be resolved with military operations or with occupation.” The Constitutional Court considered the taking down of the Turkish flag as proof of the links between HADEP and the PKK. It further considered that the references made by Mr Bozlak to Turkey's fight against terrorism as an “occupation” and portraying Kurds as a separate nation showed that Mr Bozlak was supporting the PKK.
16. The Constitutional Court referred to Article 11 of the Convention in its judgment and stated that the rights guaranteed in that provision were not absolute and could be restricted in the circumstances listed in Article 11 § 2 of the Convention. It also referred to Article 17 of the Convention, and reached the following conclusion:
“Carrying out activities, by relying on democratic rights and freedoms, against the indivisible unity of the State with its nation is unacceptable. In such circumstances it is the duty and raison d'être of the State to prevent the abuse of these rights and freedoms. Allowing a political party which supports terrorism and which is supported by terrorism to continue to exist cannot be contemplated.
In statements and speeches made on behalf of the People's Democracy Party and in the course of various meetings, the party's general secretary Murat Bozlak, other party officials and chairmen and members of the party's provincial and district branches have stated that the Kurdish nation was a different nation from the Turkish nation; that the State of the Turkish Republic had been enforcing a policy of pressure and oppression on the Kurdish nation; that there was an ongoing war between the PKK terrorist organisation and the State of the Republic of Turkey; and that the Kurdish nation should take sides with the PKK in this war. Some of these activities have resulted in convictions. These persons have thus aided and harboured the PKK and its leader Abdullah Öcalan, whose aim is to destroy the indivisible unity of the State. The incidents, which are detailed in relevant parts of this judgment and which took place during the Second Congress of the People's Democracy Party on 23 June 1996 in Ankara, as well as the objects and documents found in the party headquarters and in the party's various branches confirm the [above-mentioned conclusion].
Activities by members of the People's Democracy Party and the evidence [in our possession] clearly show the links between the respondent party and the PKK. The following incidents and activities – and many others and judgments rendered by courts – are proof of the connection and support between the People's Democracy Party and the PKK terrorist organisation:
– organisation of various activities – under instructions from the PKK – such as hunger strikes, demonstrations and issuing press releases with a view to protesting against the attempt to assassinate Öcalan and against the work that had been carried out by the State of the Turkish Republic to apprehend Öcalan, and against his subsequent arrest;
– work to create, by referring to concepts such as freedom, brotherhood and peace, a sense of a different nation among the people who live in a certain part of the country or who claim to belong to a certain ethnic group;
– description of the State's struggle against the PKK terrorist organisation as a 'dirty war', as well as taking sides with the PKK in this war by carrying out certain activities and by displaying certain behaviour;
– provision of training to a number of young people, in line with the PKK ideology but under the disguise of in-party training, with a view to recruiting them to the party first and subsequently to the PKK terrorist organisation in order for them to carry out activities on behalf of the PKK terrorist organisation and then sending them to the PKK's mountain camps as armed militants;
– the keeping in the Party's headquarters and in its district and provincial branches, of objects, books, banners and photographs of members of the PKK as well as other PKK terrorist organisation propaganda documents for which the courts have issued confiscation orders;
– the fact of allowing people to watch the organisation's media organ MED TV in these places for propaganda purposes; and
– speeches and activities during HADEP's Second Congress.
In the light of the above, and in accordance with Articles 68 and 69 of the Constitution and section 101 (b) of the Political Parties Act, it is hereby decided to dissolve HADEP, which has become a centre of illegal activities against the indivisible unity of the State with its nation and which has aided and harboured the PKK terrorist organisation.
...”
17. As an ancillary measure under Article 69 § 9 of the Constitution, the Constitutional Court banned 46 HADEP members and leaders from becoming founder members, ordinary members, leaders or auditors of any other political party for a period of five years. The Constitutional Court also ordered the transfer of HADEP's property to the Treasury.
18. The decision of the Constitutional Court became final following its publication in the Official Gazette on 19 July 2003.
19. Article 169 of the Criminal Code in force at the relevant time provided as follows:
“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever, shall be sentenced to not less than three and not more than five years' imprisonment ...”
20. Article 312 of the Criminal Code in force at the relevant time provided as follows:
“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 between six thousand and thirty thousand Turkish liras.
A person who incites 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 between nine thousand and 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.”
21. Section 8 of the Prevention of Terrorism Act provided, in so far as relevant, as follows:
“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 between one hundred million and three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.”
22. Article 68 § 4 of the Constitution provides as follows:
“A political party's programme, statute or activities may not contradict the sovereignty of the State, the indivisible unity of the State with its nation, human rights, equality, principles of rule of law, sovereignty of the nation and democratic and secular principles of the Republic; they may not seek to establish a class-based dictatorship or any dictatorship and they may not incite people to commit offences.”
23. The relevant paragraphs of Article 69 of the Constitution provide as follows:
“5. A decision to permanently dissolve a political party shall be taken if it is established that its statute and programme are not compatible with Article 68 § 4 of the Constitution;
6. A decision to permanently dissolve a political party on account of activities which are contrary to Article 68 § 4 of the Constitution can only be taken if the Constitutional Court decides that [the party] has become a centre where such activities are carried out. A political party shall be deemed to have become a centre of such activities if those activities are carried out in an intensive manner by its members and if this state of affairs is expressly or implicitly accepted by the party's congress, its decision-making bodies or its groups within Parliament, or if those activities are carried out directly by the party's organs in a decisive manner;
7. Depending on the severity of the actions in question, the Constitutional Court may, instead of dissolving the party, decide to fully or partly deprive it of the financial aid it receives from the State;
...
9. Founding members or ordinary members whose declarations or actions lead to the permanent dissolution of a political party shall be disqualified from acting as founders, ordinary members, administrators or auditors of another political party for a period of five years starting from the date of publication in the Official Gazette of the reasoned decision of the Constitutional Court;
...”
24. At the time of the dissolution of HADEP the relevant paragraph of Article 149 of the Constitution provided as follows:
“The Constitutional Court sits with its president and ten members, and adopts its decisions with a simple majority. Cases concerning the annulation of provisions of the Constitution or the dissolution of a political party require a three-fifth majority.
...”
On 7 May 2010 Article 149 of the Constitution was amended. The relevant paragraph now reads as follows:
“...When deciding to dissolve a political party or to deprive it of the financial aid it receives from the State, a two-third majority is required.
...”
25. Sections 101 and 103 of the Political Parties Act (Law no. 2820) provide as follows:
“The Constitutional Court may decide to dissolve a political party:
(a) where [that party's] programme or statute contradicts the sovereignty of the State, the indivisible unity of the State with its nation, human rights, equality, principles of rule of law, sovereignty of the nation and democratic and secular principles of the Republic [and where they] defend and seek to establish a class-based dictatorship or any dictatorship [and where they] incite people to commit offences;
(b) where it is established by the Constitutional Court that [the] political party has become a centre of activities contrary to Article 68 § 4 of the Constitution; and
(c) where [the party] has received financial assistance from a foreign State, international organisation or from non-Turkish persons and companies.
In cases concerning (a) and (b) above and depending on the severity of the activities concerned, the Constitutional Court may, instead of dissolving the party, deprive it of half or more of the financial assistance provided by the Treasury for one year...”
“The Constitutional Court shall have the power to determine whether a political party has become a centre of activities which are contrary to Article 68 § 4 of the Constitution.
A political party shall be deemed to have become a centre of such activities if those activities are carried out in an intensive manner by its members and if this state of affairs is expressly or implicitly accepted by the party's congress, its decision-making bodies or its groups within Parliament, or if those activities are carried out directly by the party's organs in a decisive manner.”
26. In its Guidelines on the prohibition and dissolution of political parties and analogous methods (published in January 2000) the European Commission for Democracy through Law (Venice Commission) proposed the following:
“1. States should recognise that everyone has the right to associate freely in political parties. This right shall include freedom to hold political opinions and to receive and impart information without interference by a public authority and regardless of frontiers. The requirement to register political parties will not in itself be considered to be in violation of this right.
2. Any limitations to the exercise of the above-mentioned fundamental human rights through the activity of political parties shall be consistent with the relevant provisions of the European Convention for the Protection of Human Rights and other international treaties, in normal times as well as in cases of public emergencies.
3. Prohibition or enforced dissolution of political parties may only be justified in the case of parties which advocate the use of violence or use violence as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms guaranteed by the constitution. The fact alone that a party advocates a peaceful change of the Constitution should not be sufficient for its prohibition or dissolution.
4. A political party as a whole can not be held responsible for the individual behaviour of its members not authorised by the party within the framework of political/public and party activities.
5. The prohibition or dissolution of political parties as a particularly far-reaching measure should be used with utmost restraint. Before asking the competent judicial body to prohibit or dissolve a party, governments or other state organs should assess, having regard to the situation of the country concerned, whether the party really represents a danger to the free and democratic political order or to the rights of individuals and whether other, less radical measures could prevent the said danger.
6. Legal measures directed to the prohibition or legally enforced dissolution of political parties shall be a consequence of a judicial finding of unconstitutionality and shall be deemed as of an exceptional nature and governed by the principle of proportionality. Any such measure must be based on sufficient evidence that the party itself and not only individual members pursue political objectives using or preparing to use unconstitutional means.
7. The prohibition or dissolution of a political party should be decided by the Constitutional court or other appropriate judicial body in a procedure offering all guarantees of due process, openness and a fair trial.”
27. Resolution 1308 (2002) of the Parliamentary Assembly of the Council of Europe on “Restrictions on political parties in the Council of Europe member states” states, in particular, as follows:
“...
10. ...[T]he Assembly believes that in exceptional cases, it may be legitimate for a party to be banned if its existence threatens the democratic order of the country.
11. In conclusion and in the light of the foregoing, the Assembly calls on the governments of member states to comply with the following principles:
i. political pluralism is one of the fundamental principles of every democratic regime;
ii. restrictions on or dissolution of political parties should be regarded as exceptional measures to be applied only in cases where the party concerned uses violence or threatens civil peace and the democratic constitutional order of the country;
iii. as far as possible, less radical measures than dissolution should be used;
iv. a party cannot be held responsible for the action taken by its members if such action is contrary to its statute or activities;
v. a political party should be banned or dissolved only as a last resort, in conformity with the constitutional order of the country, and in accordance with the procedures which provide all the necessary guarantees to a fair trial;
vi. the legal system in each member state should include specific provisions to ensure that measures restricting parties cannot be used in an arbitrary manner by the political authorities.”
28. On 13-14 March 2009 the Venice Commission, acting on a request from the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE) asking it “to review the constitutional and legal provisions which are relevant to the prohibition of political parties in Turkey”, adopted the “Opinion on the Constitutional and Legal Provisions Relevant to the Prohibition of Political Parties in Turkey”. The relevant parts of the Opinion are as follows:
“...
