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35. The applicant submitted that the lack of clear regulations in international agreements between Russia and Kazakhstan in respect of release from serving a sentence on the basis of a foreign state court’s decision had adversely affected his rights under Article <mask> of the Convention. Furthermore, according to the applicant, there had been no mechanism in Russia, and in particular no provision in the domestic law, to ensure the enforcement without delay of a foreign court decision ordering immediate release from custody. | 8 |
11. The Government pointed out that, having been acquitted, the applicant could exercise his “right to rehabilitation” under Article 133 of the Code of Criminal Procedure. The “rehabilitation” includes payment of compensation for the damage incurred on account of unlawful prosecution and unlawful application for a preventive measure, without there being a need to examine in detail whether or not such measure was applied in compliance with Article <mask> of the Convention. The acknowledgment of the applicant’s “right to rehabilitation” in the acquittal automatically implied that the State acknowledged a violation of the applicant’s right under Article 5 of the Convention. As the applicant has obtained compensation in respect of the pecuniary damage and has been entitled to bring a claim for compensation in respect of non-pecuniary damage without any time-limit, the Government submitted that the application was inadmissible either because of the non-exhaustion of domestic remedies or because of the loss of the victim status by the applicant. | 8 |
125. The applicants complained under Article 5 § 1 of the Convention that Visadi Shokkarov’s detention between 6 and 22 January 2003 had not been authorised by court order. They argued that the decision authorising Visadi Shokkarov’s detention had been taken in the absence of the defence and that Visadi Shokkarov’s lawyer had not been able to visit him in detention. Lastly, they relied on Article 5 as a whole, complaining that Visita Shokkarov’s detention had been unlawful. Article <mask> of the Convention reads in so far as relevant: | 8 |
67. The Government raised a preliminary objection of failure to exhaust domestic remedies. They argued that according to the Bulgarian Constitution international treaties, including the Convention, were part of domestic law and took priority over the provisions of domestic law which went against them. More and more often the Bulgarian courts relied on the Convention in deciding the cases before them. As an example the Government cited decision No. 1 of 1997 of the Assembly of the Criminal Divisions of the Supreme Court of Cassation, in which it had decided to refer a provision of the CCP to the Constitutional Court, considering that it was contrary to Article <mask> of the Convention. Given these facts, the applicant could have applied to a court, relying directly on the Convention. The court would have been obliged, by virtue of the Convention itself, to examine and rule on his application for release. Moreover, while the CCP was silent on the issue, there was no express prohibition of judicial review of house arrest. | 8 |
95. The applicants’ “transit” before reaching the Kitay-Gorod police station lasted for nearly six hours, in the absence of any record and without counting as administrative detention. Following the Government’s reasoning, it could have continued for even longer without breaching the law. In view of the above, the Court finds that this period constituted unrecorded and unacknowledged detention, which, in the Court’s constant view, is a complete negation of the fundamentally important guarantees contained in Article <mask> of the Convention and discloses a most grave violation of that provision (see Fedotov v. Russia, no. 5140/02, § 78, 25 October 2005; Menesheva, cited above, § 87; Belousov v. Russia, no. 1748/02, § 73, 2 October 2008; and Aleksandr Sokolov v. Russia, no. 20364/05, §§ 71-72, 4 November 2010; see also Kurt v. Turkey, 25 May 1998, § 125, Reports 1998‑III, and Anguelova v. Bulgaria, no. 38361/97, § 157, ECHR 2002‑IV). | 8 |
104. The Government submitted that the applicant’s detention pursuant to the court’s decision had been justified by the reasonable suspicion that he had committed a crime, the fact that he had been convicted in the past and that, if released, he might abscond in order to avoid trial or obstruct the investigation. They thus considered that the applicant’s detention had been in compliance with Article <mask> of the Convention. | 8 |
54. The applicant complained that his detention under section 28 of the Traffic Regulations Administrative Enforcement Act constituted deprivation of liberty not ordered by a competent court. When he had been committed for detention after failing to pay the fine, there had been no re-examination of the original decision imposing the fine even though the original decision had been flawed through not having reached him and because the offence had been committed by someone else. He relied on Article <mask> of the Convention, which, in its relevant part, provides as follows: | 8 |
133. The Government further stated that the length of the applicant’s detention pending preliminary investigation – nine months and twenty‑eight days – had been reasonable within the meaning of Article <mask> of the Convention, taking into account the complexity of the case which involved four defendants accused of a considerable number of crimes, eighty persons questioned and thirty-three expert examinations. The investigation had been delayed as a result of the suspects’ attempt to flee. Thus, after the proceedings had been initiated not only the applicant but also his co‑defendants had been missing from their places of residence. | 8 |
114. The applicant complained, under Article 5 § 1 of the Convention, that his detention between 24 and 30 July 2013 had been unlawful. He further complained under that head that his detention pending administrative removal after 31 July 2013 had not been based on sufficiently foreseeable legal norms and that the expulsion decision had not set a time-limit for his detention. Article <mask> of the Convention, in so far as relevant, reads as follows: | 8 |
42. The applicant claimed that his preventive detention throughout the period at issue had failed to comply with Article <mask> of the Convention because that detention had been ordered on the basis of an expert report of 4 June 2010 which thus dated back some two-and-a-half years. Moreover, that report had only concerned the question of whether relaxation of his conditions of detention could be granted. It had therefore covered an issue which was different from the question which the domestic courts had to address in the proceedings at issue, namely the question of the likelihood of his committing the most serious crimes of violence or sexual offences if released, as a result of a mental disorder. The expert report thus did not address the new, stricter criteria set out by the Federal Constitutional Court in its leading judgment of 4 May 2011 for the continuation of retrospectively-extended preventive detention, in particular the question of whether he suffered from a mental disorder, which he contested. | 8 |
33. The applicant complained that the police officer who investigated his criminal case instituted in 1997 had beaten him and threatened to kill him. He relied on Article <mask> of the Convention. The applicant further complained under Article 6 of the Convention that the outcome of the proceedings in the criminal case had been unfavourable and that therefore the proceedings as a whole had been unfair, including alleged errors of fact and law committed by the domestic courts. He complained without invoking any Article of the Convention that he had no effective remedies in respect of this complaint. He also complained about the non-enforcement of the judgment of 18 April 1997. He relied on Article 6 of the Convention. | 8 |
122. The Government submitted that the Chamber judgment had departed from the Court’s case-law concerning Article <mask> of the Convention, in particular the Kafkaris and M. v. Germany judgments cited above. They argued that in the present case there was a perfect causal link between the penalties imposed for the numerous serious crimes the applicant had committed and the length of time she had spent in prison. The judgments by which she had been convicted had stated that she would have to spend thirty years in prison, as had the decision of 2000 to combine the sentences and fix a maximum term of imprisonment and the decision of 2001 setting the date of the applicant’s release at 27 June 2017. | 8 |