105. The Venice Commission concludes that, when compared to the common European practice, the situation in Turkey differs in three important respects:
1. There is a long list of substantive criteria applicable to the constitutionality of political parties, as laid down in Article 68 (4) and the Law on political parties, which go beyond the criteria recognised as legitimate by the ECtHR and the Venice Commission.
2. There is a procedure for initiating decisions on party prohibition or dissolution which makes this initiative more arbitrary and less subject to democratic control, than in other European countries.
3. There is a tradition for regularly applying the rules on party closure to an extent that has no parallel in any other European country, and which demonstrates that this is not in effect regarded as an extraordinary measure, but as a structural and operative part of the constitution.
106. In conclusion, the Venice Commission is of the opinion that the provisions in Article 68 and 69 of the Constitution and the relevant provisions of the Law on political parties together form a system which as a whole is incompatible with Article 11 of the ECHR as interpreted by the ECtHR and the criteria adopted in 1999 by the Venice Commission and since endorsed by the Parliamentary Assembly of the Council of Europe.
107. The basic problem with the present Turkish rules on party closure is that the general threshold is too low, both for initiating procedures for and for prohibiting or dissolving parties. This is in itself in abstracto deviating from common European democratic standards, and it leads too easily to action that will be in breach of the ECHR, as demonstrated in the many Turkish cases before the European Court of Human Rights.
108. Because the substantial and procedural threshold for applying the Turkish rules on party prohibition or dissolution is so low, what should be an exceptional measure functions in fact as a regular one. This reduces the arena for democratic politics and widens the scope for constitutional adjudication on political issues. The scope of democratic politics is further eroded by the constitutional shielding of the first three articles of the Constitution, in such a way as to prevent the emergence of political programmes that question the principles laid down at the origin of the Turkish Republic, even if done in a peaceful and democratic manner.
109. The Venice Commission is of the opinion that within democratic Europe these strict limitations on the legitimate arena for democratic politics are particular to the Turkish constitutional system, and difficult to reconcile with basic European traditions for constitutional democracy.
110. The Venice Commission recognises and welcomes the fact that in recent years the rules on party prohibition in Turkey have been changed in such a way as to raise the threshold for dissolution. In the 2001 reform, Article 69 was amended to include the qualification that for a party to be in conflict with the criteria of Article 68 (4) the party must be a 'centre' for such activities. At the same time, the requirement of a 3/5 majority of the Constitutional Court for dissolving a political party was introduced into Article 149. This has shown itself to be an important reform, which was decisive for the outcome of the AK party case. While laudable, these reforms have not been sufficient to fully bridge the gap between the Turkish rules and the standards of the ECHR and the Venice Commission Guidelines.
111. Consequently, the Venice Commission is of the opinion that, although the 2001 revision was an important step in the right direction, it is still not sufficient to raise the general level of party protection in Turkey to that of the ECHR and the European common democratic standards. Further reform is necessary in order to achieve this, both on the substantive and the procedural side.
...”
|
[1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 13, 24, 27, 30, 31, 34, 36, 38, 39, 40, 56, 57, 60, 63, 80, 83, 84, 85]
|
001-101853
|
7. The first applicant, Mr Greens, was serving a determinate sentence of imprisonment at HM Prison Peterhead at the time his application was lodged with the Court. He was eligible for release on parole from 29 May 2010. It is not known whether he has been released on parole. The second applicant, M.T., is currently serving a determinate sentence of imprisonment at HM Prison Peterhead. According to information provided by the Government, he is scheduled to be released in November 2010.
8. On 23 June 2008 the applicants posted voter registration forms to the Electoral Registration Officer (“ERO”) for Grampian. They sought registration on the electoral register at their address in HM Prison Peterhead.
9. On 3 July 2008, the ERO replied referring to previous applications for registration which were refused in 2007 under sections 3 and 4 of the Representation of the People Act 1983, as amended, (see paragraph 19 and 21 below) on the basis of the applicants' status as convicted persons currently detained. The ERO requested clarification of whether there had been a change in circumstances in the applicants' cases.
10. On 5 August 2008 the applicants wrote to the ERO arguing that following the Court's decision in Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005IX, and the declaration of incompatibility made by the Registration Appeal Court in the case of Smith v. Scott (see paragraphs 27-30 below), the ERO was obliged to add their names to the electoral register.
11. On 12 August 2008, the ERO refused the applicants' registration applications on the basis of their status as convicted persons detained in a penal institution.
12. By letter of 14 August 2008 the applicants informed the ERO of their wish to appeal to the Sheriff Court against the refusal.
13. On 12 September 2008 the Sheriff considered the applicants' appeals together with appeals in a number of other similar cases and ordered written representations to be lodged.
14. On 25 September 2008 the applicants wrote to the court summarising their position. They provided further submissions on 1 October 2008. The applicants alleged that legal aid was not available for the proceedings and they therefore represented themselves.
15. On 10 November 2008 the applicants' appeals were refused.
16. On 20 November 2008 another serving prisoner whose appeal was also refused on 10 November 2008, Mr Beggs, applied to Aberdeen Sheriff Court to request that it state a case for the opinion of the Registration Appeal Court (see paragraph 22 below). On 30 December 2008, the Sheriff refused to state a case. Mr Beggs subsequently applied to the Court of Session for an order requiring the Sheriff to state a case, on the ground that the Sheriff had erred in law in refusing to do so. The most recent information available to the Court was that those proceedings were pending. It is not clear whether that remains the case.
17. On 4 June 2009, elections to the European Parliament took place. The applicants were ineligible to vote.
18. On 6 May 2010 a general election took place in the United Kingdom. The applicants were ineligible to vote.
19. Section 3 of the Representation of the People Act 1983 (“the 1983 Act”) provides:
“(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election.”
20. The disqualification does not apply to persons imprisoned for contempt of court (section 3(2)(a)) or to those imprisoned only for default in, for example, paying a fine (section 3(2)(c)).
21. Section 4 of the 1983 Act provides:
“(1) A person is entitled to be registered in the register of parliamentary electors for any constituency or part of a constituency if on the relevant date he–
(a) is resident in the constituency or that part of it;
(b) is not subject to any legal incapacity to vote (age apart);
...
(3) A person is entitled to be registered in the register of local government electors for any electoral area if on the relevant date he–
(a) is resident in that area;
(b) is not subject to any legal incapacity to vote (age apart);
...”
22. Sections 56-57 set out that there is a right of appeal against a decision of the registration officer. In Scotland, a further appeal lies on any point of law from a decision of the Sheriff to a court of three judges of the Court of Session (known as the “Registration Appeal Court”).
23. Section 8(1) of the European Parliamentary Elections Act 2002 (“the 2002 Act”) provides that a person is entitled to vote at an election to the European Parliament if he is within any of subsections (2) to (5) of section 8. These subsections provide, in so far as relevant, as follows:
“(2) A person is within this subsection if on the day of the poll he would be entitled to vote as an elector at a parliamentary election ...
...
(5) A person is within this subsection if he is entitled to vote in the electoral region by virtue of the European Parliamentary Elections (Franchise of Relevant Citizens of the Union) Regulations 2001 (S.I. 2001/1184) (citizens of the European Union other than Commonwealth and Republic of Ireland citizens).”
24. Section 3 of the Human Rights Act 1998 (“the Human Rights Act”) provides as follows:
“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section-
(a) applies to primary legislation and subordinate legislation whenever enacted;
...”
25. Section 4 of the Act provides:
“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
...”
26. Finally, section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that:
“Subsection (1) does not apply to an act if–
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”
27. In Smith v. Scott, the Registration Appeal Court considered the refusal of the ERO for Clackmannanshire, Falkirk and Stirling to enrol a convicted prisoner on the electoral register on the basis of sections 3 and 4 of the 1983 Act, in anticipation of elections to the Scottish Parliament. The Secretary of State conceded in the proceedings that in light of the judgment of this Court in Hirst section 3(1) of the 1983 Act was incompatible with Article 3 of Protocol No. 1 to the Convention and that the appellant's rights under that Article had been violated. He also accepted that for the purposes of Article 3 of Protocol No. 1 the Scottish Parliament was a legislature. The court, handing down its judgment on 24 January 2007, summarised the matters for examination in the following terms:
“1. Since section 3(1) of the 1983 Act, giving the words of that provision their ordinary meaning, was incompatible with Article 3 of the First Protocol, the Court should consider whether it was possible, in terms of section 3(1) of the Human Rights Act, to read it down in such a way as to make it compatible. If that was possible, it should be done and the appeal should be allowed.
2. If, however, that was not possible, then the appeal would be refused but the Court should consider whether it could and should make a declaration of incompatibility in respect of section 3(1) of the 1983 Act in terms of the Human Rights Act section 4(2). If that could be done, it should be.
3. If the Court did not take that course, it should consider, in the context of the requirement in terms of section 6 of the Human Rights Act for the Court not to act in a manner incompatible with the appellant's Convention rights, whether by refusing the appeal and providing the appellant with no remedy it would be acting in breach of that statutory requirement. If it would, then the Court was obliged to give such remedy as was open to it within its powers at common law or under any statute. Such a remedy would include granting a declarator that the appellant's rights under Article 3 of the First Protocol of the Convention had been violated. It was open to the Court in the exercise of its inherent jurisdiction to grant such a declarator.”
28. Counsel for the appellant argued that if there was some “possible” interpretation (or “reading down”) of section 3(1) of the 1983 Act which would remove the incompatibility identified by this Court in Hirst, the Registration Appeal Court should adopt it. He considered that insertion of words to the effect that any ban on prisoner voting “would apply at the discretion of the sentencing judge” would qualify, but not contradict, the “grain of the legislation” and that the case should accordingly be resolved along those lines. Counsel for the respondent submitted that while section 3 of the Human Rights Act empowered the court to interpret legislation, where possible, in a certain way, it did not entitle the court to amend or reverse clear legislative provisions, nor otherwise to usurp the legislative function of Parliament. The court summarised counsel's argument as follows:
“26. ... section 3(1) of the 1983 Act clearly provided for a blanket ban on voting which applied to all convicted prisoners serving custodial sentences. There was thus no 'grain of the legislation' which could properly serve as a starting point for any interpretation designed to clothe some or all of such prisoners with voting rights. Over and above that, it was necessary to recognise the complexity of the issues which had been opened up by the decision of the European Court of Human Rights in Hirst, and the extensive consultation which would have to be undertaken before the Government could form a view as to the appropriate way forward. Since the Convention rights conferred by Article 3 of the First Protocol were in no way absolute, there were many possible levels at which the line might be drawn for the enfranchisement or disenfranchisement of convicted prisoners in different categories, and it could be no part of this Court's function to make an uninformed choice among such alternatives.”