230. The applicant’s submissions in the above-mentioned appeals and constitutional complaints contained arguments connected with his rights guaranteed under Article <mask> of the Convention, namely that the statutory maximum period for his detention had expired on 19 June 2008 and that the lower courts had failed to conduct the proceedings with the requisite speediness. These arguments did not appear implausible or frivolous. By not taking these submissions into account the appeal court and the Constitutional Court failed to provide judicial review of the scope and nature required by Article 5 § 4 of the Convention. | 8 |
24. The applicant complained under Article <mask> of the Convention that his continued confinement in the hospital, as confirmed in the 2003 review, had been unlawful since the courts had wrongly based their decisions on police reports instead of on the findings of the hospital, as the only reliable evidence concerning his mental health. Article 5 § 1 of the Convention, in so far as relevant, reads as follows: | 8 |
83. The applicant first complained that her arrest in northern Iraq was unlawful. She further stated that she was not informed of the reasons for her arrest and the charges against her in German. Finally, the applicant maintained that she was held in detention for nineteen days without being brought before a judge, during which time she was threatened with death and had no access to a lawyer or to her family. The applicant relied on Article <mask> of the Convention, the relevant parts of which read as follows: | 8 |
70. The applicant argued that since the expiry of the last court order for his detention pending trial no other court decision had provided for his further detention. He considered that the legal provisions referred to by the Government were not foreseeable in their application, contrary to the requirements of Article <mask> of the Convention. He relied on Baranowski v. Poland (no. 28358/95, ECHR 2000‑III). | 8 |
65. The Government submitted that the applicant had not appealed against his allegedly unlawful arrest and detention to a court. Therefore, he had failed to exhaust domestic remedies. If, however, the Court were to dismiss that objection, his complaint would still be inadmissible, being manifestly ill-founded. The Government constructed their arguments along two general lines. Firstly, they submitted that the police officers had rightfully arrested the applicant because he had refused to disclose his identity. The officers had acted in response to phone message no. 12316, which contained information on wanted criminals who looked similar to the applicant and his brother. Relying on section 11 of the Police Act, the Government stressed that police officers were entitled to check persons’ identity documents if there were sufficient grounds to suspect them of having committed a criminal or administrative offence. In their second line of argument, the Government stated that the applicant had been arrested because, by using offensive language in public, he had committed a minor disorderly act, that is to say, an administrative offence. Hence, by virtue of section 242 of the Administrative Code, he could be detained until his case was to be examined by a judge or a high-ranking police officer. The Government concluded that the applicant’s rights as guaranteed by Article <mask> of the Convention had therefore not been violated. | 8 |
22. The applicant also complained under Article <mask> of the Convention that between 2004 and 2005 he had been detained without a warrant for his detention. The Court notes that the applicant made this allegation for the first time in application no. 32844/07, lodged on 14 July 2007. Consequently, the complaint was lodged more than six months after the alleged breach took place and must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention. | 8 |
64. The Government submitted that the applicant’s administrative detention between 1 and 4 May 2005 had been in compliance with Article <mask> of the Convention. It had been based on a provision of domestic law (Article 263 of the Code of Administrative Offences) and had resulted from the suspicion that the applicant had committed an offence. The applicant had been arrested again on 4 May 2005 under the Criminal Procedure Code to prevent his escape, which arrest had later been upheld by a court on 6 May 2005. | 8 |
66. The Government argued that the applicant’s confinement in the psychiatric hospital had been ordered in compliance with the domestic law and the principles enshrined under Article <mask> of the Convention. They contended that notwithstanding the fact that in February 2003 the Constitutional Court had found the legal provision based on which the applicant had been convicted unconstitutional, this had not influenced the findings of the forensic experts in November 2001 concerning the applicant’s state of mental health, his dangerousness to society, and that he should have a compulsory measure of a medical nature imposed on him. According to the Government, when ordering the compulsory confinement, the national courts had relied on the above findings and had duly evaluated the applicant’s individual circumstances, thus fulfilling the necessary conditions set out in the case of Winterwerp v. the Netherlands (24 October 1979, Series A no. 33). | 8 |
60. The applicant complained under Article <mask> of the Convention about a number of procedural defects in the proceedings concerning his detention on remand. In particular, the hearings before the Basmanniy District Court of 3 July, 26 December 2003 and 8 June 2004 had been held in private, his lawyers could not participate in the Basmanniy District Court’s hearing of 3 July 2003, the Meschanskiy District Court had not summoned him to its hearing of 8 June 2004, and it had taken the Moscow City Court too long to examine his appeals against the extensions of his detention. | 8 |
168. The applicant further complained under Articles 2 and 3 of the Convention that narcotic substances had been administered to him against his will between 13 March 2000 and 30 January 2002. He also complained, citing Article <mask> of the Convention, about his compulsory admission to the psychiatric hospital in Rīga during this period. He further alleged a breach of Article 7 of the Convention on account of the facts which have been examined above under Article 5 §§ 1 and 4. The applicant complained, and referred in this regard to Article 6 of the Convention, that the 17 May 2000 decision had been adopted in his absence and alleged that he had never received a copy of that decision. Lastly, the applicant alleged breaches of Articles 13, 14 and 17 of the Convention, as well as breaches of various Articles of the Protocols to the Convention. | 8 |
95. The applicant also raised a number of other complaints under Article <mask> of the Convention, namely that his detention was not based on a reasonable suspicion, that his detention during the pre-trial proceedings lasted more than the maximum one-year period permitted under Article 138 § 5 of the CCP and that there was no court decision authorising his detention between 18 and 24 September 2004. | 8 |
33. The Government argued that the applicant’s complaints under Article <mask> of the Convention ought to be declared inadmissible for failure to comply with the six-month time-limit within the meaning of Article 35 § 1 of the Convention. In that regard, the Government submitted that the final decision taken at the domestic level with regard to the applicant’s complaints had been the one adopted by the Kurzeme Regional Court on 24 May 2002, which was not subject to further appeal. The Government further argued that regardless of whether or not the applicant had been sent a copy of the decision of 24 May 2002, it could be clearly seen from her complaint to the Prosecutor General of 28 May 2002 (see above, paragraph 16) that on that date she had been aware of the decision. In any case, the applicant had been released from the hospital on 31 May 2002, which was the latest possible start date for the six-month period. | 8 |
135. The applicant complained that her right to liberty had been breached in that as from 17 February 2005 she had been unlawfully confined to a mental hospital, though she had not been in need of involuntary care. She also complained that her detention in the hospital for the purpose of conducting a psychiatric assessment prior to that confinement had been unlawful. She cited Article <mask> of the Convention, which reads in its relevant parts: | 8 |
56. The applicant complained under Article 5 § 1 of the Convention that he had been de facto detained on the morning of 26 May 2011 in Kintsvisi, while his arrest had only been documented with an official record of the detention at 6.12 a.m. on 27 May 2011 in Tbilisi. Article <mask> of the Convention in its relevant part reads as follows: | 8 |