29. The court continued:
“27. Against that background, we are clearly of the opinion that the appellant's submission must be rejected and we decline to 'read down' section 3(1) of the 1983 Act in the manner proposed ... In our opinion to read down section 3(1) of the 1983 Act as providing for full or partial enfranchisement of convicted prisoners serving custodial sentences would be ... to depart substantially from a fundamental feature of the legislation. Without the benefit of consultation or advice, this Court would, in a real sense, be legislating on its own account, especially in view of the wide range of policy alternatives from which a 'possible' solution would require to be selected ...”
30. The court, however, made a declaration of incompatibility in respect of section 3(1) of the 1983 Act.
31. On 20 April 2007, the Outer House of the Court of Session considered the disenfranchisement of prisoners in judicial review proceedings challenging the legality of an order made by the Secretary of State for Scotland regarding the organisation of the elections to the Scottish Parliament in May 2007 and the involvement of the Scottish Executive in those elections. The challenge was based on the provisions of the Scotland Act 1998 and in particular the requirement that Scottish legislation and acts of the Scottish Executive be compatible with the Convention. Lord Malcolm rejected the claim for interdict (injunction), emphasising that it was for Parliament to decide whether to remove the incompatibility between domestic legislation and the Convention.
32. On the question of declaratory relief, he added:
“11. I should record that I was asked to repeat the declarator of incompatibility pronounced in Smith. There is no dispute in these petitions as to the incompatibility between section 3 of the 1983 Act and article 3 of the first protocol. The discussion focused on other matters. That incompatibility has been authoritatively determined in Smith. I am satisfied that a further declarator in these proceedings is unnecessary and inappropriate ...”
33. In the case of Toner and Walsh, two convicted prisoners sought, in light of Hirst, a declaration that the disqualification of convicted prisoners from voting did not apply to elections to the Northern Ireland Assembly. After careful consideration of the judgment of this Court in Hirst and the decision of the Registration Appeal Court in Scott v. Smith, Gillen J held:
“9(iv). I consider that the [Strasbourg] court has deliberately left the method of compliance in the hands of the Contracting States subject to the overriding veto of the court ... Accordingly I see nothing intrinsically objectionable about the various options being explored by the Government proposals contained in the consultation paper of 14/12/06 which makes up its response to the Hirst decision. The consequence of this is that not only is Mr Sweeney [Deputy Director, Rights and International Relations in the Political Directorate at the Northern Ireland Office] entitled to say ... that the Government is unlikely to propose that prisoners serving sentences as long as those of the applicants should become entitled to vote whilst detained, but I am left singularly unconvinced that the applicants are currently or will ever be able to lay claim to a right to vote. I reject the argument of Mr Larkin [for the applicants] that because a blanket prohibition on prisoners is incompatible with the Convention that somehow converts into the proposition that all prisoners are currently entitled to vote until the vacuum is filled. In my view that conforms neither with principle nor logic and certainly does not find any authority in Hirst which expressly recognises that restraints on Article 3 Protocol 1 are justifiable provided they pursue a legitimate aim and are proportionate.”
34. In judicial review proceedings brought in the High Court in Chester v. Secretary of State for Justice and another, the claimant, a prisoner, argued that his disqualification from voting in the then pending June 2009 European Parliament elections breached his rights under Article 3 of Protocol No. 1 and under European Union law. He was granted permission to bring his claim on 27 March 2009. At the hearing before Burton J, he argued that section 8 of the 2002 (see paragraph 23 above) Act should be “read down” in order to enable him to vote or, in the alternative, a declaration of incompatibility as regards section 3 of the 1983 Act and section 8 of the 2002 Act should be made. He accepted that no argument could be mounted that a “reading down” of section 3 of the 1983 Act would be feasible, within the parameters of the Human Rights Act.
35. The claim was dismissed by Burton J on 28 October 2009. As to the possibility of “reading down” section 8, Burton J held:
“29. ... I am being asked effectively to draft fresh legislation by bolting on to existing legislation additional words which not only dramatically change its nature, but are imminently to be considered by the Legislature. Two competing alternatives are presented to me for consideration. One of these affects the franchise by allowing all convicted prisoners to vote. The other amends the statute so as to allow one particular category of convicted prisoners, the post-tariff lifers, to vote, while still retaining a bar on all other prisoners, including those only serving very short terms of imprisonment, to whom it seems, on any basis, the Government is proposing that the franchise should be extended; and to make such differentiation simply because the claimant in this case happens to be one of the category in whose favour the statute would now be amended.
30. The first proposal is not acceptable, not least for the same reasons as were enunciated by Gillen J in paragraph 9(iv) of his judgment [in Toner and Walsh], which I have cited earlier. Enfranchisement of all prisoners, including those with a minimum term/tariff of life which may or may not be what the legislature after full consultation and discussion of all the issues may consider, but it would be a dramatic change, was not, as Gillen J points out, required by Hirst. As for the alternative, selection of one particular category of prisoner simply because one of that category happens to be the Claimant, to effect what would in fact be a substantial amendment of the legislation, but only as to one category of convicted prisoner, cannot be an appropriate exercise of this jurisdiction. It would lead to piecemeal and possibly continuous amendments, without consideration by Parliament, of legislation dealing with matters of important social policy, all depending upon which claimant happened to be before the Court at any one time.”
36. Burton J concluded that if and in so far as section 8 of the 2002 Act was incompatible with the Convention or with EU law, reading it down was not an available remedy.
37. As to whether it would be appropriate to make a declaration of incompatibility in respect of section 3 of the 1983 Act, Burton J concluded:
“34. ... I am content to say that there is no need for any declaration to be made by yet another court, as one has already been made which is binding on the UK Government.
35. However, towards the end of his submissions, Mr Southey [for the claimant] put forward another basis upon which to support his case for such a declaration. He submitted that, as the grant of a declaration is discretionary, there is no reason why it cannot be made again, if it is made on different grounds. He submits that I can and should make a declaration that s3 of the 1983 Act is incompatible with the ECHR, and do so by reference to the fact that it excludes (together with all other convicted prisoners) post-tariff lifers. Then there would be some point in making the declaration, given that the Government's proposed legislation seems, subject to what may have emerged from the second consultation, to be intended not to make any change in their position. Hence, it would be a declaration as to the incompatibility with regard to the present legislation, but to be made because it does not appear as if there is going to be any amelioration of his client's position by reference to the proposed legislation. This would effectively simply amount to the declaration of incompatibility being a peg upon which Mr Southey can hang his substantive submissions, to which I shall come in a moment. Subject however to that argument ... I reject his suggestion that I should make a declaration of incompatibility.”
38. In respect of the application for a declaration of incompatibility as regards section 8 of the 2002 Act, Burton J said:
“43. I am satisfied that, but for Mr Southey's 'proposed legislation argument', this course is wholly inappropriate as a matter of discretion:
(i) Simply as a matter of context and background, there is no presently intended European election, to which alone s8 would apply ... These proceedings were brought at the time when the June 2009 European elections were still in the future. There will now not be further such elections for 5 years. By that time, whatever the Claimant's personal position may be, new legislation, whatever it may be, will be well in place (and will have been capable of challenge, if appropriate).
(ii) More significantly, it is plain that the challenge to s8 is purely parasitic to the real challenge, which is to s3. S8 merely provides that (with the exceptions discussed) the same people can vote in European elections as can vote in UK elections. When there is new legislation in place of s3, s8 will automatically follow. A declaration has already been made in relation to s3, upon which s8 wholly hangs, and legislation is to be put before Parliament with the intention of curing the contravention of the ECHR.
44. For the reasons I have given, namely that there is already a declaration of such incompatibility in relation to the governing section, s3, upon which s8 entirely depends, the same reasons drive me to conclude that there is no basis in the exercise of my discretion to grant a declaration of incompatibility in relation to s8, any more than there is to s3 ...”
39. On the need for a further declaration of incompatibility as a result of the apparently limited scope of the proposed legislation, Burton J considered that any declaratory or other relief which was intended to interfere with the process by which new legislation resulting from the consultation process was put before and debated by Parliament was inappropriate and was not to be granted. In any case, he concluded that the court was:
“... ill-equipped to decide this issue of social policy, and certainly ill-equipped to legislate and provide for the consequences of any view, plain and obvious or otherwise, as to which category of prisoners ought to be enfranchised as a result of the removal of the absolute ban.”
40. The claimant appealed and on 13 May 2010, was granted leave to appeal by the Court of Appeal. The appeal was heard on 3 November 2010 and the judgment is pending.
41. In its recent report, “Enhancing Parliament's role in relation to human rights judgments”, 15th Report of 2009-10, published in March 2010, a parliamentary committee, the Joint Committee on Human Rights, considered domestic developments in the execution of the Grand Chamber's judgment in Hirst and noted:
“108. ... our overriding disappointment is at the lack of progress in this case. We regret that the Government has not yet published the outcome of its second consultation, which closed almost 6 months ago, in September 2009. This appears to show a lack of commitment on the part of the Government to proposing a solution for Parliament to consider.
...
116. It is now almost 5 years since the judgment of the Grand Chamber in Hirst v UK. The Government consultation was finally completed in September 2009. Since then, despite the imminent general election, the Government has not brought forward proposals for consideration by Parliament. We reiterate our view, often repeated, that the delay in this case has been unacceptable.
...
117. ... Where a breach of the Convention is identified, individuals are entitled to an effective remedy by Article 13 ECHR. So long as the Government continues to delay removal of the blanket ban on prisoner voting, it risks not only political embarrassment at the Council of Europe, but also the potentially significant cost of repeat litigation and any associated compensation.”
42. On 2 November 2010 a short debate took place in the House of Commons following a question to the Government regarding their plans to give prisoners the right to vote. In the course of that debate, the Minister emphasised that the Government were under a legal obligation to change the law following the judgment in Hirst. He said that the Government were actively considering how to implement the judgment and that once decisions had been made, legislative proposals would be brought forward.
43. On 3 November 2010, in response to a question in the House of Commons, the Prime Minister also emphasised that the Government were required to come forward with proposals to implement the Court's judgment in Hirst.
44. On 3 December 2009, in the context of their supervision of the execution of the Court's judgment in Hirst, the Committee of Ministers adopted Interim Resolution CM/ResDH(2009)160, which stated as follows:
“The Committee of Ministers, ...
Recalling that, in the present judgment, the Court found that the general, automatic and indiscriminate restriction on the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention;
Recalling that the Court, while acknowledging that the rights bestowed by Article 3 of Protocol 1 are not absolute, expressly noted that in the present case the blanket restriction applied automatically to all prisoners, irrespective of the length of their sentence, the nature or gravity of their offence and their individual circumstances;
Recalling further that the Court found 'no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote';
Noting that the blanket restriction imposed by Section 3 of the Representation of the People Act 1983 remains in full force and effect;
Recalling that the United Kingdom authorities, in a revised Action Plan submitted in December 2006, committed to undertaking a two-stage consultation process to determine the measures necessary to implement the judgment of the Court, with a view to introducing the necessary draft legislation before Parliament in May 2008;
Noting that the United Kingdom authorities have provided detailed information as regards the consultation process, and that they are committed to continuing to do so;
Noting however that the second consultation stage ended on 29 September 2009, and the United Kingdom authorities are now undertaking a detailed analysis of the responses thereto, in order to determine how best to implement a system of prisoner enfranchisement based on the length of custodial sentence handed down to prisoners,
EXPRESSES SERIOUS CONCERN that the substantial delay in implementing the judgment has given rise to a significant risk that the next United Kingdom general election, which must take place by June 2010, will be performed in a way that fails to comply with the Convention;
URGES the respondent state, following the end of the second stage consultation period, to rapidly adopt the measures necessary to implement the judgment of the Court;
...”
45. On 4 March 2010 the Committee of Ministers adopted a decision in which they noted that notwithstanding the Grand Chamber's judgment in Hirst, a declaration of incompatibility with the Convention under the Human Rights Act by the highest civil appeal court in Scotland in the case of Smith v. Scott and the large number of persons affected, the automatic and indiscriminate restriction on prisoners' voting rights remained in force; reiterated their serious concern that a failure to implement the Court's judgment before the general election and the increasing number of persons potentially affected by the restriction could result in similar violations affecting a significant category of persons, giving rise to a substantial risk of repetitive applications to the European Court; and strongly urged the authorities rapidly to adopt measures, even if of an interim nature, to ensure the execution of the Court's judgment before the then pending general election.
46. On 3 June 2010 the Committee of Ministers adopted a further decision in which they expressed profound regret that despite the repeated calls of the Committee, the United Kingdom general election had been held on 6 May 2010 with the blanket ban on the right of convicted prisoners in custody to vote still in place; and expressed confidence that the new United Kingdom government would adopt general measures to implement the judgment ahead of elections scheduled for 2011 in Scotland, Wales and Northern Ireland, and thereby also prevent further, repetitive applications to the European Court.
47. On 15 September 2010 the Committee of Ministers adopted their most recent decision on the execution of Hirst, in the following terms:
“The Deputies,
1. recalled that in the present judgment, delivered on 6 October 2005, the Court found that the general, automatic and indiscriminate restriction of the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention;
2. recalled that since its 1059th meeting (June 2009), the Committee has urged the United Kingdom to prevent future, repetitive applications by adopting general measures to implement the judgment;
3. deeply regretted that despite the Committee's calls to the United Kingdom over the years to implement the judgment, the risk of repetitive applications to the European Court has materialised as the Court has communicated 3 applications to the government with a view to adopting the pilot judgment procedure and has received over 1 340 applications;
4. noted, that according to the information provided by the United Kingdom authorities during the meeting, the new government is actively considering the best way of implementing the judgment;
5. regretted, however, that no tangible and concrete information was presented to the Committee on how the United Kingdom now intends to abide by the judgment;
6. called upon the United Kingdom, to prioritise implementation of this judgment without any further delay and to inform the Committee of Ministers on the substantive steps taken in this respect;
7. highlighted in this connection that, within the margin of appreciation of the state, the measures to be adopted should ensure that if a restriction is maintained on the right of convicted persons in custody to vote, such a restriction is proportionate with a discernible and sufficient link between the sanction, and the conduct and circumstances of the individual concerned;
...”
48. Article 20(2)(b) TFEU provides:
“2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
...
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
...”
49. Article 22(2) TFEU provides:
“Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.”
50. Article 223 TFEU provides:
“1. The European Parliament shall draw up a proposal to lay down the provisions necessary for the election of its Members by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States.
The Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, which shall act by a majority of its component Members, shall lay down the necessary provisions ...”
51. To date, the Council has not adopted an instrument setting out a uniform election procedure. However, certain agreed principles are set out in the 1976 Act (see below).
52. Article 1 of the 1976 Act provides:
“1. In each Member State, members of the European Parliament shall be elected on the basis of proportional representation, using the list system or the single transferable vote.
2. Member States may authorise voting based on a preferential list system in accordance with the procedure they adopt.
3. Elections shall be by direct universal suffrage and shall be free and secret.”
53. The 1976 Act also contains provisions on, inter alia, the allocation of seats, campaign expenses, the term and nature of members' mandates and the organisation of elections.
54. Article 8 clarifies that:
“Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions.
These national provisions, which may if appropriate take account of the specific situation in the Member States, shall not affect the essentially proportional nature of the voting system.”
55. Article 1 of Directive 93/109/EC stipulates that the directive lays down the detailed arrangements whereby citizens of the Union residing in a Member State of which they are not nationals may exercise the right to vote and to stand as a candidate in elections to the European Parliament.
56. Article 3 provides:
“Any person who, on the reference date:
(a) is a citizen of the Union ...;
(b) is not a national of the Member State of residence, but satisfies the same conditions in respect of the right to vote and to stand as a candidate as that State imposes by law on its own nationals,
shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State of residence unless deprived of those rights pursuant to Articles 6 and 7.”
57. In so far as relevant, Article 9 provides:
“...
2. In order to have his name entered on the electoral roll, a Community voter shall produce the same documents as a voter who is a national. He shall also produce a formal declaration ...
3. The Member State of residence may also require a Community voter to:
(a) state in his declaration under paragraph 2 that he has not been deprived of the right to vote in his home Member State;
...”
58. Article 6 refers to the right to stand as a candidate. Article 7 allows the State of residence to verify whether a person seeking to exercise his right to vote under the Directive has been deprived of that right in the home State. If the information provided invalidates the content of the declaration made under Article 9, the State of residence is required to take the appropriate steps to prevent the person concerned from voting.
59. In a preliminary reference to the European Court of Justice (“ECJ”) in case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA, the ECJ was asked to consider the extent to which national courts were required to interpret national law in light of the wording and the purpose of an EC directive which had not been implemented by the Member State in question. The ECJ held that:
“... the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter ...”
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[3, 4, 9, 13, 42, 43, 44, 45, 46, 47, 49, 50, 51, 75, 80, 87, 88, 89, 90, 92, 93, 94, 98, 99, 100, 101, 102, 123, 124, 126, 127, 128, 132, 133, 137]
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001-107174
|
5. The applicant was born in 1977 and is serving a prison sentence in the Samara Region.
6. From 11 July to 22 October 2008 the applicant was held in remand prison no. IZ-63/2 of Syzran in the Samara Region pending criminal proceedings against him.
7. The Government and the applicant provided differing descriptions of the conditions of the applicant’s detention.
8. The Government submitted extracts from the register of the remand prison population. They further submitted data concerning the size of the cells based on statements made by the remand prison officers. In particular, they provided the following information:
9. The applicant spent a considerable amount of time outside the prison cells. He participated in questioning and other investigative activities, and met with his lawyer, relatives and other persons. He was allowed at least an hour-long daily walk in a specially equipped prison yard and weekly showers. During inspections and cleaning of the cells the inmates, including the applicant, were taken outside the cells as well.
10. All the cells of the remand prison were equipped with natural and artificial ventilation which was in a good working order. The windows were covered with metal bars which did not prevent daylight coming through. The artificial day lighting in the cells was in compliance with the applicable specifications and was on from 6 a.m. to 10 p.m. At night low-voltage bulbs were used to maintain lighting for surveillance and practical reasons (for example, to provide lighting in the toilet area).
11. Each cell was equipped with a toilet and a sink located in the corner. The distance between the table and the toilet was at least 1.5 m and the distance between the toilet and the nearest bed was at least 1.2 m. The toilet was separated from the living area of the cell by a partition measuring at least one metre in height.
12. The applicant contested the description of the conditions of his detention in the remand prison provided by the Government. In particular he provided the following information:
13. While it was true that on several occasions the applicant was transported to the courthouse to attend hearings, the rest of the time he was confined to his cell. He was allowed to see his lawyer only once. That meeting lasted no longer than one hour. The meetings with the officers of the remand prison which took place outside his cell did not exceed thirty minutes.
14. The applicant was provided with an individual bed only when detained in cell no. 114. For the rest of the time he had to share the bed with two to three other inmates.
15. The ventilation did not function properly and was insufficient due to the overcrowding of the cells. The air was stuffy and humid. It was filled with tobacco smoke. Dirty condensation accumulated on the walls and the ceiling and then trickled down. The light was constantly on. Low-voltage bulbs were not used. The windows were covered with metal bars both on the inside and outside.
16. The flushing system in the toilet did not provide a sufficient amount of water to keep the toilet clean. The odour emanating from the toilet was very bad and the inmates had to burn paper to mask it. The distance between the toilet and the dinner table was 1.8 metres in cells nos. 113, 122, 144. In cell no. 114 the toilet was located some 1.2 metres away from the dinner table.
17. In his submissions of 1 June 2010, the applicant alleged that on the days of the trial hearings he had been transported to and from the courthouse in appalling conditions. The vans were overcrowded and each trip lasted over two hours.
18. On 29 September 2008 the applicant was convicted of another drugrelated offence and sentenced to six years and six months’ imprisonment in a high-security colony. He was sent to serve a prison sentence in correctional colony no. IK-13 in the Samara Region.
19. The applicant was held in the colony from 21 January to 11 July 2009.
20. The applicant was provided with an individual bed, bedding and cutlery. While he was held in the disciplinary cell he was allowed a daily walk which lasted at least an hour in a specially equipped yard. He also spent time outside the cell when taking a shower. He was invited to meetings with the administration of the correctional colony.
21. The dormitories and the disciplinary cell were equipped with artificial and natural ventilation. The dormitories had at least ten windows and nine lamps. The disciplinary cell had a window measuring 0.9 by 1.0 sq. m. It was reinforced with metal bars which did not prevent daylight coming into the cell. The cell was provided with two daylight lamps. At night low-voltage bulbs were used to light the cells for surveillance and practical reasons.
22. The dormitories had separate restrooms ensuring sufficient privacy. The toilet in the disciplinary cell was placed in the corner one metre away from the dinner table. The distance between the toilet and the nearest bed was 0.6 m.