36. The applicants complained under Article 5 §§ 3, 4 and 5 of the Convention that their detention on remand was unreasonably long, and that their requests for release pending trial received no serious consideration by the court. Moreover, they contended that they were prevented from working whilst on remand, as a result of which they incurred financial loss. Article <mask> of the Convention provides as relevant: | 8 |
41. The Government submitted that the applicant’s rights under Article <mask> of the Convention had not been breached. He had been detained on reasonable suspicion of having committed an offence and the Nasimi District Court had duly examined the material in the case file when it had ordered his detention. In that connection they referred to the transcripts of the hearing held before the Nasimi District Court on 17 May 2013. As regards the applicant’s argument that the impugned video recording had not been available in the case file examined by the courts, the Government submitted that, as the submission by the investigator had referred to the size of the video recording which had been uploaded to YouTube, it followed that the video recording had been publicly accessible and that it had therefore not been necessary to add it to the case file at the relevant stage of the proceedings. | 8 |
123. The applicant further complained under Article <mask> of the Convention that his arrest and detention had been unlawful. The Court considers, noting that the application was lodged with the Court on 26 July 2002, that this complaint was introduced outside the six-month time-limit under Article 35 § 1 of the Convention (see Koval v. Ukraine (dec.), no. 65550/01, 10 December 2002) and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. | 8 |
41. The Government submitted that the applicant’s detention pursuant to the above-mentioned decision had been lawful within the meaning of the domestic law and had been justified by the reasonable suspicion that he had committed a crime. They added that there had been “adequate” and “sufficient” grounds for the applicant’s continued detention and that its duration had not been excessive. They thus considered that his detention had been in compliance with Article <mask> of the Convention. | 8 |
85. The applicant alleged under Article <mask> of the Convention that his son had been arbitrarily deprived of his liberty since his detention had not been recorded and that there had been no prompt or effective investigation into his allegations. He maintained under Articles 6 and 8 of the Convention that his son had been denied access to a lawyer and contact with members of his family while in police custody. In his post-admissibility observations, the applicant further submitted under Article 8 of the Convention that the authorities had withheld information from him which might have shed light on the circumstances of and reasons for his son’s abduction. | 8 |
46. The applicant complained, under Article <mask> of the Convention, about the length of his pre-trial detention and of the fact that neither he nor his defence counsel had been informed of a panel session of the Zagreb County Court on 6 November 2009 at which his detention had been extended. He also complained under Article 13 of the Convention that he had had no effective remedy for his complaints concerning his detention and that he had not been heard in person by the Supreme Court, acting as the final court of appeal, when it had dismissed his appeal against conviction. | 8 |
58. The applicant claimed compensation for non-pecuniary damage in the amount of 400,000 Swedish kronor (SEK), equivalent to 44,305 euros (EUR)[1], on account of the alleged violation of Article <mask> of the Convention. In support of his claim, he submitted that not only had he been deprived of his liberty for a total of one and a half years, he had also been forced to live in hiding for several years. | 8 |
36. The applicant argued that since the expiry of the last court order for his detention pending trial on 14 August 2004 no other court decision had provided for his further detention. He considered that the legal provisions referred to by the Government were not foreseeable in their application, contrary to the requirements of Article <mask> of the Convention. He relied on Baranowski v. Poland (no. 28358/95, ECHR 2000‑III). | 8 |
91. The applicant emphasised the importance of the proceedings before the court of criminal inquiry, a stage during which it was decided whether there were sufficient grounds for issuing a bill of indictment and during which the defence became aware of the prosecution's evidence and arguments. It was also the stage when the lawfulness of the arrest was examined and applications for bail were considered. It was therefore the court of criminal inquiry which was mostly responsible for ensuring that the principles enshrined in Article <mask> of the Convention were complied with. | 8 |
134. The Government submitted that Article <mask> of the Convention required compliance with domestic law. The applicants had breached the law by wilfully abandoning the places of their service. Since they were subject to all the obligations prescribed by the Constitution, the investigating authority, based on a reasonable suspicion that they had committed acts prohibited by law, filed motions for detention. Furthermore, the investigating authority applied Section 21 § 2 of the Alternative Service Act which was in force at the material time. Accordingly, the investigating authority and the District Courts had issued lawful decisions and detained the applicants for having committed an act prohibited by law. Hence, the applicants’ detention was lawful. They had been charged for their actions under Articles 361 and 362 of the CC. Following an examination of the applicants’ cases on the merits and after additional investigation, the domestic authorities found out that the acts committed by the applicants lacked corpus delicti, the prosecutor terminated the proceedings and released the applicants. According to the Court’s case-law, detention was in principle lawful if carried out pursuant to a court order. A court error under domestic law in making the order would not necessarily retrospectively affect the validity of the intervening period of detention. In conclusion, there was no violation of Article 5 § 1 (c) of the Convention. | 8 |
151. The Government referred to Constitutional Court decision no. IV. ÚS 3439/11, which confirmed that Article 5 § 5 of the Convention was considered as directly applicable (“self-executing”) and that it was necessary to proceed also in accordance with domestic law, namely sections 31a and 32(3) of the State Liability Act (see paragraph 82 above). The Court considers, however, that that decision is not relevant for the instant case as far as it confirms that the applicant would have been expected to pursue a remedy under the State Liability Act, which provides for compensation for damage resulting from an unlawful decision or irregular administrative proceedings. In the circumstances of this case, not only did the applicant attempt to bring proceedings which failed because he had been deprived of legal capacity, but it is evident from the case file that the Czech judicial authorities did not at any stage find the measure to have been unlawful or otherwise in breach of Article <mask> of the Convention. | 8 |
50. The applicant complained under Article 5 § 1 of the Convention that his pre-trial detention had not been based on a “reasonable suspicion” that he had committed a criminal offence. He also complained that his pre-trial detention had not been justified by “relevant and sufficient reasons”, as required by Article 5 § 3 of the Convention. Article <mask> of the Convention, in so far as relevant, reads as follows: | 8 |
35. The Government, while accepting that the impugned measures “restricted the applicant's liberty” for the purposes of paragraph 1 of Article <mask> of the Convention, maintained that the various instances of detention were “in accordance with a procedure prescribed by law”, were “lawful” and justified under sub-paragraph (e) of paragraph 1. In the event that the Court should find sub-paragraph (e) inapplicable, the Government relied on sub-paragraph (c). | 8 |
69. The applicant complained that his detention in the Simferopol ITT had been in breach of Article <mask> of the Convention since that facility was not appropriate for a long-term detention of a person. He further complained under Article 6 of the Convention that the proceedings in his criminal case had been unfair. He also complained that his rights under the Convention had been violated by the enforcement of the confiscation order adopted in his criminal case. Lastly, the applicant complained that he was not paid invalidity allowance for a certain period of time. | 8 |