23. The applicant contested the description of the conditions of his detention in the colony. In particular he provided the following information:
24. There was no artificial ventilation in disciplinary cell no. 2. The opening of a window pane measuring 0.2 by 0.3 m was insufficient to ensure the proper ventilation of the cell. The lighting was dim and insufficient. The toilet was not cleaned and reeked. It was located some 0.85 metres and 1.2 metres away from the dinner table. The windows were covered with two rows of metal bars inside and outside.
25. For the whole time the applicant was detained in the disciplinary cell he was never taken for a walk outside.
26. On 1 February and 5 April 2010 the administration of correctional colony no. IK-29 allegedly opened the applicant’s letters addressed to his representative before the Court.
27. The applicant’s letter dispatched on 2 April 2010 did not reach his representative.
28. The applicant’s letters of 4 and 19 May 2010 addressed to his representative were allegedly dispatched with a delay of thirteen and six days respectively.
29. Section 23 of the Detention of Suspects Act of 15 July 1995 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
30. Article 99 § 1 of the Penitentiary Code of 8 January 1997 provides for a minimum standard of two square metres of personal space for male prisoners in correctional colonies.
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[2, 7, 9, 10, 12, 18, 24]
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001-108189
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5. The applicant was born in 1974. His present place of residence is unknown.
6. On 4 August and 5 November 2003 Ms Z. and Ms G. were robbed in their flats. The first robbery took place in the building where the applicant’s acquaintance Ms M. lived, while the second victim was her distant relative.
7. On 5 November 2003 the police questioned Ms M., who was suspected by one of the victims. She stated that both robberies had been committed by the applicant and his friends.
8. On 8 November 2003 Ms M. was hospitalised with a head injury and concussion. On 10 November 2003 she complained to the Ministry of the Interior that she had been coerced by the police into testifying against the applicant. After this Ms M. went into hiding from the authorities. Her complaint was later examined as part of the applicant’s trial (see paragraph 14 below).
9. Late in the evening of 5 November or during the early hours of 6 November 2003 the applicant was apprehended by the police on suspicion of the robberies of Ms Z. and Ms G. His arrest was documented on 6 November 2003.
10. On 2 June 2004 the Solomyanskyy District Court of Kyiv (“the Solomyanskyy Court”) severed the charge concerning the robbery of Ms Z. and remitted the case in that part for additional investigation. Its outcome is unknown.
11. While it is not known when the applicant began to be legally represented, it transpires from the aforementioned ruling of 2 June 2004, as well as from the subsequent judicial decisions, that from that point onwards one or sometimes two lawyers represented him in the course of the trial.
12. Although the applicant consistently denied guilt, both during the pre-trial investigations and the trial, on 11 November 2004 the Solomyanskyy Court found him guilty of the violent robbery of Ms G. and sentenced him to seven years and six months’ imprisonment with confiscation of all his personal property. The court relied on the statements of the victim, who recognised the applicant as one of the perpetrators, as well as the statements of a witness who had seen him close to the crime scene around the time of the robbery. The court further relied on the statements given by Ms M. during the pre-trial investigation. It also heard statements from two defence witnesses, according to which the applicant had spent the whole day with them on 5 November 2003, but did not trust the statements, deeming them too general and contradictory.
13. On 24 May 2005 the Kyiv City Court of Appeal (“the Court of Appeal”) quashed the judgment and remitted the case for additional investigation, having pointed out a number of procedural shortcomings.
14. On 22 May 2007 the Solomyanskyy Court delivered a new judgment, the operative part of which was identical to the previous one. The court additionally heard a number of defence witnesses who stated that they had either spent the whole day on 5 November 2003 in the applicant’s company or had seen him at various times on that date. The court decided, however, that those statements were either untruthful, because the witnesses were the applicant’s friends and wanted to help him avoid criminal liability, or unrelated to the precise time when the robbery had been committed. Ms M. was questioned during the trial and retracted her earlier statements incriminating the applicant as given under duress. However, the court chose to rely on those earlier statements as more plausible and concordant with the other facts. It noted, in particular, that she had not requested a medical examination until two days after her questioning by the police and that there was no evidence that the injuries discovered had been inflicted on her in police custody. While Ms M. contended that she had been hiding in fear that the police might seek revenge, the court considered it more probable that she had in fact been afraid that the applicant’s accomplices who had not been detained might seek revenge.
15. On 5 February and 9 June 2008 the Court of Appeal and the Supreme Court respectively upheld the aforementioned judgment.
16. On 12 August 2009 the applicant was released on parole.
17. According to the applicant, the Chief and Deputy Chief of the Criminal Investigation Unit of the Solomyanskyy District Police Department (начальник та заступник начальника відділу кримінального розшуку Солом’янського РУ ГУ МВС України в м. Києві), officers T. and Z., tortured him in the police station at Povitroflotskyy Avenue during the night of 5-6 November 2003. They allegedly sought, but failed to obtain, a confession from him to several counts of robbery.
18. As submitted by the applicant, T. and Z. punched and kicked him, forced him to stand for a long time with his legs wide apart, attempted to insert a truncheon into his anus, and put a plastic bag over his head, stopping him from breathing. In the early hours of 6 November 2003 they allegedly took him to the police station garage, where they forced him to undress, handcuffed him to a radiator and poured cold water on him from a car-wash hose until he lost consciousness. After the applicant regained consciousness, he found himself inside the police station and was given a mug of hot water to drink and some drops.
19. On 6 November 2003 the applicant wrote an “explanatory note”, stating that he had accidentally fallen in the street the night before and had received some injuries as a result. He noted that he had no complaints against the police.
20. In the afternoon of 6 November 2003 the applicant was taken to another police station in Shutov Street, Solomyanskyy District, TUM-4 (Територіальне управління міліції № 4, ТУМ-4).
21. On 11 November 2003 the applicant’s mother complained to the Ombudsman that he had been ill-treated in police custody.
22. On 12 November 2003 representatives of the Ombudsman visited the applicant in TUM-4 and took photographs of his injuries. The applicant provided the Court with seven colour photographs, which, according to him, are those taken by the Ombudsman’s representatives. From these photographs, the following injuries can be seen on his body: a large bruise on the inner part of his left thigh, a considerable number of bruises on the upper parts of both buttocks, several sores and bruises on the front of both ankles, and sores on the bridge of his nose. The date printed on the photographs is 12 November 2003.
23. On the same date the applicant gave an account of the 5-6 November events to the Ombudsman’s representatives in writing. He submitted that on 6 November 2003 he had been forced to write that he had no complaints against the police.
24. On 13 November 2003 the Ombudsman wrote to the Ministry of the Interior that the applicant’s situation called for investigation.
25. On the same date a doctor examined the applicant and discovered sixteen bruises on his face, arms, buttocks and legs (with the largest one measuring 21 x 20 centimetres), as well as sores on his wrists and feet. He concluded that the injuries were not serious, and that they had been inflicted by blunt objects, possibly on 5 or 6 November 2003.
26. On 17 November 2003 an investigator of TUM-4 and the Chief Inspector of Staff of the Kyiv Police Department (начальник Інспекції по особовому складу РУ МВС України) questioned the applicant about his alleged ill-treatment.
27. On 21 November 2003 another investigator of TUM-4 ordered another forensic medical examination aimed at answering the following questions: whether the applicant had any injuries on his body and, if so, how they had been inflicted; whether those injuries could have been inflicted on 5 or 6 November 2003; and how serious they were.
28. On 25 December 2003 the Solomyanskyy District Prosecutor’s Office (“the SDPO”) instituted a criminal investigation, without naming any specific individuals, into the allegation that Solomyanskyy District police officers had exceeded their powers by engaging in violent and degrading treatment of the applicant. The investigation was entrusted to SDPO investigator N.
29. On 26 January 2004 a new forensic medical report confirmed the results of the applicant’s medical examination of 13 November 2003.
30. On 9 February 2004 the investigator ordered another medical examination to clarify: whether the applicant could have inflicted the injuries on himself; whether he could have sustained those injuries by falling; what his body position had been during the infliction of the injuries; and whether he could have sustained them in self-defence.
31. On 12 February 2004 an expert report answered those questions as follows: the injuries were to parts of the applicant’s body on which self-infliction would be possible; the possibility that they had been the result of a fall was excluded; and the remaining two questions could not be answered.
32. In the meantime, on 11 February 2004, the applicant was assigned victim status.
33. On 6 April 2004 the investigator questioned the forensic medical expert, who confirmed that the applicant could have sustained his injuries at the time and under the circumstances described by him.
34. On 20 April 2004 the SDPO opened a criminal case against police officers T. and Z. on suspicion of abuse of power associated with violence and degrading treatment (Article 365 § 2 of the Criminal Code), given that the applicant had recognised them as those who had allegedly tortured him.
35. On the same date those officers were suspended from duty.
36. On 30 April 2004 they were indicted, and the case was sent to the Golosiyivskyy District Court of Kyiv (“the Golosiyivskyy Court”).
37. On 9 August 2004 the Golosiyivskyy Court directed the SDPO to find out with whom the applicant had shared cells from 6 to 12 November 2003 and to question these persons.
38. On 20 October 2004 the court referred the case back to the SDPO for additional investigation, which was to clarify the origin of the applicant’s injuries given that, on the one hand, they were to parts of his body on which self-infliction would be possible and, on the other hand, his cell-mates at the time had not been identified or questioned.
39. On 22 January 2005 the forensic medical expert, repeatedly questioned by the investigator, confirmed again her earlier findings that the applicant’s injuries could have been inflicted as he had described.
40. On 8 February 2005 formal charges were brought against T. and Z. under Article 365 § 2 of the Criminal Code.
41. On 18 February 2005 the SDPO invited the Kyiv Chief of Police to consider suspending T., who had resumed his work as a police officer at some point in the meantime, from his duties.
42. On 25 March 2005 the SDPO approved a bill of indictment against T. and Z. and sent the case to the Golosiyivskyy Court for examination.
43. On 26 April 2005 the trial began.
44. On 16 May 2005 the applicant lodged a civil claim seeking compensation for non-pecuniary damage in the amount of 200,000 Ukrainian hryvnias (UAH).
45. On 16 August 2005 the Golosiyivskyy Court found T. and Z. guilty and sentenced them to four years’ imprisonment with a prohibition on working in law-enforcement bodies for two years. The prison sentence was suspended for two years on probation. The court also awarded the applicant UAH 20,000 in compensation for non-pecuniary damage, to be paid by the defendants.