70. The Government maintained that the grounds of the applicant's pre‑trial detention were clearly defined and the law itself was foreseeable in its application, so that it met the standard of “lawfulness” set by the Convention. They maintained that the applicant had been detained on the ground of suspicion of having committed a serious crime and with the aim of ensuring his continued participation in the legal process. Furthermore, the periods of the applicant's detention covered by the court decisions protected the applicant from “arbitrariness”, which protection is intrinsic to the meaning of “lawfulness” of detention under Article <mask> of the Convention. | 8 |
137. The Government submitted that the applicants’ administrative imprisonment had been ordered by the Sunzhenskiy District Court in a decision of 24 September 2001, of which the applicants had been immediately informed. In their observations submitted prior to the Court’s decision as to admissibility of 15 November 2007, the Government stated that the domestic investigation obtained no information about the applicants’ detention between 24 September and 12 October 2001 and that, therefore, there was no evidence that the applicants had been deprived of their liberty in violation of Article <mask> of the Convention. In their observations submitted after that decision, they stated that on 24 September 2001 the applicants had been transferred to officers of the mobile detachment of the Ministry of the Interior, in breach of the applicable procedure. However, in the Government’s view, the dismissal of the head of the criminal police of the Sunzhenskiy ROVD and the reprimand given to the officer of the Sunzhenskiy ROVD, who had been in charge of the detention facility on the relevant date, constituted both an acknowledgment of the violation and provided redress for the applicants. | 8 |
18. The Government maintained that the applicant had failed to respect the six-month time-limit, laid down by Article 35 § 1 of the Convention. They submitted that the applicant’s initial conviction of 3 July 2002 turned his “pre-trial detention”, which had started on 17 November 2000, into a detention following a conviction. A six-month time-limit for lodging a complaint about this period of detention had thus started to run on that date and had expired on 3 January 2003. After the judgment of 3 July 2002 had been quashed on 6 December 2002, a new period of pre-trial detention had commenced, which lasted until the applicant was convicted on 1 April 2004 for the second time. The six-month period for lodging a Convention complaint about this period of detention had, therefore, expired on 1 October 2004. In the meantime, the Government noted that the first reference to Article <mask> of the Convention had been made by the applicant only in his application form of 10 November 2004. In their opinion, his complaints under this provision had, therefore, been lodged out of time. The Government also contended that in any event the applicant could not claim to be a victim of a violation of Article 5 § 5 of the Convention, as his detention had not been in contravention of the provisions of Article 5. | 8 |
135. The applicant questioned the availability of judicial review in respect of his detention pending extradition. He submitted that the Russian legislation had no mechanisms for such review, as the courts had refused for over one year to consider his complaints, alleging that they had no jurisdiction to do so. He had finally been released with direct reference to Article <mask> of the Convention, but not to any provisions of domestic law. | 8 |
43. The applicant also lodged other complaints under Article <mask> of the Convention. However, having regarding to the above finding of a violation of Article 5 § 1 of the Convention, the Court considers that it is not necessary to examine whether, in this case, the other complaints under Article 5 of the Convention are admissible and whether there have also been violations of that provision (see, for the approach, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).. | 8 |
108. The applicants stated that there had been no grounds for their relatives' arrest or detention, and in particular, no reason to believe that they had committed any criminal offence. At the time of their apprehension, the Musayev brothers had been at home with other family members, had identity papers, had no firearms, and had not attempted to assist A., the man who had run into their house, or to resist the federal servicemen. They voluntarily reported to the district office of the Interior for questioning. Furthermore, the officers who had taken the Musayev brothers away had not given any reason for their detention. The applicants thus argued that their relatives had been detained in breach of the guarantees of Article <mask> of the Convention. | 8 |
36. The Government argued that the applicant could no longer claim to be a “victim” of the alleged breach of Article <mask> of the Convention because the domestic courts had declared his detention on remand unlawful and had awarded him compensation of RUB 100,000. They stated, in particular, that the courts had found unlawful the entire period of the applicant’s detention on remand, which, in the Government’s submission, was to be understood as also covering the time span between 20 and 22 March 2005 in respect of which the applicant had complained to the Court. The Government concluded that the domestic authorities had not only acknowledged the breach of the applicant’s rights but had also afforded him appropriate redress. | 8 |
149. The Government further submitted that the domestic authorities had been obliged to hold the applicant in custody because the Strasbourg Court had applied Rule 39 and indicated to them to suspend his extradition. Referring to the Chahal case (see Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996‑V), they stressed that paragraph 1 (f) of Article <mask> of the Convention provided for a level of protection different from paragraph 1 (a)-(e), requiring only that extradition proceedings be pending. Hence, it was immaterial for that provision whether there existed sufficient grounds for holding the person in custody. Accordingly, the applicant's detention from 5 August 2008 onwards had been “lawful” within the meaning of the above provision. | 8 |
59. The applicant took the view that his preventive detention had violated Article 5 § 1 of the Convention. In particular, it had not been justified under sub-paragraph (a) of that provision. He argued, firstly, that the developments which had occurred after he had lodged his application in 2004 had to be taken into account. Since 21 March 2006 he had been in detention for a period exceeding ten years. His preventive detention as of that date had, in any event, breached Article <mask> of the Convention for the reasons set out in the judgment in the case of M. v. Germany (cited above). | 8 |
55. The Government submitted that on 12 June 2004 the District Court had taken a decision to remand the applicant in custody in view of a reasonable suspicion of his involvement in the commission of a particularly serious criminal offence and having concluded that the applicant might abscond or otherwise obstruct the proceedings. In coming to such a conclusion the District Court took into account that previously, on 23 October 2001, the applicant had been convicted of attempted bribery and sentenced to five years’ imprisonment, suspended for three years. By the same judgment the applicant, a former officer of the criminal investigations department in police operational work, had also been deprived of the right to work in the police force for three years. The custodial measure in respect of the applicant was chosen and extended by the competent domestic authorities in compliance with the procedure established by domestic law and in accordance with the guarantees of Article <mask> of the Convention. On each occasion the court took into account circumstances which gave grounds to believe that, if released, the applicant might obstruct the course of justice by putting pressure on victims and witnesses. The Government particularly emphasised the fact that the grounds warranting the choice of custodial measure had remained unchanged throughout the proceedings. They concluded that the applicant’s remand in custody had been based on relevant and sufficient reasons and had been in line with the requirements of Article 5 § 3 of the Convention. | 8 |
91. The applicants contended that Mr Sakhrab Abakargadzhiyev had been subjected to torture and inhuman treatment by the abductors and that no effective investigation had been conducted in this connection. The applicants further contended that their relative had been detained in violation of the guarantees contained in Article <mask> of the Convention. They also argued that, contrary to Article 13 of the Convention, there were no available domestic remedies against the violations alleged, in particular those under Articles 2 and 3 of the Convention. Those Articles read, in so far as relevant: | 8 |
269. The applicants in all cases except for Tashuyeva v. Russia (no. 70438/14) also complained of a violation of Article <mask> of the Convention on account of the unlawfulness of their relatives’ detention. They furthermore argued that, contrary to Article 13 of the Convention, they had no available domestic remedies in respect of the alleged violation of Article 2 of the Convention. | 8 |
55. The Government submitted that the Court had never found the exercise of a power to stop and search to constitute a deprivation of liberty within Article <mask> of the Convention. Moreover, in a number of cases the Convention organs had refused to find that restrictions on liberty far more intrusive than those at issue in the present case fell within the ambit of Article 5 (the Government referred inter alia to Raimondo v. Italy, 22 February 1994, Series A no. 281‑A; Trijonis v. Lithuania, no. 2333/02, 15 December 2005; Raninen v. Finland, 16 December 1997, Reports of Judgments and Decisions 1997‑VIII; Gartukayev v. Russia, no. 71933/01, 13 December 2005; and also Cyprus v. Turkey, no. 8007/77, Commission decision of 10 July 1978, Decisions and Reports (DR) 13, p. 85, § 235; X. v. Germany, no. 8334/78, Commission decision of 7 May 1981, DR 24, p. 131; Guenat v. Switzerland, no. 2472/94, Commission decision of 10 April 1995, DR 81-B, p. 13). The Government argued that when the power to stop and search was looked at against this background, the ordinary exercise by the police of such a power would plainly not in usual circumstances engage Article 5, and did not do so in the applicants' cases. There were a number of specific features which argued against the applicability of Article 5 in the particular circumstances of each applicant's case. First, the duration of the searches (20 minutes in respect of the first applicant and either five or 30 minutes in respect of the second) was clearly insufficient to amount to a deprivation of liberty in the absence of any aggravating factors. Secondly, the purpose for which the police exercised their powers was not to deprive the applicants of their liberty but to conduct a limited search for specified articles. Thirdly, the applicants were not arrested or subjected to force of any kind. Fourthly, there was no close confinement in a restricted place. Fifthly, the applicants were not placed in custody or required to attend a particular location: they were searched on the spot. | 8 |
120. The Government submitted that the applicant’s complaints under Article <mask> of the Convention should be declared inadmissible, because he failed to exhaust available domestic remedies, namely to appeal against the decisions concerning the extension of his detention of 19 February, 20 March, 18 April, 14 July and 26 December 2003, 18 March, 29 September and 28 December 2004, and 30 March 2005. They further submitted that the decisions to remand the applicant in custody were lawful and well reasoned. The length of his detention was justified by the complexity of his criminal case, the necessity to perform an expert psychiatric examination, the non-appearance of his lawyer, the seriousness of the charges against him and his state of health. | 8 |
42. The applicant complained under Article 5 § 1 of the Convention that his pre-trial detention had not been based on a “reasonable suspicion” that he had committed a criminal offence. He also complained that his pre-trial detention had not been justified by “relevant and sufficient reasons”, as required by Article 5 § 3 of the Convention. Article <mask> of the Convention, in so far as relevant, reads as follows: | 8 |
115. The applicant complained under Article 6 § 1 of the Convention that the national courts by wrongly finding that her claim for damages had been lodged after the statutory limitation period had expired, deprived her of the right of access to court because they had not examined her claim on the merits. She also invoked Article <mask> of the Convention in relation to the taking of her husband by uniformed persons in November 1991. | 8 |
31. The applicant complained in general under Article <mask> of the Convention that his detention had been unlawful. The applicant maintained that he had had to enter into a written undertaking not to abscond, which violated his right to freedom of movement. He relied on Article 2 of Protocol No. 4. He further complained that his detention had led to a deterioration of his health and had placed his life at risk. He invoked Article 2 of the Convention. He also complained under Article 8 of the Convention that the criminal proceedings brought against him had affected his private and family life. | 8 |
106. The Government submitted that the second applicant could no longer claim to be a victim of a violation of Article <mask> of the Convention, given that the Constitutional Court had expressly recognised a violation of his right to liberty related to his continued pre-trial detention. According to the Government, it therefore remained open for the second applicant to seek damages for his allegedly unjustified detention, as provided for under the relevant domestic law. Similarly, the applicant could claim compensation for the overall period he had spent in detention given that he was eventually acquitted. The Government further provided documents showing that in fact subsequently the applicant had availed himself of that possibility and he had been accordingly awarded an adequate compensation of damages. | 8 |
92. The Government denied that the applicant had ever been “detained” because he had not been “arrested in procedural terms” and because no formal “detention measures” had been taken. Rather, the applicant had not been permitted to cross the Russian border and had been offered the possibility of staying in the transit hall of the airport, where he could use the bar and telephone. Accordingly, the Government considered that Article <mask> of the Convention was not applicable in the present case. In any event, they claimed that the applicant had been able to lodge an application for judicial review of his alleged detention with the Moscow Regional Court, which had satisfied the requirements of Article 5 § 4. | 8 |
97. The applicant complained under Article 5 § 1 of the Convention that his pre-trial detention had not been based on a “reasonable suspicion” that he had committed a criminal offence. He also complained that his pre-trial detention had not been justified by “relevant and sufficient reasons”, as required by Article 5 § 3 of the Convention. Article <mask> of the Convention, in so far as relevant, reads as follows: | 8 |
132. The Government took the view that the Bremen Court of Appeal’s assessment of the relevant facts and interpretation of the applicable provisions of national law had not been arbitrary and that the proceedings had therefore not been unfair. They referred in this connection to their submissions concerning Article <mask> of the Convention. They further argued that the applicant and her counsel had had ample opportunities – which they had seized – to question the expert appointed by the court and to comment on his report both orally and in writing. The Court of Appeal, in giving reasons for its judgment, had carefully considered the positions of the parties and the three expert reports before it, two of which had been submitted by the applicant. | 8 |
77. The applicant submitted that special police supervision fell within the ambit of Article <mask> of the Convention and pointed out that failure to observe the rules of conduct attaching to that measure was punishable by a custodial sentence (section 9 of the 1956 Act). The restrictions imposed on him during the period from 4 July 2008 to 4 February 2009 had deprived him of his personal liberty. In his submission, the present case was comparable to Guzzardi v. Italy (6 November 1980, Series A no. 39), in which the Court had found that in view of the particular circumstances of the case, the applicant – who had been subjected to similar measures to those imposed on the applicant in the present case – had been deprived of his liberty, and that there had been a violation of Article 5. | 8 |