46. While both defendants admitted that they had questioned the applicant on the night of 5-6 November 2003 in the police station at Povitroflotskyy Avenue, they denied any coercion. However, the court found that there was sufficient evidence to establish their guilt. It took into account statements by several witnesses, who had seen the applicant during the day before his arrest without any visible injuries. Furthermore, the court relied on the statements of the applicant’s cell-mates in TUM-4 at Shutov Street (where he had been placed in the afternoon of 6 November 2003), who, on the one hand, had seen numerous bruises and sores on his body, but, on the other, denied any ill-treatment in TUM-4. Also, the police officers who had escorted the applicant from the police station at Povitroflotskyy Avenue to TUM-4 on 6 November 2006 stated that at that time his face was already bruised and swollen. The court also examined the photographs of the applicant taken by the Ombudsman’s representatives on 12 November 2003 and relied on the findings of the medical reports of 26 January and 12 February 2004. It noted that the applicant’s description of the police station garage where he had allegedly been ill-treated, was very detailed and subsequently confirmed as accurate, which showed that he had indeed been there.
47. On 13 February 2006 the Court of Appeal quashed the judgment and remitted the case for additional investigation. It concluded that the investigation had been incomplete, mainly because it had failed to establish how exactly the injuries had been inflicted on the applicant.
48. On 22 March 2006 investigator S. of the SDPO took the case over.
49. On 21 April 2006 he ordered another forensic medical examination with a view to clarifying the number, nature, location, origin and date of each of the applicant’s injuries.
50. On 15 May 2006 an expert report was produced, which confirmed the findings of the earlier reports. It further specified that the abrasions on the applicant’s wrists could have been caused by handcuffs, while the bruises could have been caused by being punched, kicked or hit with a truncheon.
51. On 24 July 2006 the investigator instructed the Kyiv Chief of Police to find the truncheon with which the applicant could have been beaten. The reply given on 27 July 2006 stated that it could not be found.
52. On 25 July 2006 T. was again suspended from duty (it is not known when he resumed his duties following the earlier removal).
53. On 22 August 2006 investigator S. decided to withdraw from the case. He considered that the evidential basis was limited to the applicant’s allegations and not corroborated by any other valid evidence. The investigator grounded his withdrawal by that view and further referred to the principle of the impartiality of the investigation.
54. On the same date the SDPO reversed that withdrawal as lacking legal basis.
55. On 27 March 2007 the investigator applied to the Deputy General Prosecutor for an extension of the term of the pre-trial investigation to eight months (the six-month term was to expire on 7 April 2007) given that the accused had not yet studied the case file. In the application the investigator however indicated that T. and Z. had been protracting the investigation by taking an unjustifiably long time to familiarise themselves with the file and by unmeritorious requests for unnecessary investigation measures.
56. On 16 June 2007 the SDPO indicted T. and Z. again.
57. On 30 July 2007 the Golosiyivskyy Court started the examination of the case.
58. On 17 September 2007 the applicant brought a new civil claim against T. and Z. within the criminal proceedings.
59. During the period between September 2007 and March 2008 the court adjourned hearings eight times for a total of over three months because of the absence of a number of witnesses.
60. On 7 March 2008 the Golosiyivskyy Court again remitted the case for additional investigation on the following grounds: the defendants’ lawyer had been deprived of his licence at some point during the pre-trial investigation, but had nonetheless continued to represent them. As a result, the court considered that the defence rights of T. and Z. had been violated.
61. On 29 May 2008 the Court of Appeal quashed that decision and referred the case back to the first-instance court, allowing the public prosecutor’s appeal.
62. On 10 July 2009 the Golosiyivskyy Court issued a special ruling (окрему ухвалу) bringing to the attention of the Kyiv Chief of Police the latter’s failure to comply with the court orders of 14 April, 20 May and 19 June 2009, that the obligatory attendance of numerous witnesses should be ensured. The orders were that the police were to take appropriate measures and report to the court.
63. On 21 July 2009 the applicant wrote the following statement addressed to the President of the Golosiyivskyy Court:
“I, Teslenko Anatoliy Grigoryevich, would like to make the following statement. The Golosiyivskyy District Court of Kyiv is currently examining a case against the Chief of the Criminal Investigation Department [T.] and [Z.], in which I am a victim. I retract the statements which I gave in the prosecutor’s office under pressure from the investigator and in court, namely that it was precisely [T. and Z.] who had beaten and humiliated me. The investigator [N.] demanded that I identify [T. and Z.]. In exchange, he promised I would be acquitted and that criminal department officials would be held liable. I remembered [T.] because he had been the Chief, and [Z.] because he had been wearing glasses. I could recognise only those two, as I could not, and do not now, remember any other officers. I was beaten up at Shutov Street, no. 3, as they really needed my confession to the robbery. But I did not remember any officers from Shutov [street], and I was advised to incriminate those I remembered. When the investigator [N.] came to see me, I was at a loss and did not know what to tell him. But he reassured me and told me that I did not have to worry and that I was to testify against those I remembered. As to what exactly I had to tell and to show, he told that he would help me. At the same time, he promised that if I followed his advice I would be at liberty shortly. It is very difficult for me now to testify before the court, for I have got confused in my statements because it was the investigator [N.] who gave them to me. I therefore request you not to disturb me any longer regarding the case of [T. and Z.] and not to bring me to the court”.
64. On 18 September 2009 the Golosiyivskyy Court directed the SDPO investigator to establish the actual places of residence of twenty-two witnesses whose obligatory presence had been ordered, but who had failed to attend and whom the police had failed to bring to the courtroom. Ten of the witnesses in question were police officers, nine were detained (at the time) in the police stations where the applicant had been placed on 6 November 2003, two were acquaintances of the applicant, and one was the forensic expert.
65. On 6 October 2009 the Golosiyivskyy Court also ordered obligatory attendance by the applicant, who had been released from prison in the meantime in July 2009 and had not been appearing for hearings.
66. On 19 October 2009 the police informed the court that the applicant’s actual place of residence could not be established.
67. On 24 March and 18 May 2010 the court ordered mandatory attendance by the applicant, to be ensured by the police.
68. On 24 June 2010 the Golosiyivskyy Court referred the case for additional investigation, given the need to question the applicant regarding his statement of 21 July 2009.
69. On 20 September 2010 the Kyiv Court of Appeal quashed the aforementioned decision and remitted the case to the first-instance court for examination. The parties did not provide the Court with a copy of this ruling.
70. According to the most recent information submitted by the Government in February 2011, the case remains pending before the Golosiyivskyy Court.
71. Article 365 § 2, as worded in November 2003, provided for three to eight years’ imprisonment with a prohibition on holding certain offices or carrying out certain activities for a period of up to three years as punishment for exceeding one’s power by engaging in the violent or degrading treatment of a victim.
72. The relevant extracts from Chapter 3.3 provide as follows:
“... On 11 November 2003 the mother of detained A. Teslenko complained [to the Ombudsman] that her son had been tortured in the Solomyanskyy Police Department (у Солом’янському РУ ГУ МВС України в м. Києві). Staff members of the Ombudsman’s Secretariat verified this allegation on site and found numerous traces of beatings on the body of A. Teslenko (photos were taken).
A. Teslenko gave the following explanations to the staff of the Ombudsman’s Secretariat: “I was tortured for thirteen hours in the district police station. Trying to extract a confession to a crime from me, they beat me, forced me to stand with my legs wide apart (садили на «шпагат»), prevented me from breathing by putting a plastic bag over my head, hanged me naked from handcuffs and poured cold water on me for forty minutes, threatening to make a General Karbyshev out of me. To conceal the torture, they forced me to write a statement that I had injured myself by an accidental fall on my way home the previous evening and that I had no complaints against the police.”
By the way, this is a typical example: police officers often force the victims of torture to write a no-complaint statement under threats that the torture will continue or in exchange for release. Later on [such statement] is used by the police as a key proof of their innocence as regards any injuries sustained by the person.
After its own investigation and the Ombudsman’s application to the General Prosecutor’s Office concerning the verification of A.Teslenko’s allegations, the Solomyanskyy District Prosecutor’s Office opened a criminal case concerning the police officers, which is now being examined by the Golosiyivskyy District Court of Kyiv. ...”
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[7, 9, 10, 12, 13, 19, 20, 23, 24, 25, 26, 29, 30, 40, 41, 66]
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001-108225
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4. The applicant was born in 1971 and currently lives in Riga.
5. On 23 November 1993 the applicant was arrested by the police and taken into custody on suspicion of having organised and paid the murder of his former business partner; the murder actually took place several days before his arrest. According to the prosecution, the applicant had paid two accomplices to strangle the victim in his car. Then, together with two other accomplices, he had driven the car with the victim’s body to another district, faked a road accident and set the car ablaze. Interrogated as a suspect, the applicant pleaded not guilty.
6. Three days after the applicant’s arrest, on 26 November 1993, another set of criminal proceedings was initiated against the applicant on the fact of a large-scale contraband of sugar in the Riga Free Port. On the same date, the preventive measure taken with regard to the applicant in the first criminal proceedings (concerning murder) was altered; he was released upon a written undertaking not to change his place of residence. However, three days later, on 29 November 1993, the competent prosecutor ordered the applicant’s detention on remand in the contraband case.
7. On 6 December 1993 the preventive measure in the murder case was revoked by the prosecutor because of the lack of evidence against the applicant. On the same date the applicant was charged with committing an aggravated contraband. On 10 February 1994 the preventive measure in the criminal proceedings concerning the contraband was also altered into a written undertaking not to change his place of residence. In March 1994 the applicant was officially indicted on a charge of aggravated contraband and forgery.
8. In January 1994 one of two persons having allegedly strangled the applicant’s business partner was found dead. On 1 June 1994, the other, V.Ķ., was arrested and detained on remand. Later, in September of the same year, he was released upon a written undertaking not to change his place of residence.
9. On 17 July 1994, in spite of his undertaking not to leave his residence, the applicant left Latvia for the United States of America.
10. On 5 September 1994 the Supreme Court committed the applicant to trial in the contraband case. On 21 September 1994, the prosecutor charged him with aggravated murder and ordered his detention on remand.
11. On 3 October 1994 the Supreme Court, examining the contraband case as a court of first instance according to the law then in force, opened the hearing on the merits of this case. As the applicant failed to appear, the preventive measure against him was changed into a detention on remand, he was placed on the wanted list, and the proceedings against him were suspended. In January 1995 the prosecutor sanctioned a search operation in order to locate the applicant’s whereabouts.
12. In January and February 1995 some investigative measures were taken in the murder case; namely, V.Ķ. was interrogated. The prosecutor also terminated criminal proceedings against one of the applicant’s accomplices who had allegedly helped him to dispose of the victim’s body; he was subsequently charged with concealment of a crime and intentional destruction of property.
13. On 11 February 1995 the pre-trial investigation of the whole case was suspended. Two days later the Prosecutor’s Office ordered the applicant’s search via the Interpol information channels. On 28 February 1995 the competent prosecutor ordered the applicant to be detained on remand.