93. The applicant submitted that United Nations Security Council Resolution 1546 did not require the United Kingdom to hold him in internment in breach of Article <mask> of the Convention. In Resolution 1546 the Security Council conferred on the United Kingdom a power, but not an obligation, to intern. As the International Court of Justice stated in the Namibia case, “the language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect” (see paragraph 49 above). Where appropriate, the Security Council could require States to take specific action. It did so in the resolutions under consideration in the Kadi and Bosphorus cases (cited above), where States were required, “with no autonomous discretion”, respectively to freeze the assets of designated persons or to impound aircraft operating from the Federal Republic of Yugoslavia. In contrast, the language of Resolution 1546 and the letters annexed thereto made it clear that the Security Council was asked to provide, and did provide, an authorisation to the Multinational Force to take the measures that it considered necessary to contribute to the maintenance of security and stability in Iraq. It did not require a State to take action incompatible with its human rights obligations, but instead left a discretion to the State as to whether, when and how to contribute to the maintenance of security. Respect for human rights was one of the paramount principles of the Charter of the United Nations and if the Security Council had intended to impose an obligation on British forces to act in breach of the United Kingdom’s international human rights obligations, it would have used clear and unequivocal language. It followed that the rule of priority under Article 103 of the Charter of the United Nations did not come into effect. | 8 |
153. The Government found the claim excessive and stated that no compensation for non-pecuniary damage should be awarded since neither the applicant’s nor his successor’s rights had been violated in the present case. They further submitted, however, that should the Court find a violation of Article <mask> of the Convention in respect of the applicant, (i) it would be irrelevant to the claim made by his mother; and (ii) the finding of a violation would constitute sufficient just satisfaction in the present case. | 8 |
44. The Government contested the applicant’s argument that house arrest had constituted a deprivation of liberty within the meaning of Article <mask> of the Convention. They suggested that the measure should be examined as a restriction of freedom of movement under Article 2 of Protocol No. 4 to the Convention. In any event, they considered that the coercive measure had been justified in view of the prior breach of the applicant’s residence order. They submitted that although the investigator’s order to apply a written undertaking not to leave the city of Moscow, dated 17 December 2012, could be “interpreted in different ways”, it did not absolve the applicant from obtaining prior authorisation from the investigator for travelling to Moscow Region. They maintained that the requirement of prior authorisation set out in Article 102 of the Code of Criminal Procedure had remained valid irrespective of the investigator’s decision of 17 December 2012. They submitted that the cancellation of that decision by the investigator himself on 13 January 2014 corroborated their argument. They also pointed out that the applicant had not gone to the investigator’s office to study the criminal case file on 19 December 2013. | 8 |
52. The Government submitted that the applicant’s detention had been lawful within the meaning of the domestic law and had been justified by the reasonable suspicion that he had committed a crime. They added that there had been “adequate” and “sufficient” grounds for the applicant’s continued detention. They thus considered that his detention had been in compliance with Article <mask> of the Convention. | 8 |
61. The applicant complained that the supervisory review of his release on bail conducted on 15 June 2006 and his ensuing remand in custody on 20 June 2006 had, as such, been unlawful, and that the procedure followed, in particular, the authorities’ failure to ensure his presence at the hearing, had been incompatible with the requirements of Article <mask> of the Convention. The relevant parts of Article 5 of the Convention read as follows: | 8 |
16. The Government stated that there was no violation of the applicant’s rights under Article <mask> of the Convention in the present case. Initially the applicant was placed in detention because there was a “reasonable suspicion” that he had committed a crime. The preventive measure was selected according to the procedure and on the grounds prescribed the domestic law. Before deciding on the prolongation of the applicant’s detention the court examined the case-files and heard the arguments of the interested parties, the courts’ decisions were lawful and substantiated. | 8 |
116. The applicant’s submission was that his placement in the Īle Centre together with people with mental disorders did not fall within any of the grounds on which deprivation of liberty could be justified under Article <mask> of the Convention. The domestic authorities had based their decisions to place the applicant in the Īle Centre solely on the fact that his family were not prepared to take care of him and that he needed social assistance. The authorities had not examined whether the necessary assistance could be provided through alternative measures that were less restrictive of his personal liberty. | 8 |
85. The Government further submitted that there had been no violation of Article 5 § 1 of the Convention on account of any incorrect application of the national law. The applicant had not attempted to institute criminal proceedings against the persons responsible for her detention in Dr Heines’s clinic. Her civil action for damages against the clinic had been dismissed by the Bremen Court of Appeal. However, even assuming that Article <mask> of the Convention had to be taken into consideration by that court in construing the provisions of German civil law applicable to the case, its interpretation could not be regarded as arbitrary. Regard had to be had to the margin of appreciation enjoyed by the Contracting States in this sphere. | 8 |
19. The applicant complained that, contrary to Article 5 §§ 1 and 3 of the Convention, her remand in custody had not been based on a reasonable suspicion that she had committed a criminal offence and that the courts had failed to give any relevant and sufficient reasons for its decision. The relevant part of Article <mask> of the Convention reads as follows: | 8 |
55. The Government argued that a degree of friction between the capacity available in custodial clinics and the capacity required should be regarded as acceptable, having regard to the need to manage and balance public spending. Given the twofold purpose of a TBS order, namely to provide the person concerned with care and treatment for his mental disorder and to protect the public against the danger posed by this disorder, a period in which no treatment could be given could not be regarded as unlawful or incompatible with Article <mask> of the Convention. | 8 |
65. The Government further submitted that appeal prohibitions could be set aside, in accordance with the case-law of the Supreme Court and the Supreme Administrative Court (see above § 26), if a decision that was excluded from appeal concerned a person’s civil rights or obligations under Article <mask> of the Convention. Therefore, if the applicant’s complaint was considered to be a civil right, she would have had the right to have her case examined on the merits by a court of law, notwithstanding the appeal prohibition in Section 39 of the 2000 Ordinance. Hence, the Government contended that the applicant should have submitted an appeal to the domestic courts. By not having done so, the applicant had failed to exhaust domestic remedies. | 9 |
19. The Government submitted that, as a result of a bailiff's error in the course of the enforcement proceedings conducted in 2001, the amount of RUR 30,084, instead of being transferred to the applicant, had been used to cover the bailiffs' fees. The mistake had been rectified on 9 March 2006, when the amount was transferred to the applicant by postal order. The Government acknowledged that the five-year delay in executing the judgment in the applicant's favour constituted a violation of her rights under Article <mask> of the Convention and Article 1 of Protocol No. 1. | 9 |
66. The applicant submitted that once a warrant of prohibitory injunction was issued, it continued to have effect until the final outcome of the proceedings, unless it was revoked before that date. Thus, the injunction proceedings in which the warrant was granted affected the civil rights of the parties, albeit provisionally, for a certain period of time. Thus, considering the far-reaching effects resulting from such a warrant, Article <mask> of the Convention applied, especially in the Maltese context. | 9 |
40. The applicant complained that she had not had access to the Austrian courts in connection with her claim for payment of salary from September 1996 onwards arising out of her employment contract with the embassy of the United States of America in Vienna. She relied on Article <mask> of the Convention, the relevant part of which reads as follows: | 9 |