14. On 28 June 1995 the Criminal Police informed the prosecutor that the applicant’s whereabouts were unknown. Consequently, on 3 July 1995 the case against him was disjoined from the rest of the murder case into a separate case file. Shortly thereafter, V.Ķ. and the other presumed accomplice disappeared and were placed on the wanted list.
15. On 1 September 1997 the prosecutor charged the applicant with a complicity in murder. On 2 September, the prosecutor applied to the Latgale District Court of Riga for a detention order in respect of the applicant, given the fact that under the relevant amendments to the Code of Criminal Procedure a detention on remand could not anymore be applied by a prosecutor. On 3 September 1997 the order was granted, without specifying its temporal limit.
16. On 12 December 1997 the Prosecutor General’s Office ordered the responsible prosecutor to redefine the charges against the applicant into an aggravated murder and unauthorised possession of a gas pistol with ammunition. On 16 February 1998 the prosecutor resumed the investigation in respect of the applicant’s three presumed accomplices, who had been located in the meantime. On the same day, the proceedings against them were partly discontinued as time-barred.
17. On an unspecified date, the Latvian authorities learned of the applicant’s stay in the United States. Accordingly, on 24 February 1998 the Prosecutor General’s Office asked the U.S. Department of Justice for assistance in legal matters, namely, to locate and to extradite the applicant in accordance with the Latvian-American Extradition Treaty of 1923. On 26 September 1998 the United States authorities took the applicant into custody pending extradition proceedings.
18. On 22 October 1999 the competent U.S. Magistrate Judge granted an order allowing the applicant’s extradition to Latvia on the charge of aggravated murder. The applicant appealed requesting a stay of the extradition order.
19. On 16 December 1999 the Interpol Office of the Latvian Ministry of Interior informed the Prosecutor General’s Office that the applicant was currently held in custody in California, and that the U.S. authorities had consented to his extradition to Latvia on the charge of aggravated murder. On 17 December 1999 the acting Secretary of State of the United States signed a written document approving the applicant’s deportation order. On 20 December 1999 the U.S. Marshals Service convoyed the applicant to the Frankfurt Airport (Germany), where he was handed over to the Latvian authorities. On the same date he was brought to Riga and placed in the Central Prison. On the next day, on 21 December, the Prosecutor General’s Office was notified of this fact.
20. On the very day of the applicant’s extradition, on 20 December 1999 the Central District Court of California stayed the extradition order of 22 October 1999.
21. On 22 December 1999 the competent prosecutor decided to resume the pre-trial investigation regarding the applicant. On the same date, the detention order of the Latgale District Court of 3 September 1997 was notified to the applicant, who attested it with his signature.
22. On 27 December 1999 the applicant’s lawyer appealed against this detention order, stating that the latter had been taken in the applicant’s absence, that the judge who had taken it had no time to acquaint himself with the criminal case file, and that the detention was authorised for an indefinite period of time. By a final decision of 18 January 2000 the Riga Regional Court rejected the appeal, declaring that the applicable domestic law allowed for such order when the accused person was absconding from justice, and that in this case, precisely, the applicant was hiding.
23. On 10 February 2000 the Latgale District Court, acting upon the prosecutor’s request, extended the applicant’s detention on remand until 30 April 2000, with the following reasoning:
“Taking into account the gravity of the crime committed, as well as the fact that K. Zandbergs could abscond from investigation and trial, and hinder the establishment of truth in the case...”
24. The applicant appealed, stating that the time he had spent in custody in the United States had to be counted as a part of the overall time of his pre-trial detention and that, consequently, this detention had exceeded the maximum time-limit set by the Code of Criminal Procedure. On 6 March 2000 the Riga Regional Court rejected the appeal, refusing to subscribe to the applicant’s interpretation. According to the court, the time of his detention on remand should be counted from the 20 December 1999 when he was surrendered to the jurisdiction of the Republic of Latvia.
25. On 14 February 2000 the charges against the applicant were amended. As the U.S. authorities had extradited the applicant on the condition that he would stand trial for murder, the charges regarding intentional destruction of property and illegal possession of a gas pistol were dropped.
26. By an order of the Latgale District Court of 25 April 2000, reasoned in terms identical to the one of 10 February 2000, the applicant’s detention on remand was extended until 31 July 2000. The applicant’s appeal was dismissed on 19 May 2000, repeating in substance the reasoning of the previous appeal decision.
27. On 4 May 2000 the Ziemeļu District Court of Riga dismissed the charges against the applicant in the contraband case, as there was no consent from the authorities of the extraditing State (i.e., the United States) to try him for the respective offences.
28. On 27 June 2000 the applicant’s detention on remand was extended until 31 September 2000, with an almost identical motivation as before; however, the Latgale District Court added that the applicant had no registered domicile in Latvia. On 11 July 2000, the applicant’s appeal was dismissed. On 16 August 2000 the criminal cases against the applicant, V.Ķ. and the two other presumed accomplices were joined again in a single case-file. However, shortly thereafter the case against these two latter persons was disjoined from the common case file.
29. On 18 September and 21 December 2000, the applicant’s detention on remand was extended, respectively, until 31 December 2000 and 28 February 2001. On 17 October 2000 and 9 January 2001 respectively, the Riga Regional Court rejected the applicant’s appeals. The reasoning of all these orders and decisions was the same as before.
30. On 18 December 2000 the applicant was officially charged with organising an aggravated murder. On 21 December 2000 the prosecutor notified all the accused persons that the pre-trial investigation was completed and that they would now be able to acquaint themselves with the case file. On the same date, the applicant and V.Ķ. received the file, which consisted of 20 volumes. On 19 January 2001 they both finished reading it; the applicant then requested the prosecutor to terminate the proceedings against him. On 5 February 2001, this request was rejected.
31. On 23 February 2001 the final bill of indictment was notified to the applicant. On 27 February 2001, the case file was sent to the Riga Criminal Court.
32. On 28 February 2001 the competent judge of the Riga Regional Court, without hearing the parties, took a decision to commit the applicant and the co-accused for trial and fixed a hearing for the period of time running between 30 April and 6 May 2002. The judge also decided that the applicant’s detention on remand “sh[ould] remain unchanged”. No term for that detention was specified. The applicant did not appeal against this decision.
33. On 5 and 7 March 2001 the applicant submitted two requests to the Riga Regional Court to decide on the lawfulness of his detention on remand, alleging that the consent from the United States to prosecute him had not been properly obtained. He also asked the court to order an additional pre-trial investigation and to alter the preventive measure applied to him. On 14 March 2001 the court rejected all these requests.
34. On 19 March 2001 the applicant requested a separate hearing on the question whether the time he had spent in custody in the United States had to be counted as a part of his pre-trial detention for the purpose of the current proceedings against him and therefore, whether the maximum time-limit of a detention set by the Code of Criminal Procedure had been exceeded. On 26 March 2001 the court rejected this request.
35. On 3 April 2001 the applicant asked the Regional Court to alter the preventive measure and to liberate him. On 30 April 2001, the court held a special hearing whereby both the applicant’s defence counsel and the prosecutor were heard. The court finally decided to reject the applicant’s request and to keep him in detention for basically the same reasons as before, i.e., the gravity of the crime for which he was accused, the risk of absconding and the lack of a fixed domicile. The court added that there was a risk that the applicant could commit new crimes, without developing this point.
36. The applicant appealed. On 21 May 2001 the Criminal Chamber of the Supreme Court found the appeal admissible and scheduled the hearing on this procedural issue to take place on 28 May 2001. On the latter date, it held a hearing and dismissed the applicant’s appeal, upholding the Regional Court’s decision. The Chamber noted, inter alia, that in 1994 the applicant had already breached the preventive measure applied to him and had fled to America.
37. On 31 August and 17 September 2001 respectively, the applicant applied to the Governor of the Matīsa Prison, requesting permission to make copies of two prosecutors’ replies to his complaints in order to submit them to the Court. His requests were refused by the Deputy Governor of that prison. It appears that the applicant did not appeal against the refusals.
38. On 30 April 2002 the Riga Regional Court commenced the hearings on the merits of the case. However, as the applicant’s co-accused V.Ķ. failed to appear, the hearing was postponed until 2 May 2002. The court also ordered the police to ensure V.Ķ.’s appearance. However, on 2 May 2002, the police informed the court that the latter had fled to Russia. The court then decided to put him on the wanted list and to adjourn the proceedings sine die.
39. On 3 and 20 May 2002 the applicant asked the court to alter the preventive measure applied to him. On 14 and 23 May respectively, this request was dismissed.
40. On 29 May 2002 the applicant asked the case against V.Ķ. to be disjoined from his into a separate file, in order to be able to proceed more speedily. On 26 June 2002 the court rejected this request and affirmed that the applicant would stay in pre-trial detention.
41. On 1 November 2002 a new wording of Article 77 (7) of the Code of Criminal Procedure entered into force. According to this new provision, a detention in remand should not exceed one year and six months upon committal to trial, and an extension thereto could only be granted by the Senate of the Supreme Court on an exceptional basis. Consequently, on 10 October 2002 the competent judge of the Riga Regional Court requested the Senate to grant such an extension because the applicant “[had] committed the serious offence”. On 1 November 2002 the Senate, without summoning the applicant and his defence counsel, decided to extend the applicant’s detention until 30 April 2003. The only reason mentioned by the Senate was that the applicant was accused of committing a serious and violent crime.
42. On 25 November 2002 the applicant applied to the Riga Regional Court requesting either to obtain an appropriate permission from the United States to try and sentence him for a criminal offence or discontinue the criminal proceedings. On 6 December 2002 the Riga Regional Court informed the applicant that his requests will be examined at the hearing on the merits of the case. On 23 December 2002 the applicant repeatedly requested the Riga Regional Court to take an express decision on this issue, but to no avail. On 7 January 2003 the court informed the applicant that all his requests should have been decided at the preparatory hearing, according to the relevant Article of the Code of Criminal Procedure. However, as they had been submitted after the preparatory hearing, they were not subject to any other review at this stage of proceedings.
43. On 3 March 2003 the Riga Regional Court commenced the hearing on the merits of the case. The applicant immediately tried to discharge the prosecutor, accusing him of committing a criminal offence and of forging evidence. The court rejected the applicant’s requests. On 11 March 2003, it resumed the hearing. The applicant tried to have the whole panel of three judges discharged because of their alleged impartiality in addressing the issue of the prosecutor. The court, again, dismissed the applicant’s requests. It also ordered the police to ensure the presence of some summoned witnesses who had failed to appear. On the next day, the witnesses failed to appear again. The court, again, ordered the police to bring them under constraint.
44. At the hearings of 14 and 17 March 2003 the applicant attempted again to have both the prosecutor and the judges dismissed, but in vain. The court also ordered the police to ensure the appearance of one remaining witness who had failed to appear.