24. The applicant company submitted that the decisions in the present case did not concern obvious mistakes. The addition of costs which had not been included in the original decisions cannot be regarded as evident. The applicant company relied on the case of Beer v. Austria in which the Court had found that the failure to serve a cost appeal in summary appeal proceedings against a cost order constituted a breach of Article <mask> of the Convention (Beer v. Austria, no. 30428/96, § 20, 6 February 2001). Subsequently the Austrian legislature changed the relevant provisions of the Code of Civil Procedure introducing a new Article 521a § 4, according to which also in cost proceedings the opposing party had to be heard. Even though the instant proceedings differed in their subject matter from appeal proceedings against a cost order, the applicant company should have been given the opportunity to comment on the opposing parties' request for correction. | 9 |
27. The Government argued that at this preliminary stage there was no objective need for more complex reasoning by the judge rapporteur, apart from a reference to the relevant provision of the Criminal Procedure Law. In support the Government relied of the cases of Gorou v. Greece (no. 2) ([GC], no. 12686/03, 20 March 2009), and Bufferne v. France ((dec.), no. 54367/00, ECHR 2002‑III (extracts)) in which the Court has not found such a practice incompatible with the requirement of sufficient reasoning under Article <mask> of the Convention. Given that the applicant submitted her appeal on points of law in an attempt to achieve a re-examination of evidence already assessed by the appellate court, and that the appeal on points of law did not cite any violation susceptible to the institution of cassation proceedings, the Government contended that the impugned decision contained sufficient reasoning. | 9 |
44. The applicants referred first of all to the principle established in the Court’s case-law concerning the application of Article <mask> of the Convention, to the effect that the accused must be given the opportunity to be confronted with witnesses against them and to examine them. They argued that this principle was particularly important when the testimony in question was the main evidence for the prosecution. The opportunity to be confronted with and to examine a witness could be provided when the statement was taken or at another stage of the proceedings. | 9 |
72. The applicant complained under Article 6 that he did not understand the charges against him during his deportation. The Court notes that there were no judicial proceedings concerning the applicant’s removal from the territory of Ukraine and that any such proceedings would fall outside the scope of Article <mask> of the Convention (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000‑X). Despite its findings that the applicant’s expulsion has appearances of extradition in disguise (see paragraph 58 above), the Court considers that this does not preclude it from examining the question of whether the removal of the applicant from the territory of Ukraine, which was formally presented as expulsion, complied with the Convention requirements. Being master of the characterisation to be given in law to the facts of the case, the Court decides to examine the problem raised by the applicant under Article 1 of Protocol No. 7, which reads as follows: | 9 |
58. The Government submitted that the applicant’s ill-treatment had been the subject of a thorough investigation which resulted in the identification and punishment of the perpetrators. The punishment received by the police officers was proportionate to the seriousness of the crimes which they had committed. Moreover, Moldovan law distinguished between petty crimes, crimes of average gravity, as well as serious, very serious and exceptionally serious crimes. Since the crime committed by the police officers was considered an average level one, the punishment of two years’ imprisonment passed on 22 April 2002 constituted an appropriate punishment. The quashing of that judgment had been the result of a desire by the domestic courts to observe the accused’s rights under Article <mask> of the Convention to have a fully reasoned judgment. | 9 |
48. The applicants complained that they had been unlawfully denied access to court and that the rejection of their claim for trespass had interfered with their property rights. They belatedly submitted comments, which, for that reason, were not admitted to the case file. They relied on Article <mask> of the Convention, and Article 1 of Protocol No 1, respectively, the latter of which provides: | 9 |
46. The Government submitted that the applicant had enjoyed full access to a court. He had been able to challenge the order for his dismissal, and the Supreme Administrative Court had, within the limits of its competence, ruled on that order’s lawfulness. The psychological assessment underpinning the order had not been the subject matter of the judicial review proceedings. It had not been an administrative decision and could not have itself been challenged by way of judicial review. The body which had made the assessment, the Psychology Institute of the Ministry of Internal Affairs, was a specialised body whose tasks included assessing, on the basis of a range of criteria laid down in Instruction no. I‑37 of 5 March 2001, the mental fitness of the Ministry’s staff. Because of that, its assessments could not be subjected to judicial scrutiny. Once the Institute had assessed a member of staff to be mentally unfit for work, the Minister had no discretion and was bound to dismiss that person. The Supreme Administrative Court had found that in the applicant’s case the procedure governing the manner in which the assessment was to be carried out had been followed, that the Institute had assessed the applicant to be mentally unfit for work, and that as a result the Minister had, by means of a reasoned decision, dismissed the applicant from his post. The Government also drew attention to this Court’s statement in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, § 62, ECHR 2007‑II) that its conclusion on the applicability of Article <mask> of the Convention to proceedings concerning the employment of civil servants was without prejudice to the question as to how the various guarantees of that Article should be applied in such proceedings. | 9 |
45. The Government further argued that the applicant had not complained of a violation of his right to peaceful enjoyment of his possessions in the proceedings before the domestic courts. In particular, in his constitutional complaint the applicant had only complained of violations of his constitutional rights to equality before the courts and a fair hearing, which corresponded in substance to Article <mask> of the Convention. | 9 |
78. The applicants complained that the forest authority had launched a campaign against them and had fined some of them for having used their own land. Mr Aliosman Kehaya complained, in addition, that he had not been summoned to the 1998 proceedings concerning the fines against him. Mr Kestendjiev complained that he could not obtain reimbursement despite the fact that the fine imposed on him had been set aside. The applicants relied on Article 1 of Protocol No. 1 to the Convention and also on Article <mask> of the Convention. | 9 |
20. The applicant complained of a violation of his right to a fair trial under Article <mask> of the Convention because of the refusal of the domestic courts to suspend or adjourn the criminal proceedings initiated by C.T. against him for false accusation, perjury and slander until the end of the criminal proceedings he had initiated against C.T. for breach of duty, extortion and bribery. The provision in question reads as follows: | 9 |
24. The applicant complained under Article 6 § 2 of the Convention that in the District Court’s decision of 18 June 2009, by which his pre-trial detention had been extended, it had been taken as established that he had committed a criminal offence, which violated his right to be presumed innocent. The relevant part of Article <mask> of the Convention reads as follows: | 9 |
27. The Government submitted that the right of access to a court was not absolute and the requirement to pay fees in connection with civil claims could not be regarded as incompatible per se with Article <mask> of the Convention. They further maintained that the fee required from the applicant in the present case had been neither excessive nor arbitrary. | 9 |
44. The applicant further complained under Article <mask> of the Convention that the domestic courts had erred in the assessment of the facts of the case and their legal qualification. He also challenged the assessment of evidence and testimony of the prosecution witness and the expert. Lastly, relying on Article 7 of the Convention, he complained that there had been no proof that he had committed any crime. | 9 |