45. At the same hearings, referring to Article 487 of the Code of Criminal Procedure, the applicant also requested the court either to obtain an appropriate permission from the United States to try him or to terminate the proceedings. His request was dismissed.
46. On 4 April 2003 the Riga Regional Court found the applicant guilty of organising the murder and sentenced him to nine years of imprisonment. The time he had spent in pre-trial detention or custody both in Latvia and in the United States was counted as a part of the sentence. As to V.Ķ., he was acquitted of murder, but found guilty of wilful destruction of property and sentenced to five years of imprisonment.
47. The applicant appealed the judgment. He stated, inter alia, that he had been convicted in breach of Article 487 of the Code of Criminal Procedure as the consent from the extraditing state to try and sentence him had not been obtained. On the other hand, he did not repeat his grievances in respect of the alleged partiality of the trial court in his appeal.
48. On 26 June 2003 the Criminal Chamber of the Supreme Court found the applicant’s appeal admissible. On 15 October 2003 it held its first hearing, whereby the applicant requested a series of investigative measures in order to verify several pieces of evidence. His requests were granted, and the hearing was adjourned. On 3 November and 23 December 2003 and on 21 January, 3 March and 25 May 2004 the applicant filed additional observations to supplement his appeal. Moreover, on 15 December 2003 the American lawyer who had represented the applicant in the extradition proceedings in the United States sent a letter to “the Latvian High Court Criminal Division” (sic), stating that the applicant had been deported from the United States while the extradition proceedings had been pending.
49. On 16 January 2004 the applicant filed a complaint with the Prosecutor General’s Office complaining about undue delays in the appeal proceedings. The complaint was transmitted to the Criminal Chamber of the Supreme Court. On 12 February 2004 the President of the Criminal Chamber found that the proceedings were postponed lawfully. The applicant sent an essentially identical complaint to the Ministry of Justice, which also forwarded it to the Criminal Chamber. In reply, the latter informed the applicant that a hearing in his case was fixed for 2 June 2004.
50. By a judgment of 3 June 2004 the Criminal Chamber of the Supreme Court dismissed the applicant’s appeal. It upheld the evaluation of the evidence by the first instance court in full. It also noted that the consent from the extraditing state to try him for the criminal offence had been lawfully obtained; in this respect the Chamber referred to a document signed by the US acting Secretary of State on 17 December 1999 approving the applicant’s deportation order.
51. The applicant filed a cassation appeal, reiterating his argument based on Article 487 of the Code of Criminal Procedure. On 3 September 2004 the Senate of the Supreme Court declared the cassation appeal inadmissible for lack of arguable points of law. It considered inter alia that the document signed by the acting Secretary of State of the United States on 17 December 1999 had never been quashed and therefore the consent of the extraditing state to try the applicant had been lawfully obtained.
52. In 2007, having served his sentence, the applicant was released from prison.
53. The relevant provisions of domestic law are summarised in Svipsta v. Latvia (no. 66820/01, §§ 52-66, ECHR 2006III).
54. In addition, other relevant provisions of the former Code of Criminal Procedure in force at the material time read as follows:
“A person who is extradited from a foreign state shall not, without a consent of the extraditing state, be charged with committing an offence and subsequently tried or surrendered to a third state for an offence he has committed prior to the extradition and in respect of which he has not been extradited.
...
(3rd paragraph added on 9 December 1999) The time period spent in detention in a foreign state shall not be counted as a part of the overall length of detention on remand, but it shall be included in the imprisonment term to be served.”
“A person may only be indicted and tried for the criminal offence for which he had been extradited.
These conditions do not apply to the cases where:
1) a consent from the extraditing state to indict and to try the person for other offences committed before the extradition has been received;
2) the offence was committed after the person had been surrendered to Latvia;
3) the person has not left Latvia within 45 days after his liberation, although he had had such possibility;
4) the person had left Latvia after the extradition and had returned therein. ...”
55. Article IV of the Treaty of Extradition of 16 October 1923 between Latvia and the United States, in force until 2009, read as follows:
“No person shall be tried for any crime or offense other than that for which he was surrendered.”
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001-106159
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1. The applicant was born in 1975 and lives in Brăneşti. He was represented before the Court by Mr S. Burduja, a lawyer practicing in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
2. The applicant was charged with indecent acts committed on a fiveyear old girl, following a report made by her mother on 7 April 2003. On 30 October 2003 the Criuleni District Court acquitted him of all charges, finding that there had been no evidence that he had committed an offence. The court noted that the girl’s mother had testified before it that she had had a dispute with the applicant on the morning in question and had filed the complaint against him in revenge, and not because he had in fact committed any offence. She had also coached her daughter on how to testify in order to incriminate the applicant. However, the court noted that both mother and daughter had later withdrawn their statements.
3. The judgment was upheld by the Chişinău Court of Appeal on 26 February 2004. The court noted the discrepancies between the statements made on 7 April 2003 by the child and her mother and the subsequent change to their statements. It also noted that a psychiatric report on the girl had shown that she was prone to adult influence, while the testimony given by the girl to the investigating authority had ended after a teacher assisting the girl had noted her difficulty in formulating phrases and logically explaining her thoughts, which had made the continuation of the interview pointless. Statements made by two witnesses during the investigation had confirmed the girl’s tendency to be influenced by adults, but the prosecutor had not asked for their presence at the court hearing and they had therefore not been able to be questioned about their statements.
4. On 1 June 2004 the Supreme Court of Justice quashed the judgment of 26 February 2004 and ordered a rehearing of the case by the Chişinău Court of Appeal. The reason for the rehearing was that the lower court had failed to directly examine all the relevant evidence, such as hearing from the victim, her representative and other witnesses, but rather had simply relied on the documents in the case file.
5. The victim and her mother were summoned to the hearing at the Chişinău Court of Appeal on 22 September 2004, but they did not appear. In the meantime, on 9 September 2004, the mother sent a letter to the court stating that she fully supported her statements and those made by her child during the investigation. She did not ask for the case to be tried in her absence.
6. On 22 September 2004 the Chişinău Court of Appeal found the applicant guilty of the crime with which he had been charged. The applicant was absent from the hearing, even though he had been summoned to attend it. He claims that he never received the summons. A court-appointed defence lawyer was present.
7. The court did not hear any witnesses, including the girl and her mother. After the applicant’s conviction, the mother wrote to the Supreme Court of Justice stating that she had never received a summons for the hearing of 22 September 2004 and that she withdrew her declaration of 9 September 2004. The applicant claimed that the letter of 9 September 2004 had been written by someone else, because the mother could not write in Latin script, yet the letter had been written in Latin script. No expert report to verify whether she had written the letter was ordered.
8. On 6 December 2004 the lawyer appointed by the applicant lodged an appeal on points of law. In his appeal, the lawyer drew the court’s attention to the reason for which the Supreme Court of Justice had sent the case for a rehearing on 1 June 2004, namely the failure of the Court of Appeal to directly examine all the evidence. However, that court had allowed the same irregularity to occur in convicting the applicant. He also submitted that the absence of the victim, the mother and other witnesses, as well as the applicant, from the court hearing of 22 September 2004 had prevented the defence from properly challenging the prosecutor’s evidence. The prosecutor had simply read out the statements made by various individuals during the investigation, and the court had ignored the statements made by the mother and daughter before the first-instance court rejecting their previously made statements. The lawyer questioned the authorship of the letter of 9 September 2004. He finally relied on Article 6 of the Convention.
9. On 1 February 2006 the Supreme Court of Justice upheld the judgment adopted by the lower court, finding that it had fully examined the case. The court referred to the same evidence as that examined by the Court of Appeal on 22 September 2004. The parties had been summoned but had failed to appear. However, their absence from the hearing had not prevented the court from continuing to examine the case. Moreover, the mother had signed a declaration in Latin script on 16 April 2003, which proved that she could write in that script and thus could have been the author of the letter of 9 September 2004.
10. On 12 June 2008 the applicant was conditionally released from prison, 17 months and 17 days before the expiry of his prison term.
11. After communication of the present application to the respondent Government, on 10 April 2009 the Prosecutor General’s Office asked the Supreme Court of Justice to reopen the proceedings in the applicant’s case.
12. On 11 May 2009 the Supreme Court of Justice accepted that request. It found that the Chişinău Court of Appeal and the Supreme Court of Justice in their judgments of 22 September 2004 and 1 February 2006 respectively had breached the applicant’s rights guaranteed under Article 6 of the Convention, as well as under domestic law, by failing to directly examine witnesses and evidence before overturning the first-instance court’s judgment. Moreover, they had examined the case in the applicant’s absence despite the absence of evidence that he had been properly summoned and all reasonable measures had been taken to ensure his presence in court, and had done so in the absence of a clear waiver of the applicant’s right to be heard by the courts. Moreover, the Court of Appeal had failed to follow the indications made by the Supreme Court of Justice in its decision of 1 June 2004, which had been aimed precisely at ensuring the observance of procedural rules and at preserving the rights of the accused to a fair trial. The court therefore annulled the judgments of 22 September 2004 and 1 February 2006 and ordered a rehearing of the case.
13. On 10 November 2009 the Chişinău Court of Appeal found the applicant guilty as charged. In reaching this conclusion, the court heard the applicant and his lawyer, the victim and her mother, as well as a teacher and has examined the psychiatric report made on the victim’s intellectual development. In view of the expiry of the limitation period for the offence he had committed, the court did not impose any sanction on the applicant.
14. By the final judgment of the Supreme Court of Justice adopted on 18 January 2011, the applicant’s appeal was declared inadmissible due to his failure to lodge it within the statutory time-limit of two months from the date of adoption of the lower court’s judgment.
15. The relevant domestic law has been set out in Popovici v. Moldova (nos. 289/04 and 41194/04, §§ 34 and 35, 27 November 2007).
16. In a series of its judgments, the Supreme Court of Justice awarded compensation to persons whose cases had been communicated to the respondent Government and in which the latter acknowledged a violation of Convention rights (see Ungureanu v. Moldova (dec.), no. 78077/01, 3 October 2006; Diviza and Others v. Moldova (dec.), no. 24316/02, 21 November 2006; Grosu and Others v. Moldova (dec.), no. 21118/03, 13 March 2007; Cumatrenco v. Moldova (dec.), no. 28209/03, 20 March 2007; and Guranda v. Moldova (dec.), no. 28412/03, 20 March 2007). In adopting these judgments, the Supreme Court of Justice expressly relied on the Convention as the legal basis for awarding compensation. The Court accepted that that the amounts awarded had been consistent with those it had made in similar cases in respect of Moldova and thus struck those cases out of its list of cases.
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