19. The applicant company submitted that the quashing of the judgment of 18 July 2007 had violated its right to a fair trial as guaranteed by Article <mask> of the Convention. The letter of 13 July 2007 of the Department for the Execution of Judgments had not disclosed any “new and essential facts or circumstances which were unknown and could not have been known earlier” in the sense of Article 449 (c) of the Code of Civil Procedure. The applicant company stressed that the information in the letter of 13 July 2007 could have been obtained by the applicant at any time between 2001 and 2007. The applicant company concluded that the request for review had in essence been an appeal in disguise and breached the principle of legal certainty. | 9 |
25. The applicant complained that the presumption of innocence as guaranteed by Article 6 § 2 of the Convention had been violated and submits that the Independent Administrative Panel had applied a reversal of the burden of proof. The applicant further complained about the Austrian authorities’ failure to hear J. Z. in the proceedings before the Independent Administrative Panel as a witness. The applicant complained that no prosecuting authority participated in the proceedings before the Independent Administrative Panel and that therefore the member of the Independent Administrative Panel acted both as judge and prosecutor. He submits that, therefore, he did not have a fair hearing by a tribunal within the meaning of Article <mask> of the Convention. Finally, the applicant complained about the lack of an oral hearing before the Administrative Court. | 9 |
116. The applicant complained that she had not been able to initiate compensation proceedings against the State authorities in respect of the ill-treatment and death of her son in the army because of a jurisdictional conflict between the national civil and administrative courts. She therefore complained that she had been denied an effective domestic remedy in respect of her complaints under Articles 2 and 3 of the Convention. Although the applicant relied on Article <mask> of the Convention, the Court considers, having regard to the substance of this complaint that it would be more appropriate to examine it from the standpoint of Article 13 of the Convention, which reads as follows: | 9 |
43. The applicants complained under Article <mask> of the Convention that they had been denied a fair trial with regard to their civil rights, as they had been refused a full legal review of the Government’s decision to permit the construction of the railway, which was situated on or close to their properties. The latter decision had significantly affected the applicants’ property as well as the environment in the area concerned. Article 6 § 1 of the Convention reads, in so far as relevant, as follows: | 9 |
37. The applicant complained under Article <mask> of the Convention of the unfairness of the proceedings leading to the imposition of the custodial penalty on him. In particular, the applicant complained of a lack of impartiality on the part of judges in that the judges who had witnessed the impugned incident had later imposed the penalty for contempt of court. He also alleged inequality of arms and a lack of objectivity on the part of the court in that he had had no time and facilities to prepare his defence, he had not been allowed to present arguments by the court or even, to be present when the penalty had been ordered. The applicant also complained that the decision on the imposition of the penalty for contempt of court had not been reasoned. | 9 |
31. The applicant contested the argument that he had not exhausted domestic remedies. He argued that even though he had not explicitly referred to Article <mask> of the Convention, he had raised such a complaint in substance before the Court of Appeal and the Court of Cassation. The domestic courts had been aware of the Court’s first judgment and therefore the only interpretation of a refusal to grant his request for a suspension was that such a refusal would not be in line with the first judgment. He had thus given the domestic courts the opportunity to provide redress for the alleged violation. | 9 |
18. The applicant complained under Article <mask> of the Convention that her right to a fair trial had been violated stating, inter alia, that she was unable to lodge an appeal on points of law against the judgment of the Court of Appeal of 15 October 2007 since she could not afford the services of an advocate licensed to act before the Court of Cassation. The Court considers that the applicant’s complaint essentially raises an issue of access to court and should therefore be examined from the standpoint of Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows: | 9 |
57. The applicant submitted that the Constitutional Court had changed its interpretation of the Salduz judgment in 2012 and 2013 (see relevant domestic law) and that different conclusions had been arrived at in such cases. He noted that these conflicting judgments ran counter to the principle of legal certainty. It was the Constitutional Court’s role to create certainty; however, concerning this subject matter it had done just the opposite. The applicant relied on the case of Beian (cited above). He noted that in The Police vs Alvin Privitera of 11 April 2011, The Police vs Esron Pullicino of 12 April 2011 and The Police vs Mark Lombardi, also of 12 April 2011, the Constitutional Court had held that the claimants had suffered a breach of their right to a fair trial under Article <mask> of the Convention in so far as they had not been legally assisted. This interpretation had been reversed in the judgments in the cases of Joseph Bugeja vs The Attorney General, 14 January 2013, The Police vs Tyron Fenech, 22 February 2013 and The Police vs Amanda Agius, also of 22 February 2013, as well as in the applicant’s case, decided on 26 April 2013. The interpretation had again been reversed by the first-instance court in The Republic of Malta vs Alfred Camilleri of 12 November 2012, albeit that, pending proceedings before this Court, the decision was once again overturned by the Constitutional Court in retrial proceedings. Moreover, the Government’s argument that the Constitutional Court had created a linear interpretation dependent on the age of the victim was also disproved by the recent judgment in Taliana vs Commissioner of Police et al, (Civil Court (First Hall) constitutional jurisdiction, 30 April 2014 – now pending on appeal before the Constitutional Court), which had not found a violation despite the applicant being a minor. | 9 |
59. The Government submitted that, although the applicant had not been given the opportunity to follow the interviews of the four victims by the police and had not been able to have questions put to them, the use in evidence of these four victims' statements was not contrary to his rights under Article <mask> of the Convention. In the first place, the applicant had consistently disputed the victims' identification of him as the perpetrator, but not the facts of the case. Secondly, the public prosecutor had refused the applicant's request to take further evidence from the victims considering that this would be extremely distressing for the children. Moreover, the applicant had failed to indicate on what grounds he wished to query the identification procedure and the statements taken from the four boys during the initial investigation. Thirdly, the Court of Appeal did grant his request to take further evidence from the adult witnesses, Mrs E. and Mrs F., whose statements corroborated the children's statements, and from the police officers X., Y. and Z. The Government further pointed out that, after X., Y. and Z. had been heard before the Court of Appeal on 16 April 1998, the applicant's lawyer had indicated that the defence did not wish to take further evidence from them or any other witnesses and did not explicitly persist in its request to hear the four children. | 9 |
22. The Government disagreed. They emphasised that the extent to which the duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision. Moreover, while Article <mask> of the Convention guarantees a right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts. | 9 |
54. The applicant complained that the criminal proceedings initiated at his request were unfair and that therefore, there had been a breach of Article <mask> of the Convention. The Court reiterates that the Convention does not guarantee the right to pursue criminal proceedings against third persons and that Article 6 does not apply to proceedings aimed at instituting criminal proceedings against third persons. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4. | 9 |
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